Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

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

Document 338

Filed 01/31/2006

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-MK-2485 (pac) Camille Melonakis-Kurz, et al. Plaintiffs, v. Heartland Home Finance, Inc., Defendant. ______________________________________________________________________________ DEFENDANT'S MOTION TO DECERTIFY ______________________________________________________________________________ Defendant, Heartland Home Finance, Inc. ("Heartland" or Defendant"), by counsel and pursuant to the Court's Second Amended Scheduling Order, respectfully moves for decertification of this matter as a collective action under § 216(b) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. In support of this Motion to Decertify, Heartland states as follows: 1. On June 27, 2005, the Court conditionally certified this matter as a collective

action under the FLSA for purposes of notice and discovery. (Doc. 273: Memorandum Opinion and Order Regarding Motion for Class Certification, pp. 6, 8-9). The Court also expressly stated: "At the conclusion of discovery, the Court will determine whether this action should proceed as a collective action for purposes of trial." (Id., p. 6) 2. The Court's Second Amended Scheduling Order (Doc. 286, filed 8/08/05) states at

Part 7(h)(5)(a) that Motions to Decertify are due on January 31, 2006. 3. As stated in the Court's Opinion and Order Regarding Motion for Class

Certification, a stricter standard is used at the decertification stage. (Opinion and Order, p. 4 (citing Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1102-03 (10th Cir. 2001)).

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

Document 338

Filed 01/31/2006

Page 2 of 3

4.

Plaintiffs bear the burden of demonstrating that they are entitled to maintain this

matter as a collective action. See Reab v. Electronic Arts, Inc., 214 F.R.D. 623, 627 (D. Colo. 2002); Bayles v. American Medical Response of Colorado, Inc., 950 F.Supp. 1053, 1067 (D. Colo. 1996). Decertification should be granted because Plaintiffs cannot meet their burden of showing that they were subject to a nationwide policy to violate the FLSA, nor can they satisfy the requirement that they be similarly situated. 5. In accordance with D.Colo.LCivR7.1, counsel for the parties have made

reasonable, good faith effort to resolve this disputed matter prior to the filing of this Motion to Decertify, and Plaintiffs' counsel was informed that Defendant would be filing this Motion to Decertify. 6. Defendant is filing its Memorandum in Support (with accompanying exhibits)

concurrently herewith.1 WHEREFORE, Defendant, Heartland Home Finance, Inc., respectfully requests that the Court decertify the collective action; dismiss the opt-in Plaintiffs; and grant Heartland all other just and proper relief. Respectfully submitted,

s/ David J. Carr David J. Carr, IN Attorney No. 4241-49 Steven F. Pockrass, IN Attorney No. 18836-49 ICE MILLER LLP One American Square, Suite 3100 Indianapolis, IN 46282-0200 Phone: (317) 236-2100
If the collective action is not decertified, Heartland respectfully requests the trial setting, which currently has been allotted only one week, be modified. With over 950 purported class members ­ each with individualized experiences on a day-to-day basis, and many subject to individualized, fact-specific defenses ­ trial will require over 950 mini-trials, with testimony from each of the Plaintiffs, as well as relevant fact witnesses for each Plaintiff, and documentary evidence. Even assuming testimony about each Plaintiff could be completed in half a day (which is an unrealistically aggressive schedule), such a trial would last at least six months. This estimate represents only the liability phase of the trial. The damages component of the trial would also require individualized proof, concerning the particular rate of pay, whether any bonus amounts should be included, and the hours worked. Not all of the purported class members even accept as accurate Heartland's time records. The foregoing facts present significant manageability concerns, and demonstrate, again, the impropriety of proceeding on a collective basis. 1

-2-

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

Document 338

Filed 01/31/2006

Page 3 of 3

Sean R. Gallagher HOGAN & HARTSON LLP

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was sent by electronic service to counsel of record, on the 31st day of January, 2006.

s/ David J. Carr Attorney for Defendant ICE MILLER LLP One American Square, Suite 3100 Indianapolis, IN 46282-0200 Phone: (317) 236-2100

INDY 1676878v.1

-3-