United States District Court, N.D. California, San Jose Division
ORDER DENYING WITH PREJUDICE SECOND MOTION TO
CONDITIONALLY CERTIFY FLSA COLLECTIVE ACTION RE: DKT. NO.
H. KOH, UNITED STATES DISTRICT JUDGE
Marcos Rivera (“Plaintiff”), on behalf of
himself, the public, and all others similarly situated,
brings this action against Saul Chevrolet, Inc.; Cardinale
Automotive Group of Tahoe, Inc.; Cardinale Automotive Group;
Volkswagen Hyundai; Cardinale Oldsmobile GMC Truck, Inc.;
Cardinale AG Motorbike, Inc.; Cardinale Nissan, Inc.;
Cardinale Protective Services, Inc.; Cardinaleway Nevada AG
Inc.; Cardinaleway Acura; Cardinale Automotive Group-Arizona,
Inc.; Cardinaleway Mazda AT Peoria; and Cardinaleway Mazda AT
Superstition Springs (collectively,
“Defendants”). Before the Court is
Plaintiff's Second Motion to Conditionally Certify a FLSA
Collective Action and Send Notice to the Class. ECF No. 128
(“Mot.”). Having considered the parties'
briefing, the relevant law, and the record in this case, the
Court DENIES with prejudice Plaintiff's Second Motion to
Conditionally Certify FLSA Collective Action.
alleges that he is a former employee of Defendants who worked
at “Defendants' Corona, California [automobile]
dealership as a non-exempt parts and service counter
salesperson.” ECF No. 1 (“Compl.”) ¶
10. Specifically, Plaintiff worked at a dealership called
Cardinale Mazda, which is owned by Defendant Saul Chevrolet,
Inc. (“Saul Chevrolet”). Id. Defendants
allegedly own multiple car dealerships and “were, at
all times relevant hereto, the alter egos of each
other.” Id. ¶ 29.
began working at Cardinale Mazda on March 4, 2015. ECF No.
74-1 ¶ 3. Plaintiff was paid $3, 000 per month while
working for Defendants and was promised commissions based on
sales. Compl. ¶ 31. Plaintiff alleges, however, that the
“commission structure was a mirage.” Id.
Plaintiff asserts that, as a result, Plaintiff “was
entitled to payment for each of his hours worked, including
substantial overtime worked (at one and one-half times his
‘regular rate of pay, ' based on his
salary).” Id. Plaintiff also alleges that
Defendants required Plaintiff and other employees to work
“off the clock, ” which resulted in unpaid wages
and unpaid overtime. Id. ¶ 32.
October 14, 2016, Plaintiff filed the instant class action
and Fair Labor Standards Act (“FLSA”) collective
action suit against Defendants. See Compl. Plaintiff
alleges nine causes of action: (1) Failure to Pay Overtime
Compensation in violation of FLSA, 29 U.S.C. § 207; (2)
Failure to Pay Compensation for All Hours Worked and Minimum
Wage Violations in violation of California Labor Code
§§ 216, 1194, 1194.2, 1197; (3) Failure to Pay
Overtime Compensation in violation of California Labor Code
§§ 1194; (4) Failure to Pay Meal and Rest Period
Compensation in violation of California Labor Code
§§ 226.7, 512; (5) Waiting Time Penalties under
California Labor Code § 203; (6) Failure to Pay All
Wages by the Appropriate Pay Period in violation of
California Labor Code § 204; (7) Failure to Provide
Accurate Itemized Statements in violation of California Labor
Code § 226; (8) Private Attorney General Act, Cal. Labor
Code § 2699; and (9) Unfair Business Practices in
violation of California Business and Professions Code §
17200, et seq. See Compl. ¶¶ 44-92.
February 18, 2017, Defendants filed a motion to compel
arbitration. ECF No. 68. On March 6, 2017, Plaintiff filed an
opposition, ECF No. 74, and on March 13, 2017, Defendants
filed a reply, ECF No. 77. On May 9, 2017, the Court denied
Defendants' motion to compel arbitration. ECF No. 88.
