Vallone v. CJS Solutions Group, LLC, TheVallone v. CJS Solutions Group, LLC, The
This matter is before the Court on Plaintiffs’ Motion for Conditional Certification. For the following reasons, the Motion is granted in part and denied in part.
BACKGROUND
Plaintiffs Joyce Vallone and Erasmus Ikogor worked for Defendant The CJS Solutions Group d/b/a The HCI Group (“HCI”). In late April and May 2018, Vallone worked at the Mayo Clinic in Rochester, assisting physicians, nurses, and others with the transition to a new computerized patient-management system. (Lelo Aff. (Docket No. 30) Ex. C (Vallone Decl.).) Ikogor also worked for HCI at Mayo during this time. (Id. Ex. D (Ikogor Decl.) ¶ 9.) In addition, Ikogor worked for HCI at hospitals in St. Louis and New York City. (Id.)
Plaintiffs contend that they were not paid for the time they spent traveling from remote locations—usually their homes—to the worksites and back to the remote location at the end of their assignments. They assert that the Fair Labor Standards Act (“FLSA”) requires such payment. Plaintiffs also contend that they traveled to Rochester on April 29,
Plaintiffs seek conditional certification of a FLSA class consisting of:
all hourly paid, non-exempt, W-2 employees of The CJS Solutions Group, LLC, d/b/a The HCI Group (“HCI”), whose time was neither paid under the federal minimum wage or overtime laws: (1) while engaging in out-of-town travel (with a corresponding overnight stay), wherein the travel was undertaken during the employee’s normal working hours; or (2) on April 30, 2018, at the Mayo Clinic location, for workers who did not live in the Rochester, Minnesota area.
The class period is from June 10, 2016, through the date of any order granting certification of the collective action. Plaintiffs also ask the Court to appoint them as collective action representatives and their counsel as class counsel, directing HCI to provide Plaintiffs with the names of all putative class members, directing that notice be provided to all these individuals in specific ways, and tolling the statute of limitations as of the date Plaintiffs filed the instant Motion.
DISCUSSION
FLSA contemplates collective actions when it states that “[a]n action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.”
At the initial stage, the court determines whether the class should be conditionally certified for notification and discovery purposes. At this conditional certification stage, the plaintiffs need only come forward with evidence establishing a colorable basis for their claim that the putative class members were together the victims of a single decision, policy, or plan. . . . At the second stage . . . the court uses a stricter standard for determining whether the putative class members are similarly situated and reconsiders whether the trial should proceed collectively or if it should be severed.
Frank v. Gold’n Plump Poultry, Inc., No. 14-1018, 2005 WL 2240336, at *2 (D. Minn. Sept. 14, 2005) (Ericksen, J.) (internal citations omitted). “[T]he second stage occurs after discovery, usually when the defendant moves to decertify the class.” Lyons v. Ameriprise Fin., Inc., No. 10-503, 2010 WL 3733565, at *2 (D. Minn. Sept. 20, 2010) (Kyle, J.) (citation omitted). The plaintiffs’ burden at the first stage is a light one. Smith v. Heartland Auto. Servs., Inc., 404 F. Supp. 2d 1144, 1149 (D. Minn. 2005) (Kyle, J.)
HCI argues that conditional certification is inappropriate because the Court lacks jurisdiction over any dispute that does not involve a Minnesota plaintiff or work performed in Minnesota and because many members of the putative class signed arbitration agreements that prohibit them from bringing lawsuits such as this. HCI also contends that there are too many other individualized inquiries at play, such as whether the putative
A. Jurisdiction
HCI argues that the Court lacks specific personal jurisdiction over HCI for any putative Plaintiff who worked outside the state of Minnesota.2 Plaintiffs assert that HCI has waived this defense by not raising it in its answer and affirmative defenses. HCI responds that its answer stated that any collective action would constitute a denial of HCI’s rights under the Due Process Clause. (Answer ¶ 10.) While the Court would prefer that parties more explicitly raise jurisdiction as a defense in their pleadings, the Court is reluctant to deprive a party of its constitutional rights on the basis of inartful pleadings. HCI has not waived its right to assert lack of jurisdiction as a defense to this collective action.
Due process requires that a court has specific jurisdiction over a defendant in a mass action only if the action arises out of or relates to that defendant’s contacts with the forum. Bristol-Myers Squibb Co. v. Sup. Ct. of Cal., San Francisco Cty., 137 S. Ct. 1773, 1780
The United States Supreme Court reversed, emphasizing that the exercise of specific jurisdiction requires that the lawsuit itself “aris[e] out of or relat[e] to the defendant’s contacts with the forum.” Id. at 1780 (quotation omitted) (emphasis omitted). “In other words, there must be ‘an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.’” Id. (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).
