Saleh v. Valbin Corp.

          ORDER GRANTING MOTION FOR CONDITIONAL FLSA COLLECTIVE ACTION CERTIFICATION AND ISSUANCE OF NOTICE RE: DKT. NO. 47

          LUCY H. KOH, UNITED STATES DISTRICT JUDGE

Plaintiff Reshad Saleh (“Saleh”), on behalf of himself and all others similarly situated, brings this action against Defendant Valbin Corporation (“Valbin”). Before the Court is Saleh's Motion for Conditional FLSA Collective Action Certification and Issuance of Notice. ECF No. 47. Having considered the parties' briefing, the relevant law, and the record in this case, the Court GRANTS Saleh's Motion for Conditional FLSA Collective Action Certification and Issuance of Notice.

         I. BACKGROUND

         A. Factual Background

         Saleh alleges that he is a former employee of Valbin who worked as a non-exempt role player at the Fort Hunter Liggett Military Base in California. ECF No. 1 (“Compl.”) ¶¶ 25-26. Many members of the U.S. military deploying to the Middle East or neighboring regions undergo training at Fort Hunter Liggett that “includes simulation training in fabricated Middle Eastern villages, ” other terrains, and simulated battlefields featuring native role players. Id. ¶ 37. “The villages are created to look like real villages from Iraq, Afghanistan, or other Middle Eastern countries and have attributes such as mosques [and] traffic circles.” Id. ¶ 39. During rotations lasting between three and nineteen days, the role players inhabit the villages and other terrain. Id. ¶¶ 40, 45.

         Saleh alleges that during a rotation, role players were required to be in character twenty-four hours per day. Id. ¶ 46. Once a role player arrived at Fort Hunter Liggett to begin a rotation, he was not allowed to leave the base for any reason. Id. ¶ 47. Role players resided and slept in the simulated village, military tents, or similar accommodations with no running water, electricity, heating, or air conditioning, according to Saleh. Id. ¶¶ 48, 84, 92, 96. Saleh alleges that exercises occurred at all hours of the day and night, id. ¶ 53, and that as a result his sleep was regularly interrupted and he was not able to get five hours of uninterrupted sleep, id. ¶¶ 81-82, 107-08. Saleh alleges that he was not compensated for sleep time. Id. ¶¶ 8-9. Finally, Saleh alleges that he regularly worked more than forty hours per week, id. ¶ 106, and was not paid overtime in accordance with 29 U.S.C. § 207, Compl. ¶¶ 124-25.

         B. Procedural History

         On February 6, 2017, Saleh filed the instant collective action complaint against Valbin. Compl. Saleh alleges two causes of action: (1) Failure to Pay Proper Overtime Wages in violation of FLSA, 29 U.S.C. § 207; and (2) Declaratory Relief. Id. Between August 7, 2017, and October 9, 2017, Saleh filed notices of consent to sue under FLSA for Andrew Ayon (ECF No. 35), Mouayed Vawood (ECF No. 39), Nabil Jany (ECF No. 45), Janan Dawood (ECF No. 50), John Pauls (ECF No. 51), Shallah Obaid (ECF No. 52), Sahara Louissa (ECF No. 53), Adnan Buni (ECF No. 56), and Mustafa Saleh (ECF No. 57).

         On September 6, 2017, Saleh filed the instant motion for conditional collective action certification. ECF No. 47 (“Mot.”). On September 20, 2017, Valbin filed an opposition. ECF No. 49 (“Opp.”). On September 27, 2017, Saleh filed a reply. ECF No. 54 (“Reply”). On September 28, 2017, Valbin filed a motion for partial summary judgment against Nabil Jany and Janan Dawood on the basis that any applicable period of limitations had expired as to them. ECF No. 55. On October 12, 2017, Saleh filed a statement of non-opposition to the motion for partial summary judgment. ECF No. 58. On October 13, 2017, the Court granted the motion for partial summary judgment as to Nabil Jany and Janan Dawood. ECF No. 59.

         II. LEGAL STANDARD

         Under 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 participants in 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.

         Determining 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 participants are “similarly situated.” Id. The FLSA does not define the term “similarly situated, ” nor has the Ninth Circuit defined it. Rivera v. Saul Chevrolet, Inc., No. 16-CV-05966-LHK, 2017 WL 3267540, at *2 (N.D. Cal. July 31, 2017). 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.^[1] See Colson v. Avnet, Inc., 687 F.Supp.2d 914, 925 (D. Ariz. 2010) (Murguia, J.) (“[D]istrict courts within the Ninth Circuit generally follow the two-tiered or two-step approach for making a collective action determination.”); Leuthold, 224 F.R.D. 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) (noting that “conditional certification” involves the exercise of the district court's “discretionary power, upheld in Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165 (1989), to facilitate the sending of notice to potential class members, ” and approving ad hoc approach).

