New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration
« Back to Complex Lit Blog

Internet Evidence — Anonymous Postings — Authentication Challenges

Download PDF

Harris v. Chipotle Mexican Grill, Inc., 2014 U.S. Dist. LEXIS 126776 (D. Minn. April 10, 2014):

The above-captioned case comes before the undersigned on Plaintiffs Marcus Harris ("Harris"), Julius Caldwell ("Caldwell"), Demarkus Hobbs ("Hobbs"), and Dana Evenson's ("Evenson") (collectively, "Plaintiffs") Motion for Conditional Collective Action Certification and for Judicial Notice to Class, "Motion for Conditional Certification") [Doc. No. 33]. This matter has been [*2]  referred for the resolution of pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A), (B), and (C), and District of Minnesota Local Rule 72.1. (Order of Reference) [Doc. No. 74]. This Court heard oral argument on January 24, 2014. (Minute Entry Dated Jan. 24, 2014) [Doc. No. 78]. For the reasons stated below, this Court recommends that the Motion for Conditional Certification be granted in part and denied in part.

I.  BACKGROUND

A.  Factual Background

Plaintiffs, on behalf of themselves and others similarly situated, brought this lawsuit against Defendant Chipotle Mexican Grill, Inc. ("Chipotle") for violations of the Fair Labor Standards Act ("FLSA") and the Minnesota Fair Labor Standards Act. (Consolidated Am. Class Action Compl., "Am. Compl.") [Doc. No. 31 ¶ 1]; see also 29 U.S.C. §§ 201-19; Minn. Stat. §§ 177.21-.35. Plaintiffs allege that Chipotle failed to pay them for all the hours they worked as part of a corporate policy. (Am. Compl. ¶ 28).

Chipotle owns fast food Mexican restaurants throughout the United States, including Minnesota. (Id. ¶ 22). Chipotle employs 30,000 hourly employees across the country. (Id.). Plaintiffs are or were hourly employees of Chipotle who reside in Minnesota. (Id. ¶¶ 2, 18-21); (Decl. of Marcus Harris, "Harris Decl.") [Doc. No. 37 at ¶¶ [*3]  3-4]; (Decl. of Julius Caldwell, "Caldwell Decl.") [Doc. No. 38 at ¶¶ 3-4]; (Decl. of Demarkus Hobbs, "Hobbs Decl.") [Doc. No. 39 at ¶¶ 3-4]; (Decl. of Dana Evenson, "Evenson Decl.") [Doc. No. 40 at ¶¶ 3-4]. Plaintiffs allege that Chipotle has a policy to not pay its hourly employees for all time worked, and to encourage general managers to require off-the-clock work. (Am. Compl. ¶ 25); (Caldwell Decl. ¶ 10); (Evenson Decl. ¶ 10). Specifically, Plaintiffs allege that Chipotle's payroll budgets are set so strictly that they can only be met by employees working off the clock. (Am. Compl. ¶ 26).

Because general managers are awarded if they meet their payroll budgets, general managers understaff each location. (Id. ¶ 27). Through this alleged policy, Chipotle allows, encourages, and directs its hourly employees to perform work without being compensated. (Id. ¶ 28). Chipotle achieves this by requiring employees to punch out before they are finished working, automatically punching employees out, conducting required meetings and trainings and prohibiting hourly employees from punching in for them, and failing to keep appropriate records. (Id. ¶¶ 29-31). Plaintiffs allege that these actions [*4]  take place pursuant to Chipotle's policies and directives from its corporate offices, and that Chipotle is aware that its hourly employees work off the clock. (Id. ¶¶ 32-33). As a result, Plaintiffs allege that Chipotle's policies and conduct have denied hourly employees, such as Plaintiffs and similarly situated hourly employees, overtime and regular wages. (Id. ¶ 34).

