CHRISTINE M. ARGUELLO, District Judge.
This matter is before the Court on the Recommendation of United States Magistrate Michael E. Hegarty (Doc. # 133), wherein he recommends that this Court grant in part and deny in part Plaintiff's Motion for the Production of Contact Information and Judicial Notice (Doc. # 94) and Motion to Equitably Toll the State of Limitations (Doc. # 95). The parties timely filed objections to portions of the Recommendation. (Doc. ## 134, 135, 136.) Based on this Court's thorough review, the Court adopts the Recommendation for the following reasons.
On March 23, 2018, this Court dismissed various defendants in this case. The remaining defendants are comprised of restaurants in Colorado as well as the alleged owners or managers of the restaurants: Compadres Inc., Tequilas Thornton Number 6, LLC, Jose Raigoza De Jesus Garcia, and Rodrigo Sanchez (Defendants, collectively). Plaintiff worked as a waiter and bartender at the restaurants from October 24, 2016 to February 22, 2017. Plaintiff alleges that, during this time, Defendants failed to pay him overtime, retained tips for management, failed to provide adequate notice related to the tip credit, and over-reported his tips on his pay stubs.
Plaintiff accordingly commenced this lawsuit on behalf of himself and others similarly situated, bringing claims against Defendants under the Fair Labor Standards Act (FLSA) and the Colorado Wage Claim Act (CWCA). Plaintiff now seeks an order (1) requiring Defendants to provide him a list of putative collective action members and their contact information, (2) approving and authorizing the dissemination of his proposed Notice and Consent to Join Forms, and (3) granting his request to toll the FLSA's statute of limitations from the date he effectuated service of the Complaint. Plaintiff also contends that conditional certification of a collective action pursuant to § 216(b) of the FLSA "is not actually necessary" at this stage in the proceedings.
Magistrate Judge Hegarty recommends that this Court grant in part and deny in part these requests. Specifically, Magistrate Judge Hegarty recommends that this Court:
The parties timely objected to portions of these recommendations.
In particular, Plaintiff objects to (1) this Court utilizing the collective certification process outlined in § 216 of the FLSA; (2) Magistrate Judge Hegarty's proposed limitation of the collective to bartenders, servers, and cooks; and (3) Magistrate Judge Hegarty's proposed revisions to the Notice and Consent to Join Forms. Plaintiff also states that he "reiterates" his arguments regarding equitably tolling the statute of limitations but "understand[s] [Magistrate] Judge Hegarty's logic for the October date as well." (Doc. # 136 at 12.) Defendants object to (1) including the phrase "who worked for Defendants" in the proposed class definitions; (2) ordering Defendants to provide Plaintiff with "any and all other contact information" for putative class members; and (3) permitting Notice to be posted on social media platforms.
With respect to these objections, the Court reviews the Recommendation de novo. In so doing, this Court "may accept, reject, or modify the recommended disposition[.]" Fed. R. Civ. P. 72(b)(3). With respect to the portions of the Recommendation that have not been challenged, the Court reviews for clear error based on its "considerable discretion." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (the district court may review a magistrate judge's conclusion under any standard it deems appropriate).
The Court begins by reviewing Magistrate Judge Hegarty's collective certification analysis under § 216 of the FLSA and the Parties objections thereto.
Plaintiff first urges the Court to reject Magistrate Judge Hegarty's approach to preliminary certification under § 216 and instead adopt the "permissive joinder standard" set forth in Turner v. Chipotle Mexican Grill, Inc., 123 F.Supp.3d 1300 (D. Colo. 2015) (Kane, J.). (Doc. # 136 at 6.) Pursuant to Turner, Plaintiff argues that § 216 conditional certification is unnecessary at this stage in the proceedings, and this Court should only decide "which individuals' contact information should be produced, and how the notice to be distributed should read." (Id.) The Court disagrees and overrules Plaintiff's objection.
