In re Am. Family Mut. Ins. Co. v. Overtime Pay Litig.

638 F.Supp.2d 1290

In re AMERICAN FAMILY MUTUAL INSURANCE CO. OVERTIME PAY LITIGATION.

Master Docket No. 06-cv-17430-WYD-CBS.

Master Docket No. MDL Docket No. 1743.

United States District Court, D. Colorado.

July 28, 2009.

COPYRIGHT MATERIAL OMITTED

Avi Sue Rocklin, Hill & Robbins, P.C., Richard B. Wynkoop, Wynkoop & Thomas PC, John F. Walsh, III, Robert F. Hill, Hill & Robbins, P.C., Denver, CO, Daniel J. Gatti, Gatti, Gatti, Maier, Kruegar, Sayer & Associates, Salem, OR, Laurie Ellen Leader, Kent College of Law, Lawrence H. Walner, Michael S. Hilicki, Walner Law Firm, Ltd., Paul William Mollica, Meites, Mulder, Mollica & Glink, Chicago, IL, David A. Lowe, Rudy, Exelrod, Zieff & Lowe, LLP, Eve Hedy Cervantez, James M. Finberg, Altshuler Berzon, LLP, Kenneth J. Sugarman, Steven G. Zieff, Rudy, Exelrod, Zieff & Lowe, LLP, Barbra L. Williams, Heather H. Wong, Lieff, Cabraser, Heimann & Bernstein, LLP, Michael Rubin, Altshuler Berzon, LLP, San Francisco, CA, Thomas Andrew Warren, Law Offices of Thomas A. Warren, Talahassee, FL, for Plaintiffs.

Catherine Cetrangolo, Earl H. Munson, Sarah Anne Zylstra, Boardman, Suhr, Curry & Fields, LLP, Madison, WI, James P. Denardo, Kristin D. Tauras, McKenna, Storer, Rowe, White & Farrug, Chicago, IL, Julie McCurdy Williamson, Julie Andrea Trent, Matthew Stephen Rork, Bieging, Shapiro & Burrus, LLP, Denver, CO, for Defendants.

ORDER

WILEY Y. DANIEL, Chief Judge.

THIS MATTER is before the Court on American Family Mutual Insurance Company's ("American Family") Motion to Dismiss Baldozier Plaintiffs' Rule 23 State Law Claims, filed October 23, 2007 [# 132]; American Family's Motion to Dismiss Schultz Rule 23 State Law Claims, filed January 15, 2008 [# 178]; Baldozier Plaintiffs' Motion for Certification of State Law Classes, filed November 16, 2007 [# 140]; and Plaintiff Robert Schultz's Motion to Certify an Illinois State Law Class, filed December 2, 2007 [# 151].

I. Background

This matter is a consolidated action for unpaid overtime compensation and related penalties and damages brought pursuant to section 16(b) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b) (2008), and various states' wage and overtime laws. The action is comprised of two consolidated cases including Rocky Baldozier, et al. v. American Family Mutual Insurance Co., District of Colorado Civil Case No. 04-cv-02174, initially filed in this Court on October 20, 2004 (hereinafter "Baldozier"), and a case initiated in the Northern District of Illinois styled Robert Schultz v. American Family Mutual Insurance Co., District of Colorado Civil Case No. 06-cv-00322 (Northern District of Illinois Civil Case No. 04-cv-05512) (hereinafter "Schultz"). The cases were consolidated by the Judicial Panel on Multidistrict Litigation ("MDL") and transferred to this Court as a single case on February 13, 2006. I have entered numerous Orders in Baldozier and in the consolidated case. The following brief overview of the procedural history of the two cases will provide context for my determination of the pending motions to dismiss and motions for class certification.

A. Baldozier

In Baldozier, initially filed in this Court on October 20, 2004, Plaintiffs Rocky Baldozier, Eric Stack, Robert Reynolds,¹ and Jok Nicholson, brought both a collective action FLSA claim,² and a class action claim pursuant to Federal Rule of Civil Procedure 23 based on the Colorado Minimum Wage Act, Colo.Rev.Stat. §§ 8-6-101 to -119 (2008). On July 8, 2005, prior to consolidation of Baldozier and Schultz, I dismissed the Colorado state law claim but approved the Baldozier Plaintiffs' Motion for Approval of Hoffmann-La Roche Notice and granted "notice stage" certification of the Baldozier case as a collective action under section 16(b) of the FLSA.

On August 5, 2005, pursuant to my Order granting initial "notice stage" certification, a Notice and Consent to Join was sent to: "All persons who are as of the date of this Order, or at any point since October 20, 2001, have been employed by American Family Mutual Insurance Co., as Physical Damage Claim Analysts, Physical Damage Claim Representatives, or Physical Damage Claim Examiners." Notice was sent to 862 potential op-ins in several states and, according to the Stipulated Notice of Filing of Special Master's Final Report, 124 individuals signed and filed a Consent to Join Baldozier [Baldozier, # 134]. It appears that the Baldozier class is currently comprised of approximately 126 individuals (122 opt-in Plaintiffs,³ plus the four named Plaintiffs).

