Free Amended Complaint - District Court of Arizona - Arizona

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James A. Jones, Texas State Bar No. 10908300 Karla S. Jackson, Texas State Bar No. 24041172 GILLESPIE, ROZEN, WATSKY, MOTLEY, JONES, P.C. 3402 Oak Grove Avenue, Suite 200 Dallas, Texas 75204 Office: 214-720-2009 Fax: 214-720-2291

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

IN RE ALLSTATE INSURANCE CO. FAIR LABOR STANDARDS ACT LITIGATION RANDALL WUNDER, and TERRY REED on behalf of themselves and all others similarly situated, Plaintiffs. v. ALLSTATE INSURANCE COMPANY and ALLSTATE NEW JERSEY INSURANCE COMPANY, Defendants.

MDL NO. 1541 Case No. CV-04-1028 FIRST AMENDED COMPLAINT AND JURY DEMAND Assigned to the Hon. Paul G. Rosenblatt

WUNDER'S AND REED'S FIRST AMENDED COMPLAINT AND JURY DEMAND Comes now Plaintiffs, Randall Wunder and Terry Reed ("Wunder and Reed" or "Plaintiffs") on behalf of themselves and others similarly situated employees of Allstate Insurance Company and/or Allstate New Jersey Insurance Company ("Allstate" or "Defendants") and file this First Amended Complaint to redress certain grievances arising under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et. seq. Plaintiffs would respectfully show the following: I. PARTIES 1. 2. 3. Plaintiff Randall Wunder is a resident of Oklahoma City, Oklahoma. Plaintiff Terry Reed is a resident of Lawton, Oklahoma. Plaintiffs and others similarly situated are or were employed by Defendants.

Case 2:03-md-01541-PGR

Document 139

Filed 05/10/2006

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4.

Defendant Allstate Insurance Company is a foreign corporation, doing business in the state of Oklahoma. Defendant can be served with process through Jere Keprios, CT Corporation System, 818 West 7th Street, Los Angeles, California 90017. Defendant Allstate New Jersey Insurance Company is a corporation whose principal place of business is in the state of New Jersey. Defendants' counsel, Joel E. Krischer, has agreed to accept service on behalf of Allstate New Jersey Insurance Company.

5.

Plaintiff Wunder and Plaintiff Reed are former employees of Allstate. Defendants are employers as defined in 29 U.S.C. §§ 201 et. seq. II. JURISDICTION AND VENUE

6. 7.

Jurisdiction is conferred on this court by 29 U.S.C. § 216. Venue is proper in this court under 28 U.S.C. § 1391. III. CLASS ACTION ALLEGATIONS

8.

Plaintiffs file this case as an "opt-in" class/collective action as specifically allowed by 29 U.S.C. § 216(b), on behalf of themselves and other similarly situated employees of Defendants.

9.

Plaintiffs Wunder and Reed seek to represent those current and former employees who give their consent in writing to be a party plaintiff in this action and such consent is filed in this court, as required by 29 U.S.C. § 216(b). Plaintiffs Wunder and Reed and others similarly situated are referred to herein as the "Plaintiff Class."

10.

Plaintiffs include current and former employees who are employees under the FLSA and who were denied overtime as required by the FLSA. Plaintiffs have or had various job titles, including, without limitation, adjusters. IV. FACTUAL BACKGROUND

11.

At all times relevant to this action, Defendants have been subject to the requirements of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.

12.

For purposes of this action, the "relevant period" is defined as that period commencing three years previous to the filing of this lawsuit and continuing thereafter.

13.

Plaintiffs were employed by Allstate as adjusters.

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14.

Throughout the relevant period, Plaintiffs Wunder and Reed and similarly situated employees were entitled to overtime pay.

15.

Defendants have intentionally refused and failed to pay Plaintiffs and similarly situated employees overtime pay for the hours in excess of 40 hours that Plaintiffs worked as required by the FLSA.

16.

