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Case 1:03-cv-02485-MSK-PAC

Document 380-5

Filed 03/29/2006

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EXHIBIT D

Case 1:03-cv-02485-MSK-PAC

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Filed 03/29/2006

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LEXSEE 2004 u.s. DIST. LEXIS 23610

ANN COLDIRON, et aI., Plaintiffs, v. PIZZA HUT, INC., et aI., Defendants.
Case No. CV 03-05865-TJH (Mcx)

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
2004 u.s. Dist. LEXIS 2361 0

October 25, 2004, Decided
October 25, 2004, Filed

PRIOR HISTORY: Coldiron v. Pizza Hut, Inc., 2004 US Dist. LEXIS 23607 (eD. Cal., Oct. 25, 2004)
DISPOSITION: Defendant Pizza Hut's motion to compel individualized discovery and to compel fuher responses to written discovery requests granted.
CASE SUMMARY:
Civil Procedure )- Class Actions

Labor & Employment Law )- Wage & Hour Laws )resentative plaintiff may assert an action on his or her
Civil Procedure & Remedies (HNI) In an action under 29 uses. § 216(b), the rep-

own behalf and on behalf of other employees "similarly situated". 29 US es § 216(b). Any employee seeking

PROCEDURL POSTUR: Plaintiff managers fied a
putative class action under the Fair Labor Standards Act (FLSA), challenging the practice of defendant employer to categorize managers as exempt employees who were not entitled to overtime pay. The employer fied a motion to compel individualized discovery from each "opt-in" plaintiff.

to be a party plaintiff in such an action must consent in a writing filed with the cour. 29 uses § 216(b). Such plaintiffs are called "opt-in" plaintiffs. To determne if
the representative plaintiff is "similarly situated", the

majority of cours use an ad hoc, two tiered approach:

The first determnation is made based on the pleadings and any affdavits that have been submitted as to whether
the class should be certified. Because of the minimal

OVERVIEW: The court noted that although plaintiffs
characterized their case as a class action under Fed. R.

evidence at this stage, this determnation is made based on a fairly lenient standard. The second determnation is

Civ. P. 23, it was actually an action under 28 uses § 216(b). In such an action, the representative plaintiff could assert an action on his own behalf and on behalf of

made after discovery is largely complete. There, the court weighs various factors in making a factual determination as to whether the plaintiffs are similarly situated. Such factors include (I) the disparate factual and

other similarly situated employees who "opt in." The
court had previously granted a motion for class certfication under 29 uses. § 216(b), but it was clear that the employer intended to fie a motion to de-certfy the optin class at the conclusion of discovery. Thus, the court

employment settings of the individual plaintiffs, (2) the
various defenses available to the defendant which appeared to be individual to each plaintiff, and (3) fairess

and procedural considerations.

found that a factual question remained over whether or not plaintiff was similarly situated to the opt-in plaintiffs.
The court held that discovery, including individualized
Civil Procedure )- Class Actions

discovery was both necessary and appropriate, and the employer's motion to conduct individualized discovery
was granted.

OUTCOME: The cour granted the employer's motion
to compel individualized discovery.

Civil Procedure )- Disclosure & Discovery )- Relevance (HN2) Whether or not to permt to discovery in a Fed. R. Civ. P. 23 class action lies within the sound discretion of the court. In a situation in which the propriety of a class action cannot be determed without discovery, it is an abuse of discretion to deny discovery.

LexisNexis(R) Headnotes

Case 1:03-cv-02485-MSK-PAC

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2004 u.s. Dist. LEXIS 23610, *

COUNSEL: (*1) For Ann Coldiron, an individual for herself on behalf of all others similarly situated and on
behalf of the general Public, Plaintiff: Bicvan T Brown,

Although alleged as a class action under Rule 23, Federal Rules of Civil Procedure, it is (*3) clear that ths is an action under 28 use § 216(b). (HN1) In
such an action, the representative plaintiff may assert an action on his or her own behalf and on behalf of other
employees "similarly situated". 29 use § 216(b). Any employee seeking to be a part plaintiff in such an action must consent in a writing fied with the cour. 29 use § 216(b). Such plaintiffs are called "opt-in" plaintiffs.