On September 30, 2005, the Baldozier Plaintiffs moved for leave to amend the Complaint, and on November 28, 2005, they were granted leave to file a First Amended Complaint. The First Amended Complaint added four new Rule 23 class action claims under the wage and overtime laws of Wisconsin, Ohio, Minnesota, and Illinois. [Baldozier, #98-2; # 130].⁴ These new class action claims were brought pursuant to (1) Wisconsin Minimum Wage Law, Wis. Stat. §§ 104.001-.012 (2007-08), and the Wisconsin Wage Payments Claims and Collections Act, Wis. Stat. §§ 109.01-.12, by Patrick Kurtenbach on behalf of himself and all members of the Wisconsin class; (2) the Ohio Minimum Fair Wage Standards Act, Ohio Rev.Code Ann. §§ 4111.01-.17 (West 1994 & Supp. 2006), by Scott Donaldson on behalf of himself and all members of the Ohio class (3) the Minnesota Fair Labor Standards Act, Minn.Stat. §§ 177.21-.35 (2005), by Troy Hansen on behalf of himself and all members of the Minnesota Class; and (4) the Illinois Minimum Wage Law, 820 Ill. Comp. Stat. § 105/1-15 (2008), by Craig Thayer on behalf of himself and all members of the Illinois class. The Baldozier Plaintiffs initially sought to certify all four of the state law classes but later withdrew their request for certification of the Illinois class action in light of the separate motion to certify a class of Illinois plaintiffs in Schultz.

B. Schultz

Plaintiff Robert Schultz filed his action in August 2004, in the District Court for the Northern District of Illinois, asserting a collective action FLSA claim, and Federal Rule of Civil Procedure 23 class action claims under the Illinois Minimum Wage Law, 820 Ill. Comp. Stat. § 105/1-15, and "similar statutes in the several states" of other adjusters. Prior to consolidation, the District Court for the Northern District of Illinois entered an Order granting "notice stage" certification of Schultz as a collective action pursuant to the FLSA, 29 U.S.C. § 216(b), and dismissing "any class claims based on the violation of the wage laws of states other than Illinois." [Schultz, # 78]. On January 30, 2006, several months after the Notice of the FLSA collective action was sent to over 800 American Family employees pursuant to the Order issued in Baldozier, the District Court for the Northern District of Illinois entered an Order Approving Sending of Notice of the Schultz collective action to: "All persons who currently work or have worked for American Family as a Physical Damage Claim Representative, Physical Damage Claim Analyst and/or Physical Damage Claim Examiner at any time between January 25, 2003 and January 25, 2006." On April 26, 2006, the opt-in period in Schultz ended with approximately twenty-eight opt-in Plaintiffs, four of whom had already opted in to Baldozier.⁵ Of the twenty-eight opt-ins, thirteen are from Illinois. Plaintiff Schultz now seeks certification of the Illinois state class action.

On February 20, 2009, I granted Plaintiffs' Motions for Approval of Supplemental Hoffmann-La Roche Notice, and I ordered that a single supplemental Notice and Consent to Join form should be sent to all individuals with job titles identified in the prior Notices as well as individuals with successor job titles hired by American Family after January 25, 2006, and that the claims of those potential opt-in plaintiffs should be tolled as of February 7, 2008. At the parties' request, Supplemental Notice has not yet been sent pending resolution of American Family's separate motion to decertify the FLSA collective action.

II. Analysis:

Turning to the pending Motions, American Family requests dismissal of both the Baldozier Plaintiffs' Rule 23 state law class action claims based on the wage and overtime laws of Wisconsin, Ohio, Minnesota and Illinois, and the Schultz Rule 23 Illinois state law class action claim. American Family contends that I should decline to exercise supplemental jurisdiction over the state law class action claims. In Schultz, American Family alternatively requests that I reserve ruling on this issue in the event Schultz is eventually transferred back to the District Court in Northern District of Illinois.

A. Class Action Fairness Act

As an initial matter, I address the Baldozier Plaintiff's contention that this Court has original jurisdiction over the class action claims asserted in the First Amended Complaint in Baldozier pursuant to the federal Class Action Fairness Act ("CAFA"). As noted above, the original complaint in Baldozier was filed on October 20, 2004. The Baldozier Plaintiffs moved for leave to amend the Complaint and that motion was granted by a Stipulation and Order entered November 28, 2005 [Baldozier, #130]. The First Amended Complaint added four new Rule 23 class action claims under the wage and overtime laws of Wisconsin, Ohio, Minnesota, and Illinois.

CAFA provides, in relevant part, that:

The district courts shall have original jurisdiction of any civil action in which the matter in controversy exceeds the sum or value of $5,000,000 exclusive of interest and costs, and is a class action in which—(A) any member of a class of plaintiffs is a citizen of a State different from any defendant....

CAFA applies to actions commenced on or after the Act's effective date of February 18, 2005. Prime Care of Ne. Kan., LLC v. Humana Ins. Co., 447 F.3d 1284, 1285 (10th Cir.2006). Here, the original Complaint in Baldozier was filed prior to CAF...