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Knutson v. Blue Cross and Blue Shield of Minnesota: US District Court : CIVIL PROCEDURE | FLSA - can't meet Fair Labor Standards Act need to show other potential plaintiffs' interest with just one other person

Brenda Knutson, on behalf of herself and
other individuals similarly situated,
Civ. No. 08-584 (RHK/JSM)
Blue Cross and Blue Shield of Minnesota,
Charles V. Firth, Clayton D. Halunen, Halunen & Associates, Minneapolis, Minnesota,
for Plaintiff.
Jeffrey A. Timmerman, Marko J. Mrkonich, Andrew J. Voss, Littler Mendelson, P.C.,
Minneapolis, Minnesota, for Defendant.
In this action, Plaintiff Brenda Knutson alleges that Defendant Blue Cross and
Blue Shield of Minnesota (Blue Cross) failed to pay her overtime for work she
performed in excess of forty hours per week. Purporting to represent all other Blue Cross
employees similarly situated, Knutson now moves to conditionally certify this case as a
collective action under the Fair Labor Standards Act (FLSA), 29 U.S.C. 216(b).
For the reasons set forth below, the Court will deny the Motion.
Blue Cross is a nonprofit health-service corporation headquartered in Eagan,
Minnesota. (Am. Compl. 7.) Knutson worked for more than 7 years as a Blue Cross
customer-service representative. (Id. 5.) She alleges that she and other customerservice
representatives were not paid for work they performed prior to and after their
scheduled work shifts, including time spent booting-up and shutting-down their
computers, logging on and off telephone systems, reviewing e-mails, and speaking with
Blue Cross customers. (Id. 11.)
On March 19, 2008, Sarah LePage, another Blue Cross customer-service
representative, commenced this action on behalf of herself and all other similarly situated
Blue Cross employees; she amended the Complaint shortly thereafter to add Knutson as a
plaintiff. Together, they alleged that Blue Crosss failure to pay for pre- and post-shift
work violated the overtime and minimum-wage provisions of the FLSA and its Minnesota
analogue, as well as the Employee Retirement Income Security Act of 1974 (ERISA),
29 U.S.C. 1001 et seq. They also alleged that Blue Cross was unjustly enriched by its
On April 2, 2008, Blue Cross moved to dismiss the Amended Complaint. On June
25, 2008, the Court granted that Motion in part and denied it in part, dismissing the
ERISA claims, the Minnesota FLSA claims, and the minimum-wage portion of the
federal FLSA claim, but declining to dismiss the overtime portion of the federal FLSA
claim and the unjust-enrichment claim. Approximately one week later, the parties filed a
1 Blue Cross also argues that Knutson is not similarly situated to other customer-service
representatives. Because Knutson has not demonstrated that a sufficient number of other
individuals desire to opt in to this litigation, the Court does not reach this issue.
Stipulation of Dismissal pursuant to which LePage voluntarily dismissed all of her claims
against Blue Cross, leaving Knutson as the only named Plaintiff.
Having conducted some discovery, Knutson now moves for an Order conditionally
certifying this case as a collective action under the FLSA. Blue Cross opposes
Knutsons Motion, arguing inter alia that she has failed to show that similarly situated
individuals desire to opt in to this litigation.1
The FLSA provides that an action may be maintained by any . . . employee[] for
and in behalf of himself . . . and other employees similarly situated to recover damages
for the failure to pay overtime. 29 U.S.C. 216(b). Such an action is known as a
collective action. E.g., Harkins v. Riverboat Servs., Inc., 385 F.3d 1099, 1101 (7th Cir.
2004); Smith v. Heartland Auto. Servs., Inc., 404 F. Supp. 2d 1144, 1149 (D. Minn. 2005)
(Kyle, J.). The Court discussed FLSA collective actions in detail in Parker v. Rowland
Express, Inc., 492 F. Supp. 2d 1159 (D. Minn. 2007) (Kyle, J.), noting:
An FLSA collective action differs from a class action under Federal Rule of
Civil Procedure 23. In a class action, a potential plaintiffs claim is
automatically included in the case unless he expressly opts out of the class.
