DocketNumber： No. C-06-5778 JCS
Judges： Spero
Filed Date： 2/6/2009
Status： Precedential
Modified Date： 11/5/2024
ORDER RE PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION [Docket No. 403]; DEFENDANT RGIS, LLC’S MOTION TO DECERTIFY COLLECTIVE ACTION [Docket No. 569]; PLAINTIFFS’ MOTION TO BIFURCATE ISSUES AT TRIAL [Docket No. 413]; DEFENDANT’S MOTION TO DISMISS INVALID-OPT-IN PLAINTIFFS [Docket No. 586]; AND RELATED MOTIONS TO STRIKE [Docket Nos. 481, 528, 570, 614 and 664].
I. INTRODUCTION
In this consolidated action, Plaintiffs assert claims on behalf of employees of Defendant RGIS Inventory Specialists (“RGIS”) under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., as well as state law. The parties have consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). In an order filed December 20, 2007, the Court granted conditional certification of two opt-in classes under the FLSA (“the Opt-in classes”). Plaintiffs now seek certification under Rule 23 of the Federal Rules of Civil Procedure of at least four classes asserting state law claims (“the Rule 23 classes”). Defendant opposes certification of the Rule 23 classes and further, asks the Court to decertify the classes that were previously certified under the FLSA.
Currently before the Court are the following motions: 1) Plaintiffs’ Motion for Class Certification [Docket No. 403] (“Rule 23 Motion”); 2) Defendant RGIS, LLC’s Motion to Decertify Collective Action [Docket No. 569] (“Decertification Motion”); 3) Plaintiffs’ Motion to Bifurcate Issues at Trial [Docket No. 413] (“Motion to Bifurcate”); and 4) Defendant’s Motion to Dismiss Invalid-Opt-In Plaintiffs [Docket No. 586] (“Motion to Dismiss”). In addition, in connection with these motions, the parties have filed numerous motions to strike and evidentiary objections.
II. BACKGROUND
This consolidated action began as two separate purported class actions: 1) Wren v. RGIS Inventory Specialists, Case No. C-06-05778, initiated on September 20, 2006; and
Plaintiffs allege that Defendant RGIS is “the world’s largest inventory company,” with over 400 offices worldwide and over 400,000 employees. Consolidated Complaint, ¶ 4. In the United States, RGIS has 258 offices, including 24 in California, 3 in Oregon, and 5 in Washington. Id. Plaintiffs are “current and former employees of RGIS who have been employed as hourly employees in the positions of inventory ‘auditors,’ ‘product specialists,’ ‘merchandising specialists,’ ‘assistant team leaders,’ ‘team leaders,’ and/or ‘associate’ or ‘assistant area managers,’ ” referred to by Plaintiffs as “Auditor Employees.” Id., ¶ 2.
The following individuals are named as representative plaintiffs in the Consolidated Complaint:
1. Trisha Wren (allegedly worked for RGIS in Oregon and California as an hourly employee between November 1999 and September 2004);
2. Kevin Barnes (allegedly worked for RGIS in Oregon as an hourly employee between June 1996 and July 2001 and thereafter as a salaried employee until April, 2005);
3. Brent Whitman (allegedly worked for RGIS in Oregon as an hourly employee between May 1999 and September 1999 and in Washington as an hourly employee between September 2003 and February 2004);
4. Kathlene Feige (allegedly worked for RGIS in California as an hourly employee between 1998 and 2003);
5. Lisa Cunningham-Gibson (allegedly worked for RGIS in California, as an hourly employee between 2001 and 2004);
6. Cynthia Piper (allegedly has worked for RGIS in California as an hourly employee since 1995 and is a current employee);
7. Tephine Saites (allegedly is a current employee of RGIS in California and formerly worked in Oregon);
8. Margaret Cruz Boze (allegedly is a current employee of RGIS in California);
9. Michelle Pease (allegedly is a current employee of RGIS in California);
10. Kimberly Cassara (allegedly worked for RGIS in Florida from 2001 to 2006 and in Mississippi between January 2006 and September 2006);
11. Rabecka Sheldranti (allegedly is a current employee of RGIS in Florida);
12. Victoria Thompson (allegedly worked for RGIS in Georgia and North Carolina);
13. Melanie Manos (allegedly worked for RGIS in Pennsylvania until November 2006 and during that time also worked at inventory sites in New York and Ohio);
14. Norma Garcia (allegedly is a current employee of RGIS in California);
15. Cheryl Pierson (allegedly is a current employee of RGIS in California);
16. Sally Rosenthal (allegedly is a current employee of RGIS in California);
17. Nicole Verbick (allegedly is a former employee of RGIS in Illinois);
18. Tammy Sehnars (allegedly is a current employee of RGIS in Pennsylvania and has worked at inventory sites in Pennsylvania, New York and Ohio);
19. Margaret Martinez (allegedly is a current employee of RGIS in Colorado and has worked at inventory sites in Colorado, Kansas, Nebraska, South
Consolidated Complaint, ¶¶ 14-32.
According to Plaintiffs, the “vast majority of RGIS’ employees are ‘auditors,’ whom RGIS employs to measure and record the inventories of retail establishments.” Id., ¶ 42. These inventories are performed at the retail stores and are classified as either “local inventories” or “travel/meet” inventories. Id., ¶ 33. With respect to the former, RGIS does not provide transportation for its employees. Id. For the latter, RGIS establishes a “meet site,” where employees assemble at a specific time to be transported to the inventory site, either in an RGIS-owned vehicle or in car-pools arranged by RGIS. Id.
Plaintiffs allege that RGIS’ compensation policies violate both the FLSA and various state laws with respect to travel time, waiting and donning time and rest and meal breaks. In particular, Plaintiffs assert the following claims:
California Law
• Failure to provide rest periods: Cal. Lab. Code §§ 226.7 and 516 (Claim One)
• Failure to provide meal periods: Cal. Lab.Code §§ 226.7, 512 and 516 (Claim Two)
• Failure to pay wages: Cal. Lab.Code § 218 (Claim Three)
• Late payment of wages: Cal. Lab.Code §§ 201, 202 and 203 (Claim Four)
• Failure to pay minimum wage: Cal. Lab. Code §§ 512, 1194, 1194.2 and 1197 (Claim Five)
• Failure to pay overtime: Cal. Lab.Code §§ 510, 512 and 1194 (Claim Six)
• Failure to provide itemized wage statements: Cal. Lab.Code § 226 (Claim Seven)
• Unfair Competition: Cal. Bus. & Prof. Code §§ 17200 et seq. (Claim Eight)
• Private Attorneys General Act of 2004, Cal. Lab.Code §§ 2698 et seq. (Claim Nine)
Illinois Law
• Failure to pay overtime and straight time wages: Illinois Minimum Wage Law, 820 ILCS 105/1 et seq., Illinois Administrative Code, 56 Ill. Admin. Code § 210.110 et seq. and Wage Payment and Collection Act, 820 ILCS 115/1, et seq. (Claim Ten)
Oregon Law
• Unpaid wage claim and statutory penalty wages: ORS §§ 652.120, 653.010 and 653.055 (Claim Eleven)
• Late payment statutory penalty wages: ORS § 652.140 (Claim Twelve)
• State minimum wage claim and statutory penalty wages: ORS §§ 653.025 and 653.055 (Claim Thirteen)
• State overtime claim under ORS §§ 653.261 and 653.055; OAR § 839-020-0030 (Claim Fourteen)
• Contract claim for rest breaks (Claim Fifteen)
• Contract claim for meal periods (Claim Sixteen)
• Breach of duty of good faith and fair dealing (Claim Seventeen)
• Permanent Injunction (Claim Eighteen)
Washington Law
•Failure to provide rest breaks: RCW §§ 49.52.050, 49.52.070 (Claim Nineteen)
•Failure to provide meal breaks: RCW §§ 49.52.050, 49.52.070 (Claim Twenty)
• Failure to provide duty free meal periods: RCW §§ 49.52.050, 49.52.070 (Claim Twenty-One)
• Failure to pay all wages when due upon termination: RCW § 49.48.010 (Claim Twenty-Two)
• Unpaid overtime wages (Claim Twenty-Three)
• Permanent injunction (Claim Twenty-Four)
FLSA
• Failure to pay minimum wage under 29 U.S.C. §§ 206 and 215(a) (Claim Twenty-Five)
Plaintiffs seek to recover unpaid wages, liquidated and punitive damages, attorneys’ fees and costs. Consolidated Complaint at 46-48. They also request injunctive relief prohibiting further violations of state and federal law. Id.
III. THE MOTIONS
A. Rule 23 Motion
1. Plaintiffs’ Motion
In their Rule 23 Motion, Plaintiffs seek certification of the following four classes of auditor employees employed by RGIS:
1. All hourly Auditors, Assistant Team Leaders, Team Leaders and Associate area managers employed by RGIS in California on or after January 1, 2005;
2. All hourly Auditors, Assistant Team Leaders, Team Leaders and Associate area managers employed by RGIS in Oregon on or after September 20, 2000;
3. All hourly Auditors, Assistant Team Leaders, Team Leaders and Associate area managers employed by RGIS in Washington on or after September 20, 2003;
4. All hourly Auditors, Assistant Team Leaders, Team Leaders and Associate area managers employed by RGIS in Illinois on or after January 4, 2000.
Plaintiffs also seek appointment of the following class representatives:
1. California class: Cynthia Piper, Sally Rosenthal, Norma Garcia, Michele Pease, Lisa Cunningham-Gibson and Cheryl Pierson.
2. Oregon class: Kevin Barnes, Tephine Saites.
3. Washington class: Carol Molmen.
4. Illinois Class: Nicole Verbick, Joan Johnson and Latonia Williams.
Finally, Plaintiffs seek an order appointing the following firms as class counsel:
1. Schneider Wallace Cottrell Bayton Ko-necky LLP.
2. Grady Schneider & Newman LLP.
3. Bailey Pinney PC.
4. Goldstein Demchak Bailer Borgen & Dardarian.
Plaintiffs argue that class certification should be granted as to the four proposed classes because all of the requirements of Rule 23(a) are met — numerosity, common questions, typicality and adequacy of representation — -and the requirements of Rule 23(b)(2) and/or (3) are also met.
Plaintiffs assert that the numerosity requirement is met based on evidence that there are at least 1,500 auditor employees in each of the states for which Rule 23 class certification is sought (the “Rule 23 States”). See Declaration of Richard Drogin (“Drogin Deel.”), Docket No. 406, ¶4 (stating that there are inventory shifts for 17,167 RGIS employees in California, 10,123 RGIS employees in Illinois, 1,548 employees in Oregon and 3,033 employees in Washington during the relevant class periods).
Plaintiffs argue further that there are common questions of law and fact that satisfy the requirements of Rule 23(a). According to Plaintiffs, these include the following issues:
• Neither the Auditor’s Handbook nor the Field Policy Manual — both of which apply to all RGIS employees throughout the United States and all districts in the United States — has a written policy against off-the-clock work and there are no local written policies regarding wage and hour compliance. See Declaration of Andrew P. Lee in Support of Plaintiffs Motion for Class Certification (“Lee Rule 23 Decl.”), Ex. 1 (June 2002 Auditor’s Handbook);
• RGIS managers are all trained using training manuals that are generated by corporate headquarters. Lee Rule 23 Decl., Ex. 39 (Deposition of Paul C. Landry, March 26, 2008 (“Landry Depo.”)) at 29, 51, 61. These training manuals expressly state that auditors must “arrive at the inventory in time to be prepared to start counting at the designated start time.” Lee Rule 23 Deck, Ex. 6 (Team Leader Training — Trainer Reference Manual) at RGIS WRN 02727.
