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Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 1 of 25 Page ID #:241

CATHERINE A. CONWAY (SBN 98366)
SCOTT J. WITLIN (SBN 137413)
JEREMY F. BOLLINGER (SBN 240132)
AKIN GUMP STRAUSS HAUER & FELD LLP
2029 Century Park Eash Suite 2400

Los Angeles CA 9006

4 ccqn~~(ZV,~kingump.com

SWI thnCfYakmgump. com

5 ibo11inger~akingum2. com
Telephone: 310. 229. 1000
FacsImile: 310.229.1001

Attorneys for Defendant
CONOCOPHILLIPS PIPE LINE CO.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

EASTERN DIVISION - RIVERSIDE

DAMON FERRELL, an individual
on behalf of himself and all other
similarly situated and on behalf of The
State of California Labor and
Workforce DevelQpment Agency as a
Private Attorney General

Plaintiffs

19
22

20 CONOCOPHILLIPS PIPE LINE CO.
A DELAWARE CORPORATION;
21 and DOES 1 through 10, inclusive

Defendants.

Case No. EDCV09-0431 RRP (OPx)

DEFENDANT CONOCOPHILLIPS
PIPE LINE CO. S NOTICE OF
MOTION AND MOTION TO
STRIKE CLASS ALLEGATIONS

Date: To Be Set By Court
Time: To Be Set By Court
Judge: Rebecca R. Pallmeyer

DEFENDANT CONOCOPHILLIPS PIPE LIEN CO. S NOTICE OF MOTION AND MOTION TO STRIKE CLASS

ALLEGATIONS

Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 2 of 25 Page ID #:242

TO PLAINTIFF AND HIS ATTORNEY OF RECORD:

PLEASE TAKE NOTICE that on the hearing date to be set by the Court at the

telephonic Status Conference on April 22, 2010, at 2:00 p.
Pipe Line Company ("ConocoPhillips ) will and does hereby move to strike the class
allegations from Plaintiff Damon Ferrell' s ("Plaintiff' ) Second Amended Complaint

, defendant ConocoPhillips

6 ("Complaint"

This motion will be made pursuant to Federal Rule of Civil Procedure 12(t) on

the grounds that (1) Plaintiff has failed to move for class certification under Rule 23 or

29 U. C. 9 216(b) within 90 days of serving a complaint purporting to commence a

10 class action, as required under Central District Local Rule 23-3; (2) if the Court strikes
11 Plaintiffs ' Collective Action Allegations under 29 U. C. 9 216(b), the Court must strike
12 Plaintiffs ' Business & Professions Code 9 17200 allegations because they are premised
13 on the Collective Action Allegations; and (3) the Rule 23 opt-out class procedures are
14 inherently incompatible in this case with Plaintiff' s proposed opt-in class under 29
15 U. C. 9216(b).

16 Specifically, ConocoPhillips moves to strike paragraphs 10 through 29 of the

17 Complaint (Rule 23 Class Allegations), paragraphs 30 through 35 (FLSA Class
18 Allegations), paragraphs 71 through 75 (Third Cause of Action for Violations of FLSA
19 Under Cal. Bus. & Prof. Code 99 17200, et seq.), paragraph 1 of the Prayer for Relief in
20 which Plaintiff prays that a class be certified for state law claims, paragraph 2 of the
21 Prayer for Relief in which Plaintiff prays that a class be certified under the FLSA, and
22 paragraphs 7 through 8 of the Prayer for Relief which seek remedies specific to the
23 Plaintiff's representative claims which ConocoPhillips seeks to strike, as set forth
24 above. In addition, ConocoPhillips moves to strike all references to "Collective Action
25 Plaintiffs" in paragraphs "54" through "70" including the following language:

26 Page 9, ~ 54, lines 12- 13: "and on behalf of all similarly situated employees as
27 defined in the Collective Action Plaintiffs.

DEFENDANT CONOCOPHILLIPS PIPE LIEN CO.'S NOTICE OF MOTION AND MOTION TO STRIKE CLASS

ALLEGATIONS

Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 3 of 25 Page ID #:243

Page 9 , ~ 55 , line 16: "and Collective Action Plaintiffs.

Page 9, ~ 56, line 20: "and Collective Action Plaintiffs.

Page 9 , ~ 57, line 22: "and Collective Action Plaintiffs.

Page 9 , ~ 58, line 24: "and Collective Action Plaintiffs.

Page 1 0, ~ 60, line 1: "and Collective Action Plaintiffs.

Page 1 0, ~ 62, lines 6-7: "Plaintiff is informed and believes that Collective

Action Plaintiffs ' employment is covered by the terms of the Fair Labor

Standards Act."

Page 1 0, ~ 63 , lines 8-9: "and Collective Action Plaintiffs.

Page 1 0, ~ 69, line 20-21: "Collective Action Plaintiffs request overtime pay
and liquidated damages in an amount to be proven at time of trial."

Page 1 0, ~ 70, line 22: "and collective action members.

16 This motion will be based on this Notice of Motion, ConocoPhillips

17 Memorandum of Points and Authorities in Support of its Motion to Strike Class
18 Allegations, any oral argument that may be presented at the hearing on this motion, and
19 any other matter that the Court deems appropriate.

20 Finally, the Court set a briefing schedule on Plaintiff' s Motion for Conditional

Certification of Collective Action, requiring ConocoPhillips to file a memorandum in
22 opposition on or before March 23 2010. Dkt. #21. ConocoPhillips requests that the
23 Court stay further briefing on Plaintiff's Motion for Conditional Certification of
24 Collective Action, as well as Plaintiff' s anticipated Motions for Class Certification
25 pursuant to Federal Rule of Civil Procedure 23 , until the Court has ruled on
26 ConocoPhillips ' motion to strike Plaintiffs ' class allegations because the Court' s order
27 on ConocoPhillips ' motion may be dispositive of Plaintiffs ' pending motions.

DEFENDANT CONOCOPHILLIPS PIPE LIEN CO.'s NOTICE OF MOTION AND MOTION TO STRIKE CLASS

ALLEGATIONS

Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 4 of 25 Page ID #:244

This motion is made following the conference of counsel pursuant to loR. 7-

which took place on February 10 2010.

Dated: March 3 , 2010

AKIN GUMP STRAUSS HAUER &
FELD LLP
Catherine A. Conway

Is/Catherine A. Conway
onway

erIne

By

Attorneys for Defendant
CONOCOPHILLIPS PIPE LINE CO.

DEFENDANT CONOCOPHILLIPS PIPE LIEN CO.'s NOTICE OF MOTION AND MOTION TO STRIKE CLASS

ALLEGATIONS

Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 5 of 25 Page ID #:245

.......... ............ .............. ................ .... .......... ........... ................
.......... ........ ........... ..... ...... .......................................... .

TABLE

OF CONTENTS

Page Number

INTRODUCTION .................................................................................................