Despite the Turner decision, this Court is bound by long-standing Tenth Circuit precedent mandating the application of the two-step conditional certification process for collective actions brought under the FLSA. See, e.g., Thiessen v. General Electric Capital Corporation, 267 F.3d 1095, 1105 (10th Cir. 2001). Accordingly, the Court declines to apply Turner and adheres to the two-step processes outlined by Magistrate Judge Hegarty.
Next, the Parties challenge Magistrate Judge Hegarty's proposed class definitions, which are:
Plaintiff argues that "all non-management employees" should receive notice of this case, not just servers, bartenders, and cooks.
Plaintiff bears the burden of presenting this Court with "substantial allegations" demonstrating that all members of a putative class were subject to a single decision, policy or plan. See Thiessen, 267 F.3d at 1102. Plaintiff's Complaint, along with the declarations submitted with the underlying motion, provide this Court with sufficient allegations to support conditionally certifying classes of servers, bartenders, and cooks. Indeed, Plaintiff (a bartender and cook) submitted his own declaration highlighting alleged overtime and minimum wage violations; he also submitted two other declarations—made by co-workers (both cooks)—that adequately detail overtime allegations. In addition, Plaintiff's Second Amended Complaint contains allegations that he and others in his situation—i.e. servers and bartenders—were underpaid.
However, Plaintiff's allegations are limited to servers, bartenders, and cooks. They are therefore insufficient to support a class of "all non-management employees." See Avendano v. Averus, Inc., No. 14-CV-01614-CMA-MJW, 2015 WL 1529354, at *6 (D. Colo. Mar. 31, 2015) (limiting the class definition because Plaintiff's Complaint and declarations contained insufficient evidence to support a broader class.); see Hobbs v. Tandem Envtl. Solutions, Inc., No. 10-1204-KHV, 2011 WL 484194, at *2 (D.Kan. Feb. 7, 2011) ("[P]laintiffs make no allegations of company-wide policies or practices. Rather, all of plaintiffs' allegations are against TESCO and [one particular supervisor] together, and therefore cannot extend beyond [that supervisor's] scope of authority—the [single] Wichita district. . . . The Court therefore limits plaintiffs' proposed class to TESCO office cleaners employed by its Wichita branch.").
The Court also disagrees with Plaintiff's contention that the following phrases in the class definitions are "confusing": references to "side work and/or cleaning activities"; "management improperly retained collected tips"; and "who worked more than forty hours per week without payment of one-and-one-half times their regular rate." These phrases are not confusing or misleading; they are simply definite and objective. Referencing instead individuals who may have been "paid improperly" or who "think there might be something wrong with how [they were] paid," as Plaintiff suggests, would inadequately define the criteria for membership. Indeed, a class must be "sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member"; it must also be "adequately defined [such that] its members can be ascertained by reference to objective criteria." Maez v. Springs Auto. Grp., LLC, 2010 WL 2010965, at *1 (D. Colo. May 19, 2010); Buycks-Roberson v. Citibank Federal Savings Bank, 162 F.R.D. 322, 328-29 (N.D.Ill.1995) ("This Court retains the power to modify the class definition at any time before a final judgment on the merits, if the evidence or the legal principles governing this case establishes that the class definition is too broad."). The Court accordingly overrules Plaintiff's objection.
Defendants challenge the phrase "who worked for Defendants." They instead argue that the class definitions should define putative class members as those "who worked at any of the Tequila's restaurant locations. . . ." (Doc. # 134 at 3-4.) Defendants contend that including "who worked for" rather than "who worked at" improperly implies that putative class members and Defendants were in employer-employee relationships. The Court disagrees. Unlike the cases cited by Defendants, the proposed class definitions in this case do not use the words "employee" or "employer," nor do they have such legal import.
The collective definitions objectively define the scope of the class and advise opt-in members of their potential inclusion in this lawsuit. No ultimate legal determination has been made with respect to the Defendants' employment relationships with the putative class members, and neither the class definitions or the Notice and Consent to Join Forms imply otherwise.
Accordingly, the Court finds that (1) Plaintiff has submitted sufficient allegations to support the class definitions proposed by Magistrate Judge Hegarty; and (2) those definitions are clear, definite, and neutral. The Court therefore conditionally certifies the above-defined classes under § 216 of the FLSA.