•The Auditor’s Handbook specifies that the “time-in” for the purpose completing time sheets is the inventory start time, even though the Handbook also specifies that auditors must have already donned equipment and received instructions prior to the inventory start time. Lee Rule 23
•As a practical matter, auditors are not being paid for donning and waiting time, Plaintiffs assert. In support of this assertion, Plaintiffs cite to deposition testimony and declarations of current and former and district and area managers, interrogatory responses and declarations of auditors, and Pay Inquiry Forms filed by auditors regarding unpaid work time. See Lee Declaration, Exs. 30-41 (manager deposition transcripts); Appendix of Salaried Manager Declarations; Declaration of Camilla Roberson in Support of Plaintiffs’ Motion for Class Certification (“Roberson Rule 23 Motion Decl.”), ¶ 5 (summarizing interrogatory responses of opt-in plaintiffs and stating that of the 234 individuals who provided opt-in responses to interrogatories, 178 signed in using paper time sheets and 165 of these, that is, 92.7%, stated that they had signed in or been signed in after donning their equipment); Appendix of OpMn Interrogatory Responses [docket no. 412]; Declaration of Nancy Park in Support of Plaintiffs’ Motion for Class Certification (“Park Rule 23 Motion Decl.”), ¶¶ 9-10 (summarizing declarations of 139 auditors from California, Washington, Oregon and Illinois and quoting declarations indicating that auditors in all four states were not permitted to clock in until after they had donned equipment);
• The expert testimony of Plaintiffs’ Industrial Organizational Psychologist, Dr. Richard Martell indicates that RGIS has created and maintained common corporate policies regarding compensation of RGIS auditors throughout the United States, as well as a common culture, both of which are deficient with respect to ensuring that auditors are paid for all time worked. See Expert Report of Richard Martell, Ph.D.
In light of this evidence, Plaintiffs assert, the claims of the plaintiffs in the proposed classes turn on a number of common questions of law and/or fact, including whether donning time or wait time prior to the inventory should be considered “work” under applicable law, whether RGIS’ policies and procedures are adequate to ensure that auditors are paid for all donning and wait time, whether RGIS knew or should have known its auditors were doing work off the clock, whether the failure to pay donning and wait time also resulted in failure to pay overtime compensation, and the pay rate applicable to donning time.
2. Whether inaccurate time and payroll records shows a pattern and practice of violating state wage and hour requirements. Plaintiffs cite to a statistical analysis by their expert, Dr. Dro-gin, in which Dr. Drogin concludes that RGIS’ time and payroll records reveal patterns of inaccurate record-keeping that support Plaintiffs’ claims. See Declaration of Richard Drogin (“Dro-gin Decl.”). Dr. Drogin’s finds that 32.7% of employee sign-out times and 53% of vehicle return times are exactly on the hour, half-our and quarter-hour. Id., ¶¶ 7, 9. These patterns in RGIS time-keeping, Plaintiffs assert, are implausible on their face and support Plaintiffs’ claims that RGIS managers do not record auditor time accurately.
3. Whether RGIS’ policy relating to pay for travel time that exceeds two hours is unlawfully arbitrary. Plaintiffs argue that RGIS violates the laws of the four states requiring that all time worked be compensated by unreasonably classifying the first hour of transportation to and from a work site as “commute” time, even though the average commute time for the nation as a whole and for each of the four states is significantly less than an hour. See Lee Rule 23 Deck, Ex. 2 (Auditor’s Handbook) at 18-19. With respect to the data concerning commute times, Plaintiffs rely on the report of their expert, Marc Bendick, Jr.
4. Whether RGIS has engaged in a pattern or practice of failing to provide auditors with meal periods. Plaintiffs point to Dr. Drogin’s analysis of RGIS’ wage and compensation data, in which Dr. Drogin found 75,317 instances of missed meal periods and 19,383 meal periods that were too short to comply with applicable law. See Dro-gin Deck, ¶¶ 11 & 12, Appendices 5 & 6. According to Plaintiffs, RGIS’ own documents reflect that the missed meal periods were not waived. Id.
Plaintiffs assert that the class representatives also meet the typicality requirement because their claims are “reasonably coextensive” with the claims of the absent class members. In particular, Plaintiffs assert that the claims of the proposed class representatives are typical of those of the classes as a whole because: 1) as a factual matter, the claims of the class representatives and the claims of the class are based on the same RGIS policies and procedures regarding compensation of auditors; 2) the claims of the class representatives and the claims of the class are based on the same legal theory, that is, that RGIS failed to pay them for all hours worked; and 3) the class representatives and the class members suffered similar injury in that they were not compensated for all hours worked. Plaintiffs note that three of the proposed class representatives — Carol Molman (Washington), Joan Johnson (Illinois) and Latonia Williams (Illinois) are not named plaintiffs. Plaintiffs state that they will seek leave to amend to add these individuals to the complaint if the Rule 23 Motion is granted.
Plaintiffs argue that they also satisfy the adequacy of representation requirement because the proposed class representatives do not have conflicts of interest with the class as a whole and because Plaintiffs are represented by qualified and competent counsel.
With respect to Rule 23(b)(2), allowing a class action to be maintained based on the possibility that injunctive relief may be appropriate, Plaintiffs assert that a class action is allowable because, in addition to damages, Plaintiffs seek meaningful declaratory and injunctive relief, namely, an order requiring that Defendant RGIS alter its policies to ensure that auditors are paid for all hours worked. Plaintiffs acknowledge that they also seek damages but argue that class certification is appropriate under Rule 23(b)(2) so long as damages are not the “predominant” relief sought.
2. Defendant’s Opposition
RGIS counters that none of the requirements of Rule 23(a) is met and further, that neither the requirements of subsection (b)(2) nor (b)(3) is met. With respect to Rule 23(a)(1), Defendant argues that the numerosity requirement is not met because joinder of the class members is not impracticable. In support of this position, Defendant points to evidence that only 26,210 individuals out of a total of 291,000 potential class members have expressed interest in joining the FLSA opt-in class. See Declaration of Heather M. Sager in Support of Defendant RGIS, LLC’s Opposition to Plaintiffs’ Motion for Class Certification Pursuant to F.R.C.P. Rule 23 (“Sager Rule 23 Opposition Deck”), ¶ 2. RGIS also cites to Thiebes v. Wal-Mart Stores, Inc., 2002 WL 479840 (D.Or., January 9, 2002), in which a district court in Oregon held that joinder under Rule 23 was not impracticable where only 425 employees out a potential 15,000 class members opted in to a class asserting similar claims under the FLSA.
Defendants argue further that Plaintiffs have not demonstrated the existence of common questions of law and/or fact and therefore do not meet the commonality requirement of Rule 23(a)(2). With respect to the main issues as to which Plaintiffs have asserted that there is a common policy (or lack thereof) — unpaid off-the-clock work (donning and waiting time), inaccurate time and payroll records, travel time and missed meal breaks — RGIS argues that the “vast majority” of RGIS employees have been properly compensated, citing to declarations obtained by RGIS from its employees. See Declaration of A. Sevilla in Support of Defendant RGIS, LLC’s Opposition to Plaintiffs’ Motion for Class Certification (“Sevilla Rule 23 Opposition Deck”) (summarizing declarations of RGIS employees). In addition, RGIS makes the following specific arguments:
1. Off-the-clock work (donning and waiting time): RGIS argues that Plaintiffs are incorrect that it has no policy prohibiting off-the-clock work. It cites to language in the current version of the Field Policy Manual, which has been in effect since November 2005, stating that “[a]ll work time must be recorded on the time sheet” and explaining that where multiple employees are leaving the work-site in one vehicle, no employee should be clocked out until all of the employees riding in that vehicle have completed the inventory. See Lee Rule 23 Deck, Ex. 5 at 15, 18. RGIS also argues that other documents generated by its Human Resources Department show it has a policy against unpaid off-the-clock work. For example, one email to “division vps” explains that if they tell an auditor “to arrive in time to start work at 7:00” they can clock the auditor in at 7:00 but if they instruct the auditor to arrive at a specific time that is earlier than the start time, the auditor must be clocked in at that time. See Declaration of Cynthia Myers in Support of Defendant RGIS, LLC’s Opposition to Plaintiffs’ Motion for Class Certification (“Myers Rule 23 Opposition Deck”), Ex. A (May 24, 2002 email). A
RGIS also cites to the deposition testimony of Vice President of Training Paul Landry that although he was unaware of any written policy instructing that auditors clock in before donning equipment, this has always been one of RGIS’ rules. See Declaration of J. Ko in Support of RGIS, LLC’s Opposition to Plaintiffs Motion for Class Certification (“Ko Opposition Decl.”), Ex. 28 (Landry Depo.) at 202-203. Further, RGIS argues that the statements in the various policy documents are only vague, general statements and therefore, that any variation in compensation practices must be due to local practices rather than any one common policy.
RGIS challenges Plaintiffs’ reliance on the auditor interrogatory responses to show that off-the-elock time was not paid, citing to excerpts of two auditor depositions in which RGIS says the auditors’ testimony “changed dramatically.” See Rule 23 Opposition at 10; Ko Decl., Ex. 40 (Colbert Depo.) at 100-101; Ex. 42 (Johnson Depo.) at 104. As a result, RGIS argues, the Court should view the auditor interrogatory responses with skepticism.
2. Inaccurate Time and Payroll Records: RGIS argues that the statistical analysis of Dr. Drogin that Plaintiffs’ assert shows a pattern and practice of editing time records is a red herring because it is impossible to determine the reason for these time adjustments or even if they were improper. To determine the significance of these adjustments would require individualized inquiries as to each adjustment. Thus, RGIS argues, this evidence does not establish any common question that would be appropriate for class certification.
3. Travel time: With respect to RGIS’ commute time policy, RGIS notes that Plaintiffs have only cited to the Auditor’s Handbook and Field Policy Manual to show the existence of a uniform policy under which employees are compensated only for travel time that exceeds one hour each way. RGIS as
RGIS further challenges Plaintiffs’ assertion that the assumption of a one-hour commute time can never be reasonable, citing cases and anecdotal evidence that a one-hour commute can be reasonable. In particular, RGIS asserts that two courts have approved of its one-hour commute policy, citing the courts’ summary judgment orders in Johnson v. RGIS, Case No. 05-0389 (E.D.Tx., May 29, 2007) and Wor-ley v. RGIS, Case No. 137454 (Butte County Super. Ct., Aug. 2, 2007).
4. Missed or Shorted Meal Breaks: RGIS argues that Plaintiffs have failed to meet their burden of showing a uniform policy as to meal breaks for two reasons. First, RGIS argues, Plaintiffs have assumed that employers are required to ensure that meal breaks are taken when in fact, the law requires only that employers offer their employees meal breaks. Second, RGIS asserts that the statistical evidence showing missed and/or short meal breaks is insufficient to establish a common policy because these statistics don’t explain the reason for the missed or short meal breaks. In support of its assertion that such evidence does not provide a sufficient basis for class certification, Defendant relies on Brinker Restaurant Corp. v. Superior Court, 80 Cal.Rptr.3d 781 (Ct.App. 4th Dist.2008). Third, RGIS challenges Dr. Drogin’s statistical analysis regarding missed breaks, arguing that Dr. Drogin improperly included unpaid commute time for the purposes of determining when a break was due (and thus, whether a break was late).
Defendants assert that the typicality requirement is not met because the claims of the class members will turn on individualized determinations, particularly with respect to the defenses in this case. For example, RGIS asserts that it will be entitled to raise individualized defenses demonstrating:' 1) use of meet-sites was voluntary; 2) there was no waiting time associated with use of each meet site; 3) any unpaid donning time was de minimis; 4) hourly employees failed to take advantage of RGIS’ system for reporting time; 5) each of the employees’ claims are barred by the Portal to Portal Act, 29 U.S.C. § 254 to the extent they are based on activities that were preliminary or postlimi-nary to the employees’ to their principal activities; 6) there were variances in travel pay policies over time and as applied by each supervisor; 7) time spent traveling to and from a meet site to an inventory was appropriately compensated; 8) the individual employees’ claims are barred by statute of limitations or technical defaults; 9) each of the RGIS managers and supervisors acted in good faith and liquidated damages are not appropriate; 10) if there were violations due to mistakes by individuals running the inventories, there was no consistency or company knowledge or ratification of these mistakes.
