United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION FOR CONDITIONAL FLSA COLLECTIVE
ACTION CERTIFICATION AND ISSUANCE OF NOTICE RE: DKT. NO.
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.
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.
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.
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).
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.
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.
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. 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).
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. 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).
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).
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).
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,
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 ...