B.  Procedural Background

***

Plaintiffs filed their Motion for Conditional Certification on October 23, 2013. (Mot. for Conditional Certification). In support, Plaintiffs filed four declarations, one from each of the named Plaintiffs. (Harris Decl.); (Caldwell Decl.); (Hobbs Decl.); (Evenson Decl.). Plaintiffs' counsel also filed an affidavit attaching a proposed notice, a proposed "consent to join" form, and three complaints filed with the Minnesota Department of Labor and Industry ("Minnesota DOLI") by Chipotle employees who claimed they had to work off the clock or were not paid for all hours worked. See (Aff. of Kent M. Williams, "Williams Aff.") [Doc. No. 36 ¶¶ 2-4]. Finally, Plaintiffs filed a notice of consent, stating that Plaintiffs and three other individuals consented to join the action. (Pls.' Notice of Filing Consent to Join Forms Pursuant to the FLSA, 29 U.S.C. § 216(b), "Pls.' Notice of Consent") [Doc. No. 32].

Chipotle responded on December 6, 2013. (Chipotle's Opp'n to Pls.' Mot. for Conditional Certification, "Chipotle's Opp'n") [Doc. No. 49].2 In addition to its memorandum, [*6]  Chipotle filed several declarations and accompanying exhibits. (Decl. of David Gottlieb in Supp. of Chipotle's Opp'n to Pls.' Mot. for Conditional Certification, "Gottlieb Decl.") [Doc. No. 50]; (Decl. of Joel Chrisman in Supp. of Chipotle's Opp'n to Pls.' Mot. for Conditional Certification, "Chrisman Decl.") [Doc. No. 51]; (Mintzer Decl.). Chipotle's supporting exhibits included, inter alia, declarations from the following current Chipotle employees: Jayson Beebe ("Beebe"), Alan Hawkins ("Hawkins"), Jose Hernandez ("Hernandez"), and Angelina Martinez-Herrera ("Martinez-Herrera"). See (Mintzer Decl. ¶¶ 4-6).3

***

Finally, Plaintiffs submitted copies of Chipotle's employees' Internet postings regarding being forced to work off the clock. (Ex. D, Attached to Williams Decl.) [Doc. No. 67-4]; see also (Williams Decl. ¶ 9). An anonymous former employee from Peoria, Arizona, posted that he and others were told to work off the clock several times. (Ex. D at 3). But, like the complaints filed in other courts, this posting is not related to off-the-clock work during closing shifts, and therefore does not support Plaintiffs' Motion for Conditional Certification. The two other postings provided by Plaintiffs, in contrast, specifically mention the closing shift. See (Id. at 2, 4). An employee in Victorville, California, anonymously reported that an employee should "[e]xpect to work [*37]  off the clock when closing [g]rill[] or [p]rep." (Id. at 2). David L. Goldberg, who is from Chicago, Illinois, posted that employees must work past 12:30 a.m., but are automatically clocked out at 12:30 a.m. (Id. at 4).

The Internet postings from Victorville and Chicago are a far cry from affidavits based on personal knowledge in terms of reliability. Internet postings are difficult to authenticate as admissible evidence. See Fed. R. Evid. 901(a); Farkarlun v. Hanning, 855 F. Supp. 2d 906, 921-22 (D. Minn. 2012) (ADM/JJK) (discussing plaintiff's failed attempt to authenticate articles and emails reproduced on Internet blogs due to plaintiff's inability to provide evidence that the items were reproduced accurately or that they originated from the sources plaintiff claimed). But because the standard of evidence is lower in a motion for conditional certification than it would be in a motion for summary judgment, this evidence supports Plaintiffs' colorable basis that their off-the-clock work during closing shifts was part of a common policy. See White, 236 F.R.D at 368.

