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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

VICKI WEST and WENDY FEGUNDES,

individually and on behalf of

all others similarly situated,

NO. CIV. S-04-0438 WBS GGH

Plaintiffs,

v.

ORDER RE: PRE-CERTIFICATION

NOTICE

CIRCLE K STORES, INC., a

foreign corporation,

Defendant.

----oo0oo----

Plaintiffs Vicki West and Wendy Fegundes seek to bring

a class action suit against defendant Circle K Stores, Inc. for

alleged violations of the California Labor Code, Cal. Lab. Code

§§ 226.7, 227.3, and the California Business and Professions

Code, Cal. Bus. & Prof. Code §§ 17200-17210. Presently before

the court is plaintiffs’ motion for a court order directing a

mailing of pre-certification notice to putative class members.

///

///

///

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2

I. Factual and Procedural Background

On March 3, 2004, plaintiffs filed a class action

complaint claiming that defendant failed to pay (1) overtime

wages, (2) administrative leave wages, and (3) accrued but unused

vacation wages, all in violation of state law. (Compl. ¶ 17.) 

On May 6, 2005, a related state court action in the Superior

Court of California in and for the County of Orange approved a

settlement between defendant and management (non-hourly)

employees. (Jones Decl. in Supp. of Mot. to Amend ¶ 6; id. Ex. B

(state court order granting final approval); id. Ex. C

(stipulation and release).) Consequently, plaintiffs sought, and

were granted in part, leave to amend their complaint. (July 15,

2005 Order at 2-3.) The amendments dropped some of the claims of

one proposed subclass (managers) because these claims were

resolved by the state court action. (Id. at 3-4.) In addition,

the amended complaint added Wendy Fegundes as a named plaintiff,

representing an additional subclass of employees claiming failure

to pay meal and break wages. (Id. at 4.)

In light of these amendments, the court reopened precertification discovery regarding the new subclass only. (Id. at

8.) The court also extended the deadline for plaintiffs’ motion

for certification until March 20, 2006. (Id.)

During pre-certification discovery with respect to

plaintiffs’ meal and break compensation claims, plaintiffs

determined that the names, addresses, and telephone numbers of

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1 Defendant estimates that this request would require it to

provide data on up to 14,000 people. (Rodriguez Decl. ¶ 1.)

3

defendant’s hourly employees from March 3, 2000 onward1 were

needed to prepare its upcoming motion for class certification. 

(Pls.’ Mem. of P. & A. in Supp. of Mot. for Pre-Certification

Notice at 2-3; Rodriguez Decl. ¶ 1.) When defendant rejected

plaintiffs’ proposed procedure for contacting putative class

members, plaintiffs filed the instant motion, requesting that the

court order compliance with the elaborate notice procedure

previously rejected by defendant. (Id. at 3.) The proposal is

as follows:

[R]ather than having the names and addresses of

putative class members turned over directly to

plaintiffs’ counsel . . ., the names and addresses

[would] be produced to a neutral third party claims

administrator. The claims administrator would then

send out a letter to the class members informing them

that there is an action pending against Circle K for

unpaid meal and rest breaks as well as forfeiture of

accrued but unused vacation. The letter would also

inform them that plaintiffs’ counsel may wish to

contact them in the future about the case. The letter

would be accompanied by a self-addressed, stamped

postcard that the class members can return if they do

not wish to be contacted . . . . After an appropriate

period (three weeks for example), the claims

administrator would turn over to plaintiffs’ counsel a

database containing the names and addresses of all

putative class members who did not return a postcard.

(Id. at 2-3.) In support of this procedure, plaintiffs argue

only that it is “inequitable” for defendants to be able to

contact potential members of the putative class when plaintiffs

lack similar resources. (Id.) Plaintiffs also offer an

unpublished order from a case in the Southern District of

California where a court ordered a similar approach. Doornbos v.