II.

III.

16 Iv.

RELEVANT FACTUAL BACKGROUND ..........................................................

A. The Timing of Plaintiff' s Class Allegations ................................................
B. Judge Larson s Standing Order ...................................................................
A. Standard for Motion to Strike. .....................................................................

ARGUMENT .........................................................................................................

Pla!nt!ff' s Rule
PlamtlffHas FaIled to Comply WIth Local Rule 23-3................................

f3 Class Allegatiqns Should Be Stricken Because

Pl~intiff' s FLSA Cla~s Allegations Also Should Be Stricken for
FaIlure to Comply WIth Local Rule 23-3. ................................................... 8
For the Same Reasons That It Should Strike Plaintiff' s FLSA Class
Action, the Court Also Should Strike Plaintiff's " Third" Cause of
Action for Violations of California Business and Professions Code
Section 17200.

Plaintiff' s Attempt to Certify a State Law 9J2t-Out Class Action
Under Rule 23 Is Inherently Incompatible With His Simultaneous
Pursuit of a FLSA Opt-In Collective Action Under Section 216(b). ........

CONCLUSION... ..............

DEFENDANT CONOCOPHILLIPS PIPE LIEN CO. S NOTICE OF MOTION AND MOTION TO STRIKE CLASS

ALLEGATIONS

Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 6 of 25 Page ID #:246

~~-

...................................................

......................................

TABLE OF AUTHORITIES

CASES

Page Number

Anderson

Batson

v. Sara Lee Corp. 508 E3d 181 (4th Cir. 2007)............................................
v. Powell 912 ESupp. 565 (D. C. 1996)..........................................................

Black Panther Party

v. Smith 661 E2d 1243 (D.C. Cir. 1981) ......................................
v. Mortgage Capital Resource Corp. 197 ESupp. 2d 1357 (N.D. Ga. 2002) .....
Co. 676 E2d 291 (8th Cir. 1982) ..........................
v. Western Airlines, Inc. 738 E2d 1053 (9th Cir. 1984) .........................................
856 F.2d 1439 (9th Cir. 1988) ..................................................................

Montgomery Ward

v. King,

v.

No. CV 05-8484-JFW (CWX),

v. DaimlerChrysler Cop.

11

2006 WL 60226~ 1 (C.D. Cat Apr. 20, 2006).......................................................
v. United Parcel Serv., Inc. No. C03-2001 THE

12 2006 WL 2642540 (N. D. Cal. Sept. 16, 2006) ....................................................

Cornn

v. Tyson Foods, Inc. 342 E3d 301 (3d Cir. 2003) ......................................
v. City of Long Beach 467 E Supp. 2d 986 (C.D. Cal. 2006)........................

~g7wL

~4~6615 t~fj:

~!b~g. P8 ~859~.:.'

v. Bonzelet 963 E2d 1258 (9th Cir. 1992) ...........................................................

v.

UPMC Shady-side

No. 07cv0807

Ghazali

2007 WL 3072261 (\V. D. Pa. Oct. 19 2007)........................................................
v. Moran 46 E3d 52 (9th Cir. 1995) ..................................................................
v. Yale Intern. Ins. ;j.gency, Inc. No. 03 C 3789

20 2004 WL 1080193 ~N.D. Ill. May 12 2004).......................................................

Harper

v. Duncan 779 E2d 1421 (9th Cir. 1986) .....................................................

v. Continental Cas. Co. No. Civ. 06- 166(GEB),

23

2006 WL 2347873 (D.N.J. Aug. 11 2006)..........................................................

24 No. EDCV 03-01006-VAP, 2004 WL 5642136 (C.D. Cal. Jul. 13 2004) ..........

v. Constr. Protective Serv., Inc.

Hoffman

v. Gutierrez 474 E Supp. 2d 41 (D. C. 2007)................................................
v. City of San Antonio 220 ER. D. 55 (W.D. Tex. 2003) .................................

Howard

Jackson

21

22

Henderson

Himmelman

Kimot

200r\fL46~i~f6(t~D~al~Xu

(~3

b~~...............

LaChapelle

v. Owens-Corning, Inc. 513 E2d 286 (5th Cir. 1975) ...............................

DEFENDANT CONOCOPHILLIPS PIPE LIEN CO. S NOTICE OF MOTION AND MOTION TO STRIKE CLASS

ALLEGATIONS

Bryant

Burkhalter

Buss

Carey

10

Clemens

13

14

15

16

17

De Asencio

Edwards

Ellis v.

Ferdik

Fowler

25

26

27

28

Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 7 of 25 Page ID #:247

............. ..........................................

Lee

Leuthold

Main

Malone

Marshall

v. Hayes

No. CV 07-6389-TJH

2008 WL 4447578 (C. D. Cal. Oct. 2, 2008)..........................................................

v. Destination Am., Inc. 224 ER.D. 462 (N.D. Cal. 2004) ......................

, 14

v. Elec. Data Sys. Corp. 168 ER.D. 573 (N.D. Tex. 1996) ..................................
v. Us. Postal Serv. 833 E2d 128 (9th Cir. 1987) ..............................................
v. Gates 44 FJd 722 (9th Cir. 1995) ...............................................................

Martinez-Mendoza

v. Champion Int l Corp.

340 E3d 1200 (11 th Cir. 2003) .............................................................................
Pizzeria, Inc. 222 ER. D. 574 (N.D. Ill. 2004) ................................

v. Leon

McClain

Moeck

200 W(4~~~81D.N)~fa~3 1686~'::.?~!.

10

v.

Otto

Muecke

Reliable Auto Parts and Wreckers, Inc. No. 01 C 2361

11 2002 WL 1359411 (N.D. Ill. June 21 2002) .......................................................
14 2009 WL 3851624 (S.D. Ga. Nov. 17 2009) .......................................................

v. Pocono Health Sys. 457 E Supp. 2d 522 (M.D. Pa. 2006) .........................

v. Andrews 389 E3d 853 (9th Cir. 2004).............................................................

No. 606CV089

Ramos-Barrientos

v. Bland

Pincay

12

, 14

v. Bureau of AfjirmativeAction 536 ESupp. 1149 (M.D. Pa. 1982).............
v. Maietta Constr., Inc. 147 E3d 71 (1st Cir. 1998)..........................................

v. Yard House Rancho Cucamonga, LLC No. CV 07-2105 PA (MANx),

2007 WL 6894503 (C.D. Cal. Dec. 10 2007) .......................................................

19 2008 WL 1994912 (M.D. Fla. May 8 2008)........................................................

No. 8:07-CV-2292- 27TBM

General Motors Corp.

Seyboth

v.

Sidney- Vinstein

v.

Robins Co. 697 E2d 880 (9th Cir. 1983)...................................
Nos. 03 C 1609 03 C 7362

v.