Defendants further point out that the named plaintiffs for each of the Rule 23
Defendant argues that Plaintiffs do not adequately represent the interests of the classes because Plaintiffs’ counsel do not have the experience necessary to handle a class action of this magnitude and further, one of the firms that seeks appointment as class counsel — Bailey Pinney PC — was disqualified by this court in another wage and hour action based on unethical conduct in that action. See Moreno v. Autozone, Inc., Case No. 05-4432 CRB (N.D.Cal., Dec. 6, 2007), docket no. 212. Defendant also argues that Plaintiffs do not adequately represent the proposed classes under Rule 23 because they have an inherent conflict of interest arising from their simultaneous participation in the FLSA class action.
With respect to Rule 23(b)(2), allowing a class action to be maintained based on the possibility that injunctive relief may be appropriate, Defendant argues that it does not apply — at least as to the Illinois, Oregon and Washington plaintiffs — because the named plaintiffs of those states are no longer RGIS employees and therefore do not have standing to seek injunctive relief. Even if they did, Defendant asserts, subsection (b)(2) does not apply because the primary relief sought by Plaintiffs is monetary damages. Defendant argues that Plaintiffs also don’t satisfy the requirement of subsection (b)(3), that common questions predominate, for the same reasons discussed above with regard to Rule 23(a).
3. Plaintiffs’ Reply
In their Reply, Plaintiffs make the following arguments:
1. Applicable legal standard re assessment of evidence under Rule 23:
Plaintiffs assert that RGIS overstates the showing that is required to establish that certification under Rule 23 is appropriate. Whereas RGIS asserts that it is appropriate for the court to inquire into the merits of the case, Plaintiffs argue that under Ninth Circuit case law, the court is not to weigh evidence to assess the merits. Rather, the Court need only have enough information to “form a reasonable judgment on each requirement” and must accept as true the substantive allegations of the representative plaintiffs’ claims. See In re Live Concert Antitrust Litigation, 247 F.R.D. 98, 115 (C.D.Cal.2007) (reviewing Ninth Circuit case law regarding the question of whether courts may conduct merits assessment on Rule 23 motion).
3. Common Issues: Plaintiffs argue that RGIS has mischaracterized the standard, which does not require that issues be uniform; nor is it required that there must be a specific written policy in order to establish a pattern and practice of wage violations. Rather, Plaintiffs argue, class certification may be justified not only where an explicit policy is challenged but also where an employer has failed to act. Further, even the question of whether RGIS has a policy of not paying donning and waiting time is a common issue. See Otsuka v. Polo Ralph Lauren Corp., [251 F.R.D. 439, 446-47]2008 WL 3285765, * 7 (N.D.Cal. July 8, 2008).
Here, Plaintiffs assert, RGIS has failed to address a uniform policy that is reflected in materials issued by corporate headquarters. In particular, RGIS policy and training materials require auditors to arrive ready to start counting, i.e., with their equipment on, but also state that the start-time is the inventory start time. Read together, Plaintiffs assert, these materials indicate RGIS has a uniform policy of not paying pre-inventory donning time or waiting time. Plaintiffs cite to the expert report of Dr. Martell in which Dr. Martell concludes that these omissions invited unpaid donning and waiting time. In addition, Plaintiffs cite to a supplemental report by Dr. Martell submitted with the Reply, in which Dr. Martell concludes that the various emails and reminders cited by RGIS in its Opposition are consistent with the conclusion of his earlier report that RGIS’ policies are deficient with respect to ensuring that waiting and donning time are paid. See Reply Declaration and Supplemental Report of Richard Martell, Ph.D [docket no. 488] (“Martell Supp. Report”).
4. Pattern and practice violations based on representative testimony: Plaintiffs assert that RGIS fails to acknowledge the extensive case law that allows a class to establish a pattern and practice of wage and hour violations based on representative testimony of class members. Where, as here, the testimony of numerous class members supports an inference that the employer has engaged in unlawful conduct, this is a proper basis for class certification.
5. Statistical evidence that RGIS failed to pay its employees for all hours and overtime worked: Plaintiffs submit new statistical evidence, in the form of a reply declaration by Dr. Drogin, see Reply Declaration of Richard Drogin, Ph.D in Support of Plaintiffs’ Motion for Class Certification [docket no. 486] (“Drogin Reply Deck”), which they argue shows that there is a significant discrepancy between the hours worked by putative class members in the Rule 23 States, as reported in RGIS’ time records, and the amount paid for those hours, as reported in RGIS payroll records. This evidence, Plaintiffs assert, supports their claim that there is a pattern and practice of payroll violations by RGIS and that RGIS has failed to keep accurate time and payroll records. Plaintiffs explain that they did not include this statistical evidence when they filed their opening brief because RGIS did not produce the
6. Applicable legal standard re off-the-clock work and evidence that standard was met: Plaintiffs assert that RGIS miseharacterizes the legal standard regarding off-the-clock work when it argues that it does not require such work; rather, the relevant question is whether an employer suffers or permits such work. Under that standard, policies that merely prohibit managers from instructing employees to come to work early but allow them to passively accept off-the-clock donning and waiting time by employees, do not comply with the law. So long as RGIS knew, or with reasonable diligence should have known, that such off-the-clock work was occurring, RGIS may be liable for wage and hour violations, Plaintiffs argue.
Further, Plaintiffs assert, there is evidence that RGIS did know that it was occurring. Plaintiffs point to: a) a May 24, 2002 email from corporate headquarters to all RGIS vice presidents acknowledging that there had been numerous complaints by auditors and clarifying that although a manager can tell auditors to arrive in time for work, if the manager instructs employees to come at a specific time that is before the scheduled start time, auditors must be paid from that time; see Myers Rule 23 Opposition Dec!., Ex. A; b) complaints by auditors regarding off-the-clock work, including unpaid donning and waiting time prior to inventories, see Appendix of Auditor Declarations [docket no. 418], Ex. 104 (Colbert Deck), ¶ 14, Ex. 29 (Y. Knight Deck), ¶ 18, Ex. 83 (Miles Deck), ¶ 18, Ex. 110 (Mueller Deck), ¶ 17, Ex. 99 (L. Williams Deck), ¶ 11, Ex. 100 (Zielinski Deck), ¶ 16; c) Pay Inquiry Forms submitted to RGIS management reflecting complaints about unpaid time; d) other lawsuits filed against RGIS alleging wage and hour violations. See, e.g., Good v. RGIS, Case No. 05-0007 (D.W.Va.) (settled April 2005), Pearson v. RGIS, Case No. 06-0680 (N.D.Cal.) (settled August 2006), Cantrelle v. RGIS, Case No. 06-1394 (E.D.Cal.) (settled July 2007), Murphy v. RGIS, Case No. 07-89-Orl-28JGG (M.D.Fla.) (settled August 2007), Scheidt/Dodge, Nos. C0300067/BC 296361 (Super. Ct. Counties of Contra Costa and Los Angeles) (settled December 2004).
7. Travel time: Plaintiffs reject RGIS’ reliance on Worley and Johnson in support of the assertion that courts have approved RGIS’ commute time policy, arguing that neither of these cases involved state law claims of the sort that are at issue in this case. Plaintiffs further assert that RGIS’ arguments relating to prior court rulings are improper merits arguments that should not be considered on a Rule 23 motion.
With respect to RGIS’ contention that the travel time claims require too many individualized inquiries, Plaintiffs assert that average commute times can be used to address these claims. In support of this contention, Plaintiffs submit a second declaration by Marc Bendick and a declaration by Eric Seamon, who is a certified Geographic Information Systems Professional. See Second Declaration of Marc Bendick (“Second Bendick Deck”), Declaration of Erich Seamon in Support of Plaintiffs’ Motion for Class Certification (“Seamon Rule 23 Motion Deck”).
8. Missed meal breaks: Plaintiffs point out that Brinker, on which RGIS relies in arguing that statistics showing
9. Employee declarations offered by RGIS: Plaintiffs argue that the declarations of RGIS employees who say they were properly compensated do not defeat class certification because it is well established that the existence of such potential class members does not preclude certification. Plaintiffs also assert that of the 68 potential class member declarations submitted by RGIS, 42 are by current employees. These declarations, Plaintiffs argue, have little probative value because of the possibility the employees felt pressured to cooperate with RGIS management.
10. Typicality: Plaintiffs reject RGIS’ assertion that they are required to have a class representative from each job category in each of the proposed classes, citing, inter alia, Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1184 (9th Cir.2007). Rather, Plaintiffs assert, the class representatives claims need only be reasonably co-extensive with those of the absent class members. Plaintiffs argue that this requirement is met because Plaintiffs have a proposed class representative for all states and all claims. See Reply Memorandum of Points and Authorities in Support of Motion for Class Certification, Ex. A (Appendix 1) (chart of class representatives and claims). Alternatively, Plaintiffs suggest that state classes can be divided into subclasses consisting of: a) auditors; and b) assistant team leader and team leader positions. Plaintiffs note that if the Court were to create such subclasses, Plaintiffs would request 30 days in which to propose class representatives for the Illinois and Washington team leader subclasses.
11. Adequate representation: On the question of whether there is a conflict of interest where an opt-in class under the FLSA seeks to represent a Rule 23 class on similar claims, Plaintiffs assert that most district courts in this circuit have found that it does not. With respect to the qualifications of class counsel, Plaintiffs point to the extensive experience of David Borgen, whose declaration is offered in support of Plaintiffs’ Reply brief, as well as that of the Schneider Wallace firm. Plaintiffs note that Bailey Pinney was recently appointed as class counsel by Judge Armstrong in In re Wal-Mart Stores, Inc. Wage
12. Injunctive Relief under Rule 23(b)(2): Plaintiffs reject RGIS’ assertion that the primary relief they seek is damages rather than injunc-tive relief. Rather, Plaintiffs argue, remedying the deficiencies of RGIS’ policies and procedures is at the heart of this litigation. Further, Plaintiffs assert, RGIS has conceded that Plaintiffs have proposed class representatives for the California class who are current employees, including Boze, Garcia, Pease, Pierson, Piper, Rosen-thal and Saites. With respect to the Illinois class, Plaintiffs have proposed that Joan Johnson, a current RGIS employee, be added as a plaintiff and class representative. As to Oregon and Washington, Plaintiffs submit, with their Reply, the declarations of Jewel Gatlin and Michele Zustak, who are current RGIS employees and are willing to serve as class representatives. See Appendix of Declarations [docket no. 491], Exhs. N & S.
13. Rule 23(b)(3) requirements: Plaintiffs reiterate their arguments that common questions predominate and that the class mechanism is superior to requiring individual actions, which would potentially flood the courts while also precluding access for those who do not have the means to pursue an action or who fear employer retaliation. See Ostuka[Otsuka] v. Polo Ralph Lauren, [251 F.R.D. 439, 447]2008 WL 3285765 at * 8 (N.D.Cal. July 8, 2008).
4. Defendant’s Motion to Strike the Reply
Defendants bring a motion to strike Plaintiffs’ Reply brief, arguing that Plaintiffs have improperly introduced new evidence and arguments that exceed the scope of the Reply. Defendants object, in particular, to new testimony by ten auditors and by witnesses Ben-dick, Seamon, Borgen and Drogin. Defendant also argues that the Reply should not be considered because Plaintiffs exceeded the page limit in the local rules. RGIS does not address the fact that at the time it filed the motion to strike, the Court had already granted Plaintiffs’ administrative request to exceed the page limit set forth in the Local Rules, see docket no. 503.
Plaintiffs assert that the new evidence is permissible because it is offered in response to arguments raised in the Opposition. In addition, with respect to the Drogin supplemental report, Plaintiffs point out that they did not receive the necessary data for Dr. Drogin to complete his analysis until just before their motion was due and long after the Court had ordered this data produced.
