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ORDER ON PLAINTIFFS’ “MOTION RE: ALL

OTHERS SIMILARLY SITUATED” – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

STEVEN INGERSOLL, a Washington

resident, LYNN BASTROM, a Washington

resident, and on behalf of themselves and all

others similarly situated,

Plaintiffs,

vs.

ROYAL & SUNALLIANCE USA, a foreign

corporation, 

Defendant.

Case No. CV05-1774L

ORDER ON PLAINTIFFS’ MOTION

RE: ALL OTHERS SIMILARLY

SITUATED

I. Introduction

This matter comes before the Court on plaintiffs’ “Motion Re: All Others Similarly

Situated” (Dkt. # 7). Plaintiffs ask the Court to certify a 29 U.S.C. § 216(b) collective action,

allowing joinder of all other similarly situated persons. In addition, plaintiffs request that the

Court impose equitable tolling of the statute of limitations for all potential plaintiffs from their

first day employed by defendant until their decision to “opt in” to the litigation. 

II. Background

Plaintiffs allege that defendant violated the Fair Labor Standards Act of 1938, the

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ORDER ON PLAINTIFFS’ “MOTION RE: ALL

OTHERS SIMILARLY SITUATED” – 2

Washington Minimum Wage Act, and various Washington state statutes governing overtime,

rest, and meal periods. Plaintiffs worked for defendant as auto insurance field staff appraisers in

the state of Washington. They claim that the defendant inappropriately classified them as

“exempt” under the Fair Labor Standards Act to avoid paying them overtime wages. Defendant

employed auto insurance field appraisers around the country under a uniform compensation

system. Therefore, plaintiffs request that the Court classify all auto insurance field staff

appraisers and other employees with similar job duties who work or have worked for defendant

as similarly situated persons. 

III. The 29 U.S.C. § 216(b) Collective Action

Plaintiffs ask the Court to certify a collective action suit under the Fair Labor Standards

Act, 29 U.S.C. § 216(b). Pursuant to 29 U.S.C. § 216(b), “[a]n action to recover liability . . . 

may be maintained against any employer . . . by any one or more employees for and in behalf of

himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). 

The Court may grant conditional certification prior to the start of discovery. Reed v.

Mobile County Sch. Sys., 246 F. Supp. 2d 1227, 1230 (S.D. Ala. 2003). Fed. R. Civ. P. 26(d)

allows the Court to issue an order for discovery before the Fed. R. Civ. P. 26(f) conference. 

Fed. R. Civ. P. 26(d). Therefore, it is in the Court’s discretion to initiate its involvement in a

collective action “early, at the point of the initial notice, rather than at some later time.” 

Hoffmann-La Roche v. Sperling, 493 U.S. 165, 171 (1989). 

The Court also has discretion in its decision whether or not to grant a motion for a 

29 U.S.C. § 216(b) collective action. Leuthold v. Destination Am., 224 F.R.D. 462, 466 (N.D.

Cal. 2004). Courts generally evaluate requests to certify a 29 U.S.C. § 216(b) collective action

through two alterative analyses: treating the collective action as analogous to a class action or

applying “a two-step approach involving initial notice to prospective plaintiffs followed by a

final evaluation.” Leuthold, 224 F.R.D. at 466. The Ninth Circuit has not yet endorsed either of

these methods.

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ORDER ON PLAINTIFFS’ “MOTION RE: ALL

OTHERS SIMILARLY SITUATED” – 3

The Court joins a majority of courts and adopts the two-step approach. Under this

approach, the Court examines the limited record before it, determining if “the potential class

should be given notice of the action.” Id. at 467. The Court’s decision is based on a lenient

standard. Id. It rests upon the Court’s initial determination regarding plaintiffs’ assertion of

other potential class members who are similarly situated. Thiessen v. Gen. Elec. Capital Corp.,

267 F.3d 1095, 1102 (10th Cir. 2001).

Neither the Ninth Circuit nor the Fair Labor Standards Act defines “similarly situated.”