CHT Corp..

2004 WL 442638 (N. D. Ill. Mar.

2004).........................................................
v. Housing Auth. 782 E2d 829 (9th Cir. 1986)..............................................

Sorensen

Thompson

United States

v. Comprehensive Drug Testing, Inc. 473 E3d 915 (9th Cir. 2006) .........

Verner

v. Swiss IL LLC No. CV 09-5701 PA (CTx),
2010 WL 99084 (C.D. Cal. Jan. 6 2010) ..................................................

26 2009 WL 1956222 (9th Cir. June 23 , 2009) ......................................................

v. Schwarzenegger Nos. 06-55673 & 06-56371

Watson

, 5 , 6, 7

27

Williams

v. Trendwest Resorts, Inc. No. 2:05-CV-0605-RCJ

2007 WL 2429149 (D. Nev. Aug. 20, 2007)..................................................

, 5

, 15

15

16

17

Reichman

Roman

Seig

20

21

22

23

24

DEFENDANT CONOCOPHILLIPS PIPE LIEN CO.'S NOTICE OF MOTION AND MOTION TO STRIKE CLASS

111

ALLEGATIONS

Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 8 of 25 Page ID #:248

.... ........ ................. .......... ...... ... .................. ......

......... .......... .......... ...

Wood

v. TriVita, Inc. No. CV-08-0765-PHX
2008 WL 6566637 (D. Ariz. Sept. 18 2008).................................................

, 15

STATE CASES

Ali

v. Us.A. Cab Ltd. 176 Cal. App. 4th 1333 (2009) .............................................. , 10

Californians for Disability Rights

v. Mervyn

LLC 39 Cal.4th 223 (2006) ...................

Harris

v.

Investor

Bus. Daily, Inc. 138 Cal. App. 4th 28 (2006)................................

FEDERAL STATUTES

29 United States Code 9 216(b) ................................................................................. , 10
29 United States Code 9 251..........................................................................................
29 United States Code 9 251 (a)(1), (7) ..

10 29 United States Code 9 255(a) .....................................................................................

STATE STATUTES

12 California Business & Professions Code 9 17203...........................................................
13 California Business & Professions Code 9 17204...........................................................
14 California Business & Professions Code 9 17208.........................................................

RULES

11
15
19

16 Central District of California Local Rule 23-3 ...........................................................
17 Federal Rule of Civil Procedure 12(0...........................
18 Federal Rule of Civil Procedure 23(c)(2)(B) .................................................................

................... 2

, 8

OTHER AUTHORITIES

20 93 Congressional Record 2, 2 089-
, 2 182.................................................................
21 Judge Stephen G. Larson s Standing Order ~ 3............................................................
22 Judge Stephen G. Larson s Standing Order ~ 7........................................................
23 Publ. lo No. 49, ch. 52, 61 Stat. 84, 87 (1947) ..............................................................

, 5 , 6

DEFENDANT CONOCOPHILLIPS PIPE LIEN CO. s NOTICE OF MOTION AND MOTION TO STRIKE CLASS

ALLEGATIONS

Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 9 of 25 Page ID #:249

INTRODUCTION
The Central District of California, like other districts around the United States

imposes a strict deadline for plaintiffs seeking to bring claims on a class-wide basis to

file their motion for class certification. Plaintiff Damon Ferrell's Complaint, filed on
March 2 2009, purported to commence a class action. Pursuant to Central District

Local Rule 23- , Ferrell had 90 days to move for class certification. Ferrell did not

timely file a Motion for class certification and, nine months after the deadline, he still
has not done so. District courts have stricken class allegations for delays of much
shorter duration. Particularly in times of economic crisis, where judicial resources are
10 scarce, parties must diligently prosecute their claims and adhere to the very rules that
11 are meant to maintain the efficient administration of justice. Accordingly, this Court
12 should strictly follow Local Rule 23-3 and strike Plaintiff' s class allegations from the
13 Second Amended Complaint.

14 Plaintiff's class allegations should also be stricken because the opt-out procedures

15 of Federal Rule of Civil Procedure 23 applicable to his overtime claims under Business
16 & Professions Code Section 17200 and the opt-in procedures under the Fair Labor
17 Standards Act ("FLSA") also applicable to his overtime claim are inherently
18 incompatible, will create manageability problems for the court and parties, and confuse
19 putative class members who receive notices instructing them to both opt-in and opt-out
20 of the same action in order to pursue identical remedies. For these and other reasons, all

of Plaintiff's class allegations should be stricken.

22 II.

RELEVANT FACTUAL BACKGROUND

A. The Timing of Plaintiff' s Class Allegations

On March 2, 2009, Plaintiff Damon Ferrell ("Plaintiff' ) filed a Complaint against

Defendant ConocoPhillips Pipe Line Co. ("ConocoPhillips ) as an opt-in class action

under Section 16(b) of the Fair Labor Standards Act, 29 U. C. 9 216(b), and seeking

civil penalties on behalf of himself and other employees under California s Private

Attorney General Act of 2004, Cal. Labor Code 9 2698, for violations of California

DEFENDANT CONOCOPHILLIPS PIPE LIEN CO.'S NOTICE OF MOTION AND MOTION TO STRIKE CLASS

ALLEGATIONS

Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 10 of 25 Page ID #:250

Labor Code. Dkt. #1.

Plaintiff amended his Complaint on May 26, 2009 to include class allegations
pursuant to Federal Rule of Civil Procedure 23 ("Rule 23"), entitled First Amended
Class Action Complaint for Meal Breaks and Unfair Business Practices ("F AC"). Dkt.
#6. On January 11 2010, Plaintiff sought leave to file a Second Amended Complaint
6 ("SAC"), which expanded the class definition. Dkt. #15. On February 11 , 2010, the

Court granted Plaintiff leave to file his SAC. Dkt. #19.

B. Judge Larson s Standing Order

This case was initially assigned to the Honorable Stephen G. Larson. Judge

10 Larson s Standing Order states that "(uJnless there is a likelihood that, upon motion by a
11 party, the Court would order that any or all discovery is premature, counsel shall begin
12 before the Scheduling Conference. " Larson Standing Order ~ 3. "No stipulations
13 extending scheduling requirements or modifying applicable rules are effective until and
14 unless the Court approves them. Both applications and stipulations must be
15 electronically filed in advance of the date due and set forth. .. (b) specific, concrete
16 reasons supporting good cause for granting the extension. " Larson Standing Order,-r 7.

17 On or around November 23 2009, Judge Larson stepped down from the bench

18 however, the Court directed counsel to continue "to follow filing procedures indicated in
19 the existing Standing Order issued in (thisJ case until you receive notification of
20 reassignment." Dkt. #14 (In Chambers re Rule 16(b) Scheduling Conference dated Nov.
21 23 2009).
22 III. ARGUMENT

A. Standard for Motion to Strike.

Federal Rule of Civil Procedure 12(f) provides that a court "may order stricken

from any pleading ... any redundant, immaterial, impertinent, or scandalous matter.
(TJhe function of a 12(t) motion to strike is to avoid the expenditure of time and

money that must arise from litigating spurious issues by dispensing with those issues

prior to tria!.... Sidney- Vinstein

v.