Pilot Travel Ctrs., LLC, No. 04-0044 (S.D. Cal. July 28, 2004)

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2 Defendant objects to the court’s taking “judicial notice”

of this unpublished order, arguing further that it is hearsay and

lacks foundation. (Def.’s Objection to Exs. D & E.) Defendant’s

objection is misplaced. A copy of an unpublished court order

must accompany any court filing that cites to the unpublished

source pursuant to Local Rule 5-133(i). Plaintiffs do not offer

the order as “evidence”, but rather as non-binding, yet perhaps

persuasive, authority. 

The court, however, is not inclined to adopt the Doornbos

model. The instant case is distinguishable from Doornbos because

the parties in that case agreed to send notice to putative class

members via a third party administrator. Doornbos, No. 04-0044

at *3. That court did not face the same question presented to

this court: whether to order pre-certification notice in the

first place.

4

(order granting motion to compel discovery).2

II. Discussion

In their briefs, the parties spend a great deal of time

on whether the court’s grant of this motion will unjustifiably

intrude on the privacy rights of putative class members and how

less intrusive means might be designed. But both parties fail to

address controlling case law that, given the circumstances in

this case, counsels against issuing an order requiring precertification notice and prescribing the specific procedures for

such notice. 

In Pan American World Airways, Inc., v. United States

District Court for the Central District of California, 523 F.2d

1073 (9th Cir. 1975), the court vacated, through a writ of

mandamus, the district court’s attempt to notify putative class

members of the opportunity to sue. Id. at 1081. The Pan Am

judge “had almost unique experience in the handling of airline

crash cases involving multiple deaths” and, based on this

experience, determined that “notify[ing] potential plaintiffs of

the actions pending before him” would expedite resolution of the

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5

claims against the airline. Id. at 1075-76, 1082. He ordered

the production of a list of passengers and informed the parties

of his intent to contact their next of kin. Id. at 1075. The

defendant airline manufacturer, McDonnell Douglas, naturally

objected to this procedure. Id. at 1075-76.

The court observed that the proposed notice embodied

the court’s encouragement of lawsuits and offended the

longstanding principle that “in our judicial system, courts are

powerless to act until litigants bring claims before them.” Id.

at 1077 n.3. Concluding that “[s]o sharp a deviation from the

traditional role of the judiciary requires justification,” id.,

the court then embarked on a painstaking search for such

authority. Id. at 1077-81 (exploring the equitable power of a

federal court, the manual for complex litigation, and Federal

Rules of Civil Procedure 16, 19, 83, 23, 21, and 42 as possible

sources for the claimed power). In the end, no authority was

found and the court held that, when requested for the purpose of

bringing additional plaintiffs before the court, precertification notice is “[not] permitted by any ascertainable

source of judicial authority.” Id. at 1077.

The Pan Am court did leave open the possibility that

pre-certification notice might issue, in the court’s discretion,

when necessary to facilitate “fair conduct of the action” and in

the event of a compromise or dismissal of the claims. Id. at

1079 (citing Fed. R. Civ. P. 23(d)(2), Fed. R. Civ. P. 23(d)(2)

Advisory Committee Note (1966), and Fed. R. Civ. P. 23(e)). 

Neither situation applies here. Obviously there is no impending

compromise or dismissal that putative class members need to be

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6

notified about. In addition, as plaintiffs have not alleged that

defendant has contacted putative class members with respect to

any of the issues in this case and only speculate that defendant

could make contact if it wanted to, fairness does not demand, at

this stage in the litigation, the extreme action plaintiffs have

requested. (Pls.’ Mem. of P. & A. in Supp. of Mot. for PreCertification Notice at 3.)

The court is aware that in Hoffmann-La Roche Inc. v.

Sperling, 493 U.S. 165 (1989), the Supreme Court addressed “the

narrow question whether in an action governed by the provisions

of the Fair Labor Standards Act (FLSA) district courts may play

any role in prescribing the terms and conditions of communication

from the named plaintiffs to the potential members of the class.” 

Id. at 169 (emphasis added). In holding that courts can

authorize pre-certification notice in “class actions” governed by

FLSA, the Court abrogated Ninth Circuit authority holding

otherwise. Id. at 173; id. at 167 (identifying a circuit split

and citing Kinney Shoe Corp. v. Vorhes, 564 F.2d 859, 864 (9th

Cir. 1977)). 

