United States District Court, D. Montana, Billings Division
MIKE ANDERSON, individually and on behalf of similarly situated persons, Plaintiff,
MOUNTAIN VIEW PIZZA CO., BLACK HILLS PIZZA, INC., and CHOOSE THE RIGHT PIZZA, LLC, Defendants.
ORDER GRANTING JOINT MOTION
TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE
parties have filed a Joint Motion to Approve Stipulated Form
of Notice of Collective Action and Stay Litigation Pending
Mediation. (Doc. 55.) Plaintiff filed this action under the
Fair Labor Standards Act (“FLSA”) and requested
that the case proceed as a collective action under 29 U.S.C.
§ 216(b). (Doc. 1.) Plaintiff alleges Defendants used a
flawed method to determine reimbursement rates for drivers
who use their own vehicles to deliver pizza and other food
items to Defendants' customers. (Id.) Plaintiff
asserts the Defendants' methodology provides such an
unreasonably low reimbursement rate that the drivers'
unreimbursed expenses cause their wages to fall below the
applicable minimum wage. (Id.) Plaintiff seeks to
recover unpaid minimum wages owed to himself and all
similarly situated deliver drivers employed by Defendants.
pursing a FLSA action to recover unpaid minimum wages may
bring the action “for and in behalf of  themselves
and other employees similarly situated.” 29 U.S.C.
§ 216(b). Unlike in class actions brought under Rule 23
of the Federal Rules of Civil Procedure, a putative plaintiff
in a FLSA collective action must affirmatively opt in to the
the FLSA nor the Ninth Circuit have defined “similarly
situated.” But most courts within the Ninth Circuit and
this district have adhered to a two-step certification
procedure. Casarotto v. Exploration Drilling, Inc.,
2015 WL 8780050, *2 (D. Mont. Dec. 15, 2015). At step one,
the court makes a preliminary determination whether to
conditionally certify a class and send notice to potential
class members. Id. “This is a lenient
standard, and the ‘usual result is conditional class
certification.'” Id. (citing Adams v.
Inter-Con Sec. Sys., Inc., 242 F.R.D. 530, 536 (N.D.
Cal. 2007). The second step occurs at the close of discovery,
and is generally prompted by a motion for decertification
filed by the defendant. Id.
the parties have stipulated to conditionally certifying this
case as a collective action under and FLSA. (Doc. 55 at
¶ 6.) They have also provided the court with a proposed
notice to be sent to all current and former delivery drivers
employed by Defendants within three years preceding the
Court's order approving the notice. (Id.) The
parties indicate that following issuance of the notice and
expiration of the opt-in period, they intend to engage in
mediation with a mediator.
The parties request the Court continue to stay the case while
they pursue mediation. Id. The parties agree that in
the event the case does not settle, Plaintiff retains the
burden to obtain final collective action certification, and
that Defendants may file their own motion to decertify the
collective action. Id. Based on the stipulation of
the parties, the Court finds good cause to conditionally
certify this case as a collective action under 29 U.S.C.
§ 216(b) and permit notice to all putative class members
of their opportunity to opt in. Accordingly, IT IS HEREBY
ORDERED that the parties Joint Motion is GRANTED as follows:
1. Plaintiff's claim asserted under the Fair Labor
Standards Act (“FLSA”) is conditionally certified
as a collective action;
2. The parties' agreed form of notice is approved for
dissemination, per the parties' Joint Motion, to all
current and former delivery drivers employed by Defendants
within three years preceding the Court's Order approving
notice plus periods of tolling, with the
exception that the caption at the top of the first page of
the notice shall be corrected to read “UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF
3. Defendants' stipulation to conditional certification
shall not be construed as an admission that liability exists
for any period of time, including but not limited to, the
4. In the event this case does not settle, Plaintiff retains
the burden to move for and obtain final collective action
certification, and Defendants reserves the right to oppose
that motion, and to file its own motion to decertify the
5. This litigation is stayed until August 1, 2019 to permit
the parties to disseminate notice, disclose data and mediate;
6. Within 30 days of this Order, Defendant shall disclose
information and data pursuant to the parties' Joint
Motion to enable dissemination of the parties'
7. Within 30 days of the close of the opt-in period,
Defendants shall produce data pertaining to all opt-in
Plaintiffs pursuant to the parties' Joint Motion;
8. The parties shall mediate within 30 days of
Defendants' production of such data pertaining to ...