Robins Co. 697 F.2d 880 885 (9th Cir. 1983).

DEFENDANT CONOCOPHILLIPS PIPE LIEN CO. S NOTICE OF MOTION AND MOTION TO STRIKE CLASS

ALLEGATIONS

'"

);

);

);

Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 11 of 25 Page ID #:251

Plaintiff' s Rule 23 Class Allegations Should Be Stricken Because
Plaintiff Has Failed to Comply With Local Rule 23-

Central District of California Local Rule 23-3 provides that "( w )ithin 90 days

after service of a pleading purporting to commence a class action other than an action

subject to the Private Securities Litigation Reform Act of 1995 ... the proponent of the
class shall file a motion for certification that the action is maintainable as a class action

unless otherwise ordered by the Court. " loR. 23-3. "Local rules are ' laws of the United

8 States '" and are " valid if... ' not inconsistent' with the Federal Rules of Civil

9 Procedure.

Marshall

v. Gates 44 F.3d 722 , 724 (9th Cir. 1995) (quoting

United States

10 v. Hvass 355 U. S. 570 575 (1958) and Fed. R. Civ. P. 83);

see also United States

11

Comprehensive Drug Testing, Inc. 473 F.3d 915 , 927 (9th Cir. 2006).

12 In the Central District, this local rule has been strictly construed by district courts

Watson

and the Ninth Circuit in reviewing those decisions.

v. Schwarzenegger Nos. 06-
14 55673 & 06-56371 , 2009 WL 1956222, at *1 (9th Cir. June 23 2009) (affirming district
15 court's enforcement of Local Rule 23- 3);
v. Swiss II, LLC No. CV 09-5701 PA
16 (CTx), 2010 WL 99084, *2 (C.D. Cal. Jan. 6 2010) ("Because Plaintiff failed to comply
17 with Local Rule 23- s ninety-day time limit for filing motions for class certification
18 the Court strikes the class allegations in Plaintiff' s First Amended Complaint."
Kimoto
19 v. McDonalds Corps. No. CV 06-3032 PSG, 2008 WL4690536, *3 (C.D. Cal. Aug. 19
20 2008) ("Plaintiff is barred from seeking certification because she failed to comply with
21 the 90-day requirement of Local Rule 23-3.. ..
v. Hayes No. CV 07-6389-TJH
22 2008 WL 4447578 , *4 n.12 (C. D. Cal. Oct. 2 2008) (citing loR. 23- , the court held
23 that " ( t )en months have passed since the action was commenced, but there has been no
24 motion for class certification or other attempt to change the procedural posture of this
25 case. Long after filing, and long after Petitioner s claims have become moot, it is too
26 late now to attempt any such change.
v. Yard House Rancho Cucamonga, LLC
27 No. CV 07-2105 PA (MANx), 2007 WL 6894503 , *2 (C.D. Cal. Dec. 10 2007)
28 ("Because plaintiffs failed to comply with Local Rule 23-

s ninety-day time limit for

Lee

Verner

Seig

DEFENDANT CONOCOPHILLIPS PIPE LIEN CO. S NOTICE OF MOTION AND MOTION TO STRIKE CLASS

ALLEGATIONS

);

" ;

);

Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 12 of 25 Page ID #:252

filing motions for class certification, and that time limit applies to a class action brought

under FACTA, the Court denies Plaintiff's Motion for Class Certification on this basis

3 alone.

cf Clemens

v. DaimlerChrysler Corp. No. CV 05-8484-JFW (CWX), 2006

4 WL 6022681 , *6 (C.D. Cal. Apr. 20 2006) ("Because Plaintiffs' original Motion for

Class Certification was filed within the time limits set by Local Rule 23- , the Court

will consider the second or revised motion for class certification as having been timely
7 filed. ). Courts in other circuits have stricken class allegations pursuant to local rules or

orders similar to Rule 23-

This action is governed by Local Rule 23-3. On May 26 2009, Plaintiff Ferrell
10 amended his Complaint to include class allegations under Rule 23. At no time within
11 the required 90-day period, however, did Plaintiff move for class certification or seek
12 relief from Local Rule 23-

Martinez-Mendoza

v. Champion Int'l Corp. 340 E3d 1200, 1216 n.38 (lIth Cir.

Black Panther Party

plaintiffs tor noncompliance);

Burkhalter

v.

Montgomery Ward

filed only eleven days late);

Howard

v.

Gutierrez

an extension of time witlim the ninety days from filing the complaint);

474 E Supp. 2d 41 53-54 (D.

2003) (expressly recognizing the authority of district courts to apply local rules

15 prescribing a deadline for the filing of a motion for class certification, or to sanction
Co. 676 F.2d 291
16 294 (8th Cir. 1982) (affirming district court's striKIng of class allegations because o
plaintiff' s failure to comply with court order setting creadline for filing of motion for
17 class certification);
v. Smith 661 E2d 1243 , 1279 (D.C. Cir. 1981)
18 (affirming denial of motion for extension of time to move for class certification that was
19 2007) (striking class allegations because plaintiff failed to move for class certification or
v. Powell
20 912 ESU2P. 565, 570 (D. C. 1996) (denying motion for class certification filed twenty
Main
21 allegations for failing to comI?ly with local rules ' requirement that such motions be filed
v. Bland No. 606CV089
22 witlim ninetY days of filing of cofilplaint);
2009 WL 3~51624, *4 (S.D. Ga. Nov. 11 2009) ("denial of class certification would be
23 an appropriate sanction for Plaintiffs ' failure to comply with Local Rule 23. 2.. ..
v. General Motors Corp. No. 8:07-CV-2292- 27TBM, 2008 WL 19949' 2, *2
D. Fla. May 8, 2008) (grantmg motion to strike class allegatIOns pursuant to loR.
24 (M.
v. UPAfC
Shadyside No. 07cv0807, 2007 WL 3072261 , *4 (W.D. Pa. Oct. 19 2007) ("PlamtIff
25 has tailed to move in a timely manner for class actIon determination ) (citmg W. D. Pa.
v. Mortgage Capital Resource Corp. 197 ESupp. 2d 1357, 1368
of tIllS Order in which

days late oecause "the 90- day limit... has been strictly enforced in this Circuit."
v. Elec. Data S;:s. Corp. 168 ER.D. 573 577 (N.D. Tex. 1996) (striking class

(N.D. Ga. 2002) ("Plaintiffs have forty (40) days from tIle ent
to move for class certification in accordance Local Rule 23.

