IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

DAVID ALLEN SCOTT, et al, 

Civ. No. 6:14-cv-01337-MC 

Plaintiffs, 

v. 

SENECA SAWMILL, OPINION and ORDER 

Defendant. 

MCSHANE, Judge: 

This Court is asked to conditionally certify plaintiffs' action as a representative collective 

action under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19. Because plaintiffs 

have provided substantial allegations that the potential putative collective action members were 

together the victims of a single decision, policy, or plan, this Court finds that these members are 

"similarly situated" under 29 U.S.C. § 216(b). Thus, plaintiffs' Amended Motion for 

Conditional Collective Action Certification [#63], is GRANTED IN PART and DENIED IN 

PART as follows. 

I-ORDER 

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STANDARD OF REVIEW 

The FLSA requires that all non-exempt' employees receive compensation at "one and 

one-half times the regular rate" for hours worked in excess of forty hours in a workweek. 29 

U.S.C. § 207(a)(l). If an employee claims that an employer has violated this overtime provision, 

that employee may bring an action against the employer on "behalf of himself ... and other 

employees similarly situated." 29 U.S.C. § 216(b). 

The term "similarly situated" is not defined by statute or within precedential case law. 

Chastain v. Cam, No. 3:13-cv-01802-SI, 2014 WL 3734368, at *1 (D. Or. July 28, 2014) 

(citations omitted). However, the majority of courts, including those within this district,2 apply a 

two-tier process to determine whether the putative collective action members are "similarly 

situated." See Margulies v. Tri-Cnty Metro. Transp. Dist. of Or., No. 3:13-cv-00475-PK, 2013 

WL 5593040, at *15 (Oct. 10, 2013) (citations omitted). 

Under the first tier, also referred to as the "notice stage," this Court preliminarily 

determines whether the putative members are "similarly situated." Id.; see Thiessen v. Gen. Elec. 

Capital Corp., 267 F .3d 1095, 1102 (1Oth Cir. 2001 ). At this first tier, the Court employs a 

lenient standard "that typically results in certification." Margulies, 2013 WL 5593040, at *15 

(citations and internal quotation marks omitted). The named plaintiffs need only produce 

"substantial allegations that the putative members were together victims of a single decision, 

policy, or ban." Thiessen, 267 F.3d at 1102 (citation and internal quotation marks omitted). 

1 29 U.S.C. § 213 identifies exemptions under the FLSA. 2 See, e.g., Chastain, 2014 WL 3734368, at *2; Gessele v. Jack in the Box, Inc., No. 3:1 0-cv-00960-ST, 2013 WL 

1326538, *3--4 (D. Or. Apr. 1, 2013); White v. Rakhra Mushroom Farm Corp., No. CV 08-198-SU, 2009 WL 

971857, at *3 (D. Or. Apr. 8, 2009); Goudie v. Cable Commc'ns, Inc., No. 08-CV-507-AC, 2008 WL 4628394, at 

*3 (D. Or. Oct. 14, 2008); Gonzalez v. Select Onion Co., LLC, No. 06-CV -1 056-SU, 2007 WL 1989698, at *2 (D. 

Or. July 2007); McElmurry v. US Bank Nat '1 Ass 'n, Civil No. 04-642-HU, 2006 WL 3908536, at *2-3 (D. Or. Dec. 

8, 2006); Fichtnerv. Am. Family Mut. Ins. Co., No. 02-6284-HO, 2004 WL 3106753, at *10 (D. Or. Mar. 1, 2004). 

2-0RDER 

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If plaintiffs meet their burden, the Court conditionally authorizes a FLSA collective 

action, orders that a Notice be sent to all putative collective action members, and sets a deadline 

for such members to join the suit by filing consents to sue. Margulies, 2013 WL 5593040, at 

*15; see also Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1064 (9th Cir. 2000) 

("[A] district court may authorize the named plaintiffs in a FLSA collective action to send notice 

to all potential plaintiffs ... and may set a deadline for plaintiffs to join the suit by filing 

consents to sue." (citations omitted)). 

The Court may reject a conditional certification where the class is too broad, or the duties 

of different class members are too varied. See, e.g., Mackenzie v. Kindred Hasps. E., L.L.C, 276 

F. Supp. 2d 1211, 1221 (M.D: Fla. 2003) (declining to certify a proposed collective action in 

part, because the proposed class was "overbroad"). However, a plaintiff is not required to show 

that his or her position is identical to the positions held by the putative class members. Hipp v. 

Liberty Nat'! Life Ins. Co., 252 F.3d 1208 1217 (11th Cir. 2001) (citation omitted). 