         Under the two-tiered approach, the court first makes an initial “notice stage” determination of whether potential opt-in plaintiffs exist who are similarly situated to the representative plaintiffs, and thus whether a collective action should be certified for the purpose of sending notice of the action to potential collective action participants.^[2] See, e.g., Thiessen, 267 F.3d at 1102; Wellens v. Daiichi Sankyo, Inc., No. 13-cv-00581-WHO, 2014 WL 2126877 at *1 (N.D. Cal. May 22, 2014) (“The question is essentially whether there are potentially similarly-situated class members who would benefit from receiving notice at this stage of the pendency of this action as to all defendants.”). “In other words, at this preliminary stage, the focus of the inquiry ‘is not on whether there has been an actual violation of law but rather on whether the proposed plaintiffs are similarly situated under 29 U.S.C. § 216(b) with respect to their allegations that the law has been violated.'” Guillen v. Marshalls of MA, Inc., 750 F.Supp.2d 469, 475 (S.D.N.Y. 2010) (quoting Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005)) (internal quotation marks omitted).

         For conditional certification at this notice stage, the court requires little more than substantial allegations, supported by declarations or discovery, that “the putative class members were together the victims of a single decision, policy, or plan.” Thiessen, 267 F.3d at 1102; see also Myers, 624 F.3d at 555 (noting plaintiffs must make a “modest factual showing”); Morton v. Valley Farm Transp., Inc., 2007 WL 1113999, at *2 (N.D. Cal. Apr. 13, 2007) (describing burden as “not heavy” and requiring plaintiffs to merely show a “reasonable basis for their claim of class-wide” conduct (internal quotation marks and citation omitted)); Stanfield v. First NLC Fin. Serv., LLC, 2006 WL 3190527, at *2 (N.D. Cal. Nov. 1, 2006) (holding that the plaintiffs simply “must be generally comparable to those they seek to represent”). The standard for certification at this stage is a “fairly lenient” one that typically results in certification. Wynn v. Nat'l Broadcasting Co., 234 F.Supp.2d 1067, 1082 (C.D. Cal. 2002).

         Once discovery is complete, and the case is ready to be tried, the party opposing collective action certification may move to decertify the collective action. Leuthold, 224 F.R.D. at 467. “[T]he Court then determines the propriety and scope of the collective action using a stricter standard.” Stanfield, 2006 WL 3190527 *2. At that point, “the court may decertify the class and dismiss the opt-in plaintiffs without prejudice.” Leuthold, 224 F.R.D. at 467. It is at this second stage that the Court makes a factual determination about whether the opt-in plaintiffs are actually similarly situated, by weighing such factors as: “(1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to the defendants with respect to the individual plaintiffs; and (3) fairness and procedural considerations.” Id. (citing Thiessen, 267 F.3d at 1103).

         Notably, collective actions under the FLSA are not subject to the requirements of Rule 23 of the Federal Rules of Civil Procedure for certification of a class action. Thiessen, 267 F.3d at 1105. Thus, even at the second stage, “[t]he requisite showing of similarity of claims under the FLSA is considerably less stringent than the requisite showing under Rule 23 of the Federal Rules of Civil Procedure. All that need be shown by the plaintiff is that some identifiable factual or legal nexus binds together the various claims of the collective action members in a way that hearing the claims together promotes judicial efficiency and comports with the broad remedial policies underlying the FLSA.” Hill v. R Carriers, Inc., 690 F.Supp.2d 1001, 1009 (N.D. Cal. 2010) (quoting Wertheim v. Arizona, 1993 WL 603553, at *1 (D. Ariz. Sept. 30, 1993)).

         III. DISCUSSION

         A. Saleh's Claims

         Saleh seeks to bring this action on behalf of “[a]ll current and former Role-Players who worked for Defendant at Fort Hunter-Liggett at any time between February 3, 2014 and the present.” Reply at 7. Saleh argues that he is similarly situated to the putative collective action participants because Valbin “systematically: (1) failed to provide Plaintiffs with private quarters in a homelike environment; (2) failed to provide Plaintiffs with at least five . . . hours of uninterrupted sleep time per day; and (3) allowed Plaintiffs to work in excess of 40 hours per week without being paid all of their overtime.” Mot. at 2. As to overtime, Saleh claims that he never entered into an agreement to exclude from hours worked a regularly scheduled uninterrupted sleeping period. Compl. ¶ 109. In addition, Saleh claims that Valbin had a policy of compensating a maximum of thirteen hours of work per day, regardless of how many hours an employee actually worked. Mot. at 2. In support of his motion for conditional collective action certification, Saleh submits his own declaration, as well as the declarations of opt-in plaintiffs Andrew Ayon and Nabil Jany^[3] ...