04(b) requiring filing of class certification motion within 90 days);

Ramos-Barrientos

R. 23. 1(c));

Bryant

Affirmative Action

536 ESupp. 1149, 1168-69 (M.D. Pa. 1982 (denying motIon for
class certification because pfamtiff failed to comply with local rules ' requirement that
such motions be filed withIn ninety days of filing of complaint).

Reichman

v. fJureau of

Seyooth

Batson

Fowler

DEFENDANT CONOCOPHILLIPS PIPE LIEN CO.'S NOTICE OF MOTION AND MOTION TO STRIKE CLASS

ALLEGATIONS

Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 13 of 25 Page ID #:253

);

, "

Prior to the telephonic conference with the Court on February 10, 2010, Plaintiff
never even raised the issue of a class certification motion pursuant to Rule 23.2 In fact
there is no mention of Plaintiff's intent to file a motion for class certification pursuant to
Rule 23 in the parties' Joint Rule 26(t) Report.3 Dkt. #12. In the Joint Report filed on
August 7 , 2009, Plaintiff stated that it only " anticipates filing a Motion for
Collective

Action

Certification shortly after the initial disclosure exchange, to be heard in

7 October. " Dkt. #12 at 2:22-23 (emphasis added). But even though it raised collective

action certification at that late date, Plaintiff did no such thing. The only other
anticipated motions referenced in the Joint Report are "dispositive and partially

10 dispositive motions.
11 did not anticipate a Rule 23 motion.
at 2: 17 - 18 ("The parties will conduct an initial
12 phase of discovery limited to issues related to collective action certification and related

at 2:23-24. The scope of discovery defined by the parties also

Id.

Id.

13 issues.14 It is no excuse that Plaintiff was ignorant of Rule 23- 3. See Watson 2009 WL

15 1956222, at * 1 (Ninth Circuit affirmed denial of relief from Rule 23-3 where Plaintiff
16 claimed "unfamiliarity with the local rules
v. Andrews 389 F.3d 853 , 859 (9th
17 Cir. 2004) (en banc) (stating that "a lawyer s failure to read an applicable rule is one of
18 the least compelling excuses that can be offered"

19 Plaintiff also cannot attribute his delay to Judge Larson s departure from the case

20 or the continuance of the scheduling conference. First, whether measured by the
21 original Complaint or the First Amended Complaint, the 90-day deadline passed while

Pincay

23 2 Of course, even if Plaintiff had sought a stipulation from ConocoPhillips to

r a In ' agreement' between the
parties, in the absence of a Court Order, is plajply insufficient to change the deadline

Verner 2010 WL 99084, at *1; Larson Standing Order
~ 7 ("No stipulations extending scheduling requirements or modifying applicable rules

24 extend the date to file a motion for class certification
25 mandated in Local Rule 23-
26 are effective until and unless tile Court approves them.
3 The Joint Report was filed on August 7 2009, 73 d~s from filing of the FAC on
27 May 26 2009. Therefore, even if Plaintiff believes the FAC triggered the operation of
Rule 23- , Plaintiff had time to file his motion or seek an extensIOn of the deadline had
he actually intended to pursue class certification at that time.

DEFENDANT CONOCOPHILLIPS PIPE LIEN CO.'S NOTICE OF MOTION AND MOTION TO STRIKE CLASS

ALLEGATIONS

Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 14 of 25 Page ID #:254

, "

Judge Larson still was presiding over the case. From the filing of the Complaint, Judge

Larson ordered that "( n)o stipulations extending scheduling requirements or modifying

applicable rules are effective until and unless the Court approves them. " Larson

Standing Order ~ 7. Furthermore

applications and stipulations must be electronically

filed

in advance of the date due

and set forth... (b) specific, concrete reasons

supporting good cause for granting the extension.

Id.

(emphasis added). Thus, if there

were any doubt regarding the mandatory nature of compliance with the Local Rules

Plaintiff was on notice that he had to comply with those time requirements. Accordingly,

if Plaintiff believed he needed more time in order to file the motions necessary to bring

his claims as a class action, he was required to make application for relief from the

requirements of Local Rule 23- 3. Plaintiff failed to take advantage of the relief
available to him pursuant to the steps required by Judge Larson, while Judge Larson was
still presiding over the case. Indeed, the deadline to bring the motion passed before
Judge Larson stepped down from the bench. Had Plaintiff sought an extension, there is
no guaranty that Judge Larson would have granted a request for extension of Rule 23-

because Plaintiff still would have had to provide "specific, concrete reasons supporting
good cause for granting the extension.

Id.

When Judge Larson stepped down from the bench, the Court directed counsel to
continue "to follow filing procedures indicated in the existing Standing Order issued in

(this) case until (counsel) receive notification of reassignment." Dkt. #14. The fact that
the Scheduling Conference was vacated until a new judge could be assigned to the case

Verner the district

is of no consequence.

23 Judge Larson s Standing Order required the parties to proceed with discovery

24 before the Scheduling Conference. Larson Standing Order ~ 3. In
25 court rejected plaintiff' s argument that "he did not file a class certification motion
26 because he was waiting to commence discovery concerning class certification issues
27 until the parties ' Rule 26(f) conference of the parties. Verner 2010 WL 99084, at *1.
28 This did not constitute "good cause" in part because plaintiff did not explain why he

DEFENDANT CONOCOPHILLIPS PIPE LIEN CO. S NOTICE OF MOTION AND MOTION TO STRIKE CLASS

ALLEGATIONS

Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 15 of 25 Page ID #:255

failed to request an extension of the deadline.

Id. Like Verner, Plaintiff Ferrell had the

ability to pursue the evidence necessary to support a motion for class certification under

Rule 23 within the 90-day period. Plaintiff failed to do so
extension to file his motion. Therefore , as in Verner Plaintiff' s class allegations must
be stricken from the SAC.

he failed to seek an

and

6 Furthermore, Plaintiff has used his delay to enlarge the scope of the putative class

long after the deadline to file his motion. The class alleged in the FAC was limited to
employees who are members of Plaintiff's collective bargaining unit in California.

Dkt. #6 (FAC ~ 12). While Plaintiff's motion to amend the FAC purports only to

10

refine(J

the definition of the class and collective action Plaintiffs to distinguish the
11 ' Meal Break Class' from the classes relating to unpaid overtime " (Dkt. # 15 at 1 :6-
12 (emphasis added)), the SAC actually
13 ConocoPhillips ' hourly terminal and pipeline employees in California. SAC ~~ 11 , 12.

14 The Court also has authority to strike Plaintiff's class claims as part of its inherent

the definition to include literally

enlarges

all

Thompson

v. Housing Auth. 782 F.2d 829, 831 (9th Cir.