Under the second tier, the "decertification stage," this Court, upon motion by a defendant, 

applies a more stringent standard to determine whether the conditionally certified collective 

action should be decertified. Chastain, 2014 WL 3734368, at *2; Margulies, 2013 WL 5593040, 

at *15. To make this determination, this Court reviews several non-exhaustive factors, 

including: (1) the specific employment conditions and duties of the individual plaintiffs; (2) any 

defenses asserted by or available to the defendant which appear to be individual to each plaintiff; 

(3) fairness; ( 4) procedural considerations; and (5) whether plaintiff made any required filings 

before instituting the suit. Chastain, 2014 WL 3734368, at *2 (quoting Morden v. T-Mobile USA, 

Inc., No. C05-2112RSM, 2006 WL 2620320, at *2 (W.D. Wash. Sept. 12, 2006)). 

3 -ORDER 

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BACKGROUND AND DISCUSSION 

This proposed collective action arises out of alleged violations of the FLSA. The named 

plaintiffs (Scott, Mord, Moreno, Heflin, Simpson, and Wilson) were employed by defendant 

Seneca Sawmill Company ("Seneca") in Eugene, Oregon. The plaintiffs contend that they (and 

potentially other "similarly situated" Seneca employees) were not paid for all of the hours they 

worked because they were together victims of a single policy or plan of the defendant that 

violates the FLSA. Defendant denies the allegations and also contends that plaintiffs have not 

carried their burden to show that the putative members are "similarly situated" enough for FLSA 

conditional certification. 

Ultimately, because defendant's alleged timekeeping policies were potentially applicable 

to all "lumber production" employees, this Court concludes that plaintiffs have made a sufficient 

showing that the putative class is "similarly situated" enough for conditional class certification. 

Although defendant's arguments against conditional certification were not persuasive, this Court 

does take note and acknowledges defendants' concerns that plaintiffs only established a minimal 

factual foundation, and when this Court is confronted with Decertification Motions following 

discovery, these considerations will be reviewed in light of increased knowledge and under a 

more stringent standard. See Goudie, 2008 WL 4628394, at *9. 

On April 13, 2015, Oral Arguments regarding Plaintiffs Amended Motion to Certify the 

Class Conditional FLSA [#63] and associated issues were heard by this Court. Alan Leiman and 

Drew Johnson were present as plaintiffs' counsel. Frederick Batson was present at defendant's 

counsel. The Court issued the following Orders from the bench as described on the record and as 

further delineated by written Minute Order [ #97]: 

4-0RDER 

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Plaintiffs' Motion to Certify the Class Conditional FLSA [#63] was GRANTED in part, 

as stated on the record [ #97] and as further defined in this Opinion & Order, which serves as the 

formal decision on the motion. 

In regards to the Defendant's Objections to Plaintiffs' Proposed Notice to the Putative 

FLSA Class [#83], the Court ordered the following for the reasons stated on the record: 

As to Defendant's Objection No. 1: DENIED- The Notice may use the earlier date of August 

20, 2011. 

As to Defendant's Objection No.2: GRANTED- The Defendant's proposed alternative 

language found on page 6 of their brief [#83] shall be used in the Notice. 

As to Defendant's Objection No.3: GRANTED- However, the website proposed by the Claims 

Administrator must be reviewed by Defendant's counsel prior to being posted in the internet. 

As to Defendant's Objection No.4: GRANTED- The Defendant shall not be compelled to 

produce phone numbers of any current or former employees within the potential class. 

As to Defendant's Objection No.5: GRANTED- The language objected to by the Defendant on 

page 8 of their brief [#83] shall be struck from the Notice. 

As to Defendant's Objection No.6: GRANTED- The Defendant is not obligated to post notice 

in any public areas. 

Defendant's Motions for Partial Summary Judgment Against the Claims of Plaintiff David Scott 

[#86], for Partial Summary Judgment Against the Claims of Plaintiff Weston Mord [#88], for 

Partial Summary Judgment Against the Claims of Plaintiff Simpson [#91], and for Partial 

Summary Judgment Against Claims by Plaintiff Krist an Wilson [ #93] were all DENIED but with 

leave to refile later, for the reasons as stated on the record. 

Defendant's Motion to Apply Intermediate Standard to Plaintiffs Motion for Conditional 

Certification of an FLSA Class [ #24] was DENIED as moot, as it applied primarily to the 

Plaintiffs first Motion for Conditional Certification. 

[See Minute Order #97] 

5 -ORDER 

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Also during the Aprill3, 2015 hearing, the attorneys for the parties were ordered to 

confer regarding the definition and scope of the potential conditional class to be notified. 

They were also ordered to submit a proposed case management schedule and trial date for the 

Court to consider during a Status Conference, which was held on April22, 2015. [#98]. 

During the April22, 2015 Status Conference, Drew Johnson was present as counsel for 

plaintiffs. Frederick Batson was present as counsel for defendant. The following case 

management schedule was agreed to by the parties and was adopted by the Court: 

Defendant is to produce employee contact to Plaintiff by 5/8/2015. 