As employees under FLSA, Plaintiffs and similarly situated employees are entitled to overtime for all hours in excess of forty (40) hours worked during each seven-day workweek during the relevant period. V. CAUSE OF ACTION

Fair Labor Standards Act ("FLSA") 17. Plaintiffs reallege and incorporate the allegations contained in Paragraphs 1 through 15 as fully stated herein. 18. Defendants' actions in failing to pay Plaintiffs and similarly situated employees for all their overtime hours at a rate not less than one and one-half times the regular rate at which they were employed violates 29 U.S.C. §§ 207 (a)(1) and 215 (a)(2). 19. Plaintiffs seek the full amount of unpaid overtime wages under 29 U.S.C. § 216(b), for themselves and similar situated employees, with interest thereon. 20. Defendants' failure to pay Plaintiffs and the Plaintiff class' overtime pay in accordance with the FLSA was willful, thus entitling Plaintiffs and similarly situated employees to liquidated damages under 29 U.S.C. § 216(b). 21. Plaintiffs seek attorneys' fees and costs of suit under 29 U.S.C. § 216(b). VI. JURY DEMAND 22. Plaintiffs seek a jury trial for all claims and issues involved in this case. VII. PRAYER FOR RELIEF Wherefore, Plaintiffs Wunder and Reed and all similarly situated employees, request that Defendant be cited to appear and answer. Plaintiffs request that Defendant be ordered, on an expedited basis, to provide Plaintiffs with the names, current home and work addresses and current phone numbers of all current or former adjusters, and other current or former employees similarly WUNDER'S AND REED'S FIRST AMENDED COMPLAINT AND JURY DEMAND Case 2:03-md-01541-PGR Document 139 PageFiled 05/10/2006 Page 3 of 5 3

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situated to Plaintiffs. Plaintiffs further request that this court approve a procedure whereby Plaintiffs, through their counsel, may notify such employees of this action and of their right to file consents to be party plaintiffs in this action. Plaintiffs pray further that on final trial, judgment be granted against Defendants awarding Plaintiffs and similarly situated employees the following: a. b. c. d. e. f. g. Back pay, including but not limited to unpaid wages and other employment benefits; Unpaid overtime compensation to which they are entitled; Liquidated damages, in the maximum allowed by law; Compensatory and punitive damages, in the maximum allowed by law; Prejudgment and post-judgment interest, as allowed by law; Attorneys fees and costs of suit; Such other and further relief as the Court may deem proper.

Respectfully Submitted, Dated: May 10, 2006 By: /s/ Karla S. Jackson James A. Jones Texas State Bar No. 10908300 Karla S. Jackson Texas State Bar No. 24041172 GILLESPIE, ROZEN, WATSKY, MOTLEY, JONES, P.C. 3402 Oak Grove Avenue, Suite 200 Dallas, Texas 75204 Office: 214-720-2009 Fax: 214-720-2291 Email: [email protected] Email: [email protected]

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Mark Wintering, Esq. Robert E. Sweeney Co. 55 Public Square, Suite 1500 Cleveland, Ohio 44113 Andrew Paley Seyfarth Shaw One Century Plaza Suite 3300 2029 Century Park East Los Angeles, California 90067

CERTIFICATE OF SERVICE I hereby certify that on May 10, 2006, I electronically transmitted the attached document to the Clerk's office using the CM/ECF system for filing and a transmittal of a Notice of Electronic Filing was sent to the following CM/ECF registrants: Kelly McInerney, Esq. McInerney & Jones 18124 Wedge Parkway, Suite 503 Reno, Nevada 89511 Andrea E. Watters, Esq. Watters & Watters, P.C. 2807 W. Broadway Blvd. Tucson, Arizona 85716 Joel E. Krischer, Esq. Latham & Watkins, L.L.P. 633 W. Fifth Street, Suite 4000 Los Angeles, California 90071

/s/ Karla S. Jackson Karla S. Jackson

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