By contrast, a potential plaintiffs claim will be included in a collective action
only if he expressly opts in to the action. 29 U.S.C. 216(b) (No employee
shall be a party plaintiff to any such action unless he gives his consent in
writing to become such a party and such consent is filed in the court in which
such action is brought.); Schmidt v. Fuller Brush Co., 527 F.2d 532, 536 (8th
Cir. 1975); Heartland, 404 F. Supp. 2d at 1149. Courts may facilitate this optin
process by authorizing the named Plaintiffs . . . to transmit a notice [of the
lawsuit] to potential class members. West v. Border Foods, Inc., Civ. No. 05-
2325, 2006 WL 1892527, at *2 (D. Minn. July 10, 2006) (Frank, J., adopting
Report and Recommendation of Erickson, M.J.).
Id. at 1163. As the Court recognized in Parker, however, the power to authorize notice to
potential plaintiffs is to be exercised . . . only in appropriate cases, and remains within
the discretion of the district court. Id. (citation omitted); accord Heartland, 404 F. Supp.
2d at 1149 (Determining whether . . . a collective action is the appropriate means for
prosecuting an action is in the Courts discretion. ).
The burden rests with the plaintiff(s) to proffer some evidence indicating that a
case is appropriate for collective-action treatment. Parker, 492 F. Supp. 2d at 1164
(citing West, 2006 WL 1892527, at *2). To do so, the named plaintiff must first show
that she is similarly situated to the employees whom [s]he seeks to represent. Id. at
1163 (citing Mares v. Caesars Entmt, Inc., No. 4:06-cv-0060, 2007 WL 118877, at *2
(S.D. Ind. Jan. 10, 2007)); accord Heartland, 404 F. Supp. 2d at 1149. The FLSA,
however, nowhere defines the term similarly situated. As a result, courts generally
follow a two-stage approach when deciding whether the named plaintiffs in an FLSA
action are similarly situated to other potential plaintiffs:
The first determination is made at the so-called notice stage. At the notice
stage, the district court makes a decision usually based only on the pleadings
and any affidavits which have been submitted whether notice of the action
should be given to potential class members.
Because the court has minimal evidence, this determination is made
using a fairly lenient standard, and typically results in conditional
certification of a representative class. If the district court conditionally
certifies the class, putative class members are given notice and the
opportunity to opt-in. The action [then] proceeds as a [collective] action
throughout discovery.
The second determination is typically precipitated by a motion for
decertification by the defendant[,] usually filed after discovery is largely
complete and the matter is ready for trial. At this stage, the court has much
more information on which to base its decision, and makes a factual
determination on the similarly situated question.
Parker, 492 F. Supp. 2d at 1164 (quoting Hipp v. Liberty Natl Life Ins. Co., 252 F.3d
1208, 1218 (11th Cir. 2001)); accord West, 2006 WL 1892527, at *2; Heartland, 404 F.
Supp. 2d at 1149-50.
Like the plaintiffs in Parker, Knutson seeks an Order conditionally certifying this
case as a collective action, in order to notify potential plaintiffs of the pendency of this
lawsuit and provide them with the opportunity to opt in. Hence, the Court is at the first
stage of the two-stage process. While Knutsons burden at this stage is not onerous, it is
not invisible. Parker, 492 F. Supp. 2d at 1164 (citations omitted). Among other things,
she must proffer evidence that other similarly situated individuals desire to opt in to this
case. Id. at 1164-65 (collecting cases); accord, e.g., Songer v. Dillon Res., Inc., __ F.
Supp. 2d __, 2008 WL 2901324, at *3 (N.D. Tex. July 24, 2008); ODonnell v. Robert
Half Intl, Inc., 534 F. Supp. 2d 173, 179, 181 (D. Mass. 2008) (Plaintiffs must present
information, i.e., more than speculation or bald assertions by the plaintiffs, that putative
class members are interested in joining the suit.). Absent such evidence, there would be
no basis upon which the Court could conclude that this action is an appropriate case for
collective-action treatment. See Simmons v. T-Mobile USA, Inc., No. H-06-1820, 2007
WL 210008, at *9 (S.D. Tex. Jan. 24, 2007) ([o]thers interest in joining the litigation is
relevant to whether or not to put a defendant employer to the expense and effort of notice
to a conditionally certified class of claimants).
In support of her Motion for collective-action certification, Knutson has proffered
the declaration of one former Blue Cross employee, Maria Brevig, suggesting that Brevig
would opt in to this lawsuit if given the opportunity. (See Brevig Decl. 14.) This is
simply not enough. When faced with an identical situation in Parker that is, a
conditional collective-action certification motion in which there were only two employees
(both named plaintiffs) who had indicated their willingness to prosecute the case the
Court rejected conditional certification. 492 F. Supp. 2d at 1165-66 (In the absence of at
least some evidence indicating that others will opt in to this lawsuit, the Court perceives
no basis to conclude that this is an appropriate case for collective-action status it is
simply a lawsuit involving two plaintiffs.). There exists no principled reason to deviate
from the Parker rationale here. Indeed, conditional certification is even less appropriate
in this case than in Parker because, unlike the Parker plaintiffs, Knutson has
acknowledged that she contacted at least twelve of her former co-workers to ascertain
whether they were interested in opting in to this case. (See Timmerman Aff. Ex. C at 3.)