Plain tiff is to mail notices by 5/22/2 0 15. 

The Opt-in deadline is 8/20/2015. 

Discovery is to be completed by 2/26/2016. 

Motions on Class Decertification are due by 4115/2016. 

Oral Arguments on Motions for Class Decertification will be set later. 

Dispositive Motions are due are due 30 days after ruling on Class Decertification Motions. 

Joint ADR Report & Pretrial Order will be due 30 days after ruling on Dispositive Motions. 

Pretrial Conference is set for 10/3/2016 at 9AM in Eugene Courtroom 2. 

Jury Trial is set for 10111/2016 at 9AM in Eugene Courtroom 2 before Judge Michael McShane. 

In regards to the scope and definition of the potential class, the Court ordered that all 

Seneca employees involved in the "production oflumber" at Seneca's Highway 99 facility 

would be eligible to receive a Notice and Opt-In Form, as putative members of the Conditionally 

Certified FLSA Class. Specifically and for the purposes of conditional class certification under 

the FLSA, this Court made the preliminary finding that all current and former employees of 

Seneca Sawmill Company ("Seneca" or "defendant") who have worked for hourly pay in a 

lumber production job at Seneca's Highway 99 facility at any time since August 20, 2011, and 

who have performed more than 40 hours of work in that job in any workweek since that date, are 

similarly situated as putative collective action members for this representative collective action. 

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The Court further Ordered during the 4/22115 hearing as stated on the record [#98], that 

Seneca employees on the "Clean-Up Crew" were within the definition of employees involved in 

the "production of lumber" and were to be included as putative collective action members. 

The Court also ordered as stated on the record, that potential putative class members are 

only to be contacted via email as a "back-up" plan, when contacting them via regular mail has 

been unsuccessful. 

The Court also ordered the Plaintiffs to submit a final draft of the "Notice and Opt-In 

Form" to the Court via email after Defendant's counsel had an opportunity to review it. 

On May 1, 2015, Plaintiffs submitted this draft "Notice and Opt-In Form" via email to 

the Court, reflecting the revisions previously ordered by the Court. Defense Counsel was 

included in the email. The email stated that all issues regarding the draft "Notice and Opt-In 

Form" had been resolved except for one: Plaintiffs and the Class Administrator wished to 

include the a footer at the bottom of every page of the Notice and Opt-In form stating, 

"Questions? Call toll-free 1-844-706-5089 or visit www.SenecaCollectiveAction.com." 

Defendant objected to the use of this footer, and argued that the toll free number and website 

should only be listed in the "further information" section of the Notice. 

The Court now resolves this issue and Orders that the footer shall be included on each 

page, as drafted in the attached final version of the "Notice and Opt-In Form." (See attached). 

The objective of Notice is just that: to provide sufficient information to putative class members 

so that they can make an informed decision as to whether or not they wish to Opt-In. Including 

the footer only furthers that objective and does not prejudice the defendant. 

7-0RDER 

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CONCLUSION 

For these reasons, plaintiffs' Amended Motion for Conditional Collective Action 

Certification [#63] is GRANTED IN PART and DENIED IN PART as described above. 

It is hereby ordered: 

1. Conditional Certification: This Court conditionally certifies this action as a 

representative collective action, pursuant to the FLSA under 29 U.S.C. § 216(b). 

2. Authorization of Notice: Pursuant to the FLSA and as described in this and 

previous Orders, this Court makes the preliminary finding that all current and former 

employees of Seneca Sawmill Company ("Seneca" or "defendant") who have worked 

for hourly pay in a lumber production job at Seneca's Highway 99 facility at any time 

since August 20, 2011, and who have performed more than 40 hours of work in that 

job in any workweek since that date, are similarly situated as putative collective 

action members for this representative collective action. 

3. Appointment of Class Counsel: The law firm ofLeiman & Johnson, LLC (Alan J. 

Leiman and Drew G. Johnson) are appointed as counsel for the collective action. 

4. Appointment of Plaintiffs as Class Representatives: Plaintiffs David Scott, 

Branden Heflin, Kristan Wilson, Weston Mord, Marty Simpson, and Jesus Moreno 

are appointed as class representatives. 

5. Form of Notice: Notice to all putative collective action members shall be made by 

workplace posting and by first class mail or email (but only as a "backup" if contact 

by regular mail is unsuccessful and under a Protective Order) using the attached final 

version of the Notice and Opt-In Form. 

6. Deadlines: The parties shall proceed as per the case management schedule agreed 

to by the parties and adopted by the Court as outlined above in this Order. 

IT IS SO ORDERED. 

DATED this 4th day of May, 2015. 

8-0RDER 

Michael J. McShane 

United States District Judge 

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