Gamble v. Boyd Gaming Corp.

• Decision Date: 11 July 2016
• Docket Number: Case No. 2:13-cv-01009-JCM-PAL,Case No. 2:13-cv-01043-JCM-PAL,Case No. 2:13-cv-01801-JCM-PAL
• Parties: CRAIG GAMBLE, et al. Plaintiffs, v. BOYD GAMING CORPORATION, Defendant.
• Court: U.S. District Court — District of Nevada

CRAIG GAMBLE, et al. Plaintiffs, v. BOYD GAMING CORPORATION, Defendant.

Case No. 2:13-cv-01009-JCM-PAL

Case No. 2:13-cv-01043-JCM-PAL

Case No. 2:13-cv-01801-JCM-PAL

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

July 11, 2016

ORDER

(Mot. Prelim. Apprv. Stlmt - ECF No. 250)

Before the court is Plaintiffs' renewed Unopposed Motion for Preliminary Approval of Settlement (ECF No. 250) (the "Motion"). No opposition to the Motion was filed and the time for filing a response has now run.¹ This Motion was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 and 1-7 of the Local Rules of Practice.

BACKGROUND

Plaintiffs Craig Gamble, Michael Simmons, Maria High, Kathy Belmonte, and Richard Caldwell (jointly, "Plaintiffs") filed three separate lawsuits against Defendant Boyd Gaming Corporation on May 9, 2013 (Case No. 2:13-cv-01009-JCM-PAL), June 12, 2013 (Case No. 2:13-cv-01043-JCM-PAL), and October 1, 2013 (Case No. 2:13-cv-01801-JCM-PAL). Plaintiffs alleged claims to recover unpaid wages earned during time rounded-off by Defendant's timekeeping system and time they spent cashing out their banks off-the-clock. Master 2nd Am. Compl. (ECF No. 42) ¶¶ 20-28. Pursuant to a stipulation by the parties, the court consolidated the lawsuits making the instant case, Case No. 2:13-cv-01009-JCM-PAL, the base file. Nov. 20, 2013 Order (ECF No. 41). The operative complaint in this consolidated action is Plaintiffs' Master Second Amended Complaint (ECF No. 42), which asserts claims for unpaid regularwages and overtime wages under the Federal Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and applicable Nevada law.

On December 5, 2013, Plaintiffs filed a Motion to Certify Class (ECF No. 44) seeking conditional certification of a collective action. Defendant filed a Motion to Dismiss (ECF No. 46) Plaintiffs' state law claims on December 9, 2013. The court granted Defendant's motion and dismissed the state law claims. See June 9, 2014 Order (ECF No. 93). As a result, the following FLSA claims in the Second Master Complaint remained viable:

(1) violations of the FLSA for failure to pay wages due to a scheme by the defendant to "round down" employees' time, resulting in the improper calculation of wages and unpaid time; (2) violations of the FLSA for failure to pay wages due to a scheme by defendant to require employees to work "off-the-clock;" (3) violation of the FLSA for those employees who were subject to the defendant's scheme to "round down" and to require "off-the-clock" work.

Id. at 2. The court also granted Plaintiffs' motion in part and conditionally certified two collectives. Id. at 7-8. The parties were ordered to "meet and confer in order to agree on a mutually acceptable notice." Id. at 9:24-25. On July 11, 2014, the court approved the parties' stipulated notice to the collectives. Stipulation & Order (ECF No. 106). Defendant provided a putative class list of almost 28,000 persons and Plaintiffs distributed the Notice. See Decl. of Michelle R. Fisher, Esq. (ECF No. 250-1) ¶¶ 11-12.

Excluding the four individuals who initially joined and later withdrew, 2,632 persons submitted consents to join this action. Id. ¶ 12. Defendant contested the inclusion of approximately 630 individuals, either because they did not work during the relevant timeframe or at the relevant property. Id. ¶ 13. After meeting and conferring, the parties agreed that 476 persons did not qualify for inclusion and those persons should be dismissed without prejudice. Id. ¶ 15. As a result, the parties agree that 2,158 persons (the "Opt-In Plaintiffs") consented to join this action and qualify for the collectives as defined by the court. Id. ¶ 16.

The parties engaged in considerable discovery efforts throughout this action, including written discovery and depositions. See, e.g., id. ¶¶ 3-10. For example, the parties exchanged approximately 8,600 pages of documents and 489.13 megabytes of timekeeping and payroll data. Id. ¶ 9. Plaintiffs deposed Defendant through five corporate designees. Id. ¶ 4. Defendantdeposed each of the five named Plaintiffs and 18 of the Opt-In Plaintiffs. Id. ¶ 7. Both parties retained experts and exchanged expert disclosures, reports, and almost three gigabytes of data associated with expert reports. Id. ¶¶ 17-19.

