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Clifton v. Babb Construction Co.

United States District Court, Ninth Circuit

October 21, 2013

DOUGLAS M. CLIFTON, CHRISTOPHER A. DRURY, CLIFFORD R. BAKER, and CARL W. SONNTAG, individually and on behalf of all others similarly situated Plaintiffs,
v.
BABB CONSTRUCTION Co. dba DELTA CONSTRUCTION Co., an Oregon corporation, and DELTA SAND & GRAVEL Co., an Oregon Corporation Defendants.

OPINION AND ORDER

MICHAEL J. McSHANE, District Judge.

Defendants' counsel filed motions to dismiss for failure to state a claim upon which relief can be granted [# 11], pursuant to Federal Rule of Civil Procedure 12(b)(6), and the matter is now before this court. In addition to the submission of multiple briefs from both parties, oral arguments were heard on the motions by this court on September 25th 2013. For the following reasons defendants' motions are GRANTED in part and DENIED in part.

SUMMARY OF FINDINGS

This court's findings are based on the Motions/paragraphs as enumerated on page two of defendants' initial motion [#11]. On September 25th 2013, the court made the following rulings from the bench and as outlined in its minute order [#50]:

A. Motion/paragraph #1 was partitlly denied as to the defendants' motion to dismiss the plaintiffs' Third Claim for Relief in its entirety. However, part of defendants' motion/paragraph #1 was converted into a Motion to Strike, and was granted. As a result of the granted Motion to Strike, the portions in the plaintiffs' Third Claim for Relief in regards to alleged PWR violations pursuant to ORS Chapter 653 were ordered stricken (granted). The rest of the plaintiffs' Third Claim for Relief (in regards to claims pursuant to ORS Chapter 652) will remain (denied).
B. Motions/paragraphs #2, #4, #6, #7, and #8 were denied.
C. Motions/paragraphs #3 and #5 were taken under advisement and are now addressed in this Opinion and Order (see paragraphs F and G).
D. Defendants' Motion for Reconsideration of Order #26 [#36] was also denied. Order #26 was limited solely to the conditional certification and authorization for notice of the-FLSA Class under 29 U.S.C. § 216(b). No additional classes have been certified or conditionally certified. Final certification of the FLSA Class will be subject to a stricter 2nd-tier certification process as outlined in the court's order [#26], to include potential Motion(s) for Decertification.
E. The court also ruled that the issues of equitable tolling and the scope of the class were not yet ripe to rule on.

This court now makes the following additional findings:

F. Motion/paragraph #3 is GRANTED for the following reasons.
G. Motion/paragraph #5 is DENIED for the following reasons.

PROCEDURAL AND FACTUAL BACKGROUND

The plaintiffs' complaint alleges the defendants (Babb Construction, Delta Construction, and Delta Sand & Gravel, (hereinafter referred to collectively as "Delta"), violated the Fair Labor Standards Act (FLSA) by failing to pay the correct amount of overtime wages for hours worked over forty (40) hours per week to the conditional class, in violation of 29 U.S.C. § 207 [#1]. The plaintiffs further allege the defendants' overtime calculations did not take into account all wages earned by employees in a workweek when computing the overtime rate of pay. Id. According to the plaintiffs, the defendants' practice was to instead pay overtime calculated without computing a weighted average that took into ...


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