5. Plaintiffs’ First Motion to Strike
Plaintiffs move to strike the declarations of 20 RGIS salaried manager and 29 auditor declarations under Fed.R.Civ.P. 37(c)(1) on the basis that the identities of these declar-ants were not timely disclosed and RGIS’ conduct in obtaining the declarations was unprofessional. See docket no. 481 (“Plaintiffs First Motion to Strike”). Plaintiffs also seek clarification as to whether Daniel Slottje relied on any of these declarations in his expert report submitted in support of RGIS’ Opposition. Plaintiffs note that Slottje states that he relied on declarations in preparing his report. Id; see also Slottje Expert Report at 4. If Slottje relied on any of the challenged declarations, Plaintiffs ask that any portion of the report that is affected be stricken. Plaintiffs also ask that the court send corrective notices to the individuals RGIS contacted for declarations, citing statements by those declarants Plaintiffs were able to reach that Plaintiffs assert show improper conduct on the part of RGIS.
6. Defendant’s Surreply
With the Court’s leave, see docket no. 515, Defendant filed a sur-reply in response to Plaintiffs Reply. Defendants raise the following arguments in their sur-reply:
1. Applicable legal standard re assessment of evidence under Rule 23: RGIS argues that Plaintiffs’ reliance on In re Live Concert Antitrust Litigation, 247 F.R.D. 98 (C.D.Cal.2007) for the proposition that the Court
2. New evidence: RGIS argues that the new evidence submitted by Plaintiffs, namely, the supplemental declarations of Drs. Drogin and Martell and the new declarations by David Borgen and Erich Seamon, are unreliable and should be disregarded.
3. Use of representative testimony: RGIS disputes Plaintiffs’ assertion that representative testimony can be used at the class certification stage, especially where, as here, there is so much variation among the experiences of the class members. RGIS argues that the cases Plaintiffs cite on this question involved use of representative testimony at trial and involved a single location or only a small number of employees. See McLaughlin v. Ho Fat Seto, 850 F.2d 586, 588-589 (9th Cir.1988); Martin v. Selker Bros., 949 F.2d 1286, 1298 (3d Cir.1991); Donovan v. Bel-Loc Diner, 780 F.2d 1113, 1115-1116 (4th Cir.1985); Donovan v. Simmons Petroleum Corp., 725 F.2d 83, 86 (10th Cir.1983); Reich v. Brenaman Elec. Serv., 1997 WL 164235, *7 (E.D.Pa. March 28, 1997).
4. Plaintiffs’ reliance on authority related to common policy, including Otsuka: RGIS argues that Plaintiffs err in relying on Otsuka for the proposition that RGIS’ absence of a company-wide written policy on donning and waiting time constitutes a uniform policy. RGIS asserts that this case was decided before Brinker and notes that in a subsequent decision, Judge Illston limited the holding of Otsuka to the specific facts of that ease in light of Brinker. See Gabriella v. Wells Fargo Financial, Inc., 2008 WL 3200190 (N.D.Cal. August 4, 2008). RGIS further asserts that other cases that Plaintiffs cite to show a common policy are not on point. See Frank v. Gold’n Plump Poultry, Inc., 2007 WL 2780504, *2-3, 2007 U.S. Dist. LEXIS 71179, *7-9 (D.Minn. Sept. 24, 2007); Bates v. UPS, 204 F.R.D. 440, 448 (N.D.Cal.2001); Jensen[Jenson] v. Eveleth Taconite Co., 139 F.R.D. 657, 666 (D.Minn.1991); Staley v. Wilson County, 2006 WL 2401083, *7 (M.D.Tenn. Aug.18, 2006). Rather, RGIS argues, numerous district court cases in the Ninth Circuit indicate that whether and how managers have interpreted RGIS’ mandate prohibiting off-the-elock work is not a common question that supports class certification under Rule 23. See Brown v. Federal Express Corp., 249 F.R.D. 580 (C.D.Cal.2008); Cornn v. United Parcel Service, Inc., 2005 WL 2072091 (N.D.Cal.2005); White v. Starbucks, 497 F.Supp.2d 1080 (2007); Kenny v. Supercuts, [252 F.R.D. 641,] 2008 WL 2265194 (N.D.Cal. June 2, 2008).
5. Proposed addition of new plaintiffs: RGIS objects to Plaintiffs’ request to add five new plaintiffs to serve as class representatives — three in their opening brief (Molmen, Johson and
6. Conflict between Rule 23 claims and FLSA claims: RGIS argues that in addressing the potential conflict that may arise where plaintiffs seek to proceed under both Rule 23 and the FLSA, Plaintiffs fail to address cases in which the state law claims for which Rule 23 certification is sought are either numerous or novel and complex. See Neary v. Metropolitan Property and Casualty Insurance, 472 F.Supp.2d 247, 253 (D.Conn.2007); De Asencio v. Tyson Foods, Inc., 342 F.3d 301 (3d Cir.2003); Glewwe v. Eastman Kodak Co., 2006 WL 1455476 (W.D.N.Y. May 25, 2006). In those situations, RGIS argues, courts may decline Rule 23 class certification on the ground that the state law claims are likely to overwhelm the FLSA claims. RGIS argues that in this case, where Plaintiffs have asserted 26 state law claims, and where Plaintiffs themselves have acknowledged that the relevant state law on some of the claims is sparse and in some cases, unresolved, the Court should deny class certification under Rule 23.
7. Plaintiffs’ Second Motion to Strike
After RGIS filed its sur-reply, Plaintiffs filed a motion to strike, see docket no. 570 (“Plaintiffs Second Motion to Strike”), requesting that the Court strike the following documents and portions of documents:
1. Slottje First Rebuttal Report, ¶¶ 6-7: In paragraphs 6 and 7, Dr. Slottje addressed Dr. Drogin’s findings relating to an alleged shortfall in compensation. Dr. Slottje concluded that Dr. Drogin’s methodology was flawed and stated that his own analysis revealed a much smaller shortfall that Dr. Drogin had found. Plaintiffs argue that these paragraphs should be stricken because RGIS failed to comply with the requirement under Fed.R.Civ.P. 26(a)(2)(B) that experts must disclose the basis for the opinion and the data on which the expert relied. Even after the Slottje First Rebuttal Report was filed, Plaintiffs assert, RGIS has refused to provide the underlying calculations and data supporting Dr. Slottje’s conclusions, despite Plaintiffs’ requests for them. Plaintiffs further assert that Dr. Slottje should not be permitted to testify on this subject matter at trial.
2. Sager Opposition Declaration, ¶ 6 and Ex. V: Paragraph 6 of the Sager Opposition Declaration and Exhibit V contain “anecdotal” evidence that a one-hour commute might be considered reasonable by some. In the Notice of Motion, Plaintiffs ask that this evidence be stricken because it is irrelevant and lacks foundation. The request to strike this evidence, however, is not addressed in the memorandum of points and authorities.
3. Myers Opposition Declaration, Non-Bates Stamped Documents: RGIS included numerous documents as exhibits to the Myers Opposition Declaration that did not carry Bates numbers. Plaintiffs assert that these documents were never produced to them in discovery, thus depriving them of the opportunity to depose Ms. Myers or other 30(b)(6) witnesses as to their significance. Therefore, Plaintiffs argue, these documents should be stricken and RGIS should be precluded from introducing them at trial.
In response to Plaintiffs’ Second Motion to Strike, RGIS asserts that the documents that it failed to produce were listed on its privilege logs and that although it offered in May 2008 to produce these documents if Plaintiffs agreed to a limited waiver of attorney-client privilege, Plaintiffs did not respond to that request. See Sager Rule 23 Opposition Deck, ¶4. According to RGIS, it was not until after Plaintiffs’ Rule 23 Reply had been filed that Plaintiffs finally agreed to the limit
B. Motion to Bifurcate
Plaintiffs bring a motion to bifurcate in which they ask that the Court to divide the trial into two stages, the first addressing questions of class liability and injunctive relief and then, if liability is found, a second stage addressing monetary damages. Plaintiffs assert that courts frequently bifurcate the damages phase in wage and hour class actions and that such an approach is warranted in this case. In particular, Plaintiffs argue that bifurcation makes sense because it is in the interest of judicial economy, the issues of liability and damages are easily separable, the parties will not suffer any prejudice from bifurcation and it will reduce the risk of jury confusion.
RGIS opposes the request to bifurcate, arguing that the questions relating to liability are closely intertwined with questions of damages. As a result, RGIS asserts, a great deal of evidence is relevant to both liability and damages. If as a result of bifurcation RGIS were limited to presenting such evidence in either the liability or the damages phase, RGIS argues, it would be severely prejudiced.
C. Motion to Decertify
In the Motion to Decertify, RGIS repeats many of the arguments raised in opposition to Plaintiffs’ Rule 23 Motion and relies on much of the same evidence. RGIS also provides a summary of declarations and deposition testimony — including both previously submitted and new testimony — by RGIS employees whose experiences, they assert, show that the experiences of the opt-in plaintiffs are anomalous. See Declaration of A. Sevilla in Support of Defendant RGIS, LLC’s Motion to Decertify Class [docket no. 566] (“Sevilla Decertification Motion Deck”) (summarizing testimony found in docket nos. 121, 455, 457, 565 and 568). RGIS argues that because there is no uniform policy as to donning and waiting time or travel time, and because individualized inquiries predominate as to Plaintiffs’ claims, the FLSA classes should be decertified.
Plaintiffs counter that their claims are based on uniform policies and that common issues of law and fact justify class status, citing evidence discussed above in connection with Plaintiffs’ Rule 23 Motion. In support of their opposition, Plaintiffs filed another report by their expert, Richard Drogin, addressing his findings as to both the state law claims and the FLSA claims, as well as responding to Dr. Slottje’s August 7, 2008 report, filed in support of RGIS’ Decertification Motion. See Declaration of Richard Drogin PhD in Opposition to Defendant’s Motion for Decertification [docket no. 607] (“Drogin Decertification Opposition Deck”). Plaintiffs also filed a supplemental declaration by David Borgen expanding on his prior declaration addressing opt-in rates in FLSA actions and asserting that the opt-in rate here indicates that decertification of the FLSA class would be improper. See Supplemental Declaration of David Borgen in Opposition to Motion to Decertify Collective Action [Docket No. 606] (“Borgen Supp. Deck”).
RGIS objects to both the Drogin Decertifi-cation Opposition Declaration and the Bor-gen Supplemental Declaration as untimely and further object to the Borgen Supplemental Declaration on the basis that it contains legal conclusions and therefore constitutes improper opinion evidence. See Defendant RGIS, LLC’s Objections to Evidence Submitted in Support of Plaintiffs’ Opposition to RGIS’ Motion to Decertify Class Action [Docket No. 633].
D. Plaintiffs’ Third Motion to Strike
Plaintiffs bring a motion to strike the declarations of 7 RGIS salaried manager and 20 auditors that RGIS relied upon in its Decer-tification Motion under Fed.R.Civ.P. 37(e)(1) on the basis that the identities of these de-clarants were not timely disclosed and RGIS’
E. Plaintiffs’ Fourth Motion to Strike
Plaintiffs bring a motion to strike the declarations of 90 RGIS salaried managers who submitted declarations in support of Defendants Reply on its Motion to Decertify, see Docket No. 664 (“Plaintiffs’ Fourth Motion to Strike”), on the basis that the identities of the declarants were never previously disclosed to Plaintiffs. Plaintiffs further request that the Declaration of Susan Burr, docket no. 629, be excluded on the basis that it contains legal argument and lacks foundation.
Defendant opposes the Fourth Motion to Strike on the ground that the declarations were offered as impeachment evidence in response to Plaintiffs’ evidence. With respect to the Burr Declaration, Defendant asserts that it was proper because it was filed to rebut the declarations of Nancy Parks and Andrew Lee.