Once the Court concludes that conditional certification of an FLSA collective action is appropriate, the Court may authorize the plaintiff to disseminate proper notice and opt-in consent forms to putative collective action members. See Hoffman-LaRoche, Inc., 493 U.S. at 169-70; 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."). The Court has broad discretion to modify and approve the details of the notice sent to potential opt-in plaintiffs. Hoffman-LaRoche, 493 U.S. at 171.
Magistrate Judge Hegarty found the Plaintiff's propose Notice deficient in the following nine ways:
Plaintiff disagrees with Magistrate Judge Hegarty's deficiency conclusions (1) through (4), (6), and (9). Defendants express their approval of number (9) but do not otherwise discuss these deficiencies. Neither party disagrees with numbers (5) and (8). Magistrate Judge Hegarty also recommended that this Court order the parties to meet, confer, and construct a mutually agreeable Notice for dissemination. Neither party objects to that recommendation.
Having thoroughly reviewed the issue, the Court agrees with Magistrate Judge Hegarty that the parties should meet and confer in an attempt to modify the Notice and fix any deficiencies before approaching this Court for resolution. The Court nonetheless addresses some of the Parties' concerns. Beginning with Plaintiff's objections to numbers (1), (3), and (4), the Court reiterates its conclusions above with respect to the class definitions and for the same reasons, orders that those two definitions be included in Plaintiff's Notice. With respect to Plaintiff's objections to number (2), the Court notes that Magistrate Judge Hegarty merely ordered that the Notice identify defense counsel, not that it detail defense counsel's contact information as Plaintiff suggests. Nonetheless, having reviewed the issue and the case law submitted by Plaintiff, this Court sees no reason to include defense counsel's information, especially if the Parties meet and confer on its exclusion. Indeed, Defendants have submitted no objection or otherwise responded to Plaintiff's concerns, nor did Defendants argue for the inclusion of such information in its response to Plaintiff's initial motion. See Harris v. Vector Mktg. Corp., 716 F.Supp.2d 835, 847 (N.D. Cal. 2010) ("Including contact information for defense counsel in the class notice risks violation of ethical rules and inadvertent inquiries, thus engendering needless confusion.").
With respect to Plaintiff's objection to number (6), the Court finds that "it is reasonable and necessary to inform potential plaintiffs that they may be deposed, required to submit written discovery, compelled to testify, and obligated to appear in Denver." Darrow v. WKRP Mgmt., LLC, No. 09-CV-01613-CMA-BNB, 2012 WL 638119, at *6 (D. Colo. Feb. 28, 2012). The Court therefore agrees with Magistrate Judge Hegarty that the Notice in this case should so indicate.
Finally, with respect to the Parties' disagreement about number (9)—reference to a class administrator—neither Party has provided this Court with any legal authority to support its position. Indeed, it is unclear at this stage in the proceedings whether a class administrator is necessary or warranted. This Court is without any indication of the number of potential plaintiffs involved, the ultimate extent or scope of this litigation, or the potential class recovery. The Court therefore declines to mandate the use of a class administrator at this time or to order that the Notice so indicate.
With these considerations in mind, the Parties are ordered to meet, confer, and construct mutually-agreed upon Notice and Consent to Join Forms to be approved by this Court before dissemination.
Once Notice has been approved, the Court must facilitate the process of disseminating notice and consent forms to potential class members. See Hoffman-La Roche, 493 U.S. at 169-70.
Magistrate Judge Hegarty recommended that Defendants be ordered to disclose the following information to Plaintiff:
Magistrate Judge Hegarty then denied Plaintiff's request to inquire about the putative class members' primary languages as placing an undue burden on Defendants.
Plaintiff does not object to any of these recommendations, and Defendants only object to recommendation number five. The Court has reviewed the remaining unchallenged recommendations and finds no clear error. They are therefore adopted.
With respect to recommendation number five, Defendants contend that they should not be required to provide Plaintiff with "any and all other contact information" for putative plaintiffs because the request is unduly burdensome. Defendants express specific concerns about being ordered to disclose social media information that they do not collect or maintain.