Leuthold, 224 F.R.D. at 466. Courts interpret the phrase in two ways. Owen v. West Travel

Inc., No. C03-0659Z, 2003 U.S. Dist. LEXIS 26212, at * 11 (W.D. Wash. Dec. 12, 2003). It

may require “a modest factual showing” by the plaintiffs illustrating “that they and potential

plaintiffs together were victims of a common policy or plan that violated the law.” Hoffmann v.

Sbarro, 982 F. Supp. 249, 261 (S.D. N.Y. 1997). Alternatively, it involves an assessment that

examines job titles, locations worked, time of the discrimination, responsible decision makers,

and “whether the plaintiffs all alleged similar, though not identical, discriminatory treatment.” 

Reed, 246 F. Supp. 2d at 1232. 

Plaintiffs meet the criteria of both tests, so the Court need not decide between the

definitions at this time. Defendant employed plaintiffs, other auto insurance field staff

appraisers, and individuals with similar job duties under a uniform compensation scheme. 

Although they worked in different areas of the country, all potential class members had

equivalent tasks and responsibilities and were classified as “exempt” under the Fair Labor

Standards Act. After reviewing the record, the Court grants the initial notice stage certification

of the two-step approach; plaintiffs are similarly situated to auto insurance field staffers and

others with similar job duties employed by defendant. 

It is in the Court’s discretion to “facilitat[e] notice to potential plaintiffs” when it

implements 29 U.S.C. § 216(b). Hoffmann-La Roche, 493 U.S. at 169. Unlike Fed. R. Civ. P.

23 class actions, collective actions under 29 U.S.C. § 216(b) require the consent of the class

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ORDER ON PLAINTIFFS’ “MOTION RE: ALL

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members before they join the litigation, “[n]o employee shall be a party plaintiff . . . unless he

gives his consent in writing to become such a party.” 29 U.S.C. § 216(b). Therefore, the Court

grants plaintiffs’ request and orders defendant to provide the name, address, social security

number, and dates of employment for all similarly situated individuals. Upon receiving the

information, plaintiffs may notify all similarly situated individuals of the pending litigation. 

Plaintiffs request a 90 day period following receipt of notice of the 29 U.S.C. § 216(b)

collective action within which potential class members may “opt in” to the litigation. The Court,

finding that 90 days is a reasonable time, grants plaintiffs’ request. 

Upon completion of discovery, defendant may make a motion to decertify the 29 U.S.C. §

216(b) collective action. The Court will then undertake the second evaluation of the two-step

approach. Using a test of higher scrutiny, the Court will weigh “the following factors: (1) the

disparate factual and employment settings of the individual plaintiffs; (2) the various defenses

available to the defendants with respect to the individual plaintiffs; and (3) fairness and

procedural considerations.” Leuthold, 224 F.R.D. at 467. If the Court finds that the class

members are not similarly situated to the plaintiffs, it will decertify the 29 U.S.C. § 216(b)

collective action, dismissing without prejudice the claims of individuals who have “opted in” to

the litigation. Leuthold, 224 F.R.D. at 467. 

IV. Equitable Tolling Of The Statute Of Limitations

Plaintiffs’ request that the Court equitably toll the statute of limitations for potential class

members is premature. Because these individuals have not yet chosen to “opt in” to the 29

U.S.C. § 216(b) collective action, plaintiffs ask the Court to make an advisory decision. The

Court may only issue opinions that “affect the rights of the litigants in the case before it.” 

United States v. Cook, 795 F.2d 987, 994 (Fed. Cir. 1986). At this time, the Court denies

plaintiffs’ motion for the equitable tolling of the statute of limitations for potential class

members. 

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ORDER ON PLAINTIFFS’ “MOTION RE: ALL

OTHERS SIMILARLY SITUATED” – 5

IV. Conclusion

For all of the foregoing reasons, plaintiffs’ “Motion Re: All Others Similarly Situated”

(Dkt. # 7) is GRANTED in part and DENIED in part.

 

DATED this 10th day of February, 2006.

A

Robert S. Lasnik

United States District Judge

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