However, Hoffman-La Roche does not control the instant

motion because that case specifically addressed notice under

FLSA. 493 U.S. at 169. A Rule 23 class action and one under

FLSA are fundamentally different. Lachapelle v. Owens-Illinois,

Inc., 513 F.2d 286, 288 (5th Cir. 1975); see also Leuthold v.

Destination Am., Inc., 224 F.R.D. 462, 469 (N.D. Cal. 2004)

(noting that the means for participating in a Rule 23 class

action differ from those in a FLSA class action). Pan Am is,

therefore, still good law and controlling in this case. 

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7

Moreover, even if applicable, Hoffman-La Roche only

authorized “the discretionary authority to oversee the noticegiving process.” 493 U.S. at 174. This court declines to

exercise that power here because the circumstances in this case

do not satisfy the relevant considerations identified by the

Supreme Court. In Hoffman-La Roche, the Court implied that, on a

motion for pre-certification notice, courts should consider: (1)

whether “the [proposed notice is] relevant to the subject matter

of the action” and there are no grounds to limit contact with

putative members, (2) whether notice would allow the court to

more efficiently manage the case, (3) whether court-authorized

notice is necessary to counter misleading communications already

sent to putative class members, (4) whether contact with putative

class members is “inevitable” because “written consent is

required by statute” before the plaintiff can proceed with a

representative action. Id. at 170-71. The court fails to see

how a costly mass mailing to 14,000 putative class members could

be an efficient use of resources when the proposed class might

never be certified. In addition, plaintiffs have not alleged

that defendant has sent misleading communications and only

speculate that it might do so at some point. (See Def.’s Opp’n

to Pls.’ Mot. for Pre-Certification Notice at 9 ”Circle K has not

sent any mass mailing, or even selected mailings, to its

employees or ex-employees regarding this lawsuit.”).) Finally,

in a Rule 23 class action, unlike the FLSA class action at issue

in Hoffman-La Roche, written consent of putative class members is

not required before representative action can proceed. Mitchell

v. Los Angeles Unified Sch. Dist., 963 F.2d 258, 262 (9th Cir.

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3 The court notes that this order relates only to

plaintiffs’ pre-certification notice motion, and is not

dispositive of plaintiffs’ rights to the information ultimately

sought by the process proposed–-namely, the names, addresses, and

phone numbers of the putative class members. Should plaintiffs

still desire this information, they may file a motion for precertification discovery with the magistrate judge, as per the

8

1992) (noting that Rule 23 assumes each putative member of the

class is a member unless he or she “individually objects to being

in the class.”). Under these conditions, the court is wary of

initiating notice that might serve only to needlessly raise the

hopes and expectations of current and former Circle K employees.

III. Conclusion

Following in the footsteps of the neighboring Northern

District of California, this court “is not inclined to initiate

notice to potential claimants except where the Supreme Court or

the Ninth Circuit has expressly authorized such notice and it is

demonstrably needed.” In re Air Disaster Near Honolulu, Haw. on

Feb. 24, 1989, 792 F. Supp. 1541, 1551 (N.D. Cal. 1990). Ninth

Circuit precedent counsels against authorizing notice in this

case, Pan Am, 523 F.2d at 1077, and the Supreme Court has not

addressed pre-certification notice in a Rule 23 class action. 

Moreover, plaintiffs have failed to articulate a specific need

for the notice and offer only a generic argument that the data

would help them prepare their certification motion by allowing

them to gather evidence of commonality and typicality. (Pls.’

Mem. of P. & A. in Supp. of Mot. for Pre-Certification Notice at

3.) The court will not “undertake the unheard-of role of

midwifing [litigation]” under these unremarkable circumstances. 

Hoffman-La Roche, 493 U.S. at 176 (Scalia, J., dissenting).3

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28 court’s order of July 15, 2005.

9

IT IS THEREFORE ORDERED that plaintiffs’ motion for

pre-certification notice be, and the same hereby is, DENIED.

DATED: November 1, 2005

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