Patel v. Wal-Mart Stores, Inc.

Filing 37

MEMORANDUM OPINION AND ORDER that 23 Motion to Facilitate Class Notice Pursuant to 29 U.S.C. § 216(b) is DENIED. Signed by Hon. Chief Judge Mark E. Fuller on 6/19/2009. (cb, )

IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION N IL E S H H. PATEL, P la in tif f , v. W A L -M A R T STORES, INC., D e f e n d a n t. ) ) ) ) ) ) ) )

C A S E NO. 2:08-cv-337-MEF (W O - Do Not Publish)

M E M O R A N D U M OPINION AND ORDER In this action, Plaintiffs, who are former or current employees of Wal-Mart Stores, In c . ("Wal-Mart"), claim entitlement to a variety of remedies for alleged violations of the Fair L a b o r Standard Act, 29 U.S.C. § 201, et seq. ("FLSA"). This cause is presently before the C o u rt on Plaintiffs' Motion to Facilitate Class Notice Pursuant to 29 U.S.C. § 216(b) (Doc. # 23) filed on October 3, 2008. Plaintiffs have submitted a brief and exhibits in support of th is motion (Docs. # 24). Wal-Mart oppose the relief requested. (Doc. # 34). The Court has c a re f u lly considered the arguments in support of and in opposition to the motion and finds th a t the motion is due to be DENIED. FACTUAL AND PROCEDURAL BACKGROUND O n May 5, 2008, Nilesh Patel ("Patel") filed this case against Wal-Mart seeking n a tio n w id e collective action status under the FLSA. Patel is a former Asset Protection A s sis ta n t ("APA") and Asset Protection Coordinator ("APC") who worked in a Wal-Mart s to re in Covington County, Alabama. He seeks to recover unpaid overtime compensation, p re ju d g m e n t interest, liquidated damages, attorneys' fees and costs. Patel seeks to represent

all "similarly situated" APAs and APCs (both current and former) who were subject to the s a m e uniform policy of improper classification during the three years prior to the filing of th e lawsuit. Patel alleges that he and other Wal-Mart APAs or trainees for the APC positions w e re not properly paid overtime compensation while undergoing APC training. O n October 2, 2008, Patel filed a motion for leave to file an amended complaint a d d in g three additional named plaintiffs: Holly Morris ("Morris"), Jared Odom ("Odom"), a n d Michael Laseter ("Laseter"). Without objection, this motion was granted by an Order d a te d October 31, 2008. The Amended Complaint (Doc. # 32) formally adding Morris, O d o m , and Laseter as named Plaintiffs to this action was filed on October 31, 2008. On October 3, 2008, Patel filed the instant motion seeking issuance of nationwide n o tic e to all potential opt-in members of the collective action. Along with a brief in support o f this motion, Patel filed affidavits from Morris, Odom, and Laseter indicating that they w e re similarly situated to Patel and that they desired to opt in to this action. Wal-Mart o p p o se s conditional certification for a variety of reasons. DISCUSSION S e c tio n 216(b) of the Fair Labor Standards Act authorizes a plaintiff seeking relief to bring a "collective action" on behalf of similarly situated persons subject to the re q u ire m e n t that any person who wishes to become a part of the collective action must file a written consent in the court in which such action is brought. See, e.g., 29 U.S.C. § 216(b); D a v is v. Charoen Pokphand (USA), Inc., 303 F. Supp. 2d 1272, 1274 (M.D. Ala. 2004). A d is tric t court may in some circumstances facilitate notice to potential participants in the 2

collective action. See, e.g., Dybach v. Florida Dep't of Corr., 942 F.2d 1562, 1567 (11th Cir. 1 9 9 1 ); Davis, 303 F. Supp. 2d at 1275; Horne v. United Servs. Auto Ass'n, 279 F. Supp. 1 2 3 1 , 1233 (M.D. Ala. 2003). "The power to authorize notice must, however, be exercised w ith discretion and only in appropriate cases." Horne, 279 F. Supp. 2d at 1233 (citing H a y n e s v. Singer Co., 696 F.2d 884, 886 (11th Cir.1983)). Before intervening in the notice p ro c e d u re , the district court should satisfy itself that there are other e m p lo ye e s of the [employer (1)] who desire to "opt-in" and [(2)] w h o are `similarly situated' with respect to their job re q u ire m e n ts and with regard to their pay provisions. Dybach, 942 F.2d at 1567; Davis, 303 F. Supp. 2d at 1275. Where, as here, there is in s u f f ic ie n t evidence that other employees desire to "opt-in," a district court may exercise its d is c re tio n and refuse to conditionally certify a collective action and participate in notice to p o te n tia l members of the action. Davis, 303 F. Supp. 2d at 1276-79. On the basis of the re c o rd before it, the Court concludes that Plaintiffs have not carried their burden of d e m o n s tra tin g that other employees exist who desire to opt-in to the collective action p ro p o s e d by Plaintiffs. Indeed, the only potential opt-ins of which the Court has any e v id e n c e had already become named plaintiffs before the Court had an opportunity to rule o n the motion seeking conditional certificate and notice to a potential nationwide class. While Plaintiffs may have offered evidence from which one could conclude that other s im ila rly situated employees may exist, there is certainly no evidence that any of them wish to opt in to this action if it was conditionally certified. Simply put, Plaintiffs have failed to

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establish that notice is appropriate in this case. CONCLUSION F o r the foregoing reasons, it is hereby ORDERED that Plaintiffs' Motion to Facilitate C la s s Notice Pursuant to 29 U.S.C. § 216(b) is DENIED. D O N E this the 19th day of June, 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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