Discovery closed on March 9, 2015. See Jan. 12, 2015 Order (ECF No. 213). The parties participated in a mediation before the Honorable Peter Lichtman (Ret.) before dispositive motions were due. Fisher Decl. ¶ 36. The Motion represents that the parties arrived at and signed a memorandum of understanding containing material terms of their settlement after hours of negotiations. Id. ¶ 36. The parties then reduced the agreement to the Stipulation of Settlement and Release (ECF No. 250-2) (the "Proposed Settlement") (submitted as Mot. Ex. A). See Fisher Decl. ¶ 39.

The current Motion is the second unopposed motion for preliminary approval of settlement filed in this case. The court denied the first motion for the reasons articulated in the written Order (ECF No. 247).

DISCUSSION

The FLSA regulates the minimum wages and overtime compensation paid to workers. 29 U.S.C. §§ 206-207; Dent v. Cox Commc'ns Las Vegas, Inc., 502 F.3d 1141, 1143-44 (9th Cir. 2007). To penalize violations of §§ 206 and 207 of the FLSA, § 216 states that employers are "liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages." 29 U.S.C. § 216(b). The FLSA also provides a private right of action enabling workers to maintain a lawsuit against their employer on "behalf of himself or themselves and other employees similarly situated," i.e. a collective action. Id. See also Gray v. Swanney-McDonald, Inc., 436 F.2d 652, 655 (9th Cir. 1971).

I. FINAL CERTIFICATION OF THE FLSA COLLECTIVES

The FLSA does not define the term "similarly situated" for the purposes of bringing a collective action, and the Ninth Circuit has not yet formulated a test for courts to determine whether putative collective members are similarly situated. Vasquez v. Coast Valley Roofing, 670 F. Supp. 2d 1114, 1123 (E.D. Cal. 2009). However, a number of courts, including this one,have adopted a two-step approach for determining whether potential plaintiffs are "similarly situated" for purposes of conditional certifying an FLSA collective. Kress v. Price Waterhouse Coopers, LLP, 263 F.R.D. 623, 627 (E.D. Cal. 2009) (noting that district courts in the Ninth Circuit predominantly use a two-tier approach to determine whether a group of employees is similarly situated). At the first, or "notice stage," a court relies "primarily on the pleadings and any affidavits submitted by the parties," to decide whether the potential collective should be conditionally certified and given notice of the action. Leuthold v. Destination America, Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004); see also Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1259 (11th Cir. 2008) ("[T]he importance of certification, at the initial stage, is that it authorizes either the parties, or the court itself, to facilitate notice of the action to similarly situated employees."). If the court conditionally certifies a collective and authorizes notice, the parties conduct discovery, after which the employer may move to decertify the class. Kress, 263 F.R.D. at 628; Leuthold, 224 F.R.D. at 467. This triggers the second stage of class analysis in which a court makes a factual determination regarding the propriety and scope of the class. Id. This determination is made after discovery is completed so that the court has a complete factual record on which to base its decision whether the plaintiffs are similarly situated. Murillo v. Pac. Gas & Elec. Co., 266 F.R.D. 468, 471 (E.D. Cal. 2010). If the plaintiffs are not similarly situated, "then the court may decertify the class and dismiss the opt-in plaintiffs without prejudice." Leuthold, 224 F.R.D. at 467.

Here, the Proposed Settlement provides the following definitions for two collective action groups, one consisting of the "Rounding Collective," and the second, "Off-the-Clock Collective":

• The Rounding Collective:

all Named Plaintiffs and Opt-in Plaintiffs who have been employed by Defendant in an hourly, non-exempt position at a Boyd Gaming property that uses the Kronos timekeeping system, who have filed a Consent to Join the Action, who have worked more than 40 hours in at least one week during the Relevant Period, and whose claims are not time-barred.

Proposed Settlement ¶ 2.45.

• The Off-the-Clock Collective:

all Named Plaintiffs and Opt-in Plaintiffs who have been employed by Defendant in an hourly, non-exempt cash handling position at The Orleans Hotel and Casino or the Gold Coast Hotel and Casino, who filed a Consent to Join the Action, who worked more than 40 hours in at least one week during the Relevant Period, and whose claims are not time-barred.

Id. ¶ 2.31. The Motion states that the Off-the-Clock Collective is really a sub-group of the Rounding Collective because all members of the Off-the-Clock Collective are also members of the Rounding Collective. See Mot. (ECF No. 250) at 6 n.13. Defendant did not file a motion to decertify the Collectives, and this Motion is unopposed.

Some district courts have held that even when the parties settle, the court must make a final certification finding before approving a collective action settlement." See, e.g., Goldsby v. Renosol Seating, LLC, 294 F.R.D. 649, 656 (S.D. Ala. 2013); Murillo, 266 F.R.D. at 471. Plaintiffs argue that only a small minority of courts require the second stage of class analysis for settlement purposes, and those cases erroneously interpret Anderson v. Cagle's, Inc., 488 F.3d 945, 953 (11th Cir. 2007), as requiring final certification. See Mot. (ECF No. 250) at 11 n.16. Plaintiffs assert that the "question of whether opt-in plaintiffs may...