Case Information

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2 2 UNITED STATES DISTRICT COURT

3 3 EASTERN DISTRICT OF CALIFORNIA - FRESNO DIVISION 4 4 5 5 NATHANIEL MCKINNON, Case No.: 18-cv-01124-LJO-SAB

COURTNEY BOHANAN, EDWARD 6 6 DRUM, TIMOTHY GACHES, JOSEPH Complaint Filed: August 17, 2018

PEREZ, LUIS R. SOLIS, et al., on behalf 7 7 of themselves and all similarly situated ORDER REQUIRING SUPPLEMENTAL

individuals, FILING RE STIPULATION TO 8 8 CONDITIONALLY CERTIFY COLLECTIVE

Plaintiffs, ACTION UNDER 29 U.S.C. SECTION 216(B) 9 9 FOR PURPOSES OF FACILITATING

v. NOTICE

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CITY OF MERCED,

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Defendant.

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Before the Court for consideration is the City of Merced (“City”) and Plaintiffs Nathaniel 14 14 McKinnon et al .’s (“Plaintiffs”) (collectively the “Parties”) stipulation, requesting conditional 15 15 certification of this lawsuit as a collective action under the Fair Labor Standards Act (“FLSA”), 16 16 29 U.S.C. § 216(b), for purposes of facilitating notice. ECF No. 28.

17 17 Collective actions under the FLSA are governed by Section 216(b) of the United States 18 18 Code, which provides, in relevant part:

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An action to recover the liability prescribed in either of the preceding sentences 20 20 may be maintained against any employer (including a public agency) in any

Federal or State court of competent jurisdiction by any one or more employees for 21 21 and in behalf of himself or themselves and other employees similarly situated. No

employee shall be a party plaintiff to any such action unless he gives his consent in 22 22 writing to become such a party and such consent is filed in the court in which such

action is brought. 23 23 Neither the FLSA nor the Ninth Circuit has defined “similarly situated,” within the context of the 24 24 FLSA.

25 25 District courts in the Ninth Circuit employ a two-step approach to collective actions. E.g ., 26 26 Saravia v. Dynamex, Inc ., 310 F.R.D. 412, 422 (N.D. Cal. 2015); Kress v.

27 27 PricewaterhouseCoopers, LLP , 263 F.R.D. 623, 627 (E.D. Cal. 2009); Leuthold v. Destination 28 28 America, Inc ., 224 F.R.D. 462, 466-67 (N.D. Cal. 2004). As the district court in Saravia 30 30 1

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1 1 explained:

2 2 In the first step of this approach, the issue is whether the putative collective should be given notice of the action. This determination “is usually made under a fairly 3 3 lenient standard and typically results in conditional class certification.” [ Leuthold , 224 F.R.D. at 466-67]. The second stage occurs when discovery is complete and 4 4 the case is ready to be tried. The party opposing collective certification may then move for decertification. [¶] . . . [I]n the first stage . . . . district courts simply 5 5 evaluate whether there is “some factual basis beyond the mere averments in their complaint for the class allegations.” Adams v. Inter-Con Sec. Sys., Inc ., 242 F.R.D. 6 6 530, 536 (N.D. Cal. 2007)[ ]. 7 7 310 F.R.D. at 422. In determining whether plaintiffs have met this standard, courts need not 8 8 consider evidence provided by defendants. Kress , 263 F.R.D. at 628.

9 9 Here, no party has submitted any evidence in connection with this stipulation. Although 10 10 Defendant does not object to conditional certification, this does not absolve the Court of its 11 11 responsibility to examine the factual record. See, e.g., Leverett v. Primestar Painting, Inc ., No. 12 12 18-10238, 2018 WL 3013660, at *2 (E.D. Mich. June 14, 2018) (evaluating whether potential 13 13 opt-in plaintiffs are similarly situated by examining record to determine whether “plaintiff has 14 14 made the required modest factual showing,” even where parties stipulated to conditional 15 15 certification). Therefore, the record must be supplemented with some factual showing, beyond the 16 16 mere allegations in the Complaint, to justify conditional certification.

17 17 CONCLUSION AND ORDER

18 18 For the reasons set forth above:

19 19 (1) On or before June 14, 2019, Plaintiff shall supplement the record with 20 20 evidence to support conditional certification, or, alternatively, shall file a 21 21 document indicating it does not intend to supplement the record; and 22 22 (2) The Court will hold the stipulation in abeyance until the June 14, 2019 23 23 deadline expires.

24 24 IT IS SO ORDERED.

25 25 Dated: May 30, 2019 /s/ Lawrence J. O’Neill _____ 26 26 UNITED STATES CHIEF DISTRICT JUDGE 27 27

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