MEMORANDUM

MILTON I. SHADUR, Senior United States District Judge

This memorandum is being issued sua sponte to supplement the contemporaneously-entered initial scheduling order in this action. It is triggered by the fact that Jose Rodriguez ("Rodriguez") purports to bring this action against The Texan, Inc. ("Texan") "on behalf of himself and all other Plaintiffs similarly situated known and unknown," a characterization that at a minimum calls for a cautionary note.

To the extent that Rodriguez invokes federal jurisdiction directly — under the Fair Labor Standards Act as amended by the Portal to Portal Act — a class action of the type that he apparently seeks to advance is simply not available. It is well settled that those statutes do not permit conventional Fed.R.Civ.P. ("Rule") 23 class actions, under which named plaintiffs may act in a representative capacity for other unnamed parties. Instead the statutes require express individual opt-ins before any other person or persons may be allowed to join the original name plaintiff or plaintiffs in seeking relief for an employer's failure to pay overtime wages.

In this instance Rodriguez' counsel does seek to couple those federal claims with two claims advanced under the supplemental jurisdiction provision of 28 U.S.C. § 1367 (a) ("Section 1367(a)"), one under the Illinois Minimum Wage Law and the other under the Illinois Wage Payment and Collection Act. This Court's brief research has not uncovered any precedential discussion or ruling on the appropriateness or inappropriateness of federal class action treatment of such state law claims in this circumstances, although one of this Court's colleagues, Honorable Joan Lefkow, recently granted class certification for such claims in Ladegaard v. Hard Rock Concrete Cutters, Inc., No. 00 C 5755, 2000 WL 1774091 (N.D. Ill. Dec. 1)

With all due respect to Judge Lefkow, who did not engage in any discussion of the considerations noted hereafter in this memorandum, this Court harbors serious reservations (really an understatement) as to conventional class action treatment in this instance. There are powerful policy considerations that led Congress to change the original version of the Fair Labor Standards Act by enacting the Portal to Portal Act of 1947 so as to require the opt-in procedure via individualized written consents by employees wishing to join such actions (see Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 173 (1989)). That policy and the underlying congressional intent would be thwarted if a plaintiff were permitted to back door the shoehorning in of unnamed parties through the vehicle of calling upon similar state statutes that lack such an opt-in requirement.

Indeed, that view appears to be supported by the scope of supplemental jurisdiction under Section 1367(a), which permits the inclusion of state law claims "that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." Although Rodriguez says that other Texan employees received like treatment (and that allegation is of course accepted as true at the threshold stage of the litigation), it involves some stretch of language to read "the same case or controversy under Article III" as somehow embracing the separate claims of those others. And that sense of the matter in the present context is materially fortified by the next and final sentence of Section 1367(a):

Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

That language plainly betokens actual joinder or intervention, not the type of representative treatment that is sought by Rodriguez and his counsel here instead of such actual joinder.

In summary, Rodriguez and his counsel are placed on notice that they have an uphill burden in their effort to convert Rodriguez' individual claim into one of broader scope — except, of course, to the extent that any voluntary opt-ins by other Texan employees may bring about that result. This issue will no doubt be the subject of further discussion at the initial status hearing that this Court is contemporaneously scheduling.

MEMORANDUM ORDER

There will be a status hearing — a "scheduling conference," as that term is used in Fed.R.Civ.P. ("Rule") 16(b) (a copy of which is attached) — in this case at 9:00 a.m. on April 12, 2001, (the "Status Hearing Date"). Counsel for plaintiff(s) and for each defendant that has either been served with process or has appeared (or both) at least 21 days before that Status Hearing Date are ordered to meet not later than 21 days before the Status Hearing Date to comply with the provisions of Rule 26(f) (a copy of which is also attached), together with a copy of this District Court's LR 26.1. Counsel for the parties should attend the scheduled Status Hearing prepared to discuss briefly their proposed discovery plan and the other subjects that may be appropriate for inclusion in the scheduling order as referred to in Rule 16(b).

Instead of the scope of mandatory initial disclosure prescribed by Rule 26(a)(1) as amended effective December 1, 2000, each party is ordered to provide to other parties the broader categories of information that were prescribed in Rules 26(a)(1)(A) and (B) before such amendment (see copy attracted for the prior text of those Rules)