The Court accordingly adopts Magistrate Judge Hegarty's Recommendation with respect to the disclosure of putative class members' contact information.
With respect to notifying putative collective action members, Magistrate Judge Hegarty recommended that Notice be:
He denied Plaintiff's request that Notice be posted at Defendants' restaurants as unduly burdensome.
Neither party objects to Magistrate Judge Hegarty's conclusions with respect to posting the Notice in multiple languages or distributing it via mail, email, and text message. The Court finds that those recommendations are not clearly erroneous or contrary to law and therefore adopts them in full.
Defendants nonetheless object to Magistrate Judge Hegarty's recommendation that Notice be distributed via social media. That objection is overruled. Recent opinions recognize the efficiency of the internet in communicating to class members. See, e.g., Mark v. Gawker Media LLC, No. 13-CV-4347 AJN, 2014 WL 5557489, at *5 (S.D.N. Y Nov. 3, 2014) ("To the extent Plaintiffs propose to use social media to provide potential plaintiffs with notice that mirrors the notice otherwise approved by the Court, that request is granted."). The Court agrees that electronic notice through social media platforms is particularly appropriate for classes, like this one, comprised of largely young, transient unnamed plaintiffs, because email addresses and physical addresses may not "provide a reliable, durable form of contact. . . ." Woods v. Vector Marketing Corp., 14-V-0264-EMC, 2015 WL 1198593, at *6-7 (N.D. Cal. Mar. 16, 2015).
Finally, in one short sentence, Plaintiff objects to Magistrate Judge Hegarty's recommendation that the Court disallow the posting of Notice in Defendants' restaurants. The Court overrules that objection. As Magistrate Judge Hegarty cogently explained,
Having reviewed the issue de novo, this Court agrees with Magistrate Judge Hegarty's analysis and conclusion. The Court additionally finds that posting the Notice in Defendants' restaurants has the potential to appear punitive and confusing, with only an incremental chance of reaching putative plaintiffs who otherwise would not receive notice through avenues already afforded under the current notice plan.
The Court accordingly adopts Magistrate Judge Hegarty's Recommendation with respect to the dissemination of Notice.
Last, Plaintiff objects to Magistrate Judge Hegarty's conclusion that the statute of limitations should toll from the date of Plaintiff's motion rather than the date that Plaintiff effectuated service of his Complaint. Plaintiff specifically states that he disagrees with Magistrate Judge Hegarty and reiterates his previous arguments but nonetheless "understands [Magistrate] Judge Hegarty's logic for the October date." (Doc. # 136 at 12.)
Having reviewed the equitable tolling request de novo, the Court concludes that tolling the statute of limitations from October 31, 2017, as Magistrate Judge Hegarty recommends, is appropriate. Indeed, Plaintiff has provided this Court with no explanation for his almost six-month delay between commencing this suit and requesting that the limitations period be tolled. See Stransky v. HealthONE of Denver, Inc., 868 F.Supp.2d 1178, 1182 (D. Colo. 2012) ("In the context of an opt-in collective action, diligence is measured by whether Plaintiffs opted-in when given the opportunity, not by whether Plaintiffs chose to initially bring a lawsuit."); Baldwin Cnty. Welcome Center v. Brown, 466 U.S. 147, 151 ("One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence.").
The Court therefore adopts Magistrate Hegarty's Recommendation and orders that the statute of limitations period be tolled from October 31, 2017—the date the instant tolling motion was filed—until ninety days after the putative opt-in plaintiffs receive notice of this lawsuit.
Accordingly, the Court ORDERS as follows:
It is also GRANTED to the extent it requests that Defendants be ordered to disclose the contact information of putative plaintiffs. Defendants are hereby ORDERED to disclose as follows:
Plaintiff's Motion is DENIED to the extent it requests this Court's approval of the proposed Notice and Consent to Join Forms. The Parties are instead ORDERED to meet, confer, construct, and submit mutually agreed-upon Notice and Consent to Join Forms within two weeks of the issuance of this Order.