F. Motion to Dismiss Invalid Opt-in Plaintiffs
Defendants bring a Motion to Dismiss Invalid Opt-in Plaintiffs (“Motion to Dismiss”) asking that the Court dismiss the following categories of Plaintiffs who have filed opt-in consents:
• Opt-in Plaintiffs who have expressly withdrawn their consent: RGIS has filed a list of 29 opt-in plaintiffs who have withdrawn their consent. See Motion to Dismiss, Ex. B.
■ Opt-in Plaintiffs whose consent forms were post-marked after the 90-day notice period: RGIS has filed a list of 491 opt-in plaintiffs whose consent forms were postmarked after the 90-day consent period. See Motion to Dismiss, Ex. A.
• Opt-in Plaintiffs who have not responded to discovery requests even after the Court issued an Order to Show Cause instructing them to comply and explaining that they would be dismissed from the action if they failed to do so. RGIS has filed a list of 99 opt-in plaintiffs who did not respond to discovery and did not comply with the Court’s subsequent Order to Show Cause. See Motion to Dismiss, Ex. C.
• Opt-in Plaintiffs who did not work for RGIS during the statutory period: RGIS identifies four specific opt-in Plaintiffs who apparently did not work for RGIS during the statutory period and asks that the Court rule, on the basis of this evidence, that employees who did not work for RGIS during the statutory period should be dismissed. If the Court issues such a ruling, RGIS says, it will engage in a review of the employment histories of the opt-in plaintiffs to determine which ones should be dismissed on this basis.
• Opt-in Plaintiffs who did not hold any of the positions that are at issue in this case: RGIS does not identify any specific opt-in plaintiffs who fall into this category, but it says that if the Court rules that such opt-in Plaintiffs should be dismissed, it will review the employment histories of the opt-in plaintiffs to determine if any fall into this category.
• Opt-in Plaintiffs who filed Plaintiffs consent form rather than the form sent out by the third party administrator, RG/2. RGIS notes that some of the opt-in plaintiffs have submitted the consent form that was used by plaintiffs’ counsel before the Court-approved notice was adopted and have not submitted the court-approved form. RGIS suggest Plaintiffs’ counsel have acted improperly and that these opt-in plaintiffs should be dismissed.
In their Opposition, Plaintiffs assert that the Motion to Dismiss is both unnecessary and premature. In particular, Plaintiffs state that they do not oppose dismissal of the opt-in plaintiffs who have withdrawn their consent and therefore, that this issue could have been resolved by way of a stipulated order. With respect to the request that the
With respect to the opt-in plaintiffs whose consent was post-marked after the 90 day period, Plaintiffs assert they should not be dismissed because allowing them to participate will not give rise to any prejudice to RGIS and will contribute to judicial economy to the extent these plaintiffs might bring separate actions if they are dismissed from this action. As to the opt-in plaintiffs who have not responded to discovery, Plaintiffs assert that dismissal is too extreme, especially as it is unclear whether these individuals even received the Court’s order to show cause.
Finally, Plaintiffs deny RGIS’ allegation that they have tried to circumvent the Court authorized notice process. They state that they have never sent out their own notices but that in response to requests for information from potential plaintiffs they did send out a copy of the court-authorized notice along with the consent-form they had used prior to creation of the court-authorized consent form. Plaintiffs counsel explain that they believed that they were not permitted to send out the official consent forms used by RG/2, which carried bar codes, and further, that in denying RGIS’ previous motion to declare opt-ins invalid, the Court had found the consent forms used by Plaintiffs’ counsel to be adequate.
IV. ANALYSIS
A. The Motions to Strike
1. Legal Standard
Under Fed.R.Civ.P. 12(f), “the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” However, motions to strike under Rule 12 are generally disfavored. Chiron Corp. v. Abbott Labs., 156 F.R.D. 219, 220 (N.D.Cal.1994). In addition, Rule 37 of the Federal Rules of Civil Procedure allows the Court to strike a pleading, or issue other “just orders” as a sanction for violating the court’s discovery order.
2. Defendant’s Motion to Strike
RGIS asks the Court to strike Plaintiffs’ Rule 23 Reply brief, as well as declarations, or parts of declarations, cited in support of the Reply. The motion is DENIED.
First, parties are permitted to file declarations in support of Reply briefs under the Local Rules. See Civ. L.R. 7-3(e). Further, the district court has discretion to consider legal issues that are raised for the first time on reply and may also consider new evidence, so long as the opposing party is given an opportunity to respond. See Glenn K. Jackson Inc. v. Roe, 273 F.3d 1192, 1202 (9th Cir.2001) (district court has discretion to consider issue raised in reply brief); Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir.1996) (where new evidence is introduced on reply, it should not be considered unless opposing party has a chance to respond). Here, the new declarations, as well as the arguments raised in the Reply, were largely within the scope of the issues raised by RGIS’ opposition. To the extent Plaintiffs may have gone beyond the scope of the Opposition, RGIS was given an opportunity to submit a sur-reply, as well as additional rebuttal declarations of its own. Under these circumstances, it would be inappropriate to grant the relief requested by RGIS.
The Court also notes that to the extent the Drogin reply declaration contains material that would ordinarily have been expected to have been filed in support of the motion, Plaintiffs have explained their late submission on the basis of the late production of the pay fields to Plaintiffs. Whoever may or may not be at fault for this, RGIS does not dispute that this data was not provided to Plaintiffs until July 3, 2008, just eight days before their Rule 23 motion was due to be filed. Under these circumstances, the Court
3. Plaintiffs’ Second Motion to Strike
Plaintiffs bring a motion to strike paragraphs 6 and 7 of the Slottje First Rebuttal Report, [a portion of the Sager Opposition Declaration], as well as a related exhibit, and various documents that RGIS filed in support of its sur-reply on the Rule 23 Motion. The motion is DENIED.
First, Slottje’s First Rebuttal Report is in response to the Drogin reply declaration and the analysis that Plaintiffs challenge is based on the same data used by Drogin, that is, the two tables produced to Plaintiffs on July 3, 2008. See Slottje First Rebuttal Report, ¶ 5. Slottje also lists the assumptions he used in coming to his conclusions. While it is true that Slottje does not provide a detailed explanation of his methodology, Plaintiffs have offered no authority suggesting that the report is so deficient as to fall below the requirements of Rule 26.
Second, the Court does not find that the late production of the documents attached to the Myers Declaration have resulted in any meaningful prejudice to Plaintiffs. Therefore, their exclusion is not warranted under Rule 37.
4. Plaintiffs’ First, Third and Fourth Motions to Strike
In its First, Third and Fourth Motions to Strike, Plaintiffs ask the Court to exclude certain salaried manager and auditor declarations on the grounds that: 1) RGIS allegedly concealed their identity; and 2) Defendant has engaged in misleading practices in obtaining the declarations. Because the Court does not rely on any of these declarations in determining the Rule 23 Motion or the Decertification Motion, the Court declines to rule on the merits of these motions, which are DENIED without prejudice.
B. The Rule 23 Motion for Class Certification
1. Legal Standard
A party seeking to certify a class must satisfy the four requirements set forth in Rule 23(a) and at least one of the requirements of Rule 23(b).
WTiile it is inappropriate for the court to consider the merits of the claims in determining whether class certification is appro
2. Numerosity
Plaintiffs assert that each of the proposed classes satisfies the numerosity requirement, pointing to evidence that there are at least 1,500 potential plaintiffs as to each of the Rule 23 classes. See Drogin Decl., Docket No. 406, ¶ 4 (stating that there are inventory shifts for 17,167 RGIS employees in California, 10,123 RGIS employees in Illinois, 1,548 employees in Oregon and 3,033 employees in Washington during the relevant class periods). RGIS does not challenge Plaintiffs’ evidence relating the number of potential plaintiffs. Rather, it asserts that joinder would not be “impracticable,” citing to evidence that out of a total of 291,000 potential class members, only 26,210 individuals have expressed interest in joining the FLSA opt-in class. See Sager Rule 23 Opposition Decl., ¶ 2. RGIS notes that in Thiebes v. Wal-Mart Stores, Inc., 2002 WL 479840 (D.Or., January 9, 2002), a district court in Oregon held that joinder under Rule 23 was not impracticable where only 2.7% of the potential class members opted in to the FLSA class asserting similar claims. The Court finds that the numerosity requirement is met with respect to the proposed Rule 23 classes.
Rule 23(a)(1) requires that the size of the proposed class be so numerous that joinder of all the class members is impracticable. There is no set number cut-off. See Welling v. Alexy, 155 F.R.D. 654, 656 (N.D.Cal.1994) (noting that courts have certified classes as small as 14 and have often certified classes with 50-60 members). Here, the number of potential plaintiffs in each of the Rule 23 States is at least 1,548 (Oregon) and as high as 17,167 (California). Further, even if the Court assumes that only approximately 10% of those potential plaintiffs would be likely to assert individual claims (that is, the percentage of RGIS employees who have opted in to the FLSA class action), the minimum number of individuals whose joinder would be at issue would be 150 (for Oregon). At the other end of the spectrum, the claims of at least 1,700 individuals would have to be joined if the California class were not certified. Whichever numbers are used, the Court concludes that they are sufficiently large to make joinder impracticable.
The district court’s decision in Thiebes does not stand for a contrary result. While it was within the discretion of the district court under the specific facts of that case to conclude that it was not impracticable to join 425 plaintiffs in a single action, nothing in that case requires such a result here.
The Court finds that the numerosity requirement is met as to all of the proposed Rule 23 classes.
Rule 23(a)(2) requires Plaintiffs to demonstrate the existence of questions of law and fact that are common to the class. Fed. R.Civ.P. 23(a)(2). Further, subsection (b)(3) of Rule 23 requires Plaintiffs to demonstrate that these common questions predominate over questions that affect only individual plaintiffs. The Ninth Circuit has explained that the commonality requirement of subsection (a)(2) is construed permissively. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir.1998). Under subsection (a)(2), “[t]he existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class.” Id. The predominance test of Rule 23(b)(3) is “far more demanding” than the commonality test under Rule 23(a)(1). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 624, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). “To qualify for certification under [subsection (b)(3)], a class must satisfy two conditions in addition to the Rule 23(a) prerequisites: common questions must ‘predominate over any questions affecting only individual members,’ and class resolution must be ‘superior to other available methods for the fair and efficient adjudication of the controversy.’ ” Hanlon v. Chrysler Corp., 150 F.3d at 1022.
“When the claim is that an employer’s policy and practices violated labor law, the key question for class certification is whether there is a consistent employer practice that could be a basis for consistent liability.” Kamar v. Radio Shack Corp., 254 F.R.D. 387, 398-99 (C.D.Cal.2008). Thus, where the employer has a uniform policy that is uniformly applied, the appropriateness of class certification is “easily established.” Id. In cases where there are both individualized inquiries and common questions, courts are more willing to certify classes where the individualized inquiries relate to damages than where they relate to liability. Kurihara v. Best Buy Co., Inc., 2007 WL 2501698 *9 (N.D.Cal. Aug.30, 2007). However, the “mere existence of individualized liability issues is not sufficient to warrant denial of class certification.” Id. On the other hand, where there is no common policy or practice on the part of the employer, class certification is unavailable. See, e.g., Cornn v. United Parcel Service, Inc., 2005 WL 2072091 (August 26, 2005).