15 power to control its docket.
16 1986) (district courts have the inherent power to control their dockets and "in the
17 exercise of that power, they may impose sanctions including, where appropriate ...
18 dismissal of a case. ). A court may dismiss an action, with prejudice, based on a party
19 failure to prosecute an action, failure to obey a court order, or failure to comply with
20 local rules.
See, e.
21 noncompliance with local rule);
22 1992) (dismissal for failure to comply with an order requiring amendment of
23 complaint);
856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure
24 to comply with local rule requiring pro se plaintiffs to keep court apprised of address);
v. Us. Postal Serv. 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to

v. Moran 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for

v. Bonzelet 963 F.2d 1258 , 1260-61 (9th Cir.

, Ghazali

v. King,

Malone

Ferdik

Carey

25

4 Plaintiff sought leave to amend the FAC, in part, because he alleged the wrong

union. Dkt. #15 at

DEFENDANT CONOCOPHILLIPS PIPE LIEN CO.'S NOTICE OF MOTION AND MOTION TO STRIKE CLASS

ALLEGATIONS

Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 16 of 25 Page ID #:256

comply with court order);

Henderson

v. Duncan 779 F.2d 1421 , 1424 (9th Cir. 1986)

(dismissal for failure to lack of prosecution and failure to comply with local rules);

Buss

v. Western Airlines, Inc. 738 F.2d 1053 , 1053-54 (9th Cir. 1984) (dismissing age

discrimination claims for failure to comply with local rules). Accordingly, the Court

would be acting within its inherent power to strike the class claims as a sanction for

failure to comply with Local Rule 23-

For all of these reasons, the Rule 23 class allegations should be stricken from

Plaintiff' s Second Amended Complaint.

Plaintiff' s FLSA Class Allegations Also Should Be Stricken for Failure
to Comply With Local Rule 23-

11 Local Rule 23-3 is not limited to class actions under Federal Rule of Civil

12 Procedure 23. In fact, its provisions are triggered by any "pleading purporting to
13 commence a class action" and only excludes "an action subject to the Private Securities
14 Litigation Reform Act of 1995. " loR. 23-3. There is no authority holding that FLSA
15 class actions are exempt from Rule 23- , and the language of29 U. C. 9216(b)
16 suggests that it is a class action covered by the rule. 29 U. C. 9 216(b) provides: "
17 action to recover the liability prescribed in either of the preceding sentences may be
18 maintained against any employer ... in any Federal or State court of competent
19 jurisdiction by anyone or more employees for and in behalf of himself or themselves

20

and other employees similarly situated.

(Emphasis added. ) Because the FLSA

s restrictions on "class actions

21 permits an individual plaintiff to represent similarly situated persons in the class action
22 context, without authority to the contrary, Rule 23-
23 must apply to class actions brought under the FLSA.
24 Here, Plaintiffs ' original Complaint, filed on March 2, 2009 and served on April
25 21 , 2009, purported to commence a class action under the FLSA. Therefore, the
26 deadline for filing his motion for conditional certification of an FLSA opt-in class was
27 more than a month earlier than that required to file his Rule 23 class certification
28 motion. There is no reason why Plaintiff could not have filed his motion within the

DEFENDANT CONOCOPHILLIPS PIPE LIEN CO.'S NOTICE OF MOTION AND MOTION TO STRIKE CLASS

ALLEGATIONS

Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 17 of 25 Page ID #:257

required time. As discussed above, Plaintiff stated that he intended to file such a
motion. Dkt. #12 at 2:22-23. He even set an October 2009 deadline to file the motion.
Id. While that date was already beyond the 90-day period, he failed to file the motion
even within the time frame set by himself. Again, he cannot blame the delay on Judge

Larson as the 90-day period to bring his FLSA motion expired while Judge Larson was

still presiding over the case.

Accordingly, Plaintiffs ' FLSA class allegations should also be stricken.

D. For the Same Reasons That It Should Strike Plaintiff' s FLSA Class
10 Section 17200.
Action, the Court Also Should Strike Plaintiff' s "Third" Cause of
Action for Violations of California Business and Professions Code
11 Proposition 64, which was approved by voters on November 2, 2004, modified

12 California s Unfair Competition Law, Business and Professions Code Section 17200

13

seq.

Section 17200"), by imposing new standing requirements for parties seeking

14 relief under Section 17200 (standing is limited to certain specified public officials and to
15 any person who has suffered injury in fact and has lost money or property as a result
16 unfair competition) and requiring individuals, such as Plaintiff Ferrell, pursuing
17 representati ve actions to satisfy the class action requirements of Code of Civil
18 Procedure section 382. Bus. & Prof. Code 99 17203 , 17204;

Californians for Disability

19

Rights

v. Mervyn

LLC 39 Ca1.4th 223 , 228-229 (2006). As a result of these

Ali

v. US.A. Cab Ltd. 176 Cal. App. 4th 1333 , 1344

20 amendments, absent class certification, relief - and, in particular, restitution - cannot
21 extend beyond the named parties.
22 & n.2 (2009) ("By not pursuing class certification on the third and fourth counts (for
23 failure to provide meal and rest breaks), plaintiffs have implicitly relinquished class
24 treatment of any claims under the fifth and seventh causes of action pertaining to meal
25 and rest breaks.

26 In Ali the court found that the failure to pursue class certification of plaintiff'

27 meal and rest break claims implicitly relinquished class treatment of claims under
28 Section 17200 pertaining to those same claims.

Id.

DEFENDANT CONOCOPHILLIPS PIPE LIEN CO.'s NOTICE OF MOTION AND MOTION TO STRIKE CLASS

ALLEGATIONS

Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 18 of 25 Page ID #:258

1 Here, Plaintiff' s Section 17200 claim is dependent upon his FLSA overtime claim
(SAC ~~ 71-75) and must be stricken if the Plaintiff is unable to pursue his FLSA claim

on a representative basis due to his failure to comply with Local Rule 23- 3. Ali 176

Cal. App. 4th at 1344 & n.

E. Plaintiff's Attempt to Certify a State Law Opt-Out Class Action Under
Rule 23 Is Inherently Incompatible With His Simultaneous Pursuit of a
FLSA Opt-In Collective Action Under Section 216(b).

To the extent that Plaintiff' s Rule 23 and Section 216(b) class allegations are not

stricken for failure to comply with the Local Rules, they should be stricken because they

11

opt-out

are inherently incompatible with each other. The SAC purports to bring a FLSA

opt-
10 collective action claim under Section 216(b) while at the same time bringing a Rule 23
class action by bootstrapping the same alleged overtime violations to an alleged
12 violation of California Business and Professions Code Section 17200. SAC ~~ 31 , 71-
13 75. This is an impermissible attempt to evade the express limitations Congress placed
14 on the scope of actions permissible under the FLSA.