Plaintiffs point out that no federal Court of Appeals has extended BMS’s holding to federal class actions or collective actions. In fact, another Judge in this District explicitly declined to extend BMS to Rule 23 class actions. Knotts, 346 F. Supp. 3d at 1332. That
The instant matter is a FLSA collective action, not a Rule 23 class action. The due-process safeguards of Rule 23 are not yet applicable. And while it is true that very few federal courts have extended BMS to federal class actions, several have found that BMS applies to FLSA collective actions. E.g., Roy v. FedEx Ground Package Sys., Inc., 353 F. Supp. 3d 43, 55 (D. Mass. 2018); Maclin v. Reliable Reports of Tex., Inc., 314 F. Supp. 3d 845, 850 (N.D. Ohio 2018). A FLSA collective action, which requires potential plaintiffs to opt in, is more analogous to the individual plaintiffs at issue in the BMS litigation than to members of a certified Rule 23 class who must affirmatively opt out of the litigation. Roy, 353 F. Supp. 3d at 59-60. Thus, there are “meaningful differences” between Rule 23 class actions and a FLSA collective action or a mass action such as BMS. Knotts, 346 F. Supp. 3d at 1333. Because named plaintiffs in Rule 23 class actions are the only plaintiffs in the lawsuit, a court need only evaluate their claims to determine whether those claims arise out of or relate to the defendant’s contacts with the forum. Id. But here, eight additional individuals have already filed consents to participate in the collective action, with more likely to follow after Court-issued notice of the action. (Docket Nos. 14, 16, 17, 27, 35, 46, 47.) The “underlying controversy” is therefore all individual Plaintiffs’ claims against HCI. BMS, 137 S. Ct. at 1780 (quotation omitted). Only if those claims “arise out of or relate to” HCI’s contacts with Minnesota can the Court constitutionally exercise jurisdiction over HCI. Id.
However, as discussed in more detail below, Plaintiffs have established that a collective action consisting of HCI’s Mayo Clinic workers and Minnesota residents is appropriate. The Court requests that the parties agree on a new class definition encompassing the above limitations within ten days of the date of this Order. The Court will deny without prejudice Plaintiffs’ request to toll the statute of limitations as of the date they filed the certification motion. Should the statute of limitations become relevant to any opt-in Plaintiff’s claims, Plaintiffs may re-raise the issue at that point.
B. Arbitration
HCI urges the Court to decline to certify any collective action, because some putative Plaintiffs ostensibly signed arbitration agreements with HCI starting in October 2018. But October 2018 is five months after HCI finished its work at the Mayo Clinic. Whether an arbitration agreement signed months after the dispute arose is enforceable is an open question. And HCI concedes that less than half of the putative collective for which Plaintiffs initially requested certification signed an arbitration agreement. This case is thus unlike Bigger v. Facebook, Inc., --- F.3d ---, 2020 WL 401804 (7th Cir. Jan. 24, 2020), in
In addition, HCI has moved the Court to compel arbitration. (Docket No. 36.) The parties may address in the briefing on that Motion whether any specific members of the narrowed collective are subject to valid arbitration agreements and thus should not be part of the collective. The Court will not deny conditional certification on this basis.
C. Similarly Situated
“At this conditional certification stage, the plaintiffs need only come forward with evidence establishing a colorable basis for their claim that the putative class members were together the victims of a single decision, policy, or plan.” Thompson, 2009 WL 130069, at *5. “The [C]ourt does not make any credibility determinations or findings of fact with respect to contrary evidence presented by the parties at this initial stage.” Burch v. Qwest Commc’ns Int’l, Inc., 500 F. Supp. 2d 1181, 1186 (D. Minn. 2007) (Davis, J.) (quoting Dege v. Hutchinson Tech., Inc., No. 06-3754, 2007 WL 586787, at *1 (D. Minn. Feb. 22, 2007) (Frank, J.)). Although “the barrier to preliminary certification is low,” Keef v. M.A. Mortenson Co., No. 07-cv-3815, 2008 WL 3166302, at *2 (D. Minn. Aug. 4, 2008) (Rosenbaum, J.), “[a] colorable basis means that [Plaintiffs] must come forward with something more than the mere averments in [their] [C]omplaint in support of [their] claim.” Severtson v. Phillips Beverage Co., 141 F.R.D. 276, 278-79 (D. Minn. 1992) (Alsop, J.).
Plaintiffs have met their burden here. HCI’s argument regarding the different modes of transportation putative Plaintiffs may have taken to get to the remote jobsite is irrelevant at best. Plaintiffs have established that they are at least colorably similarly situated and
D. Collective Representatives and Counsel
Plaintiffs request that the Court appoint them to represent the collective and appoint their counsel as counsel for the collective. But they offer no argument in support of this request, and the Court can find no cases discussing such appointment at this stage in the litigation. The request is therefore denied without prejudice.
E. Discovery and Notice
Plaintiffs ask the Court to order HCI to provide personal information for all members of the putative collective. But the information Plaintiffs demand includes sensitive information such as each individual’s social security number. It is inappropriate for the Court to order the production of such private information. Rather, HCI shall provide Plaintiffs with putative collective members’ names, mailing addresses, and last known email addresses.
The Court agrees with HCI that Plaintiffs’ proposed notice program is inappropriate, especially given the limited collective to be certified in this case. Mailing and e-mailing notice of the action is sufficient, and HCI need not provide notice with employees’ paychecks. A 60-day notice period is also sufficient, and thus a reminder mid-way through that period is unnecessary.
HCI raised a number of objections to the original form notice and consent Plaintiffs submitted. The revised collective definition resolves some of these objections, but many others remain. Most of HCI’s remaining objections, however, rely on authority from courts outside the Eighth Circuit, and thus are not binding nor particularly persuasive. The Court
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ Motion for Conditional Certification (Docket No. 22) is GRANTED in part and DENIED in part.
Dated: February 5, 2020
s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge