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Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 1 of 36 Page ID #:619

CATHERINE A. CONWAY (SBN 98366)
SCOTT 1. WITLIN (SBN 137413)
JEREMY F. BOLLINGER (SBN 240132)
AKIN GUMP STRAUSS HAUER & FELD LLP
2029 Century Park Eask Suite 2400

Los Angeles CA 9006

4 ccqn~~(W,~kingump.com

SWI thn(g!akmgump. com

5 ibollingerCfYaKingum2.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

Workforce DevelQpment Agency as a

DAMON FERRELL, an individual
15 on behalf of himself and all other
similarly situated and on behalf of The
16 State of California Labor and
17 Private Attorney General
18 Plaintiffs
19
20 CONOCOPHILLIPS PIPE LINE CO.
22
A DELAWARE CORPORATION;
21 and DOES 1 through 10, inclusive

Defendants.

Case No. EDCV09-0431 RRP (OPx)

DEFENDANT CONOCOPHILLIPS
COMPANY' S NOTICE OF
MOTION AND MOTION FOR
ADJUDICATION~
AUTHORITIES IN SUPPORT
THEREOF

MEMORANDUM OF

AND

SUMMARY

POINT~

rDefendant' s Statement of
Uncontroverted Facts and Conclusions
of Law, Declarations of Jeremy F.
Bollinger and Roland Parker, Appendix
of Administrative Authorities, and
Proposed Order filed concurrently
Date: TBD
Time: TBD
Ctrm: TBD
Judge: Hon. Rebecca R. Pallmeyer

DEFENDANT CONOCOPHILLIPS COMPANY' S NOTICE OF MOTION AND MOTION FOR SUMMARY

ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 2 of 36 Page ID #:620

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, defendant ConocoPhillips Pipe Line
Company ("ConocoPhillips ) will and does hereby move for summary adjudication as
to Plaintiff Damon Ferrell' s ("Plaintiff' ) second and third causes of action, claims for
civil penalties under the Private Attorney General Act, and class allegations under Rule
23.

This motion will be made pursuant to Federal Rule of Civil Procedure 56 on the

ground that there is no triable issue of material fact as to Plaintiff' s second and third
10 causes of action alleged in Plaintiff' s Second Amended Complaint ("Complaint") and
11 that ConocoPhillips is entitled to summary adjudication as a matter of law with respect

17 because ConocoPhillips ' practices do not violate the FLSA as a matter oflaw;

14 because he admitted at deposition that he is unaware of any instance in which
15 ConocoPhillips failed to pay him overtime compensation;

12 to:13 1) Plaintiff's Second Cause of Action for unpaid overtime under the FLSA
16 2) Plaintiff's Second Cause of Action for unpaid overtime under the FLSA
18 3) Plaintiff's Third Causes of Action for Violations of Business & Professions
21 4) Plaintiff' s claim for civil penalties under PAGA because he has failed to
23 5) Plaintiff's class allegations under Rule 23 because he is unable to establish

19 Code ~ 17200 because that claim is premised on the FLSA violations alleged in
20 Plaintiff's Second Cause of Action;

22 show that he followed the administrative prerequisites for bringing the claims; and

24 that he is an adequate representative, that he is typical of the class members he seeks to
25 represent, or that the class is sufficiently numerous.

26

27

28

III
III
III

DEFENDANT CONOCOPHILLIPS COMPANY' S NOTICE OF MOTION AND MOTION FOR SUMMARY

ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 3 of 36 Page ID #:621

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

Memorandum of Points and Authorities in Support of its Motion for Summary

3 Adjudication, the concurrently filed Statement of Uncontroverted Facts and Conclusions

of Law, the Declarations of Jeremy F. Bollinger and Roland Parker in Support of

5 ConocoPhillips ' motion and the documents and records attached thereto , all pleadings

and records on file in this action, any oral argument that may be presented at the hearing
on this motion, and any other matter that the Court deems appropriate.

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

which took place on February 10, 2010. Declaration of Jeremy F. Bollinger ("Bollinger

10 Dec1. ),-r 2. ConocoPhillips attempted to further meet and confer with Plaintiff'
11 counsel, but Plaintiff' s counsel insisted that the conference be recorded.
12 LR. 7- 3 does not contemplate the recording of the conference of counsel.

Id. ,-r

Hart

, Ex. A.

Gaioni No. CV02-01331 RMT, 2003 WL 21149935 , at *2 (C.D. Cal. May 13 2003)

14 (no failure to comply with LR. 7-3 where "counsel refused to meet unless: 1) the
15 meeting was held at defense counsel' s office, 2) the meeting was reported by a court
16 reporter, 3) the meeting was tape recorded, and 4) witnesses were permitted to be
17 present none ofwhich were contemplated by LR.
) (emphasis added). Where the
18 non-moving party refuses to meet and confer absent a recording, strict compliance with
19 LR. 7- 3 will not be required.
v. Togas Eateries, Inc. No. CV 07-2901
20 GPS, 2008 WL 2856412 at n.1 (C. D. Cal. July 21 2008) (where the failure to adhere to
21 the explicit requirements of the meet and confer rule results in no prejudice to plaintiff
22 it is well within the Court' s discretion to evaluate the motion on the merits);
23 Wachowski No. CV 03-2873 MMM, 2004 WL 5618386 n. 2 (C.D. Cal. Sept. 28, 2004)
24 (considering motion where there had been "some attempt to comply with meet and
25 confer requirement" ). Indeed, some judges in the Central District of California waive
26 the requirements ofLR. 7-3 with respect to dispositive motions, such as presented here.
Judge Manuel L Real' s Order Re: Notice to Counsel at ~ 7 ("parties are NOT

See, e.

See id.; Walshe

Stewart

13

27

28 obligated to meet and confer.. . for the purposes of preparing and filing dispositive

DEFENDANT CONOCOPHILLIPS COMPANY' S NOTICE OF MOTION AND MOTION FOR SUMMARY

ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 4 of 36 Page ID #:622

motions (to dismiss, summary judgment, etc).
http://www.cacd.uscourts.gov/CACD/JudgeReq . nsf/2fb080863

(available at

c88ab4 7882567 c9007 faO

70/fa3ecae354361 dOe8825681900830a42/$FILE/CV%20NOTICE%20TO%20COUNS
ELpdf).

Dated: April 22, 2010

AKIN GUMP STRAUSS HAUER &
FELD LLP
Catherine A. Conway
Scott J. Witlin
Jeremy F. Bollinger

By

IslCatherine

Attorneys for Defendant
CONOCOPHILLIPS PIPE LINE CO.

A. Conway
onway

ne

DEFENDANT CONOCOPHILLIPS COMPANY' S NOTICE OF MOTION AND MOTION FOR SUMMARY

ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 5 of 36 Page ID #:623

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

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

TABLE OF CONTENTS

Page Number

II.

III.

Iv.

VI.

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

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

STANDARD OF REVIEW................................ ...................................................

FERRELL CANNOT BRING HIS FLSA CLAIMS UNDER RULE 23. ...........

NOTICE OF BOTH AN OPT-IN AND OPT-OUT CLASS WILL
CONFUSE PUTATIVE CLASS MEMBERS. ......................................................

PLAINTIFF CANNOT MEET HIS RULE 23 BURDEN. ................................... 9
A. Plaintiff's Class Allegations Should Be Dismissed Because Plaintiff

And His Counsel Cannot Adequately Represent the Putative Class...........
1. Plaintiff' s Failure To Follow The Local Rules And Other
Defects In His Complaint Demonstrate That He And His
Counsel Cannot Adequately Represent the Putative Class. ............

Plaintiff' s Inability
Failure To Monitor The Litigation
Demonstrates His Inadequacy To Represent The Interests Of
Absent Class Members................... .......... ....................................... 12

AndlOr

Plaintiff' s Class Allegations Should Be Dismissed Because Plaintiff
Cannot Establish That The Class He Seeks To Represent Is
Sufficiently Numerous........... ......

Plaintiff' s Class Allegations Should Be Dismissed Because Plaintiff
Is Not Typical Of The Class He Seeks To Represent. ...............................

VII. SUMMARY ADJUDICATION IS PROPER AS TO FERRELL'

SECOND CAUSE OF ACTION FOR OVERTIME PAY BECAUSE HE
ADMITS CONOCOPHILLIPS HAS PAID ALL OVERTIME HE IS DUE...... 18

VIII. PLAINTIFF' S SECOND CAUSE OF ACTION FAILS AS A MATTER OF
LAW BECAUSE CONOCOPHILLIPS' PRACTICES DO NOT VIOLATE
THE FLSA. ................... ..........

IX. PLAINTIFF' S THIRD CAUSE OF ACTION UNDER BUSINESS &

PROFESSIONS CODE SECTION 17200 FAILS AS A MATTER OF LAW
BECAUSE IT IS PREMISED ON PLAINTIFF' S FLSAALLEGATIONS.......

X. PLAINTIFF' S PAGA CLAIMS SHOULD BE DISMISSED BECAUSE

FERRELL FAILED TO CO MPL Y WITH THE AD MINIS TRATIVE
REQUIREMENTS OF LABOR CODE SECTION 2699...................................
XI. CONCLUSION................................. .................................................................. .

DEFENDANT CONOCOPHILLIPS COMPANY' S NOTICE OF MOTION AND MOTION FOR SUMMARY

ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 6 of 36 Page ID #:624

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

TABLE OF AUTHORITIES

Page(

s )

FEDERAL

CASES

Acton v. City of Columbia, Mo.

No. 03-4159, 2004 WL 2152297 (W.D. Mo. Sept. 10 2004)...........................

Anderson v. Sara Lee Corp.

508 F.3d 181 (4th Cir. 2007) ...............................................................................

Blackie

v. Barrack

524 F .2d 891 (9th Cir. 1975)

Bovee

v.

Coopers

Lybrand

216 F. D. 596 (S.D. Ohio 2003)................................................................

10

15

Cornn

v. Byrd

Cobb v. Aurora Loan Servs. , LLC

Cook County College Teachers Union , Local 1600

12 408 B.R. 351 (E.D. Cal. 2009)........................................................................... 17
14 456 F.2d 882 (7th Cir. 1972) ............................................................................... 9
16 No. C03-2001 THE, 2006 WL 2642540 (N. D. Cal. Sept. 16 2006) ..................
18 614 F.2d 1300 (5th Cir. 1980) ........................................................................... 15
20 264 F.3d 936 (9th Cir. 2001) ............................................................................. 17

v. United Parcel Serv. , Inc.

v. W Elec. Co., Inc.

v. Klein

Crawford

Cusano

De Asencio

v. Tyson Foods, Inc.

17

19

21

342 F.3d 301 (3d Cir. 2003)................................................................................. 4

Doninger

v. Pac. Nw. Bell, Inc.

23 564 F.2d 1304 (9th Cir. 1977) ........................................................................... 15
25 527 F. Supp. 2d 439 (W.D. Pa. 2007).................................................................. 5
27 69 Fed. Cl. 193 (Fed.Cl. 2006) ...........................................................................

Co., LP.

v. u.S.

Edward D. Jones

Fisher

Ellis

26

v.

DEFENDANT CONOCOPHILLIPS COMPANY' S NOTICE OF MOTION AND MOTION FOR SUMMARY

ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 7 of 36 Page ID #:625

"""""'" ...............

..

Gen. Tel. Co. ofSw.

v. Falcon

457 U. S. 147

(1982).......................................................................................

Hanon

v. Dataprods. Corp.

976 F.2d 497 (9th Cir. 1992) .............................................................................

Harper

v. Yale Intern. Ins. Agency, Inc.

No. 03 C 3789, 2004 WL 1080193 (N.D. 111. May 12 2004) (Pallmeyer, J.)..... 5

Helm

v. Alderwoods Group, Inc.

--- F. Supp. 2d ----, 2009 WL 2337529 (N.D. Cal. July 29, 2009)...................... 9

Hernandez

v.

Downey Sav.

Loan Ass '

, FA.

No. 08-2336, 2009 WL 704381 (S.D. Cal. Mar. 17 2009)............................... 17

12

Hovsepian

v. Apple, Inc.

In re Baycol Prods. Litig.

11 No. 08-5788 JF, 2009 WL 5069144 (N.D. Cal. Dec. 17 2009)........................ 13
13 593 F.3d 716 (8th Cir. 2010) ............................................................................... 9
15 168 F. D. 257 (N.D. Cal. 1996)....................................................................... 13
17 108 F. D. 328 (N.D. Cal. 1985)....................................................................... 19

In re Cal. Micro Devices Secs. Litig.

In re Convergent Tech. Sec. Litig.

16

14

In re LDK Solar Secs. Litig.

18

255 F .

D. 519 (N.D. Cal. 2009)........... ........................

........ 14

23

Jones

LaChapelle

Jackson v. City of San Antonio

v. Hartford Ins. Co. of the Midwest

20 220 F. D. 55 (W.D. Tex. 2003) ......................................................................... 5
22 243 F. D. 694 (N.D. Fla. 2006) ....................................................................... 10
24 513 F.2d 286 (5th Cir. 1975) ............................................................................... 5
26 109 F.3d 1423 (9th Cir. 1997) .............................................................................
28 2010 U. S. Dist. LEXIS 20240 (B.D. Cal. Mar. 4, 2010)............................. 7

v. Owens-Illinois, Inc.

v. Dalton

Elec. Co.

Pac. Gas.

Mayfield

27

Murillo

v.

25

DEFENDANT CONOCOPHILLIPS COMPANY' S NOTICE OF MOTION AND MOTION FOR SUMMARY

ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

III

Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 8 of 36 Page ID #:626

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

....... """"'" ........... ............. ..................

Ortiz v. Fibreboard Corp.

527 U. S. 815 (1999).............................................................................................

Otto

v. Pocono Health Sys.

457 F. Supp. 2d 522 (M.D. Pa. 2006)........................................................ ~......... 4

Perine

v. ABF Freight Systs., Inc.

457 F. Supp. 2d 1004 (C.D. Cal. 2006) ............................................. ........ .......... 3

Quezada

v. Loan Center of California, Inc.

No. CIV. 2:08-00177 WBS, 2009 WL 5113506 (E.D. Cal. Dec. 18 2009).....

Roe

v. Town of Highland
909 F .2d 1097 (7th Cir. 1990)

............................... 14, 16

12

Roman

v. Maietta Constr., Inc.

11 147 F.3d 71 (1st Cir. 1998)..................................................................................
13 No. 09cv1320, --- F. Supp. 2d ----, 2009 WL 3234182 (S.D. Cal. Sept. 30
14 2009) .. ................................. ...................

v. Wells Fargo Bank

Runaj

15

Rutledge

v.

Electric Hose

Rubber Co.

511 F.2d 668 (9th Cir. 1975) ............................................................................... 9

Sorensen

20

Sh(ldy Grove Orthopedic Assocs., P.A.

v. Allstate Ins. Co.

v. CHT Corp. Nos. 03 C 1609 03 C 7362, 2004 WL 442638, at *11

17 No. 08- 1008, --- S.Ct. ---- 2010 WL 1222272 (Mar. 31 , 2010)..................... 6, 9
19 (N.D. Ill. Mar. 10, 2004)........................ ...... ............ ................................. ........... 5
21 608 F.2d 377 (9th Cir. 1979) ............................................................................. 15
23 362 F. 3d 1219 (9th Cir. 2004) ..................................................................... 17, 18

v. Marconsult, Inc.

v. Cook

Spectrum Fin. Cas.

22

Turner

24

Vega

v.

Mobile USA, Inc.

564 F.3d 1256 (11 th Cir. 2009) ......................................................................... 14

Vinole

26

v. Countrywide Home Loans, Inc.

571 F.3d 935 (9th Cir. 2009) ......... ...................................................................... 9

DEFENDANT CONOCOPHILLIPS COMPANY' S NOTICE OF MOTION AND MOTION FOR SUMMARY

ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

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

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

..

Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 9 of 36 Page ID #:627

Waisbein

v. UBS Fin. Servs. Inc.

No. C-07-2328 MMC, 2008 WL 753896 (N.D. Cal. Mar. 19 2008) ......... 24, 25

Wang

v. Chinese Daily News, Inc.

435 F. Supp. 2d 1042 (C.D. Cal. 2006) .............................................................

Wood

v. TriVita, Inc.

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

CALIFORNIA CASES

Ali

v. u.s.A. Cab Ltd.
176 Cal. App. 4th 1333 (2009) .................................................................... 23 , 24

10

Caliber Bodyworks, Inc.

v. Superior Court

134 Cal. App. 4th 365 (2005) ......................................................................

15

Harris

Californians for Disability Rights

Gamble Co.

v. Mervyn s LLC

12 39 Ca1.4th 223 (2006) .................................................................................. 23 , 24
14 18 Cal. App. 4th 644 (1993) .............................................................................. 16
16 138 Cal. App. 4th 28 (2006) ................................................................................
17 FEDERAL STATUTES
18 8 U.
11 U.

v. Investor s Bus. Daily, Inc.

Caro

v.

Procter

C. ~ 1252

C. ~ 541

21 29 U. C. ~~ 207 ............................................................................................... 18 , 19
22 29 U. C. ~ 216 ................................................................................................ passim
23 29 U. C. ~ 251 ......................................................................................................... 4
24 ~ 554 of Title 11 of the United States Code............................................................ 17
25 CALIFORNIA STATUTES

Business and Professions Code ~ 17200.......................................................... passim

Business and Professions Code ~ 17203.................................................................

DEFENDANT CONOCOPHILLIPS COMPANY' S NOTICE OF MOTION AND MOTION FOR SUMMARY

ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 10 of 36 Page ID #:628

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

Business and Professions Code ~ 17204.................................................................

Business and Professions Code ~ 17203................................................................. 23

Business and Professions ~ 17203..........................................................................

California Labor Code ~ 226................................................................................... 10

Cali fornia Labor Code ~ 2698................................................................................... 1

California Labor Code ~ 2699.3........................................................................

OTHER STATE STATUTES

Code of Civil Procedure ~ 382..

............... ............ .................. 23

OTHER AUTHORITIES

12 29 Code of Federal Regulations 778.207................................................................ 21
13 29 Code of Federal Regulations 778.217.. ......... ....... ............. ...... ................. .......... 22
14 29 Code of Federal Regulations 778.415................................................................
15 29 Code of Federal Regulations 778.417.......................................................... 20, 21

29 Code of Federal Regulations 778.419.......................................................... 20

93 Congo Rec. 2 """".................................................................................................

19 Bankruptcy Rule 6007............................................................................................. 17
20 Federal Rule of Civil Procedure 11..................................................................... 1 , 12
Federal Rule of Civil Procedure 17......................................................................... 17
22 Federal Rule of Civil Procedure 23............... ..................................... .............. passim
Central District' s Local Rule 23-3 ............ ............. ....... ....... ............................ ....... 10

Department of Labor Field Operations Handbook ~ 32h02 ................................... 21
26 Department of Labor Opinion Letter FLSA2004- 3 (May 13 , 2004)...................... 21

DEFENDANT CONOCOPHILLIPS COMPANY' S NOTICE OF MOTION AND MOTION FOR SUMMARY

ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 11 of 36 Page ID #:629

MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION
Plaintiff Damon Ferrell' s ("Plaintiff' or "Ferrell") discovery responses

demonstrate that he cannot prevail on several claims as a matter of law. He concedes

that the allegations of his complaint are based on nothing more than what

are now
really assumptions and beliefs on the part of the attorney. This admission reveals
that no reasonable inquiry was made to ensure the complaint's " factual contentions have
evidentiary support" (Fed. R. Civ. P. 11(b)(3)). His deposition testimony confirms the
lack of evidence for certain claims. Plaintiff' s Second Cause of Action seeks unpaid

no

10 overtime. At deposition Ferrell admitted there were
instances in which Defendant
11 ConocoPhillips Pipe Line Co. ("ConocoPhillips ) has failed to pay him overtime and
12 that he seeks only compensation for missed meal breaks. Further, his lawyers' claims
13 notwithstanding, ConocoPhillips' calculation of Ferrell' s regular rate of pay is proper
14 under the FLSA. Similarly, his Third Cause of Action under Business & Professions
15 Code ~ 17200, premised on his claim for unpaid overtime, also must fail. Plaintiff'
16 failure to comply with the administrative prerequisites of the Private Attorney General
17 Act ("PAGA"), under Labor Code ~ 2698, is fatal to that claim. Summary adjudication
18 of Plaintiff's Rule 23 allegations is appropriate due to undisputed evidence that Plaintiff
19 cannot meet several Rule 23(a) requirements. For the reasons set forth below, the Court
20 should grant ConocoPhillips ' motion for summary adjudication.

21 II.

RELEVANT FACTUAL BACKGROUND

22 At deposition, Ferrell testified that he does not know of any instance in which
24 Q: Now is it your contention that ConocoPhillips hasn t paid you

23 ConocoPhillips has failed to pay him overtime:

overtIme?

A: No.

(Defendant's Statement of Uncontroverted Facts (" UF"J No.
anyone who Conoco has not paid overtime to. " (UF No.

) Nor does Ferrell "know

) In fact, Ferrell does not

DEFENDANT CONOCOPHILLIPS COMPANY' S NOTICE OF MOTION AND MOTION FOR SUMMARY

ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 12 of 36 Page ID #:630

include unpaid overtime among the relief he is seeking in this lawsuit:

Q: And what is it that you re hoping to result from this lawsuit?
A: Compensation for missing lunches and meal breaks.

Q: Anything else?
A: No.

(UF No.

7 Ferrell' s response to ConocoPhillips ' Special Interrogatory No. 12 confirms that

Ferrell has no evidence of overtime violations. Special Interrogatory No. 12 asked

Ferrell to "IDENTIFY all weeks in which YOU worked in excess of forty (40) hours

10 and did not receive overtime premiums to which YOU were entitled, as alleged in
11 paragraphs 48 , 49, 50, and 52 (of the FACJ,'" Ferrell refused to answer on the grounds
12 of attorney work product:

13 (DJiscovery in this lawsuit is still in the nascent stages and the "facts" that
14 later time.
15 The attorney for tliis responding party is not required to review hIs/her
16 violative of the attorney work product privilege.
18 Plaintiff testified that he has no knowledge of pipeline employees that is relevant

are believed to be true at this time might be reveal eo to be incorrect at a
These "facts " are now really assu",ptions and beliefs on the
and, therefore, are part of tfie attorney worK product.

thinking processes for opposing counsel. This aemand is, therefore

17 (UF No. 4) (emphasis added).

llart of the attorney

19 to his allegations. (UF No.
20 No. 6), he does not know their meal break practices (UF No. 7), and he does not know

) He does not know the names of such employees (UF

21 how they are paid (UF No. 8). Likewise, Ferrell has no knowledge of the working
22 conditions or meal break practices of employees at any terminal other than at the one
23 where he works, Los Angeles Terminal. (UF No.

24 As of the date of his deposition, nearly one year after the filing of this case

25 Ferrell still did not understand what his role and responsibilities are as a class
26 representative, other than "(jJust to tell the truth. " (UF No. 10. ) He does not know ifhe

, Paragraphs cited in FAC correspond to paragraphs 56, 57 , 58, 60 of SAC.

DEFENDANT CONOCOPHILLIPS COMPANY' S NOTICE OF MOTION AND MOTION FOR SUMMARY

ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 13 of 36 Page ID #:631

'"

) "

reviewed the first or second amended complaints before they were filed (UF No. 11) and

admitted that he only "may glance" at the documents sent to him. (UF No. 12.

I rely

on my attorneys to tell me what's going on in the case. If it's something that I need to
4 know, they send me the paperwork -- " (UF No. 13 (testifying that apart from what he

has been told by his attorneys, he has no independent basis for his overtime claims)).

6 However, he does not know if or why the complaint was amended a first or second time

13 III.

or why certain claims were dropped from the complaint. (UF No. 14. ) Ferrell has not
heard of several of the claims alleged in his complaint and does not understand what
they mean. He does not know what a class action is, what an opt in class action is, what
10 a representative action is, or what a private attorney general action is. (UF No. 15.) He
11 testified that he simply assumed that whatever his lawyers wrote in the complaints was
12 correct. (UF No. 16.
14 "Rule 56( c) requires summary judgment for the moving party when the evidence
15 viewed in the light most favorable to the nonmoving party, shows that there is no
16 genuine issue as to any material fact, and that the moving party is entitled to judgment
17 as a matter of law.
18 (C.D. Cal. 2006). "The moving party bears the initial burden of establishing the
19 absence of a genuine issue of material fact " which "may be met by ' showing. .. that
20 there is an absence of evidence to support the nonmoving party s case.
(quoting

v. ABF Freight Systs., Inc. 457 F. Supp. 2d 1004, 1010

STANDARD OF REVIEW

Perine

Id.

21

Celotex Corp.

v. Catrett 477 U. S. 317 325 (1986)). "Once the moving party has met its
22 initial burden, Rule 56( e) requires the nonmoving party to go beyond the pleadings and
23 identify specific facts that show a genuine issue for triaL"
A scintilla of evidence
24 or evidence that is merely colorable or not significantly probative does not present a
25 genuine issue of material fact. ",
v. Fred Meyer 198 F.3d 1130
26 1134 (9th Cir. 2000)). "Only genuine disputes - where the evidence is such that a
27 reasonable jury could return a verdict for the nonmoving party - over facts that might
28 affect the outcome of the suit under the governing law will properly preclude the entry

(quoting

Addisu

Id.

Id.

DEFENDANT CONOCOPHILLIPS COMPANY' S NOTICE OF MOTION AND MOTION FOR SUMMARY

ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 14 of 36 Page ID #:632

, "

, "

of summary judgment."

Id.

IV.

FERRELL CANNOT BRING HIS FLSA CLAIMS UNDER RULE 23.
3 Plaintiff' s attempt to bring a Rule 23 class action by bootstrapping his FLSA

allegations to Business and Professions Code Section 17200 (SAC ,-r,-r 31 , 71-75) is an
impermissible attempt to evade the express limitations Congress placed on the scope

actions for violations of the FLSA. Congress in 1947 perceived a national emergency
spawned by out-of-control1itigation of employee minimum wage and overtime claims.

See

De Asencio

089-

29 U. C. ~ 251; 93 Congo Rec. 2

enacted the opt- in provision of the FLSA in response.

182 (statements of Sen. Donnell).
v. Tyson Foods, Inc.
10 342 F.3d 301 , 306, 310 (3d Cir. 2003) (finding that
( fJor policy reasons articulated in
11 the legislative history, Congress chose to limit the scope of representative actions for
12 overtime pay and minimum wage violations ). Accordingly, Congress prohibited opt-
13 out representative actions for overtime pay claims. Publ. L. No. 49, ch. 52, 61 Stat. 84
14 87 (1947). Congress foresaw that without a limitation on class actions
the courts of
15 the country would be burdened with excessive and needless litigation and champertous
16 practices would be encouraged. " 29 U. C. ~ 251(a)(1), (7). In addition to controlling
17 the volume of litigation, Congress sought to ensure that "absent individuals would not
18 have their rights litigated without their input or knowledge.

Otto

v. Pocono Health

19

Sys. 457 F. Supp. 2d 522, 524 (M.D. Pa. 2006). Indeed, adoption of the opt-

20 provision in 29 U. C. ~ 216(b) was "a crucial policy decision.

De Asencio 342 F.3d

21 at 311.22 Section 216(b) restricts actions for the recovery of overtime pay by requiring

23 putative collective action class members to affirmatively consent to joining the litigation
24 through an opt-in procedure. 29 U. C. ~ 216(b). Indeed, allowing FLSA opt-
25 collective action claims to be brought at the same time as Rule 23 opt-out class actions
26 under state law for the same alleged violations would run afoul of Congress ' intent in
27 requiring opt-in collective actions under the FLSA when it crafted Section 216(b) and
28 passed the Portal-to-Portal Act. 29 U.
C. ~ 251 (a)(1), (7). Section 216 provides: "

DEFENDANT CONOCOPHILLIPS COMPANY' S NOTICE OF MOTION AND MOTION FOR SUMMARY

ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

)'

);

);

Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 15 of 36 Page ID #:633

employee shall be a party plaintiff to any such action unless he gives his consent in

writing to become such a party and such consent is filed in the court in which such

party plaintiff to

action is brought." 29 U. C. ~ 216(b). Significantly, the statute limits the right to be a
It does not permit someone who does not give written
consent to be a party to some of the claims in that action but not others. The prohibition
is complete as to that action, unless written consent to participate is filed with the court.

any such action.

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

classes inherently incompatible when brought in the same action even when the claims

brought under Rule 23 are not FLSA claims. See, e.
Agency, Inc. No. 03 C 3789, 2004 WL 1080193 , at *5 (N.D. 111. May 12 2004)

v. Yale Intern. Ins.

Harper

10

Sorensen

LaChapelle

11 (Pallmeyer, J.) (refusing to certify a state law opt-in class seeking overtime wages where
12 plaintiffs "arguably subverted congressional intent in creating the FLSA opt-
13 procedure by choosing to seek class certification of their (state law J claims instead of
14 pursuing an FLSA collective action.
v. CHT Corp. Nos. 03 C 1609 03 C
15 7362 2004 WL442638, at *11 (N.D. 111. Mar. 10 2004) (Pallmeyer, J.) (same). The
16 only Circuit Court to directly address the issue concluded that Section 216(b) and Rule
17 23 are "mutually exclusive and irreconcilable.
v. Owens-Illinois, Inc. 513
18 F.2d 286, 288 (5th Cir. 1975).

19 While courts have held that the FLSA' s opt-in process does not preclude a cause
22 See Cornn

20 of action alleging violations of the FLSA under Section 17200, that is not the unanimous

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

under & 216(b).

*3 (N.D. Cal. Sept. 16 2006) ("There is a fundamental difference between a class
23 action, such as tliis one, brought under Rule 23 ... and a r collective J action pursued
24 Pa. 2007) ("In light of the policies that underlie the FLSA; Congress s clear Intent to
527 F. Supp. 2d 439" 452 (W.
further those polIcies through enactment of the Portal-to-Portal Act's amendments to
25 section 16(b) of the FLSA, 29 U. C. ~ 216(b); and the total negation of those policies
that would occur if the Court were to allow Plaintiffs to pursue state law overtime
26 remedies under Fed. Civ.P. 23 and FLSA opt-in remedIes in the same action, the Court
finds that Plaintiffs ' Raralle1 state claims must be dismissed.
v. City of San
Antonio 220 F.R. D. 55 , 58 (W.D. Tex. 2003) ("Plaintiffs may not rely upon Rufe 23'
opt-out class structure to cover both the FLSA claim and the state claim and proceed

Co., LP

Edward D. Jones

Ellis

v.

27

28 with both claims and one class.

Jackson

DEFENDANT CONOCOPHILLIPS COMPANY' S NOTICE OF MOTION AND MOTION FOR SUMMARY

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Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 16 of 36 Page ID #:634

);

);

view of the district courts in the Ninth Circuit. For example , in Wood

v. TriVita, Inc.

the

Court rejected the reasoning of one California Court of Appeal that permitted a FLSA
Rule 23 class action through a Section 17200 claim 3 explaining that "overtime claims
that are directly covered by the FLSA must be brought under the FLSA.

Wood

TriVita, Inc. No. CV-08-0765-PHX, 2008 WL 6566637, at *4 (D. Ariz. Sept. 18 2008)
(citing 29 U.

v. Gen. Dynamics Corp. 208 F.3d 1144, 1151

C. ~ 218(a);

Williamson

1154 (9th Cir. 2000)). Thus Wood

supported its dismissal of the plaintiff' s state law

claims in conflict with the FLSA claims on preemption grounds.

Id. ; see also Anderson

v. Sara Lee Corp. 508 F.3d 181 , 194 (4th Cir. 2007) ("Congress prescribed exclusive
10 remedies in the FLSA for violations of its mandates.
v. Maietta Constr., Inc.
11 147 F.3d 71 , 76 (1 st Cir. 1998) ("' the FLSA is the exclusive remedy for enforcement
12 rights created under the FLSA'" ) (citation omitted).

Roman

The conclusion that the Rule 23 vehicle is available for FLSA claims is supported

14 by the Supreme Court in a recent decision that addresses the interplay of Rule 23 and
15 Congressionally enacted statutes.
v. Allstate Ins.

Shady Grove Orthopedic Assocs., FA.

16

Co. No. 08- 1008, --- S.Ct. ----, 2010 WL 1222272 (Mar. 31 2010). The Supreme Court

Id.

17 held that Congress can and has created exceptions to Rule 23 by enacting statutes that
18 override it in certain circumstances.
at * 5 ("Congress... has ultimate authority over
19 the Federal Rules of Civil Procedure; it can create exceptions to an individual rule as it
20 sees fit--either by directly amending the rule or by enacting a separate statute overriding
21 it in certain instances.
8 U. C. ~ 1252( e)(1 )(B) ("no court may... certify
22 class under Rule 23 of the Federal Rules of Civil Procedure in any action for which
23 judicial review is authorized under a subsequent paragraph of this subsection
24 Likewise, 29 U. C. ~ 216(b) is such a statute as it precludes including a person as a
25 party to an
unless he gives his consent in writing to become such a party and
26 such consent is filed in the court in which such action is brought." Furthermore, in

see, e.

action

Harris

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

DEFENDANT CONOCOPHILLIPS COMPANY' S NOTICE OF MOTION AND MOTION FOR SUMMARY

ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 17 of 36 Page ID #:635

Ortiz v. FibreboardCorp. 527 U. S. 815 (1999), the Supreme Court noted that "

reading of (Rule 23J can ignore the (Rules Enab1ingJ Act's mandate that ' rules of

procedure shall not abridge enlarge

or modify any substantive right. ",

Id. at 845

(quoting

Amchem Prods., Inc.

v. Windsor 521 U. S. 591 613 (1997) and 28 U.

C. ~

2072(b)) (emphasis added).

v.

NOTICE OF BOTH AN OPT-IN AND OPT-OUT CLASS WILL CONFUSE
PUTATIVE CLASS MEMBERS.

Even if not prohibited by statute, 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

10 confusion for the putative class members as well as manageability problems for the
11 Court. Under Plaintiff' s approach, class members will receive a notice providing them
12 the opportunity to opt-in to the FLSA overtime class. That notice must state that the
13 putative class member need do nothing if she wishes to avoid being bound by the results
14 of the lawsuit. However, that same putative class member will also receive a conflicting
15 instruction requiring her to take action in order to avoid being bound by the results
16 the same lawsuit un~er Rule 23. Ferrell has contended that "(tJhere is nothing
17 inherently contradictory or confusing in allowing a collective action to proceed at the
18 same time as a class action" (Dkt. #30 at 9:10- 12), but he cannot rebut the reasons why
19 courts have found such inherent incompatibility in the cases cited by ConocoPhillips
20 (Dkt. #22 at 10- 15). Ferrell cannot explain how this Court should reconcile the
21 confusion caused by a notice that requires a putative class member to both opt-in and
22 opt-out of two class actions for the same overtime claim

at 13- 14).

(id.

23 The case of

Murillo v. Pac. Gas.

Elec. Co. 2010 U.S. Dist. LEXIS 20240 (E.
24 Cal. Mar. 4, 2010), previously cited by Ferrell (Dkt. #30 at 9- 10) - in which the Eastern
25 District of California granted an
26 approval of a class settlement - does not support his position. First Murillo
27 a motion for preliminary approval of a conditional settlement class. 2010 U.S. Dist.
28 LEXIS 20240, at * 1. The court's review was focused more on the adequacy of the

motion for certification as part of the

concerned

unopposed

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settlement than on the management issues attendant an on-going contested case. In fact

the court noted that the plaintiff withdrew his motion for conditional certification of a

collective action

(id. at *2-3) and found that "Plaintiff faced a significant amount of

uncertainty ifhe were to go forward with this litigation.

Id. at *36-37. If the parties

had been determined to litigate the issues vigorously in

Murillo the court may have

been less willing to grant conditional certification. Significantly, because the motion
was unopposed, the court did not have the benefit of opposing argument. An opposed

motion may well have caused the court to more closely scrutinized the notice.

In any event , the Murillo

notice itself illustrates the concerns inherent in

10 certifying an opt-in and opt-out class in the same action. For example, the opt-out
11 procedure in the notice states that "(fJai1ure to send in either an Opt-In or Opt-Out form
12 by the opt-in and opt-out deadlines will bind the class member to the settlement of the
13 Rule 23 state law claims, but will not preclude the class member from pursuing future
14 FLSAclaims against defendant." 2010 U.S. Dist. LEXIS 20240, at *31-32. This
15 notice procedure purports to allow a class member who does nothing (and is therefore
16 bound by the Rule 23 class) to "pursu(eJ future FLSA claims against defendant."
17 *32. While as a technical matter, that individual could file an individual FLSA claim
18 he or she would be collaterally estopped from re-1itigating the issues resolved by the
19 Rule 23 class action. Accordingly, where the Rule 23 class purports to litigate FLSA
20 violations through the vehicle of California s unfair business practice statute, the dual
21 procedure does not actually permit a class member to avail himself of the rights sought.
22 Because the Rule 23 action will necessarily require a determination of the identical
23 issues, that class member would be subject to issue preclusion even though he or she did
24 not elect to participate in the FLSA collective action.

25 That is precisely what would result here if Ferrell is permitted to pursue his FLSA

Id.

26 class claims using both the opt-in and opt-out class devices in the same action.
27 demonstrated by the class notice in
Murillo a putative class member who does nothing
28 will have his right to litigate his individual FLSA claims in a separate action abridged by

DEFENDANT CONOCOPHILLIPS COMPANY' S NOTICE OF MOTION AND MOTION FOR SUMMARY

ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 19 of 36 Page ID #:637

);

the rulings in

Murillo

because he will have been made a party to the

Murillo

action by

operation of the Rule 23 Section 17200 class. This would run afoul of the prohibition in

Section 216. Thus, this case presents the kind of circumstances in which Congress has

statutorily overridden Rule 23.

Shady Grove 2010 WL 1222272, at *5.

VI.

PLAINTIFF CANNOT MEET HIS RULE 23 BURDEN.
Before a plaintiff moves for class certification, a district court may deny class

certification where the plaintiff cannot meet his burden under Rule 23.

See Vinole

Countrywide Home Loans, Inc. 571 F.3d 935, 939-40 (9th Cir. 2009) ("Rule 23 does

not preclude a defendant from bringing a ' preemptive' motion to deny certification

10

Rutledge

v.

Electric Hose

Rubber Co. 511 F.2d 668 673 (9th Cir. 1975) (affirming

11 order granting defendants ' motion to deny certification under Rule 23);

Helm

12

Alderwoods Group, Inc. --- F. Supp. 2d ---- 2009 WL 2337529, at *15 (N.D. Cal. July

13 29 2009) (following
14 Cir. 2010) ("The district court and the parties in this appeal considered the motion as
15 one to deny class certification.

Vinole); see also In re Baycol Prods. Litig. 593 F.3d 716, 721 (8th

Cook County College Teachers Union, Local 1600

16

Byrd 456 F.2d 882, 884-85 (7th Cir. 1972) ("One opposing a class action may move for

17 an order determining that the action may not be maintained as a class suit."
18 Accordingly, even though the Court has stayed briefing on Plaintiff' s Rule 23 class
19 certification motion pending its ruling on ConocoPhillips ' motion to strike, the Court
20 may address the class certification issues here.

22 And His Counsel Cannot Adequately Represent the Putative Class.
23 In order to certify a class action pursuant to Federal Rule of Civil Procedure

A. Plaintiff's Class Allegations Should Be Dismissed Because Plaintiff

24 23(b )(3), a Plaintiff must establish, among other things, that he and his counsel can
25 adequately represent the class. Fed. R. Civ. P. 23(a)(4);
v. Dalton 109 F.3d
26 1423 1427 (9th Cir. 1997) (denying certification where named plaintiffs were found to
27 be inadequate representatives).

Mayfield

DEFENDANT CONOCOPHILLIPS COMPANY' S NOTICE OF MOTION AND MOTION FOR SUMMARY

ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 20 of 36 Page ID #:638

1.

Plaintiff' s Failure To Follow The Local Rules And Other Defects In

~~~~~R~~~~~~~g:~uT~r~~81

~~~ His Counsel Cannot

Courts have recognized that the failure to follow locally mandated rules for filing

a motion for class certification demonstrates the inadequacy of the plaintiff and his

counsel to represent a class.

Jones v. Hartford Ins. Co. of the Midwest 243 F.R.D. 694
696 (N.D. Fla. 2006) (plaintiff' s failure to timely pursue discovery and timely file (or

move for an extension to file) the motion for class certification calls into question

8 plaintiff' s ability to adequately protect the interests of the class) (citing

E. Tex. Motor

Freight Sys. , Inc.

v. Rodriguez 431 U. S. 395 405 (1977)).

10 Indeed, Plaintiff Ferrell' s failure to adhere to the Central District's Local Rule 23-
11 3 (discussed fully in Dkt. #22, ConocoPhillips' Motion to Strike) is only one of many
12 indicia of the inadequacy of Ferrell as a class representative, which he would have
13 needed to establish to satisfy Rule 23. In his Motion for Leave to Amend the First
14 Amended Complaint, Ferrell conceded that the complaint he had already amended once
15 still contained factual errors, including repeated references to a union to which he did
16 not belong and which may not exist. (UF No. 17. ) The FAC simply referred to the
17 union as "Local 365" without identifying the correct union or any union affiliation. (UF
18 No. 18. ) As noted by the Court at the February 9 2010, status conference, the SAC still
19 contains many errors and ill-defined allegations.4 Those errors are chargeable to both
20 Ferrell and his counsel and suggest that Ferrell' s counsel did not conduct a reasonable
21 investigation prior to filing the various Complaints and has failed to amend the

4 The SAC' s qtption lists four claims, but the SAC actually pleads six causes of
24 action. Dkt. # 15- 1. The last cause of action is mis-numbered as tile "Eighth Cause of
Action. " The caption identifies the "Second Amended Class Action Complaint for Meal
25 Breaks and UnfaIr Business Practices " but the Unfair Business Practice claim pursuant
to Bus. & Prof. Code ~ 17200 (Third Cause of Action) states that it is for "Violations of
26 FLSA. " Paragraph 30 of the SAC refers to the "Fourth Cause of Action for violations of
27 California Labor Code section 226 for failure to provide pay records. Finally, the SAC
freqgently misspells ConocoPhillips ' name, and the footer still identifies this pleading as
28 the F AC.

the Fair Labor Standards Act " but the Fourth Cause of Action alleges violations of

Id.

DEFENDANT CONOCOPHILLIPS COMPANY' S NOTICE OF MOTION AND MOTION FOR SUMMARY

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Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 21 of 36 Page ID #:639

Complaint to allege a clear and concise pleading. Indeed, Plaintiff's discovery

responses demonstrate that his counsel conducted no investigation at all.

In response to twelve of the fourteen contention interrogatories ConocoPhillips

4 served, eleven months following his initiation of this action Plaintiff provided the same

standard response in which he could not present any facts to support his claims because
6 "(theyJ are now really assumptions and beliefs on the part of the attorney and, therefore
are part of the attorney work product." (UF No. 19 (Plaintiff's Corrected Response to

Special Interrogatory Nos. 3- 14)). Those interrogatories seek the facts and identities of

witnesses that support Plaintiff' s central allegations, including that "ConocoPhillips

1 0 failed to provide Plaintiff a meal period for numerous days worked" (Interrogatory No.
11 3), that Plaintiff or any putative class member worked in excess of forty hours and did
12 not receive overtime premiums (Interrogatory Nos. 12, 13 , 14), that ConocoPhillips
13 "refus( edJ to pay (J all of (the class action plaintiffs J wages upon termination
14 (Interrogatory No. 9), as well as Plaintiffs' allegations regarding Plaintiff' s typicality
15 and adequacy under Rule 23 (Interrogatory Nos. 10, 11). While some of the responses
16 provided the names of potential class members, the inclusion of Plaintiff' s supervisor
17 Scott Dunbar, an individual who clearly falls outside the scope of the class
18 demonstrates that Plaintiff does not adequately understand his own claims and that his
19 counsel has not adequately investigated the claims or explained them to the Plaintiff.

20 Most telling, however, is Plaintiff' s motion for class certification S his

21 abandonment of the class meal break claims in this action, and his continued attempts to
22 change the class definition a week before he filed his motion for class certification.
23 Plaintiff based his decision to voluntarily dismiss his class meal break claims on his
24 mistaken belief that "a class action based on violation of California s meal break laws is
25 already being litigated with nearly identical proposed classes." Dkt. #30 at 8:3-4. The

S Plaintiff titled his motion "Motion for Conditional Certification of Collective
Action" (Dkt. #33) even though he had already' filed a prior similarly entitled motion

28 (Dkt. #20) and was moving pursuant to Federal Rule 23.

DEFENDANT CONOCOPHILLIPS COMPANY' S NOTICE OF MOTION AND MOTION FOR SUMMARY

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Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 22 of 36 Page ID #:640

action cited by Ferrell is against a different entity and seeks certification of a different

putative class in a different class of facilities from those where Ferrell works. (Compare

Dkt. 30 at 8:13 and Bollinger Decl., Ex. D (Ferrell Depo. 7:9-

, 102:20- 103:20J.

Plaintiff also conceded, one week before he filed his motion for class

5 certification, that his remaining Wage Class definition was defective, and proposed a
new class definition. (UF No. 20. ) Plaintiff has moved to certify a class based on a

further modification of this new definition, but Plaintiff did not seek leave to yet again

amend his Complaint. Thus, Plaintiff has moved to certify a class that is not alleged in

the operative complaint.

14

\~;b

:~~~~;~a

Class Members.

11 pleadings or conduct an ability to adequately represent the interests of absent class

10 Accordingly, neither Plaintiff nor his counsel have demonstrated through their
12 members.13 2.
15 Aside from the fact that Plaintiff's discovery responses reveal that no reasonable

~1~1~d~~~~:~~r~~~r~~~t~h!r;t~~~fs ~~1bsent

16 inquiry was made to ensure the complaint' s "factual contentions have evidentiary
17 support" in contravention of Rule 11 (b )(3), conduct that is sanctionab1e under the rules
18 (Fed. R. Civ. P. 11 (c)), Plaintiff has admitted that he has completely ceded all control
19 and oversight of the litigation to his attorneys. Ferrell explained that "I rely on my
20 attorneys to tell me what's going on in the case. If it's something that I need to know
21 they send me the paperwork -- " (UF No. 13 (testifying that apart from what he has
22 been told by his attorneys, he has no independent basis for his overtime claims D.
23 However, he conceded that he only "may glance" at the documents sent to him. (UF
24 No. 12. ) Ferrell's inability or failure to monitor the litigation he initiated demonstrates
25 his inadequacy to represent the interests of absent class members. Other than "(jJust to
26 tell the truth " Ferrell does not understand, nor have his attorneys explained to him, what
27 his role and responsibilities are as a class representative. (UF No. 21.) He does not
28 know why the complaint was amended a first or second time, or why certain claims

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Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 23 of 36 Page ID #:641

were dropped from the complaint. (UF No. 14. ) In fact, he does not know ifhe
reviewed the first or second amended complaints before they were filed by his
attorneys. (UF No. 11.) He has never heard of several of the claims alleged in his
complaint and does not understand what they mean. He does not know what a class

action is, what an opt in class action is, what a representative action is, or what a private
attorney general action is. (UF No. 15. ) He testified that he assumed that whatever his

lawyers wrote in the complaints was correct. (UF No. 16.

If Ferrell cannot diligently review his own pleadings for factual errors and

monitor the conduct of his attorneys, he cannot adequately protect the interests of absent

In re Cal. Micro Devices Secs. Litig. 168 F.R.D. 257, 262 (N.D. Cal.

10 class members.
11 1996) (holding that "fair and adequate" representation requires that the class
12 representative be both willing and able to monitor closely the conduct of the class
13 counsel and that by allowing class counsel to assume control of the lawsuit the class
14 representatives do not meet the requirements of Rule 23(a)(4)). Because Ferrell'
15 inadequacy as a class representative is evidenced by the complaint itself and adequate
16 representation is a prerequisite for class certification, the Court may determine that the
17 action is not appropriate for class treatment on that basis alone.

v. Apple

Hovsepian

18

Inc. No. 08-5788 JF, 2009 WL 5069144, at *2 (N. D. Cal. Dec. 17 2009) (slip copy)
19 ("this Court has authority to strike class allegations prior to discovery if the complaint
20 demonstrates that a class action cannot be maintained.

22 meet the requirement of Rule 23(a)(4).
23 F or these reasons, too, his class allegations should be dismissed.

21 By allowing his counsel "to assume control of the lawsuit " Ferrell has failed to
24 B. Plaintiff's Class Allegations Should Be Dismissed Because Plaintiff
26 Rule 23(a)(1) provides that a class action is maintainable only if "the class is so

Cannot Establish That The Class He Seeks To Represent Is Sufficiently
Numerous.

In re Cal. Micro Devices 168 F.R.D. at 262.

27 numerous that joinder of all members is impracticable. " Fed. Civ.
28 plaintiffs need not allege the exact number or identity of class members, mere

23(a)(1). "While

DEFENDANT CONOCOPHILLIPS COMPANY' S NOTICE OF MOTION AND MOTION FOR SUMMARY

ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

);

);

Case 5:09-cv-00431-RRP-OP Document 35 Filed 04/22/10 Page 24 of 36 Page ID #:642

speculation of the number of class members involved does not satisfy the