Maclin et al v. Montgomery and Sons Construction Inc et al
ORDER granting 36 Motion to Certify Class. All counsel should confer, attempt to agree on a final draft proposed notice, and file it by 12/3/2012. If agreement cannot be reached, Plaintiffs should file their proposed amended notice by that date. The Defendants will have until 12/17/2012 to object. Signed by Judge D. P. Marshall Jr. on 11/15/2012. (mcz)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
STEPHEN MACLIN; RUBEN TOBIN;
DUSTIN ROBINSON; and GERARD
JOHNSON, all individually and on
behalf of others similarly situated
MONTGOMERY AND SONS
CONSTRUCTION, INC. and JOHN
MONTGOMERY, individually and
as owner/manager of Montgomery
and Sons Construction, Inc.
Stephen Maclin is a former employee of Montgomery and Sons
Construction, who he says failed to pay him overtime rates, violating the Fair
Labor Standards Act. Maclin wants the Court to certify conditionally a class
of other hourly, non-Labor Act-exempt employees that worked at
Montgomery in Arkansas. Document No. 36.
The Court handles motions to certify using a two-step process: first, the
Court considers conditionally certifying a collective action at the notice stage;
and second, if there is certification, the Court permits motions to decertify at
the conclusion of discovery. In re Pilgrim's Pride Fair Labor Standards Act
Litigation, MDL Docket No. 1:07-cv-1832, 2008 WL 4877239, at *2 (W.D. Ark.
13Mar. 2008) (collectingcases);McQuayv.Americanint'l Group, Inc.,No.4:01cv-661-WRW, 2002 WL 31475212, at *2 (E.D. Ark. 25 Oct. 2002).
At the notice stage, the Court examines the pleadings and affidavits and
uses a fairly lenient standard to determine whether the proposed class
members are similarly situated. If so, disclosure of the contact information of
potential opt-in plaintiffs, and court-approved notice follows. Mooney v.
Aramco Services Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995), overruled on other
grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003); Freeman v. Wal-Mart
Stores, Inc., 256 F. Supp. 2d 941, 944 (W.D. Ark. 2003).
Maclin must make a modest factual showing that u [he] and potential
class members were victims of a common decision, policy, or plan of the
employer that affected all class members in a similar fashion." ResendizRamirez v. P & H Forestry, LLC, 515 F. Supp. 2d 937, 941 (W.D. Ark. 2007); see
also Freeman, 256 F. Supp. 2d at 944-45. Various factors are important in
answering whether the other construction workers' situations are similar to
Maclin's: (1) whether everyone worked in the same location; (2) whether they
held the same job title; (3) whether the alleged violations occurred during the
same time period; and (4) whether all the workers were subjected to the same
policies and practices. Smith v. Frac Tech Servs., Ltd., No. 4:09-cv-679-JLH,
2009 WL 4251017, at *4 (E.D. Ark. 24 Nov. 2009); see also Hipp v. Liberty
National Life Insurance Co., 252 F.3d 1208, 1217-19 (11th Cir. 2001).
Are the proposed class members similarly situated? Yes. Montgomery
acknowledges that hourly employees were affected by receiving straight-line
wages for hours worked beyond forty. Document No. 18, at 3. Montgomery
also agrees that the time and place of the pay practice were the same, at least
with respect to a Cabot, Arkansas construction site. Document No. 44, at 5.
The type of work each class member did is less relevant here, where the error
was clerical, as Montgomery suggests. The computer underpaid electrician
and plumber alike. Eligibility thus turns on whether a worker was hourly
and FLSA eligible. The class exists.
The harder question is the class's breadth, and things here are a bit
murky. Montgomery says that it employs only a small number of workers at
the Cabot site. Document No. 41-4. Maclin says there are more sites, and
employees at all of these sites, even if not paid by Montgomery -for instance,
where a Montgomery-controlled company paid the workers -
populate the class. Maclin has provided documents supporting his allegation
that other work sites exist, contrary to what Montgomery says. Compare
Document Nos.44 at 5 and 45-2 at 2. Maclin has also filed affidavits showing
that employees who worked at these different Montgomery projects around
the state were clocked, paid, and managed in the same way as at the Cabot
site. E.g., Document No. 37-4. Montgomery responds that those employees
weren't directly paid by it, but by the site owner. This may be true, but it
doesn't absolve Montgomery of its potential liability as an employer under
the Labor Act. 29 U.S.C. § 203(d). Maclin has made a sufficient preliminary
showing that Montgomery controlled the work at all sites. And it appears
that Montgomery's officers may be the owners or operators of the other sites
in any event. Document No. 41, at 3-4. Discovery will shine more light here.
Maclin's motion, Document No. 36, is granted. The Court certifies
conditionally the class of Montgomery employees, paid by Montgomery or
any other entity, who worked in Arkansas and were paid straight line wages
for hours worked in excess of forty per week. The proposed notice should be
updated to reflect the current parties and to adjust the proposed deadline for
filing the consent form. All counsel should confer, attempt to agree on a final
draft proposed notice, and file it by 3 December 2012. If agreement cannot be
reached, Plaintiffs should file their proposed amended notice by that date.
The Defendants will have until17 December 2012 to object.
D.P. Marshall Jr.
United States District Judge
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