Perez et al v. Owl, Inc.

Filing 88

ORDER denying 29 Motion to Certify Class; Adopting in part and rejecting in part Report and Recommendations - re 78 Report and Recommendations. On or before April 13, 2018, Plaintiffs may file a renewed motion for issuance of notice consistent with this Order. Signed by Judge Carlos E. Mendoza on 3/30/2018. (DJD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

JOSE PEREZ, ALFREDO SANTOS and
DOUGLAS RICHEY,
Plaintiffs,
v.

Case No: 6:17-cv-1092-Orl-41GJK

OWL, INC.,
Defendant.
/
ORDER
THIS CAUSE is before the Court on Plaintiffs’ Motion for Issuance of Notice (“Motion,”
Doc. 29). United States Magistrate Judge Gregory J. Kelly submitted a Report and
Recommendation (“R&R,” Doc. 78), recommending that the Court deny Plaintiffs’ Motion.
Specifically, Judge Kelly concluded that Plaintiffs were not similarly situated to the proposed class
and therefore could not pursue a collective action under 29 U.S.C. § 216(b). (Id. at 13). Plaintiffs
filed an Objection to the R&R (Doc. 81). After a de novo review of the record, and noting
Plaintiffs’ Objection, the R&R will be adopted in part and rejected in part.
I.

LEGAL STANDARD

Pursuant to 28 U.S.C. § 636(b)(1), when a party makes a timely objection, the Court shall
review de novo any portions of a magistrate judge’s report and recommendation concerning
specific proposed findings or recommendations to which an objection is made. See also Fed. R.
Civ. P. 72(b)(3). De novo review “require[s] independent consideration of factual issues based on
the record.” Jeffrey S. v. State Bd. of Educ. of State of Ga., 896 F.2d 507, 513 (11th Cir. 1990) (per

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curiam). The district court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
II.

ANALYSIS

Judge Kelly recommended denying Plaintiffs’ Motion because the hourly employees and
the salaried employees of Defendant were not subject to a similar pay provision. See Dybach v.
Fla. Dep’t of Corr., 942 F.2d 1562, 1567–68 (11th Cir. 1991) (noting that to issue a notice to
employees wishing to opt-in to the litigation, those employees must be “‘similarly situated’ with
respect to their job requirements and with regard to their pay provisions”). The Court agrees with
Judge Kelly’s analysis and that the hourly employees and the salaried employees are not subject
to the same or similar pay provision.
However, in their Objection, Plaintiffs argue that instead of denying their Motion, the Court
should divide the proposed class into two distinct classes: one for salaried employees and one for
hourly employees. (Doc. 81 at 7–10). The Court finds Plaintiffs’ argument regarding the creation
of a subclass persuasive. 1 In Dice v. Weiser Security Services, Inc., the court found that it was “not
prohibited from creating a subclass” and that “the creation of such a subclass would best serve
considerations of convenience, cost, judicial economy, and expeditious trial process.” No. 0661133-CIV, 2008 WL 249250, at *1 (S.D. Fla. Jan. 29, 2008) (collecting cases). Although that
case involved a motion for decertification, the court acknowledged that “the district court creates
an opt-in class, and certifies the class, in its sound discretion. Id. (citing Hipp v. Liberty Nat’l Life
Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001)). Similarly, this Court finds that it is not prohibited
from creating a subclass on a motion for issuance of notice and that the creation of such a subclass

1

Defendant did not raise any argument in response to Plaintiffs’ suggestion that a subclass
be created.

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furthers the twin purposes behind § 216(b): “(1) reducing the burden on plaintiffs through the
pooling of resources, and (2) efficiently resolving common issues of law and fact that arise from
the same illegal conduct.” Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1264 (11th Cir.
2008).
Without a clear definition of the two classes and an updated notice, however, the Court
declines to grant Plaintiffs’ Motion at this time. Instead, Plaintiffs are encouraged to file a renewed
motion that provides the Court with a clear definition of each class and an updated notice that
reflects that definition.
III.

CONCLUSION

Therefore, it is ORDERED and ADJUDGED as follows:
1. The Report and Recommendation (Doc. 78) is ADOPTED in part and made a part
of this Order to the extent consistent with that stated herein. In all other respects,
the R&R is REJECTED for the reasons stated herein.
2. Plaintiffs’ Motion for Issuance of Notice (Doc. 29) is DENIED.
3. On or before April 13, 2018, Plaintiffs may file a renewed motion for issuance of
notice consistent with this Order.
DONE and ORDERED in Orlando, Florida on March 30, 2018.

Copies furnished to:
Counsel of Record

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