Castle Petersen and Krause, Newport Beach, CA; Gregory G Petersen, Castle Petersen and Krause, Newport Beach, CA; Justian Jusuf, Castle Petersen & Krause, Newport Beach, CA; Rex Hwang, Castle Petersen and
Krause, Newport Beach, CA.
For Pizza Hut Inc, a California Corporation, Defendant:

Andra Barmsh Greene, Irell & Manella, Los Angeles,
CA; Bruce A Wessel, Irell & Manella, Los Angeles, CA;
Ellen Laguerta Uy, Pilsbury Winthrop, Los Angeles,

To determne if the representative plaintiff is "similarly situated", the majority of cours use an ad hoc, two
tiered approach:

CA; George A McNamee, II, Pilsbury Winthrop, Los Angeles, CA; Hemy Shields, Jr, Irell & Manella, Los Angeles, CA; Layn R Phillps, Irell & Manella, Los Angeles, CA; Paula Maxine Weber, Pilsbury Winthrop,
Los Angeles, CA; Richard S Ruben, Pilsbury Winthrop,

The first determnation is made based

on the pleadings and any affdavits that
have been submitted as to whether the class should be certified. Because of the

minimal evidence at this stage, this determination is made based on a fairly lenient standard. The second determnation is made after discovery is largely complete. There, the court weighs various factors in

Costa Mesa, CA.

JUDGES: JAMES W. McMAHON, United States Magistrate Judge.
OPINIONBY: JAMES W. McMAHON

making a factual determation as to
whether the plaintiffs are similarly situated. Such factors include (I) the dispa-

OPINION:
ORDER GRANTING PIZZA HUT'S MOTION TO COMPEL INIVIDUALIZED DISCOVERY

rate factual and employment settngs of
the individual plaintiffs, (2) the various

defenses available to (*4) the defendant

On the cour's own motion, the court dispenses with
oral argument with respect to the motion of defendant
Pizza Hut, Inc. ("Pizza Hut") to compel individualized

which appeared to be individual to each plaintiff, and (3) fairess and procedural
considerations.

discovery (*2) from opt-in plaintiffs, etc., noticed for
hearing on October 26, 2004. Local Rule 7-15. The cour takes the motion under submission and decides it forthwith.

Pfohl v. Farmers Insurance Group, 2004 US Dist. LEXIS 6447, 2004 WL 554834 at *2 (eD. Cal. 2004)
(internal citations omitted); see also Wynn v. National Broadcasting Company, Inc., 234 F. Supp.2d 1067, 1082
(eD. Cal. 2002).

Pizza Hut's motion to compel individualized discovery from opt-in plaintiffs and to compel fuher responses to written discovery requests is granted.
This is a "class" action by the plaintiff and other

"opt-in" plaintiffs under the Fair Labor Standards Act
("FLSA ''), alleging that the plaintiff managers at various

Pizza Hut restaurants and take-out pizza stores were im-

properly classified as exempt from federal overtme laws. The issue ultimately to be determned under the FLSA is whether each Pizza Hut Restaurant General Manager ("RGM") was an employee "whose primary duty consists of the management of the enterprise in which he is employed. . . ." 29 use § 213 (July 1,
2004 edition). If the cour ultimately finds that each

In the present case, the district judge has granted a motion for class certification under 29 use § 216(b). (Declaration of G. Allen McNamee, fied September 30, 2004, Exhibit B., Order, fied May 5, 2004.) The magistrate judge assumes that this order constitutes a first stage class certification within the meaning of Pfohl v. Farmers Insurance Group, supra. Indeed, Pizza Hut has an-

nounced an intention to move to decertify the opt-in class at the conclusion of discovery. Thus, the factual question whether the plaintiff is "similarly situated" to the opt-in plaintiffs is stil very much a live issue.

