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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Deoncea O’Neal, et al., 

Plaintiffs, 

v. 

America’s Best Tire LLC, et al., 

Defendants. 

No. CV-16-00056-PHX-DGC

ORDER 

 This case involves a dispute as to whether Defendants, a group of tire stores and 

their individual owners, violated the Fair Labor Standards Act (“FLSA”) by failing to pay 

their tire porters, crew members, and tire technicians the statutory premium for overtime 

work. Defendants made an offer of judgment to the named Plaintiffs, who rejected the 

offer and elected instead to pursue a collective action. One group of defendants, the 

Travis Dees Defendants (hereinafter “Defendants”),1

 now moves for an order requiring 

Plaintiffs to post a bond or other security to ensure payment of costs in the event that 

Defendants are the prevailing party. Doc. 44. The motion has been fully briefed 

(Docs. 46, 49) and no party has requested oral argument. For the reasons that follow, the 

Court will deny the motion. 

 While “[t]here is no specific provision in the Federal Rules of Civil Procedure 

relating to security for costs,” “federal district courts have inherent power to require 

 

1

 The Travis Dees Defendants are Travis Dees and his fourteen companies. See 

Doc. 36 at 2, n.3. 

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plaintiffs to post security for costs.” Simulnet E. Assocs. v. Ramada Hotel Operating Co., 

37 F.3d 573, 574 (9th Cir. 1994) (citation omitted). However, “a federal court’s 

discretion to require security for costs should not be exercised in a manner that interferes 

with the policy of the underlying federal statute.” 10 Fed. Prac. & Proc. Civ. § 2671 (3d 

ed.). Of particular relevance here, one federal court has expressed “grave doubts” as to 

whether a plaintiff in an FLSA action can be required to post security for costs. 

Cornacchio v. Coniglio, 7 F.R.D. 749, 750 (E.D.N.Y. 1947). 

 The Court shares these concerns. The FLSA was enacted to protect the health and 

well-being of low-income workers. 29 U.S.C. § 202. Because these workers generally 

have little in the way of savings, even a modest security requirement might stand as an 

obstacle to their exercise of their statutory rights. Any such requirement would risk 

contravening the FLSA’s “broad remedial purposes,” Lambert v. Ackerley, 180 F.3d 997, 

1012 (9th Cir. 1999), as well as the judicial policy that “indigent litigants [not be] 

completely prohibited from seeking judicial relief,” Rumbough v. Equifax Info. Servs., 

LLC, 464 F. App’x 815, 817 (11th Cir. 2012) (citation and quotation marks omitted).

 The fact that Defendants have made an offer of judgment to the named Plaintiffs 

does not change this analysis. The FLSA gives an employee the right to proceed “for and 

in behalf of himself . . . and other employees similarly situated.” 29 U.S.C. § 216. 

Requiring an employee to post security for costs, or else forego the right to proceed in a 

collective action, would “frustrate Congress’s decision to give FLSA plaintiffs the 

opportunity to proceed collectively.” Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 

1523, 1536 (2013) (Kagan, J., dissenting) (citation and quotation marks omitted). 

 Even assuming that it might in some circumstances be appropriate to require an 

FLSA plaintiff to post security for costs, Defendants fail to show that it would be 

appropriate here. In deciding similar issues, courts have considered such factors as “the 

probability of plaintiff’s success on the merits, the background and purpose of the suit, 

and the reasonableness of amount of the posted security viewed from the perspective of 

both plaintiff and defendant.” Ehm v. Amtrak Bd. of Directors, 780 F.2d 516, 517 (5th 

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Cir. 1986) (citing Aggarwal v. Ponce Sch. of Med., 745 F.2d 723, 727-28 (1st Cir. 1984)). 

Defendants have not shown that Plaintiffs are unlikely to succeed on the merits. They 

argue that the named Plaintiffs are unlikely to obtain damages beyond those included in 

the offer of judgment, but they ignore entirely the prospect that Plaintiffs might succeed 

on the merits by proving their collective action claims. Doc. 44 at 3. As explained, the 

nature of this suit militates against an order requiring Plaintiffs to post security for costs. 

Finally, Defendants offer no evidence that the amount of security they seek is necessary 

to prevent them from suffering significant harm. 

IT IS ORDERED that Defendants’ motion for security for costs (Doc. 44) is 

denied. 

 Dated this 25th day of July, 2016. 

Case 2:16-cv-00056-DGC Document 51 Filed 07/25/16 Page 3 of 3