22, 2017, Plaintiff filed a motion to Conditionally Certify a
FLSA Collective Action and Send Notice to the Class.
See ECF No. 105. On June 30, 2017, Defendants filed
an opposition, ECF No. 110, and on July 13, 2017, Plaintiff
filed a reply, ECF No. 111. On July 31, 2017, the Court
denied Plaintiff's motion to Conditionally Certify a FLA
Collective Action and Send Notice to the Class. ECF No. 115.
The Court found that Plaintiff (1) failed to “identify
the ‘single decision, policy, or plan' that
affected all of the putative collective action
members”; (2) “fail[ed] to provide any evidence
that anyone but Plaintiff worked unpaid overtime”; (3)
“fail[ed] to provide sufficient evidence that Plaintiff
and members of the putative collective action members have
similar job responsibilities and pay structures”; and
(4) failed to “provide sufficient evidence that
whatever decision, policy, or plan exists in this case
extended to all Defendants and their dealerships.”
Id. at 8-9. The Court afforded Plaintiff leave to
file a second motion to conditionally certify a FLSA
collective action, but cautioned Plaintiff that
“[f]ailure to cure the deficiencies identified in this
order . . . will result in a denial with prejudice of
conditional certification of FLSA collective action.”
Id. at 18.
September 11, 2017, Plaintiff filed the instant Second Motion
to Conditionally Certify a FLSA Collective Action and Send
Notice to the Class. See Mot. Although
Plaintiff's complaint sought certification of a
collective action of all “non-managerial”
employees that worked for Defendants, Plaintiff now seeks
certification of the following collective action:
“[A]ll non- managerial Employees at any of
Defendant's dealerships from October 11, 2013 to present
who worked as parts salespeople, counterpeople, or
associates, auto salespeople or associates, or maintenance
employees or associates and who were paid a base amount,
whether by salary or by draw, with the possibility of a
commission payment.” Mot. at 15. On September 25, 2017,
Defendant filed an opposition, ECF No. 129
(“Opp'n”), and on October 2, 107, Plaintiff
filed a reply. ECF No. 131 (“Reply”).
the FLSA, an employee may bring a collective action on behalf
of other “similarly situated” employees. 29
U.S.C. § 216(b). In contrast to class actions pursuant
to Rule 23 of the Federal Rules of Civil Procedure, potential
members of a collective action under the FLSA must “opt
in” to the suit by filing a written consent with the
court in order to benefit from and be bound by a judgment.
Centurioni v. City & Cty. of S.F, 2008 WL
295096, at *1 (N.D. Cal. Feb. 1, 2008); see also 29
U.S.C. § 216(b) (“No employee shall be a party
plaintiff to any such action unless he gives his consent in
writing to become such a party and such consent is filed in
the court in which such action is brought.”). Employees
who do not opt in are not bound by a judgment and may
subsequently bring their own action. Centurioni,
2008 WL 295096 at *1.
whether a collective action is appropriate is within the
discretion of the district court. See Leuthold v.
Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal.
2004). The plaintiff bears the burden to show that the
plaintiff and the putative collective action members are
“similarly situated.” Id. The FLSA does
not define the term “similarly situated, ” nor
has the Ninth Circuit defined it. Id. Although
various approaches have been taken to determine whether
plaintiffs are “similarly situated, ” courts in
this circuit have used an ad hoc, two-step
approach.See Id. at 467 (“The court
proceeds under the two-tiered analysis, given that the
majority of courts have adopted it.”); see also
Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095,
1102 (10th Cir. 2001) (discussing three different approaches
district courts have used to determine whether potential
plaintiffs are “similarly situated” and finding
that the ad hoc approach is arguably the best of the three
approaches); Zavala v. Wal-Mart Stores Inc., 691
F.3d 527, 536 (3d Cir. 2012) ...