Here, Plaintiffs assert that there are common questions of law and fact that satisfy both subsections (a)(2) and (b)(3) of Rule 23 based on RGIS’ policies and practices relating to: 1) donning and waiting time; 2) travel time; and 3) meal breaks. In addition, Plaintiffs cite to payroll records they assert shows that RGIS has a practice of failing to pay employees all wages earned.
a. Donning and Waiting Time
Plaintiffs argue that the state laws of all four Rule 23 States require employers to pay for work that an employer “suffers or permits” and that with respect to donning and waiting time, RGIS has not adopted a policy prohibiting such work. Instead, Plaintiffs assert, the various policy handbooks and guidelines issued by corporate headquarters, which all RGIS employees are bound to follow, fail to require that donning and waiting time be paid and even implicitly suggest that auditors are not to be paid for time spent preparing for inventories prior to the inventory start time. This lack of an adequate policy, Plaintiffs assert, has given rise to a widespread practice of failing to pay auditors for donning and waiting time, as evidenced by auditor and manager declarations and the expert report of Dr. Martell. At oral argument, Plaintiffs clarified that the waiting time referred to in their motions is only waiting time that is associated with donning equipment and does not include any waiting time by employees prior to their receipt of equipment, such as waiting in line to be given the equipment before an inventory.
RGIS argues that there is no common policy or practice that gives rise to common questions as to donning and waiting time. Rather, it asserts that RGIS has a policy of fully compensating all work, including donning and waiting time. In support of its
As a preliminary matter, the Court notes that the parties have waged an all-out evi-dentiary war in connection with the Rule 23 Motion and the related Decertification Motion, with each side filing literally hundreds of declarations and, in turn, objecting to or moving to strike the bulk of the opposing parties’ evidence. Much of the evidence that has been filed goes more to the merits of Plaintiffs’ claims than it does to the Rule 23 inquiry, though there is admittedly a significant degree of overlap. It is not the role of the Court to make findings on the merits. Nor has the Court attempted to address each of the hundreds of evidentiary objections that have been raised. Rather, the Court rules only on those objections that relate to evidence it relies upon in support of its decision.
On the question of whether there is a uniform policy or practice, Plaintiffs’ have presented evidence from which a finder of fact could conclude that RGIS’ compensation policies are dictated by corporate headquarters and that as a result of these policies, class members are not compensated for donning and waiting time. In particular, the Auditors’s Handbook expressly requires auditors to be “ready to start work” at the inventory start time but instructs auditors that their “time in” for time sheet purposes is the inventory start time. Lee Rule 23 Deck, Ex. 2 at 16, 18. Similarly, an RGIS training manual, under the heading “Policies and Procedures,” instructs that auditors should “[ajrrive at the inventory in time to be prepared to start counting at the designated start time.” Id., Ex. 6. Although it is not expressly stated in these policy directives, RGIS’ 30(b)(6) witness, Cynthia Myers testified that auditors are expected to have donned their equipment by the inventory start time. Lee Rule 23 Deck, Ex. 26 (9/07 Myers Depo.) at 66. Further, it is undisputed that prior to the issuance of the July 2007 New Hire Training Packet, see Myers Rule 23 Opposition Deck, Ex. A at WRN 4064, there was no written policy expressly requiring that auditors be paid for their pre-inven-tory donning and waiting time.
Although the documents cited by RGIS to show that its policy was not defective suggest that its policy is to pay for donning and waiting time, these materials only highlight the fact that there is a common issue: is it company policy to pay for donning and waiting. Some even appear to support Plaintiffs’ position. See, e.g., Myers Rule 23 Opposition Deck, Ex. A at WRN 15439 (May 24, 2002 email stating that managers can tell an auditor “to arrive in time to start work at 7:00” and clock them in at 7:00 but if they instruct the auditor to arrive at a specific time that is earlier than the start time, the auditor must be clocked in at that time). In sum, there is sufficient evidence to conclude that there are common questions relating donning and waiting time that arise from a centralized policy or practice on the part of RGIS.
Having found that there is evidence of a common policy, the Court turns to whether the questions that arise from this common policy predominate over individualized inquiries. The declarations provided by the parties show that the practices of RGIS managers with respect to donning and waiting time have varied. Many auditors apparently were not paid for donning and waiting time whereas others were compensated for this time. This is likely a result of the fact that RGIS’ policy was ambiguous. Emails sent by corporate headquarters such as those cited above may have added to the confusion. The result is that although there are important common questions of law and fact relating to Plaintiffs’ donning and waiting time claims, it is a close call whether the class action mechanism offers a superior mechanism for resolving the claims of the putative class. In resolving this question, the Court finds the reasoning of the district court in Frank v. Gold’n Plump Poultry, Inc., 2007 WL 2780504, 2007 U.S. Dist. LEXIS 71179 (D.Minn. September 24, 2007) to be instructive.
[E]ven if Gold’n Plump is correct, it does have a policy — a policy not to have a poli-cy____The bottom line is that Gold’n Plump has, at a minimum, decided not to require that its employees be paid for donning and doffing. That no-policy policy has allegedly injured all members of the putative class and is properly challenged through a class action. It is true ... that the payment practices of supervisors vary in some respects.... The varying practices of the supervisors may mean that some employees have less damages than others — or conceivably that some employees have no damages at all. But it does not detract from the point that Gold’n Plump has not adopted a corporate policy requiring that employees be paid for donning and doffing time.
Id. at *3, 2007 U.S. Dist. LEXIS 71179, *9-10. The court in Frank went on to note that the defenses that the employer asserted, including the de minimis defense, raised common issues of fact that further supported the conclusion that certification was appropriate. Id. at *4, 2007 U.S. Dist. LEXIS 71179, *10.
The Court finds that the reasoning offered in Frank applies equally here. There is evidence, in the form of policy documents issued by RGIS headquarters, that RGIS has decided not to require that its employees be paid for donning and waiting time. There is also evidence from which a jury conclude that this policy has resulted in a widespread practice on the part of RGIS of failing to compensate class members for this time. Under those circumstances, the Court concludes that both the commonality requirement of (a) (2) and predominance requirement of (b) (3) of Rule 23 are satisfied as to donning and waiting time, notwithstanding the individual issues that will have to be addressed with respect to damages.
b. Travel Related Time
Plaintiffs argue that common questions of law and fact predominate with respect to travel time because RGIS has a uniform policy of paying for travel time only where it exceeds one hour in each direction. See Lee Rule 23 Deel., Ex. 2 (March 2004 Auditor’s Handbook) at 18-19. Plaintiffs further point to declarations by their expert, Marc Ben-dick, concluding that the average commute time for within virtually all of the RGIS districts in the Rule 23 States is less than one hour. Defendants, on the other hand, point to evidence showing that RGIS employees are not required to use the meet sites for which this policy applies and that in fact, many employees do not do so, instead driving themselves to the inventory sites or taking public transportation. They also argue that there is no evidence employees perform any compensable work while traveling and therefore that RGIS is not required to pay for this time. In support of the assertion that its travel time policy is lawful, RGIS also cites to Worley and Johnson, in which district courts in California and Texas have found that RGIS’ travel policy is lawful.
The Court finds that although the requirements of subsection (a)(2) are likely met, it is a close call whether Plaintiffs have established that common questions predominate as to travel time under subsection (b)(3). As a preliminary matter, the Court notes that while RGIS has argued at length that there is significant variation in the experiences of RGIS employees with respect to travel time, RGIS focuses almost entirely on variations with respect to: 1) whether RGIS-sponsored transportation is offered to particular inventories and within particular districts; 2) whether RGIS employees have chosen to use it; and 3) the time that might be considered to be a reasonable commute time in different districts. However, RGIS does not dispute that as to the employees who use the company transportation, the vast majority of em
To determine whether this common question is sufficient to justify certification, the Court would ordinarily turn to the state laws of the Rule 23 States to gain a better understanding of the contours of Plaintiffs’ claims and the likely defenses that will arise. Unfortunately, Plaintiffs have provided very little briefing addressing the legal requirements governing compensation for commute time in the Rule 23 States. Instead, the parties have devoted most of their briefing to the question of whether an hour is a reasonable commute time without framing their discussion in terms of the relevant states’ laws.
The only discussion of the relevant state law the Court has found in the briefs is the discussion of the California Superior Court’s decision in Worley. In Worley, the plaintiff was an RGIS employee who worked in California and sued under state law, alleging that RGIS’ travel time policy was unlawful. Worley v. RGIS, Case No. 137454 (Butte County Super. Ct., Aug. 2, 2007). The court disagreed, granting summary judgment in favor of RGIS that “RGIS’ policy of paying only for travel time in excess of the first hour of travel time en route to and from a ‘meet site’ does not violate California law in that it simply ensures that employees who choose to work more remote travel sites receive additional monies in excess of their legally required compensation.” Id. at 4. In reaching this conclusion, the court relied on cases that hold that non-compulsory travel to and from work sites is not compensable under California law. Id. (citing Overton v. Walt Disney Company, 136 Cal.App.4th 263, 274, 38 Cal.Rptr.3d 693 (2006) and Morillion v. Royal Packing Co., 22 Cal.4th 575, 594, 94 Cal. Rptr.2d 3, 995 P.2d 139 (2000)). The court expressly rejected the plaintiffs focus on what constituted a reasonable commute, explaining that this was not the relevant inquiry:
It is undisputed that RGIS offers its employees the option to use company-provided transportation but does not require that they do so. Under circumstances such as these, and employer is not obligated to pay travel time, regardless of whether it is objectively or subjectively a “reasonable commute.” Neither an objective measure of the “reasonableness” of the travel time (the distance), nor a subjective measure (whether an employee could or would take alternate transportation), are determinative of the compensable nature of travel; rather, it is whether or not employees are “free to choose — rather than required — to ride their employer’s buses.”
Id. at 3-4.
In rejecting the result in Worley, Plaintiffs cite to an opinion letter issued by the California Division of Labor Standards in which it is stated that “travel involving a substantial distance from the assigned work place to a distant work site to report to work on a short-term basis is compensable travel time.” DLSE Opinion Letter, April 22, 2003 (2003 Cal. DLSE LEXIS 22). The Court notes, however, that the DLSE Opinion Letter, like Worley, focuses on the question of whether or not travel time is compulsory under the Morillion analysis.
Both the Worley decision and the DLSE opinion letter persuade the Court that for the California Rule 23 proposed class, liability on the commute time claims of the auditors who use RGIS sponsored transportation will turn on the same issue for all: whether use of that transportation is “compulsory” within the meaning of Morillion. Defendants have not persuaded the Court that individualized inquiries will be required to address this question. Therefore, the Court concludes that the California Rule 23 class satisfies the commonality and predominance requirements of subsections (a)(2) and (b)(3) of Rule 23. As Plaintiffs have failed to address the relevant state laws of the other Rule 23 states, howev
c. Meal Breaks
Plaintiffs seek certification of the meal break claims based on the assertion that all of the Rule 23 States require that non-exempt employees be “afforded” meal periods of thirty minutes during which they are completely relieved of duty. Rule 23 Motion at 36. As evidence that RGIS has a widespread practice of violating this requirement, Plaintiffs cite to the findings of Dr. Drogin that RGIS’ own payroll data indicates that between 4% and 26.1% of the time, meal breaks were missed without any waiver noted. See Drogin Rule 23 Deel., ¶ 11. Defendant argues that because employers are required only to offer meal breaks and are not required to ensure that the breaks are actually taken, Plaintiffs’ statistical evidence, even if correct, does not support the conclusion that common issues predominate. In particular, they argue that the claims will turn largely on individualized inquiries regarding the reason the meal break wasn’t taken and whether or not it was waived.
As a preliminary matter, the Court notes that once again, the briefs have focused almost entirely on California law. Plaintiffs have not offered a meaningful discussion of the requirements of Illinois, Washington or Oregon with respect to meal breaks and particularly, whether those states require that meal breaks be only offered or if employers must ensure that meal breaks are actually taken. Indeed, as to Illinois, Plaintiffs have not even cited the relevant authority in their Rule 23 Motion on which them claim is based. For this reason alone, Plaintiffs have failed to meet their burden as to the Rule 23 states other than California.