RGM's primary duty was management of the enterprise,

There are two lines of cases regarding individualized

the RGM is not entitled to overtime. Otherwise, each RGM is entitled to overtime pay, if otherwise qualified
for overtime payments.

discovery in opt-in class actions. One holds that individualized discovery is not appropriate in a Rule 23 class action and, by analogy, inappropriate (*5) in a § 216(b)

"class action". McGrath v. City of Philadelphia, 1994

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2004 U.S. Dist. LEXIS 23610, *

US Dist. LEXIS 1495, 1994 WL 45162, at *2-3 (E.D.
Pa. 1994); Adkins v. Mid-America Growers, Inc., 141 FR.D. 466, 468 (ND. Il., E. Div. 1992); Adkins v. Mid-

Pizza Hut plainly intends to move to decertify the class.
Based on that reason alone, discovery, including individualized discovery, is both necessary and appropriate.

American Growers, Inc., 143 FR.D. 171, 174 (N.D. Il., E. Div. 1992). mcGrath holds that "to allow such discovery would only serve to obfuscate the issues and drastically enhance the costs of litigation. Such a result cannot

The court therefore holds that Pizza Hut may conduct
individualized discovery from the opt-in plaintiffs.
The cour notes that the plaintiffs contributed to a discovery stipulation to the extent that the plaintiffs fied an opposition to the motion to compel individualized discovery. However, the plaintiffs have not submitted (*7) specific opposition in the discovery stipulation to
the specific discovery requests at issue in this motion.

be countenanced." McGrath v. City of Philadelphia,
1994 US Dist. LEXIS 1495, 1994 WL 45162 at *3.

Other cases permt individualized discovery of optin plaintiffs. Kaas v. Pratt & Whitney, 1991 US. Dist.
LEXIS 11177, 1991 WL 158943 at *3 (SD. Fla. 1991);

Krueger v. New York Telephone Company, 163 FR.D.
446, 449-52 (SD. N.y. 1995). The court in Kaas v. Pratt

Apparently, the plaintiffs chose to adopt an all or nothig position with respect to the requested discovery. Having adopted that position, the plaintiffs must now live with it.
Pizza Hut's motion for individualized discovery

& Whitney, supra, held that, because the defendant in
that case could challenge the joinder of any part as to

whether the partes are in fact similarly situated, meaningful discovery is not only permssible, but "essential".
Kaas v. Pratt & Whitney, 1991 US Dist. LEXIS 11177, 1991 WL 158943 at *3. It should be noted that the num-

from opt-in plaintiffs and for further responses to written

discovery is granted. Each of the opt-in plaintiffs who
has been served with the appropriate discovery request is ordered on or before November 29, 2004 (or such later

ber of "opt-in" plaintiffs (*6) as to whom individualized
discovery was permtted in Kreger was 162 and in Kaas

was "approximately 100". There are 306 opt-in plaintiffs
in the present action.

date as is jointly agreed by counsel for the partes) to provide fuher responses to the requests for admission, fuher verified responses to the interrogatories, and futher responses to the document production requests at

(HN2) Whether or not to permit to discovery in a

issue and all documents responsive to the document production requests.
IT IS SO ORDERED.

Rule 23 class action lies within the sound discretion of the cour. Kamm v. California City Development Company, 509 F2d 205, 209 (9th Cir. 1975). In a situation in

DATED: October 25, 2004
JAMES W. McMAHON

which the propriety of a class action cannot be determined without discovery, it is an abuse of discretion to
deny discovery. Id. at p. 210. Here, the question of

United States Magistrate Judge

whether the plaintiffs are similarly situated within the

meaning of 29 use § 216(b) is stil an issue because