Only Brevig agreed to do so, while at least three expressly disavowed joining this case.
(See Roberts Dep. Tr. at 91-92 (noting that she did not want to participate in this action
because she feel[s] that this lawsuit is frivolous); Weber Dep. Tr. at 89-91 (describing
Knutsons allegations as trivial and indicating that she was unaware of any other
2 In its Opposition, Blue Cross disputes Knutsons contention and avers that it provided
her with contact information for 43 of her former co-workers. (Mem. in Oppn at 12 n.4.) For
employees who were interested in joining the case); Payne Dep. Tr. at 69-72 (saying she
wouldnt go for th[is] lawsuit because it is against what [she] believe[s] in).) Without
some showing that additional Blue Cross customer-service representatives would opt in to
this litigation, this is not an appropriate case for conditional collective-action
certification. See Songer, 2008 WL 2901324, at *3 (declining to conditionally certify
class where only one employee had agreed to opt in to the litigation); Parker, 492 F.
Supp. 2d at 1166-67.
Knutson argues that Blue Cross has prevented her from locating other customerservice
representatives interested in joining this action by fail[ing] to furnish her with
contact information for such individuals (Reply Mem. at 7), but her argument is
unpersuasive. She claims that she served Blue Cross with an interrogatory asking it to
provide the name and contact information for all customer-service representatives
working in certain Minnesota locations, but Blue Cross did not provide that information.
(Id. at 2.) Her counsel then wrote to Blue Crosss counsel seeking the information, but
did not receive a response. (Id.) Knutson, however, made no further effort to obtain the
information. Notably, she could have filed a motion to compel and requested the Court to
defer resolution of the instant Motion in the interim. Having failed to do so, Knutson
cannot be heard to complain that she lacks the information she now needs in order to
support her Motion.2 Moreover, the length of Knutsons tenure with Blue Cross 7 years
purposes of the instant Motion, however, the Court has accepted Knutsons version of the facts.
3 Knutson claims that Blue Crosss counsel strongly objected to the contacting of a
current [Blue Cross] employee by Plaintiffs counsel, and threateningly invoked the solicitation
provision of the Minnesota Rules of Professional Conduct. (Reply Mem. at 3.) The alleged
threat by Blue Crosss counsel is of little moment even if Knutsons counsel were restricted
by ethical rules from soliciting participation in this lawsuit, those rules would not apply to
Knutson herself.
suggests that [she] likely knows the identity of several other [Blue Cross customerservice
representatives]. Accordingly, it should not be an insurmountable hurdle for h[er]
to contact those representatives about opting in to this litigation. Parker, 492 F. Supp. 2d
at 1167. Indeed, Knutson ignores her own acknowledgment that she has contacted at
least 12 former customer-service representatives concerning this case.3
Knutson relies upon Dumitrescu v. Mr. Chow Enterprises, Ltd., No. 07-CV-3601,
2008 WL 2600667 (S.D.N.Y. June 30, 2008), to support her assertion that she has
presented sufficient evidence to warrant conditional certification. Dumitrescu, however,
is easily distinguished. The FLSA action there had been brought jointly by three
plaintiffs, and two of the plaintiffs former co-workers had already come forth
expressing interest in joining the suit. Id. at *6. In other words, the action involved five
persons at a minimum, with the possibility of many more opting in. Id. Here, however,
the Court is in the same situation as in Parker: only two persons, Knutson and Brevig,
have expressed any interest in prosecuting the claims in this case. Accordingly, the same
result as in Parker should obtain here.
4 Having reviewed the parties submissions, the Court has concluded that oral argument
would not materially assist it in resolving Knutsons Motion. Accordingly, the hearing on the
Motion currently scheduled for September 30, 2008, is CANCELED.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Plaintiffs Motion for Conditional Class Certification and Judicial
Notice (Doc. No. 32) is DENIED WITHOUT PREJUDICE.4
Dated: September 23, 2008 s/Richard H. Kyle
United States District Judge


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