Opinion
No. 11-3866
09-28-2011
In re: HCR MANORCARE, INC., et al., Petitioners.
ORDER
Before: COLE and ROGERS, Circuit Judges; FORESTER, District Judge.
The Honorable Karl S. Forester, United States District Judge for the Eastern District of Kentucky, sitting by designation. --------
The petitioners are the defendants in these consolidated cases under the Fair Labor Standards Act ("FLSA") challenging their timekeeping policy of automatically deducting thirty minutes from employees' time cards for a meal break. The district court conditionally certified the consolidated cases as a collective action under the FLSA, 29 U.S.C. § 216(b). The court also issued several subsequent orders governing the procedures for proceeding as a collective action, including an order directing that the notices are to be sent to a sampling of potential plaintiffs as soon as possible after September 30, 2011. The petitioners seek a writ of mandamus to vacate these orders and direct the district court to deny conditional certification. They also request that we set forth the appropriate standard to be applied by the district courts in certifying a collective action under the FLSA. The petitioners move for a stay of the district court proceedings pending the consideration of their petition.
Mandamus is an extraordinary remedy that is infrequently used by the court. John B. v. Goetz, 531 F.3d 448, 457 (6th Cir. 2008). "[F]or the writ to issue, petitioners must demonstrate a clear abuse of discretion on the part of the district court." Id. (internal quotation marks and citation omitted). Moreover, "because mandamus is a discretionary remedy, a Court may decline to issue the writ if it finds that it would not be 'appropriate under the circumstances' even if the petitioner has shown he is 'clear[ly] and indisputabl[y]' entitled to it." In re Prof'ls Direct Ins. Co., 578 F.3d 432, 437 (6th Cir. 2009) (quoting Cheney v. U.S. Dist. Court, 542 U.S. 367, 381 (2004)). "The writ of mandamus is not to be used when the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction." Schlagenhauf v. Holder, 379 U.S. 104, 112 (1964) (internal quotation marks and citation omitted).
The FLSA authorizes employees to bring an action for violations of its provisions on behalf of "themselves and other employees similarly situated." § 216(b). Each plaintiff, however, must affirmatively consent in writing to participate. Id. District courts have discretion to facilitate the notice of a pending FLSA action to potential plaintiffs and to advise them of their opportunity to opt into the action. Hoffmann-La Roche Inc. v. Sperling 493 U.S. 165, 169 (1989). The petitioners have not demonstrated that the district court abused its discretion in utilizing the two-step processes generally applied by the district courts in managing the potential joining of additional plaintiffs.
The petitioners argue that the two-step procedure is invalid because it does not comply with Federal Rule of Civil Procedure 20, governing joinder of parties, or with Federal Rule of Civil Procedure 23, governing class actions. They also assert that the conditional certification in this case contradicts the principles set forth in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (addressing a Rule 23 class certification order). Because we have implicitly upheld the two-step procedure in FLSA actions, see O'Brien v. Ed. Donnelly Enters., Inc., 575 F.3d 567 (6th Cir. 2009) and Comer v. Wal-Mart Stores, Inc., 454 F.3d 544 (6th Cir. 2006), review of the conditional certification order in mandamus is inappropriate. In addition, the petitioners have not conclusively shown that the requirements of either Rule 20 or Rule 23 must be applied to the certification of an FLSA action as a collective action.
We are not swayed by the petitioners' claim that the conditional certification will be effectively unreviewable on appeal from the final judgment. If the cases proceed to judgment as a collective action, appellate review will be available. Comer, 454 F.3d at 549 ("there is no reason our court could not, following an appeal from final judgment, determine that part or all of the plaintiff group was improperly deemed to be similarly situated and therefore improperly notified and included by opt-in. We see no obstacle to our court's later review of this issue"). The petitioners' claims of potential harm if the district court decertifies the action are premature and speculative.
Therefore, the petition for a writ of mandamus is DENIED. The motion for a stay pending consideration of the petition for a writ of mandamus is moot.
ENTERED BY ORDER OF THE COURT
/s/_________
Clerk Leonard Green Clerk Filed: September 28, 2011 Mr. Robert Michael Anspach Mr. Cory Dylan Catignani Mr. Alex R. Frondorf Mr. Allan G. King Mr. Gary F. Lynch Mr. James Christopher Martin Mr. Bradley A. Sherman Mr. Robert M. Wolff Re: Case No. 11-3866, In Re: HCR ManorCare, Inc., et al
Originating Case No. : 09-02879 Dear Counsel:
The Court issued the enclosed (Order/Opinion) today in this case.
Sincerely yours,
s/Benjamin P. Alexander
Case Manager
Direct Dial No. 513-564-7021 cc: Ms. Geri M. Smith Enclosure No mandate to issue