15 Section 216(b) restricts actions for the recovery of overtime pay by requiring
18

16 putative collective action class members to affirmatively consent to joining the litigation
17 through an opt-in procedure:

gives his consent

N.o emP.1oyee shal~ be a party plaintiff to any such action

tiled in the court in which such action is brougl1t. . ..

unless lJ,e
m WrItIng to become sucn a party and consent IS
20 29 U. C. 9 216(b) (emphasis added). Conversely, under Rule 23 , unnamed plaintiffs
21 are made members of the class by default and bound by any resulting judgment unless
22 they affirmatively opt-out from the class upon receiving notice of the class action. Fed.
23 R. Civ. P. 23( c )(2)(B). As one district court aptly explained:

24

In other words, the FLSA suit provides a means of participation for
individuals who truly wish to Join the suit, while requiring no action
from those who do not wish to join. By contrast, a Rule 23 class
requires that a potential class member take affirmative action not to
be bound by the judgment.

27

Leuthold

v. Destination Am. , Inc. 224 ER.D. 462, 469-70 (N.D. Cal. 2004).

DEFENDANT CONOCOPHILLIPS PIPE LIEN CO.'S NOTICE OF MOTION AND MOTION TO STRIKE CLASS

ALLEGATIONS

, "

);

, "

Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 19 of 25 Page ID #:259

1 Indeed, allowing FLSA opt-in collective action claims to be brought at the same

time as Rule 23 opt-out class actions under state law for the same alleged violations

would run afoul of Congress' intent in requiring opt-in collective actions under the

FLSA when it crafted Section 216(b) and passed the Portal-to-Portal Act. 29 U.
9 251(a)(1), (7). Congress in 1947 perceived a national emergency spawned by out-of-

control litigation of employee minimum wage and overtime claims.

See

29 U.

C. 9

251; 93 Congo Rec. 2

089-

182 (statements of Sen. Donnell). It enacted the opt-

in provision of the FLSA in response.

De Asencio

v. Tyson Foods, Inc. 342 F.3d 301

9 306, 310 (3d Cir. 2003) (finding that
(fJor policy reasons articulated in the legislative
1 0 history, Congress chose to limit the scope of representative actions for overtime pay and
11 minimum wage violations ). In doing so, Congress prohibited opt-out representative
12 actions for overtime pay claims. Publ. lo No. 49, ch. 52 61 Stat. 84, 87 (1947). In
13 enacting the statutory provision entitled "Representative Actions Banned " Congress
14 expressed its intent that unless plaintiffs were prevented from aggregating claims by the
15 class action device
16 needless litigation and champertous practices would be encouraged." 29 U.
17 9 251(a)(1), (7). In addition to controlling the volume oflitigation, Congress sought to
18 ensure that "absent individuals would not have their rights litigated without their input
19 or knowledge.
v. Pocono Health Sys. 457 F. Supp. 2d 522, 524 (M.D. Pa. 2006).
20 Indeed, adoption of the opt-in provision in 29 U. C. 9 216(b) was "a crucial policy
21 decision. De Asencio 342 F.3d at 311.

the courts of the country would be burdened with excessive and

Otto

Accordingly, district courts in this and other districts find opt-in and opt-out

classes inherently incompatible when brought in the same action. See, e.

Harper

25 See Cornn

v. United Parcel Serv. , Inc. No. C03-2001 THE, 2006 WL 2642540

under & 216(b).

*3 (N. D. Cal. Se2t. 16 2006) ("There is a fundamental difference between a class
26 action, such as tliis one, brought under Rule 23 ... and a r collective 1 action pursued
Co., LP. , No. 06-661007 2007 WL
27 44266r5 , *12 (W. D. Pa. Dec. 18 2007) ("In light of the policies that underlie the FLSA;
28 Portal Act's amendments to section 16(b) of the FLSA , 29 U. C. 9 216(b); and the total

Congress s clear intent to further those policies through enactment of the Portal-to-

negation of those policies that would occur if the Court were to allow Plaintiffs to

Ellis

v.

Edward D. Jones

DEFENDANT CONOCOPHlLLlPS PIPE LIEN CO.'S NOTICE OF MOTION AND MOTION TO STRIKE CLASS

ALLEGATIONS

);

);

);

Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 20 of 25 Page ID #:260

Yale Intern. Ins. Agency, Inc. No. 03 C 3789, 2004 WL 1080193 , *5 (N.D. Ill. May 12

2004) (Pallmeyer, J.) (refusing to certify a state law opt-in class seeking overtime wages

where plaintiffs "arguably subverted congressional intent in creating the FLSA opt-
procedure by choosing to seek class certification of their (state law J claims instead of
pursuing an FLSA collective action.
v. CHT Corp. Nos. 03 C 1609 03 C
6 7362 2004 WL 442638, *11 (N.D. Ill. Mar. 10 2004) (Pall meyer, J.) (same). Among

Sorensen

the Circuits, only the Fifth Circuit appears to have addressed this issue, concluding that

Section 216(b) and Rule 23 are "mutually exclusive and irreconcilable.

LaChapelle

Owens-Corning, Inc. 513 E2d 286 288 (5th Cir. 1975).

10 While a handful of courts have held that the FLSA' s opt-in process does not

11 preclude a cause of action alleging violations of the FLSA under Section 17200, such
12 decisions are not consistent with Ninth Circuit precedent. In
v. TriVita, Inc. the
13 Court rejected the reasoning of one California Court of Appeal that permitted a FLSA
14 Rule 23 class action through a Section 17200 claim 6 explaining that "overtime claims
15 that are directly covered by the FLSA must be brought under the FLSA.

Wood

Wood

16

TriVita, Inc. No. CV-08-0765-PHX, 2008 WL 6566637, *4 (D. Ariz. Sept. 18 2008)

17 (citing 29 U.
18 1151 , 1154 (9th Cir. 2000)). Thus Wood
19 law claims in conflict with the FLSA claims on preemption grounds.

C. 9 218(a);

Williamson

v. General Dynamics Corp. 208 E3d 1144

supported its dismissal of the plaintiff' s state

Id. ; see also

20

Anderson

v. Sara Lee Corp. 508 E3d 181 , 194 (4th Cir. 2007) ("Congress prescribed

21 exclusive remedies in the FLSA for violations of its mandates.

Roman

v. Maietta

22

Constr., Inc. 147 FJd 71 , 76 (1st Cir. 1998) ("' the FLSA is the exclusive remedy for

2ursue state law overtime remedies under Fed. Civ.P. 23 and FLSA opt-in remedies in
the same action, the Court finds that Plaintiffs ' parallel state claims must be
dismissed.

v. City of San Antonio 220 ER.D. 55 , 58 (W.D. Tex. 2003)

P.1aintiffs may not re~y upon "Rule 23 's.opt-out cla~s structure to cov~r both the FLSA

claim and the state claim and proceed wftli both claims and one class. ).

Jackson

Harris

v.

