Free Response in Opposition to Motion - District Court of Arizona - Arizona

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LATHAM & WATKINS LLP Joel E. Krischer (California SBN 066489) (admitted pro hac vice) [email protected] Joanna R. Wolfe (California SBN 217409) (admitted pro hac vice) [email protected] 633 West Fifth Street, Suite 4000 Los Angeles, California 90071-2007 Telephone: (213) 485-1234 Facsimile: (213) 891-8763 SEYFARTH SHAW LLP Andrew M. Paley (California SBN 149699) (admitted pro hac vice) [email protected] 2029 Century Park East, Suite 3300 Los Angeles, California 90067-3063 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 Attorneys for Defendants Allstate Insurance Company, Allstate Property and Casualty Insurance Company, Allstate Indemnity Company, Karl Meckert and Kim Lowe UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA IN RE ALLSTATE INSURANCE CO. FAIR LABOR STANDARDS ACT LITIGATION RUBEN H. MONTANO, Plaintiff, vs. ALLSTATE INSURANCE COMPANY, et al. Defendants. MDL NO. 1541

No. CV-04-0014-PHX-PGR DEFENDANT ALLSTATE'S SUPPLEMENTAL RESPONSE IN SUPPORT OF OPPOSITION TO PLAINTIFF MONTANO'S MOTION TO AMEND HIS CLASS AND COLLECTIVE ACTION COMPLAINT Assigned to the Hon. Paul G. Rosenblatt

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Case 2:03-md-01541-PGR

Document 127

Filed 03/02/2006

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Plaintiff Montano's reply brief in support of his motion to amend his complaint fails to address the concerns raised in the Court's Order of February 8, 2006. Consequently, Plaintiff Montano's motion to amend the complaint must be denied. Under the FLSA, a collective action is not commenced, notwithstanding the filing of a complaint, until plaintiff files a consent to join form. See 29 U.S.C. § 256. Plaintiff Montano incorrectly argues that his declaration, dated July 9, 2004 (nearly 19 months after his complaint1 was originally filed), is sufficient to satisfy the statutory consent form requirement. In support of his position, Montano relies on Schulte v. State of New York, 533 F. Supp. 31 (E.D.N.Y. 1981), in which the district court held that a verification attached to a complaint satisfied the consent form requirement of the Equal Pay Act. However, as this Court noted in its Order, the Ninth Circuit strictly construes the statutory consent form requirement. The statute of limitations for an FLSA collective action continues to run until a valid consent is filed. See Partlow v. Jewish Orphans' Home of Southern Cal., Inc., 645 F. 2d 757, 760 (9th Cir. 1981), disapproved on other grounds by Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165 (1989); accord Bonilla v. Las Vegas Cigar Company, 61 F. Supp. 2d 1129, 1132-33 (D. Nev. 1999) ("[T]he action is not deemed commenced with respect to each individual plaintiff until his or her consent has been filed."). Plaintiff's declaration fails to meet this strict statutory standard. Montano's employment with Allstate terminated on December 7, 2001. Accordingly, his claim should be barred as untimely because Plaintiff Montano has not filed an appropriate consent form and the applicable statutes of limitations have expired. Moreover, even if Plaintiff's declaration is deemed to satisfy the strict statutory consent form requirement, his claims would be time-barred under the FLSA unless he can prove that Allstate willfully violated the statute. Plaintiff's declaration was not signed until July 9, 2004 -- 31 months after his employment ended and any purported cause of action accrued. The statute of limitations under the FLSA is two years; the Plaintiff Montano's Complaint was filed December 17, 2002.

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limitations period is extended to three years only on a showing of willfulness by the employer. See 29 U.S.C. § 255(a). Consequently, Plaintiff may only pursue a claim based on a showing that Allstate willfully violated the statute. His claim for a non-willful violation is time-barred. Plaintiff also fails to explain how his motion to amend (which was filed on May 10, 2004) is timely, given that Judge Browning's case management order set June 16, 2003, as the deadline for joining additional parties and amending the pleadings. The order provides no exceptions to this deadline. In an attempt to sidestep this immutable fact, Plaintiff quotes language from the order that pertains to the class certification issue only--not amending the complaint. Recognizing that Plaintiff might need to conduct additional discovery to support his motion to facilitate notice after June 16, 2003, Judge Browning's order provides that class certification motions need not be filed until September 30, 2003. Contrary to Plaintiff's assertion, however, the order does not allow Plaintiff to amend his complaint to add named plaintiffs or new causes of action until September 30, 2003, on the theory that such amendments relate to class certification. Indeed, under Plaintiff's strained reading of Judge Browning's order, the June 16, 2003 deadline would be superfluous. Plaintiff's attempt to rely on the parties' Joint Case Management Plan ("Joint Plan"), filed February 27, 2003, is similarly unavailing. Under the Joint Plan, if the case is certified, the parties simply agreed to allow additional persons to opt-in. The Joint Plan does not support Plaintiff's contention that this constituted an agreement to add new named plaintiffs or new causes of action. Finally, amendment is not necessary to "level the playing field" as Plaintiff contends. The putative nationwide class members are already represented by counsel in the Rosa, Gaglione, and Wunder actions. The Plaintiffs in these consolidated actions are not hindered in their ability to prosecute these actions simply because their counsel are located outside of Arizona. Indeed, it is telling that the other Plaintiffs opposed Plaintiff

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Montano's attempt to amend his complaint to include a nationwide class.2 Plaintiff Montano's motion to amend is nothing more than an attempt to stake a claim to attorneys' fees, should Plaintiffs prevail in this matter. This is not a proper ground to allow a late amendment. For all the foregoing reasons, Plaintiff Montano's motion to amend his class and collective action complaint should be denied. DATED this 2d day of March, 2006. s/Joanna R. Wolfe Joanna R. Wolfe LATHAM & WATKINS LLP Attorneys for Defendants Allstate Insurance Company, Allstate Property and Casualty Insurance Company, Allstate Indemnity Company, Karl Meckert and Kim Lowe

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Although, the Rosa and Gaglione Plaintiffs misspoke at the hearing when they informed the Court that they had filed a written opposition to Montano's motion, the fact remains that they still oppose his motion.

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CERTIFICATE OF SERVICE I hereby certify that on March 2, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Clerk, United States District Court Sandra Day O'Connor U.S. Courthouse 401 W. Washington St., Ste. 130, SPC 1 Phoenix, AZ 85003-2118 Kelly McInerney, Esq. McInerney & Jones 18124 Wedge Parkway, Suite 503 Reno, NV 89511 [email protected] Attorney for Plaintiffs Mark Wintering, Esq. Robert E. Sweeney Co., LPA 55 Public Square, Suite 1500 Cleveland, OH 44113 [email protected] Attorney for Plaintiffs George Sintsirmas, Esq. George Sintsirmas, LLC 6212 Coldstream Road Highland Heights, OH 44143 [email protected] Attorney for Plaintiffs Steven M. Weiss, Esq. Law Offices of Steven M. Weiss 1250 Illuminating Building 55 Public Square, Suite 1009 Cleveland, OH 44113 [email protected] Attorney for Plaintiffs Andrea Elisabeth Watters, Esq. Watters Law Office, PC 2807 E. Broadway Blvd. Tucson, AZ 85716 [email protected] Attorney for Plaintiffs James A. Jones, Esq. Karla S. Jackson, Esq. Gillespie, Rozen & Watsky 3402 Oak Grove Avenue, #200 Dallas, TX 75204
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[email protected] [email protected] Attorneys for Plaintiffs By:s/Joanna R. Wolfe

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