Gillespie et al v. Cracker Barrel Old Country Store Incorporated

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Dylan Basch, et al.,
Plaintiffs,
v.
Cracker Barrel Old Country Store
Incorporated,
Defendant.
No. CV-21-00940-PHX-DJH
ORDER
On May 29, 2026, the same day its now-denied Motion for Reconsideration was
filed, Defendant Cracker Barrel Old Countr Store Inc. (“Defendant”) filed a “Motion to
Modify Conditional Certification Order to Conform to Court of Appeals Remand”
(“Motion to Modify”) (Doc. 129). This matter is fully briefed. (See Docs. 134, 137).
Additionally, Plaintiffs filed a “Motion to Strike Defendant’s Motion to Modify
Conditional Certification Order As An Improper Motion for Reconsideration” (“Motion to
Strike”) (Doc. 131), which is also fully briefed. (See Docs. 136, 138).
Defendant’s Motion is another attempt to delay any progress in this case, and thus
the Court is not unsympathetic to Plaintiff’s Motion to Strike. Notably, Defendant’s
Motion to Modify is not brought under any Federal or Local Rule. (See generally
Doc. 129). Nonetheless, the Court will not strike Defendant’s Motion because it is not
“clear that the matter to be stricken could have no possible bearing on the subject matter of
the litigation.” Colaprico v. Sun Microsystems, Inc., 758 F. Supp. 1335, 1339 (N.D. Cal.
1991). Thus, Plaintiff’s Motion to Strike will be denied.
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Turning to Defendant’s Motion to Modify, Defendant asks the Court to do two
things. First, Defendant states that the conditional collective must be limited to “those
individuals who worked for Cracker Barrel in Arizona[.]” (Doc. 129 at 2). However, this
issue has been resolved as the Court severed and transferred Non-Arizona Plaintiffs to the
District of Massachusetts by prior Order. (See Doc. 130).
As to their second request, Defendant says that the putative collective must be
further limited to exclude those who signed the enforceable arbitration agreements as an
adult. (See Doc. 129 at 5). The Court is not impressed with Defendant’s continued efforts
to prematurely litigate arbitrability. In its March 31, 2023, Order, the Court explained:
Cracker Barrel cites to Sandbergend v. Ace American Ins. for the proposition
that notice cannot be sent to servers who are bound by the Agreement. (Doc.
78 at 6–7 citing 2019 WL 13203944)). In that case…[t]he plaintiffs had
stipulated that any class member who signed the arbitration agreement would
proceed with arbitration as the agreement’s enforceability was not at issue.
Id. at *2.
This matter is distinct from Sandbergend because the enforceability of
Cracker Barrel’s Arbitration Agreement is at issue. As stated, some Cracker
Barrel employees are not bound by the Arbitration Agreement despite having
signed it. Thus, “[a]t this stage, all putative collective members remain
potential plaintiffs.” Monplaisir v. Integrated Tech Grp., LLC, 2019 WL
3577162, at *3 (N.D. Cal. Aug. 6, 2019) (emphasis added). Courts in this
circuit have continuously held that disputes over which putative class
members are subject to arbitration are better addressed at the second stage of
the certification process.
(Doc. 82 at 20–21; id. at 27 (“Although Defendant raises issues regarding collective
members who are subject to arbitration, such issues may be addressed at the second
decertification stage.”)). And then again, in a January 30, 2024, Order addressing yet
another one of Defendant’s motions for reconsideration:
The Court cannot possibly define which opt-in plaintiffs are certainly subject
to arbitration at this juncture. Separate analyses will need to be performed on
each putative collective member based on the facts of their employment with
Cracker Barrel.
Cracker Barrel is reminded that we are still at the first preliminary
certification stage of the Ninth Circuit’s two-step approach to FLSA
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collective actions, which is called “preliminary” for a reason. Campbell, 903
F.3d at 1100. It is not the court’s role to resolve factual disputes, decide
substantive issues relating to the merits of the claims, or make credibility
determinations at this first stage of certification—yet, that is exactly what
Cracker Barrel asks this Court to do. See Lee v. Asurion Ins. Servs. Inc., 2016
WL 9525665, at *2 (D. Ariz. Dec. 2, 2016) (citing Colson v. Avnet, Inc., 687
F. Supp. 2d 914, 926 (D. Ariz. 2010)); see also Thornsburry v. Pet Club LLC,
2016 WL 11602764, at *2 (D. Ariz. Nov. 22, 2016). Although the Court has
identified nuanced circumstances in which a Cracker Barrel employee may
not be subject to arbitration, a final determination requires further fact
inquiries that are better resolved at the second stage of certification.
(Doc. 106 at 14).
Indeed, the Ninth Circuit has now affirmed the Court in this regard. In so ruling,
the Ninth Circuit stated:
It may not be feasible or even possible to make those determinations in the
absence of the parties allegedly bound by the agreements. Thus, where the
existence and validity of an arbitration agreement remains in dispute, a
district court is not required to rule on the arbitrability of absent employees’
claims prior to authorizing notice. Instead, the district court may reserve that
determination until after the prospective plaintiffs have, in fact, opted into
the litigation.
Applying these rules to the case before us, there was no abuse of discretion.
The district court found that multiple fact issues remained that would need
to be resolved before the court could determine which prospective opt-in
plaintiffs might be required to arbitrate their claims. And the notice that the
district court approved cautions that only employees whose claims are not
subject to arbitration may join the litigation. The district court appropriately
treated arbitrability as one factor in its determination of whether and how to
facilitate notice.
Harrington v. Cracker Barrel Old Country Store, Inc., 142 F.4th 678, 684 (9th Cir. 2025)
(internal citations omitted). No further analysis is required. The Court has ruled, the Ninth
Circuit has affirmed, and the Supreme Court has denied cert. For a final time, the issue of
arbitrability will be taken up at a later stage. Defendant is admonished to refrain from re-
litigating the same issue on multiple occasions as it is a waste of scarce judicial time and
resources.
This case has been halted at the same stage of proceedings for over five years, and
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the Court will not tolerate further delay. Now that the Non-Arizona Plaintiffs have been
severed, the Notice approved by the Court should be sent out. Notice needs to be issued,
and discovery needs to proceed in earnest. Any future conduct that can be reasonably
construed as delay tactics will result in sanctions.
Accordingly,
IT IS ORDERED that Defendant’s Motion to Modify Conditional Certification
Order to Conform to Court of Appeals Remand (Doc. 129) is DENIED.
IT ID FURTHER ORDERED that Plaintiff’s Motion to Strike Defendant’s
Motion to Modify (Doc. 131) is DENIED.
IT IS FINALLY ORDERED that the parties must meet and confer and jointly
submit proposed deadlines for these proceedings to the Court within seven (7) days of this
Order.
Dated this 6th day of October, 2026.
Honorable Diane J. Humetewa
United States District Judge
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