United States District Court, W.D. Washington, Seattle
ORDER GRANTING LEAVE TO AMEND
L. Robart United States District Judge
the court is Plaintiff Ricardo Castillo's motion for
leave to file a second amended complaint that would
substitute the named plaintiff in this class and collective
action. (Mot. (Dkt. # 44).) Defendant United Rentals (North
America), Inc. ("United Rentals") opposes the
motion. (Resp. (Dkt. # 47).) The court has considered the
motion, the submissions in favor of and in opposition to the
motion, the relevant portions of the record, and the
applicable law. Being fully advised,  the court GRANTS the motion.
October 23, 2017, Mr. Castillo brought a class and collective
action on behalf of current and former hourly employees of
United Rentals, asserting various wage and hour claims under
federal and state law. (See generally FAC (Dkt. #
34).) Specifically, Mr. Castillo alleges that United Rentals
(1) failed to provide minimum and overtime wages as required
by the Fair Labor Standards Act ("FLSA"), 29 U.S.C.
§ 216(b), and the Washington Minimum Wage Act
("WMWA"), RCW ch. 49.46; (2) failed to provide meal
and rest breaks; (3) failed to pay all wages due upon
termination; and (4) willfully refused to pay wages
owed. (See FAC ¶ 3.)
Castillo worked as an Equipment Associate for United Rentals
and alleges that hourly employees are "typically
scheduled to work over ten hours a day, five days a
week" but are often denied compensation for all hours
worked, including overtime. (Id. ¶ 23.)
Moreover, Mr. Castillo alleges that the "pace of the
work" required by United Rentals is too demanding to
allow "full, timely, legally compliant rest
breaks." (Id. ¶ 26.) Moreover, United
Rentals allegedly "has a policy of disallowing [hourly
employees] from leaving the store during meal and rest
breaks," thus resulting in hourly employees // remaining
on-call during breaks, even though United Rentals
automatically deducts the break time from employees' pay
each day. (Id. ¶¶ 27, 31.)
December 20, 2017, United Rentals moved to dismiss Mr.
Castillo's original complaint for failure to state a
claim. (See MTD (Dkt. #16).) The court granted the
motion in part and allowed Mr. Castillo to amend the
dismissed claims. (3/19/18 Order (Dkt. # 30) at 22.) Mr.
Castillo filed an amended complaint on April 3, 2018.
(See FAC.) Because of the amended complaint, the
court vacated the original case schedule that had set various
deadlines for class certification and decertification under
the FLSA. (3/27/18 Order (Dkt. # 33) at 6-7.) The parties
proposed a new case schedule-which the court
adopted-requiring Mr. Castillo to file a motion for
conditional FLSA certification by July 16, 2018, and setting
subsequent dates for class certification discovery and
briefing. (See Stip. (Dkt. # 36); 4/16/18 Order
(Dkt. # 37) at 4.)
April 6, 2018, Sean Powell, a former Driver for United
Rentals, filed a notice of consent to join the collective
action. (Not. (Dkt. # 35) at 1; id., Ex. 1 (attaching Mr.
Powell's opt-in consent form).) Mr. Powell worked for
United Rentals from May 2015 to October 2017 in Washington.
(Id.;see Leimbach Decl. ¶ 6, Ex. 1
("SAC") ¶¶ 20-22.) Although he did not
work in-store, he alleges that United Rentals also required
him to work in excess of forty hours per week without
compensation (SAC ¶ 23) and required him to remain
on-call during his breaks to "make emergency
deliveries" and to "assist customer or
co-workers" (id. ¶ 27). Like Mr. Castillo,
Mr. Powell asserts that United Rentals's "pressure
to complete job assignments, including making deliveries,
picking up loads, waiting on customers and taking customer
calls, was too constant" for adequate breaks
(id. ¶ 28), and yet, United Rentals regularly
deducts the break time (id. ¶ 24).
Mr. Powell's opt-in, the parties continued to engage in
discovery to prepare for the certification motions. Parties
scheduled Mr. Castillo's deposition for June 6, 2018.
(Simpson Decl. (Dkt. # 48) ¶ 7; Leimbach Deck (Dkt. #
44-1) ¶ 3.) However, on June 5, 2018, Mr. Castillo's
counsel notified United Rentals that "[d]ue to
unforeseen circumstances, Mr. Castillo is not available to be
deposed." (Id. ¶ 9, Ex. G ("Email
Correspondence") at 7.) Mr. Castillo's counsel later
conceded that "Mr. Castillo ha[d] been
unreachable." (Id. at 5.) Mr. Castillo
ultimately determined that "for personal reasons,"
he could no longer act as the named plaintiff but wished to
remain part of the putative class and collective action.
(Castillo Decl. (Dkt. # 44-4) ¶ 4.) He agreed for Mr.
Powell to substitute in as the representative plaintiff.
(Id. ¶ 5.) Because the parties could not reach
agreement on amendment, Mr. Castillo filed the instant motion
requesting leave to withdraw as the representative plaintiff,
to substitute Mr. Powell as named plaintiff, and to amend the
complaint with factual allegations specific to Mr. Powell.
(See generally Mot.; SAC.) The court now addresses
parties' dispute boils down to two issues: (1) whether
substitution of a named plaintiff is appropriate before the
court certifies a class or collective action; and (2) if so,
whether amendment is proper under Federal Rule of Civil
Procedure 15(a). (See generally Mot.; Resp.) The
court takes up each issue in turn.
Rentals argues that substitution of named plaintiffs is never
allowed before the class or collective is certified. (Resp.
at 7-10.) But "there is no bright-line rule calling for
denial of leave to amend" before certification. In
re: Lithium Ion Batteries Antitrust Litig., No.
13-MD-2420 YGR, 2016 WL 948874, at *3 (N.D. Cal. Mar. 14,
2016); see also Chao Chen v. GEO Grp., Inc., No.
C17-5769RJB, 2018 WL 2949449, at *2 (W.D. Wash. June 13,
2018) (granting pre-certification substitution). Instead, the
law is more nuanced than United Rentals represents.
Rentals is correct that when the named plaintiffs claim is
defective-say, for instance, the named plaintiff lacks
standing-substitution of that named plaintiff is permissible
only when the class or collective has already been certified.
See Myers v. Intuit, Inc., No. I7cvI228-WQH-BLM,
2018 WL 2287425, at *7-8 (S.D. Cal. May 18, 2018) (denying
pre-certification substitution of a named plaintiff who had
no standing); see also Bernor v. Takeda Pharms. Am.,
Inc., No. LACV 12-04856-VAP (JPRx), 2018 WL 588563, at *4-5
(CD. Cal. Jan. 25, 2018) (denying pre-certification
substitution when the named plaintiffs claims were moot);
Velazquez v. GMAC Mortg. Corp., No. CV 08-05444 DDP
(PLAx), 2009 WL 2959838, at *1 (CD. Cal. Sept. 10, 2009)
(denying pre-certification substitution when deposition
evidence revealed that the named plaintiffs were inadequate).
In such a situation, courts do not allow amendments that
amount to a '"back-door attempt to ...