With respect to California, the parties dispute whether state law requires employers merely to offer meal breaks or rather, to ensure the meal breaks are actually taken. Plaintiffs cite to Cicairos v. Summit Logistics, Inc., in which a California court held that employers do not comply with California law when they assume meal periods are taken because they have “an affirmative obligation to ensure workers are actually relieved of all duty.” 133 Cal.App.4th 949, 962, 35 Cal.Rptr.3d 243 (2005). RGIS, however, points to at least two district courts that have refused to follow Cicairos, finding that if faced with the issue, the California Supreme Court would “require only that an employer offer meal breaks, without forcing employers actively to ensure that workers are taking these breaks.” White v. Starbucks Corp., 497 F.Supp.2d 1080, 1088 (N.D.Cal.2007); see also Brown v. Federal Express Corp., 249 F.R.D. 580 (C.D.Cal.2008).
Because the Court finds that employees must be offered, but need not be forced to take a meal break, the Court also concludes that many individualized inquiries will be necessary, at least as to the California class, to determine the reason meal breaks were missed and whether they were waived. Although Plaintiffs’ expert states that he counted only missed meals where a waiver was not expressly indicated in the payroll records, RGIS will, nonetheless, be entitled to present individualized evidence that these meal periods were, in fact, offered and not taken. In the absence of any explicit policy on the part of RGIS to which the missed meals can be attributed and in light of the individualized inquiries necessary to evaluate the practices of RGIS as to employee meal breaks, the Court concludes that Plaintiffs’ meal break
d. Inaccurate Payroll Records
Plaintiffs argue that class certification is warranted on the basis of evidence that RGIS does not keep accurate payroll records. Plaintiffs cite to statistical analyses by their expert, Dr. Drogin, which Plaintiffs assert show that RGIS has a pattern or practice of undereompensating its employees. Plaintiffs also cite to RGIS’ standard wage statement, which they assert fails to comply with the state laws of the Rule 23 States requiring itemization of wage statements. The Court rejects Plaintiffs’ assertions except as to their claim for failure to itemize under California law.
In his first declaration, Dr. Drogin cites statistical evidence regarding employee sign-out times and vehicle return times that he concludes are implausible, as well as missing time records for over 4,000 RGIS auditors, both of which lead Dr. Drogin to conclude that RGIS has engaged in a widespread practice of falsifying time records. In his reply declaration, Dr. Drogin analyzes pay records that RGIS produced in July 2008, concluding that RGIS has significantly un-dercompensated its auditors. RGIS challenges the reliability of Dr. Drogin’s reply declaration and argues that in any event, it is insufficient to establish the existence of common questions of law or fact that justify class certification.
The Court concludes that RGIS is correct. Even assuming that all of Dr. Drogin’s statistics are correct, it is not possible to determine the reason for the undercompensation from the statistics offered. Indeed, there could be a multitude of explanations for the undercompensation. As a result, the Court is not persuaded that this data is sufficient to satisfy Rule 23(b)(3).
With respect to the assertion that there are common questions relating to Plaintiffs’ itemization claims, the Court notes that Plaintiffs asserted such a claim only under California law in its complaint. See First Amended Consolidated Complaint, Claim 7. As Plaintiffs failed to assert similar claims based on the laws of the other Rule 23 States, the Court declines to consider Plaintiffs’ request that Rule 23 classes be certified for those states based on the alleged failure to itemize. As to the California class members, however, there is a common question that predominates, namely, does the standardized wage form that is used by RGIS for all of its employees comply with the requirements of California Labor Code § 226 that employers must provide properly itemized wage statements. As to that claim, the commonality and predominance requirements of (a)(2) and (b)(3) are met.
4. Typicality
Plaintiffs must also establish that the “claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R.Civ. P. 23(a)(2). The standard is permissive: “representative claims are ‘typical’ if they are reasonably coextensive with those of absent class members; they need not be substantially identical.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir.1998). Having reviewed the declarations of the proposed class representatives, the Court concludes that the typicality requirement is met as to the donning and waiting time claims and, for the California class representatives, the travel and itemization claims.
5. Adequacy of Representation
Rule 23(a)(2) requires that “the representative parties will fairly and adequately protect the interests of the class.” To satisfy this requirement, Plaintiffs must establish that: 1) the class representatives do not have a conflict of interest; and 2) class counsel will adequately represent the interests of the class. See Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir.1978). Here, RGIS has asserted that the first requirement is not met because the named plaintiffs have a conflict of interest, specifically, they seek to represent both an opt-in class under Rule 23 and an opt-out class under the FLSA. RGIS further challenges the qualifications and experience of Plaintiffs’ counsel. The Court rejects both arguments.
First, while concerns have been expressed by some courts regarding the propriety of allowing plaintiffs to prosecute both opt-in and opt-out claims in the same action, see, e.g., Leuthold v. Destination America, Inc., 224 F.R.D. 462, 469-71 (N.D.Cal.2004), the majority of courts, including courts in this district, have concluded that the two types of actions are not inconsistent. See, e.g., Ellison v. Autozone, 2007 WL 2701923 * 2 (N.D.Cal. Sept.13, 2007); Baas v. Dollar Tree Stores, Inc., 2007 WL 2462150 (N.D.Cal. Aug.29, 2007); Lindsay v. Government Employees Ins. Co., 448 F.3d 416, 424 (D.C.Cir. 2006). The Court finds the reasoning of these cases persuasive and finds no conflict of interest here.
Second, the Court has reviewed the evidence presented by Plaintiffs regarding the qualifications and experience of class counsel. The Court concludes that Plaintiffs’ counsel is well-qualified to represent Plaintiffs’ interests and will advocate vigorously for Plaintiffs.
Accordingly, the Court finds that Rule 23(a)(2) is satisfied.
6. Superiority and Manageability
The Court also concludes that a class action is superior to the other available methods of resolving the claims of the class certified by this order. The alternative— hundreds or even thousands of individual actions — is not realistic. Not only might they never be brought given the limited amount at stake for each individual, but the enormity of the resources required to adjudicate such claims, and the risk of inconsistent outcomes, counsels in favor of class treatment. Based on the information currently before the Court, a class action is also manageable. With the predominance of common issues, and the various methods available to the parties and to the court for proving and deciding these class claims, the Court concludes at this point that a class action is workable. See, e.g., Dukes v. Wal-Mart, Inc., supra, 509 F.3d at 1190-1193.
7. Whether Rule 23(b)(2) is Met
Plaintiffs argue that even if the requirements of Rule 23(b)(3) are not satisfied, the proposed classes should be certified because subsection (b)(2) is met. That section provides that where the requirements of Rule 23(a) are met, a class action may be maintained where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a
In Molski v. Gleich the Ninth Circuit explained that a class may be certified under Rule 23(b)(2) where the plaintiffs seek both injunctive relief and monetary damages, so long as the monetary damages claim is secondary to the claim for injunctive relief. 318 F.3d 937, 947 (9th Cir.2003). In Dukes, the court of appeals explained that Molski does not set forth a bright line test for determining when the damages claims are incidental to the relief requested because such a test would conflict with the discretion vested in the district court. 509 F.3d at 1185. The court continued:
Instead, we examine the specific facts and circumstances of each case, focusing predominantly on the plaintiffs’ intent in bringing the suit ... At a minimum, however, we must satisfy ourselves that: (1) even in the absence of a possible monetary recovery, reasonable plaintiffs would bring the suit to obtain the injunctive or declaratory relief sought; and (2) the injunctive or declaratory relief sought would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits.
Id. (citations omitted).
Based on the specific facts and circumstances of this case, the Court concludes that the claim for damages is not incidental to the request for injunctive relief but rather, a driving force behind these consolidated actions. Although Plaintiffs have now proposed class representatives who are current employees, the vast majority of the named plaintiffs in the Consolidated Complaint are not current employees and therefore are not entitled to injunctive relief. This fact alone suggests that the injunctive relief sought in the complaint was not the primary relief sought in this action. The Court also notes that even as to donning and waiting time, the need for injunctive relief appears to have diminished as RGIS has recently clarified its policy to require that this time be paid. The Court therefore finds that Rule 23(b)(2) is not satisfied.
8. Certification
The Court therefore certifies, under Rule 23, the following classes:
1. All hourly Auditors, Assistant Team Leaders, Team Leaders and Assistant Area Managers employed by RGIS in California on or after January 1, 2005 with respect to the claims asserted in the Consolidated Complaint arising out of (1) donning and related waiting time from the time that equipment is made available for donning, (2) unpaid travel time on company provided travel for the first hour of travel to and the first hour of travel from an inventory site, and (3) the alleged failure to comply with the requirements of California Labor Code section 226 that employers must provide properly itemized wage statements.
2. All hourly Auditors, Assistant Team Leaders, Team Leaders and Assistant Area Managers employed by RGIS in Oregon on or after September 20, 2000 with respect to the claims asserted in the Consolidated Complaint arising out of donning and related waiting time from the time that equipment is made available for donning.
3. All hourly Auditors, Assistant Team Leaders, Team Leaders and Assistant Area Managers employed by RGIS in Washington on or after September 20, 2003 with respect to the claims asserted in the Consolidated Complaint arising out of donning and related waiting time from the time that equipment is made available for donning.
4. All hourly Auditors, Assistant Team Leaders, Team Leaders and Assistant Area Managers employed by RGIS in Illinois on or after January 4, 2000 with respect to the claims asserted in the Consolidated Complaint arising out of donning and related waiting time from the time that equipment is made available for donning.
C. The Mtotion to Decertify
1. Legal Standard
Section 16 of the FLSA permits workers to sue their employers for unpaid wages on
2. The Court’s Order Granting Motion to Facilitate Notice
On December 19, 2007, the Court conditionally certified two classes under the FLSA on the basis that Plaintiffs had made the necessary threshold showing of a uniform policy or practice with respect to: 1) donning time; 2) time spent waiting for inventories to begin at local inventories; 3) time spent waiting for transportation; and 4) time spent engaged in transportation to travel inventories. The classes were defined as follows:
1) All non-exempt hourly employees of RGIS Inventory Specialists, now operating as RGIS, LLC, who were, are, or will be employed as auditors during the period of three years prior to the commencement of this action through the date of judgment of this action.
2) All non-exempt hourly employees of RGIS Inventory Specialists, now operating as RGIS, LLC, who were, are, or will be employed as assistant [] team leaders, team leaders, and assistant or associate area managers of RGIS during the period of three years prior to the commencement of this action though the date of judgment of this action.
Order Granting Motion to Facilitate Notice Pursuant to 29 U.S.C. § 216(b), filed December 19, 2007 (“Order Facilitating Notice”) at 3.
3. Whether Plaintiffs are Similarly Situated Under the FLSA
The Court conditionally certified two nationwide classes under the FLSA as to claims based on alleged donning and waiting and travel time violations. In certifying these classes, the Court applied a lenient standard, relying on evidence that RGIS had failed to compensate numerous plaintiffs for donning time, time spent waiting for inventories at local inventory sites, time spent waiting for transportation to travel sites and time spent in transport. The Court now revisits the question of certification, applying a more stringent standard, to determine whether the claims of the class members are sufficiently alike to allow the Court to efficiently manage the case. The Court concludes that only the specific claims discussed in connection with the Rule 23 Motion based on pre-inventory donning and waiting time and travel time meet this requirement.
As discussed above, the evidence reveals a variety of experiences, both as to donning
The Court also concludes that Plaintiffs may proceed on a class basis on the travel time claim discussed above, namely, that the policy of considering the first hour of travel time as non-compensable travel time is unlawful. Under the FLSA, the crucial inquiry will be whether or not time spent commuting to travel inventories falls under the Portal-to-Portal Act, 29 U.S.C. § 254(a), which provides that activities that are “preliminary” or “postliminary” to an employee’s principal activities are not compensable under the FLSA. The Supreme Court has held that an exception to this rule exists where the travel is “integral and indispensible” to a “principal activity.” IBP, Inc. v. Alvarez, 546 U.S. 21, 37, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). This question will turn on common questions of fact relating to the type of work that RGIS auditors perform, the expectations within the industry and the company and whether auditors perform any work while in transit. This common legal and factual question justifies class certification under the FLSA.
Accordingly, the Court declines to decertify the FLSA classes except to the extent that the claims of the FLSA plaintiffs purported to sweep more broadly than the claims set forth above.
D. The Motion to Bifurcate
Plaintiffs seek to bifurcate the liability and damages portions of the trial. The Court concludes that the motion is premature and therefore DENIES the motion without prejudice.
E. The Motion to Dismiss
RGIS brings a motion to dismiss seeking to dismiss various opt-in plaintiffs on a variety of grounds. It is apparent that many of the issues raised in the motion are premature and others could have been resolved by the parties without Court intervention. The Motion to Dismiss is DENIED without prejudice. Prior to refiling the motion, lead counsel shall meet and confer, in person, to attempt to resolve the issues raised in the motion.
V. CONCLUSION
The Rule 23 Motion [docket no. 403] is GRANTED in part and DENIED in part. The Motion to Decertify [docket no. 569] is GRANTED in part and DENIED in part. The Motion to Bifurcate [docket no. 413] and the Motion to Dismiss [docket no. 586] are DENIED without prejudice. The Motions to Strike [docket nos. 528, 481, 570, 614 and 664] are DENIED.
The parties are instructed to meet and confer and submit to the Court within the next fourteen (14) days a proposed schedule for the remainder of the case, including dates for submitting to the Court a proposed notice to class members.
IT IS SO ORDERED.
. Defendants have filed the following objections and motions to strike: 1) Defendant RGIS, LLC's Objections to Evidence Submitted in Support of Plaintiffs' Motion for Class Certification Pursuant to F.R.C.P. Rule 23 [Docket No. 452]; 2) Defendant RGIS, LLC’s Motion to Strike Plaintiffs’ Reply Memorandum of Points and Authorities in Support of Plaintiff's Motion for Class Certification [Docket No. 528]; 3) Defendant RGIS, LLC's Objections to Evidence in Support of Plaintiffs' Reply Memorandum in Support of Motion for Class Certification [Docket No. 540]; 4) Defendant RGIS, LLC's Objections to Evidence Submitted in Support of Plaintiffs’ Opposition to RGIS’ Motion to Decertify Class Action [Docket No. 633], Plaintiffs have filed the following motions to strike: 1) Motion to Strike Defendant's Evidence Pursuant to Federal Rule of Civil Procedure 37 [Docket No. 481]; 2) Motion to Strike Portions of the Slottje Rebuttal Report and Documents Submitted in Opposition to Plaintiff's Motion Pursuant to Federal Rule of Civil Procedure 37 [Docket No. 570]; 3) Motion to Strike Defendant’s Evidence Pursuant to Federal Rule of Civil Procedure 37 [Docket No. 614]; 4) Motion to Strike Defendant’s Evidence Pursuant to Federal Rule of Civil Procedure 37 [Docket No. 664].
. The Consolidated Complaint also alleges that Plaintiffs include certain salaried employees who should have been classified as hourly employees and that due to the misclassification, they have been improperly denied overtime pay and rest and meal breaks. Consolidated Complaint, ¶¶ 2-3.
. Carol Molmen, Joan Johnson and Latonia Williams were not named as plaintiffs in the Consolidated Complaint but have opted in to the FLSA class in the last four months. See Rule 23 Motion at 38. Plaintiffs will seek leave to amend to add these plaintiffs if the Court finds that they are appropriate class representatives. The declarations of all the proposed class members are exhibits to the Appendix of Auditor Declarations [docket no. 418]. The declarations of Joan Johnson, Latonia Williams and Carol Molmen are found at exhibits 81, 99 and 127, respectively. Joan Johnson states that she is a current employee of RGIS in Illinois and has worked as an auditor since 2002. Latonia Williams states that she worked as an auditor for RGIS in Illinois between March 2005 and October 2006. Carol Molmen states that she worked as an RGIS auditor in Washington between June 2001 and October 2007. In addition, as noted below, in their Reply brief, Plaintiffs state that Jewel Gatlin and Michael Zustak are willing to serve as class representatives. Gatlin is a current RGIS employee who has worked as an auditor in Washington since October 2002. See Appendix of Declarations [docket no. 491], Ex. N. Zustak is a current RGIS employee who has worked as an auditor in Oregon for 13 years. Id., Ex. S.
. RGIS objects to Plaintiffs reliance on the 2002 version of the Auditor's Handbook on the grounds that it was superseded by later versions in 2003, 2004 and 2007 and thus was no longer in force when the class periods for California, Illinois and Washington commenced. Defendant does not object to the March 2004 version, however. See Lee Motion Decl, Ex. 2. The Court also notes that the 2002 version is relevant for the Oregon class, which RGIS implicitly concedes in its objections.
. RGIS objects to Plaintiffs' reliance on the Field Policy Manual — both the 2001 and 2005 versions — because it does not expressly state that it applies to Auditors, Assistant Team Leaders and Team Leaders. Docket # 452 at 2-3; see also Lee Rule 23 Deck, Ex. 4 (2001 Field Policy Manual) & Ex. 5 (2005 Field Policy Manual).
. RGIS objects to Plaintiffs' reliance on RGIS WRN 02727 on the basis that it addresses situations where employees arrive after the start-time of an inventory and therefore is not relevant to RGIS' policies regarding donning and wait-time prior to the inventory start time. See Docket No. 452 at 6. RGIS is incorrect. This document contains the following statement under the subheading "Auditors:” "Arrive at the inventory in time to be prepared to start counting at the designated start time.” There is no indication this statement addresses arrival after the start time, as RGIS asserts.
. RGIS objects to many of the documents contained in Exhibit 23. In addition, in their Opposition to the Rule 23 Motion they assert that only 4 of the 28 documents come from districts that are at issue in this case — 3 from California and 1 from Illinois. The remaining 24 documents, they assert, come from states not at issue in this case. See Sager Opposition Decl., Exs. A-U.
. RGIS objects to Plaintiffs’ reliance on the auditor declarations on numerous grounds. See Docket No. 452 at 17-36.
. RGIS objects to Plaintiffs' reliance on the Pay Inquiry Forms. See Docket No. 452 at 3.
. RGIS objects to Dr. Martell’s expert report under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
. Plaintiffs note that they have filed motions to compel production of the missing records and intend to submit a supplemental report by Dr. Drogin once he has had the opportunity to analyze any additional data produced by RGIS.
. RGIS objects to Dr. Bendick's expert report under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
. RGIS requests that the Court take judicial notice of these orders. See Request for Judicial Notice in Support of Opposition to Motion for Class Certification Pursuant to FRCP Rule 23 [docket no. 459]. The request, which Plaintiffs have not opposed, is granted.
. In support of its position, RGIS cites to deposition testimony by “Myers,” “Brown,” "Davidson,” and "Manos" and to a declaration of “Appuzo.” The deposition testimony was purportedly attached to the Ko Rule 23 Opposition Declaration. The Court found only the Ma-nos deposition excerpt attached to the Ko declaration (Exhibit 5). Manos testified that she was hired as an auditor and that her job was to "go into stores and count merchandise.” Ko Rule 23 Opposition Dec!., Ex. 5 at 41. Although there also is an excerpt from the September 27, 2007 Myers deposition attached to the Ko declaration as Exhibit 29, the cited page does not address the job descriptions of the various positions. Rather, Myers addressed that question at her March 14, 2006 deposition, an excerpt of which was provided by Plaintiffs as an attachment to the Lee Declaration at Exhibit 24. Cynthia Myers testified in that deposition as follows:
A district manager is responsible for the district office. And that district manager has area managers that report to him or her. And the number depends on the territory that they’re assigned. They may have — and this varies by district. They may have associate area managers that report to the district manager. They have team leaders that report to the area managers. And then we have our auditors, which is our hourly inventory taker position, that reports up through the area managers, as well as up to the district manager.
Lee Decl., Ex. 24 (Myers 3/14/ 2006 Depo) at 38. The Court was unable to find the Brown and Davidson deposition excerpts, which were not attached to the Ko Declaration. Nor was it able to locate the Appuzo declaration, for which RGIS provided no citation.
. Although Plaintiffs state in their Reply that the rate is between 5% and 30%, the Borgen Declaration states that the rate is between 5 and 20%. The Court assumes that the 30% figure used in the brief is a typographical error. As discussed below, RGIS asks the Court to strike the Borgen Declaration, asserting that it should have been filed with the original motion and that it contains impermissible legal conclusions.
. As discussed below, RGIS moves to strike these declarations.
. On November 10, 2008, Plaintiffs filed a notice informing the Court that the court of appeal's decision in Brinker, found at 165 Cal. App.4th 25, 80 Cal.Rptr.3d 781 (2008), was depublished by the California Supreme Court on October 22, 2008, when that court granted review of the decision.
. As discussed below, in a separate motion to strike [docket no. 481], Plaintiffs ask the Court to strike these declarations on the grounds that RGIS did not timely disclose the identities of these witnesses and that RGIS acted unprofessionally in obtaining the declarations.
. RGIS also flies separate objections to this evidence. See Docket No. 540.
. The parties have raised a myriad of evidentia-ry objections. The Court rules on those objections only to the extent that it relies on the evidence that is challenged.
. Rule 23 provides, in relevant part, as follows:
(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parlies will fairly and adequately protect the interests of the class.
(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:
(1) prosecuting separate actions by or against individual class members would create a risk of:
(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;
(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirabilily or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed.R.Civ.P. 23(a) and (b).
. The court in Thiebes relied on the opt-in rate on the FLSA claims only to support its conclusion that the numerosity requirement was not met because joinder was not impracticable. Other cases have cited to low opt-in rates in support of the conclusion that there is no uniform policy or practice of violating wage and hour laws. See, e.g.. Smith v. T-Mobile USA, Inc., 2007 WL 2385131 *6 (C.D.Cal. Aug. 15, 2007). This Court agrees with the district court in Falcon v. Starbucks Corp., 580 F.Supp.2d 528, 536-37 (S.D.Tex.2008) that the probative value of the opt-in rate with respect to the question of whether a defendant has a uniform policy or practice is low because the decision of whether or not to opt in to an FLSA class involves a wide variety of factors. Accordingly, the Court does not rely on the FLSA opt-in rate in assessing whether RGIS has uniform policies that justify certification under Rule 23.
. Hereinafter, the Court’s references to "waiting and donning time” should be construed as incorporating the limitations set forth by Plaintiffs.
. RGIS also relied on Brinker Restaurant Corp. v. Superior Court, 80 Cal.Rptr.3d 781 (Cal.App.4th Dist.). That case may no longer be cited, however, as the California Supreme Court accepted review of the appellate court’s decision on October 22, 2008.
. The Court notes that its decision on this issue (as on class certification in general) may be revisited at a later time — once the California Supreme Court has ruled on its review of the Brinker decision.
. Plaintiffs shall be permitted to amend their complaint to add the proposed class representatives who have not been named as plaintiffs, that is Carol Molmen, Joan Johnson, Latonia Williams, Jewel Gatlin and Michael Zustak.
. In Lindsay, the court of appeals noted that while the FLSA claims were not inconsistent with the state law claims in that case, the district court could nonetheless choose to decline to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c) if it found, on remand, that the state law claims were either novel or complex or predominated over the FLSA claims. 448 F.3d at 424-425. The Court in this case does not find that either of these justifications for declining to exercise supplemental jurisdiction is present here.
. Although the Court has found that a class should be certified under Rule 23 as to the California plaintiffs based on alleged failure to itemize, no corresponding class has been certified under FLSA. Therefore, the Court need not reach
. To the extent that Plaintiffs’ claims under the FLSA relating to donning and waiting time purport to sweep more broadly than stated above, the Court GRANTS the Motion to Decertify.
. Again, to the extent that Plaintiffs’ claims under the FLSA relating to travel time purport to sweep more broadly than stated above, the Court GRANTS the Motion to Decertify.