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

RICO and Injunctions: (1) State Court Actions Designed to Perpetuate and Monetize a RICO Violation Are Enjoinable under RICO, Even Though They Are Not Themselves Alleged to Be Predicate Acts [Note: Noerr Pennington Applies in RICO Actions] — (2) Although Civil RICO’s Text and Legislative History Fail to Reveal Any Intent to Override the Provisions of the Federal Arbitration Act, Arbitrations Are Enjoinable Under the “Effective Vindication” Doctrine Where They Operate As a Prospective Waiver of a Party’s Right to Pursue Statutory RICO Remedies — (3) Arbitration Findings May Be Given Collateral Estoppel Effect in a Civil RICO Action — (4) Injunction of Non-Corrupt State Court Litigations That Furthers a RICO Violation Are Enjoinable Under the Anti-Injunction Act’s “Expressly Authorized” Exception — (5) “The Irreparable Harm Requirement Is The Single Most Important Prerequisite For The Issuance Of A Preliminary Injunction” (Good Quote) — (6) When Injunction Is Based on “Serious Questions on the Merits” Rather Than “Likelihood of Success,” Court May Rely on Unverified Pleadings and Attached Exhibits to Assess the Merits, Unless the Opponent Has Raised Substantial Questions (Here, the Opponent Failed to Request an Evidentiary Hearing) — (7) Whether Amended Pleading Moots An Appeal Turns on Whether It Materially Changes the Substantive Basis for the Appeal — (8) Meaning of “In That” (“Used To Introduce A Statement That Explains Or Gives More Specific Information” About A Prior Statement)

RICO: Fraudulent Concealment Must Prevent Discovery of the Injury to Toll Statute of Limitations

Rule 37 Default Judgment Sanction: (1) Abuse of Discretion Review = Legal Conclusions De Novo. Factual Findings for Clear Error — (2) Client May Be Sanctioned for Misconduct of Its Counsel, Though Here Client Was Directly Involved in Bad Faith Misbehavior — (3) Is There A Difference, Under Rule 11 As Opposed to Rule 37, Concerning Whether A Client Can Be Sanctioned for Its Counsel’s Misconduct? — (4) While Sanctions of Last Resort (Dismissal/Default) Are Apt Only If Lesser Sanctions Wouldn’t Ensure Compliance, Rule 37 Doesn’t Require the Vain Gesture of First Imposing Lessert Sanctions When It Is Clear They Would be Ineffective — (5) Court’s Reconsideration of Non-Final Orders Is Governed by Rule 54(b), And Court’s Discretion under That Rule Is Governed by the Law-of-the-Case-Doctrine

RICO: (1) Special Pleading Requirements? — (2) Although Enterprise Must Be More Than a Summation of the Predicate Acts, The Predicate Acts Can Demonstrate the Existence of the Enterprise — (3) Requirement That Association-in-Fact Exist For Purposes Other Than Just to Commit Predicate Acts Merely Requires Continuity — (4) To State an Association-in-Fact Enterprise Consisting of One Natural Person and Collection of Legal Fictions Requires Factual Detail As to How They Acted Together — (5) “A § 1962(c) Enterprise Must Be More Than An Association of Individuals Or Entities Conducting the Normal Affairs of a Defendant Corporation” (Good Quote)

RICO: (1) Fee Award May Exceed Amount Recovered — Strict Proportionality Not Required — (2) Nonmonetary Benefits and Injunctive Relief Recovered Also Relevant Factors — (3) Loss on Some Claims Need Not Result in Lowered Fees, Especially When Both Arise Out of The Same Nucleus of Operative Facts

RICO: Indirect Purchasers (Car Buyers/Renters) Lack Standing to Sue Manufacturers for RICO Violations Even Though Intermediaries (Auto Dealer Direct Purchasers) Lack Any Damages

RICO: Statutory Requirement that RICO Be Liberally Construed Does Not Establish a More Liberal Pleading Standard for RICO Claims — “To Be Sure, Adequately Pleading a RICO Claim Can Be Challenging” (Good Quote) — Court May Dismiss Action Pursuant to Rule 41(b) Absent A Motion

Archives
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

New York Office

© 2024 Joseph Hage Aaronson LLC  
Disclaimer | Attorney Advertising Notice | Legal Notice