Investor

Bus. Daily, Inc. 138 Cal. App. 4th 28 32-36 (2006).

DEFENDANT CONOCOPHILLIPS PIPE LIEN CO. S NOTICE OF MOTION AND MOTION TO STRIKE CLASS

ALLEGATIONS

Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 21 of 25 Page ID #:261

enforcement of rights created under the FLSA"'

) (quoting

Tombrello

v. USX Corp. 763

ESupp. 541 , 544-45 (N. D. Ala. 1991)).

Even if not prohibited, certification of an opt-out class under Rule 23 at the same

time as an FLSA opt-in class on the same overtime claims will result in confusion for
the putative class members as well as manageability problems for the Court. Under

6 Plaintiff's approach, class members will receive a notice providing them the opportunity
to opt-in to the FLSA overtime class. That notice implies that the putative class member

need do nothing if she wishes to avoid being bound by the results of the lawsuit because

she wants to pursue her own claims separately or otherwise. However, that same

10 putative class member will also receive a conflicting instruction requiring her to take
11 action in order to avoid being bound by the results of the same lawsuit under Rule 23.
Reliable Auto Parts and Wreckers, Inc.

12 As explained by the court in

13 No. 01 C 2361 2002 WL 1359411 (N.D. Ill. June 21 2002):

Muecke

v.

(OJnce emRloyees who receive notice have decided whether to opt
Into the FLSA class, we will have before the Court as plaintiffs an
the present and former employees who wish to pursue a claim for
unpaid wages. Each of those persons then will be able to pursue on
his or her own behalf state law claims, which cover the very same
conduct as the FLSA claim. It is entirely possible - particularly in
light of the significant dispute over whether the alleged practices
were illegal - that only a few or a handful of employees will elect to
opt into the FLSA actIon. Were that to occur we would be left with
tile rather incongruous situation of an FLSA " class" including only a
tiny number of employees who are interested in seeking bacK wages
with a state-law class that nonetheless includes all or nearly all of the
companies ' present or former employees. Because all of tile
com2anies ' present and former em210yees will have the chance to
deciae whether to join the case, ana because those who wish to do so
will be before the Court, it makes no real sense to the Court to certify
a class that will automatically include all of the employees unless
they opt out. Under these circumstances, and because of the
relatively modest number of existing present and former employees
the Court sees nothing to favor the proposition that we should
impose on the collectIve FLSA claim an overlay of a Rule 23(b)(3)
state-law class.

26

Id.

at *2 (footnotes omitted);

see also Williams

v. Trendwest Resorts, Inc. No. 2:05-CV-

27 0605-RCJ, 2007 WL 2429149, *4 (D. Nev. Aug. 20, 2007) (dismissing plaintiff'
28 Section 17200 opt-out action concurrently filed with its FLSA opt-in action because to

DEFENDANT CONOCOPHILLIPS PIPE LIEN CO. S NOTICE OF MOTION AND MOTION TO STRIKE CLASS

ALLEGATIONS

Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 22 of 25 Page ID #:262

);

);

);

do so would "bring into the case under Rule 23 the other 1 100 Californians who failed

to affirmatively opt into the FLSA action

Otto 457 F. Supp. 2d at 523 ("It is clear that
Congress labored to create an opt-in scheme when it created Section 216(b) specifically

to alleviate the fear that absent individuals would not have their rights litigated without

their input or knowledge.

Moeck

v. Gray Supply Corp. No. 03- 1950 (WGB), 2006

6 WL 42368 , *5 (D.N.J. Jan. 6, 2006) ("Allowing Plaintiff Moeck to circumvent the opt-

in requirement and bring unnamed parties into federal court by calling upon state

statutes similar to the FLSA would undermine Congress s intent to limit these types
claims to collective actions.

v. Continental Cas. Co. No. Civ. 06-

Himmelman

10 166(GEB), 2006 WL 2347873 , *2 (D.N.J. Aug. 11 2006) (striking class allegations on
11 same grounds);
Pizzeria, Inc. 222 ER.D. 574 577 (N.D. Ill. 2004)
12 ("McClain cannot circumvent the opt-in requirement and bring unnamed parties into
13 federal court by calling upon state statutes similar in substance to the FLSA that lack the
14 opt-in requirement"

v. Leon

McClain

15 In
17

Leuthold

16 between two class action devices:

v. Destination Am., Inc.

the court explained the central conflict

Should only a few plaintiffs opt in to the FLSA class after the court
were to certify a Rule 23 state law class, the court might be faced
with the somewhat peculiar situation of a large number of plaintiffs
in the state law class who have chosen not to p'rosecute theIr federal
claims. The court might then be in a position in which declining
supplemental jurisdiction would be appropriate, given that the state
law claims could be said substantially to predomInate over the
federal claims (citation omitted). Further, the policy behind
requiring FLSA plaintiffs to opt in to the class would largely be
thwarted if a plaIntiff were permitted to back door the shoehorning in
of unnamed parties through the vehicle of calling upon similar state
statutes that lack such an opt-in requirement (citation).

24 224 ER.D. at 469-71. Likewise , in Edwards
25 (C. D. Cal. 2006), Chief Judge Audrey Collins followed
26 Rule 23 class certification on the same grounds, noting that confusion was likely to
27 result from requiring potential plaintiffs to both opt-in and opt-out of the claims in the
28 suit if both class actions were to proceed.

v. City of Long Beach 467 E Supp. 2d 986

reasoning and denied

Leuthold'

v. Constr.

see also Hoffman

Id.

at 992;

DEFENDANT CONOCOPHILLIPS PIPE LIEN co. S NOTICE OF MOTION AND MOTION TO STRIKE CLASS

ALLEGATIONS

Case 5:09-cv-00431-RRP-OP Document 22 Filed 03/03/10 Page 23 of 25 Page ID #:263

),

);

Protective Serv. , Inc. No. EDCV 03-01006-VAP, 2004 WL 5642136, *7-8 (C.D. Cal.

Jul. 13 2004) (conditionally certifying a class under Section 216(b) and dismissing the

plaintiff' s Rule 23 motion for class certification).

Furthermore, concurrent certification of the two overtime classes would permit

Plaintiff to seek a longer 4-year statute of limitations for its FLSA claims when the
FLSA expressly limits overtime claims to a 2-year statute oflimitations. Williams
2007 WL 2429149, at *4 (dismissing plaintiff' s Section 17200 opt-out action in part
because it would permit plaintiffs "to escape the stricter FLSA statute of limitations by

taking advantage of the Section 17200 four-year limitations period.

Wood 2008 WL

10 6566637, at *6 ("Plaintiff may not avoid the FLSA' s remedies or collective action
procedures in order to seek a more favorable remedy or maintain a Rule 23 class

action.

Accordingly, Plaintiff' s Section 17200 claim should be stricken to avoid the

confusion and manageability problems posed by proceeding with these conflicting class