Carpenter v. Speedy Concrete Cutting, Inc. et al

Filing 69

ORDER denying as moot 58 Motion for Hearing; denying as moot 67 Motion to set case management conference; granting 12 Motion to certify class; denying as moot 20 Motion for leave to file; denying 21 Motion in limine. Signed by Judge Elizabeth A. Kovachevich on 9/29/2009. (JM)

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UNITED MIDDLE STATES TAMPA DISTRICT OF DIVISION COURT DISTRICT FLORIDA STEVEN CARPENTER, et al., Plaintiffs, v. SPEEDY CONCRETE CUTTING, CASE NO. 8:07-CV-995-T-17MAP INC., et al., Defendants. ORDER This Dkt. Dkt. Dkt. cause 4 is before the Court on: Notice Consent - Consent to Join to Join Certification Reply 5 12 18 Motion Motion Motion for for in Conditional Leave Limine to Dkt. Dkt. Dkt. Dkt. Dkt. Response 20 21 File 23 24 42 Consent Response to to Join Join Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. Consent 43 48 50 57 Consent Consent Consent Consent Motion to to to to for Join Join Join Join Hearing 58 This overtime case wages is a collective action the Fair Labor for unpaid regular and/or Act. under Standards I. Motion in Limine Plaintiffs move to exclude affidavits filed by Defendants in opposition and move to Plaintiffs' curative Motion to for Conditional potential class Certification members. for notice Defendants oppose the Motion. Plaintiffs argue that the 25 affidavits attached to Defendants' should be and response to the Motion for Conditibnal violation request class Certification of Rules the excluded based on Fed.R.Civ.P. notice to Defendants' Plaintiffs the proposed 26(a) 37(c)(l), a that Court to issue curative members due Defendants' fact, have improper to communication, convince of misrepresentations current Fair of that law and and no efforts in these the employees they claims violation Labor Standards Act. Defendants Local Rule response and that there Plaintiffs is no have not complied with exclude 3.01(g), substantive ground to the affidavits. Defendants is argue that when failure the to make timely the required disclosures disclosure days of the suffers no harmless party entitled to argue that, prejudice. of the Defendants the within were execution affidavits, affidavits provided to prejudiced. Plaintiffs, Defendants were and therefore argue there that Plaintiffs that is no were not further and Defendants' need for a curative communications instruction. communications proper, Defendants argue pre-certification by both parties are to potential and are class members generally permitted, constitutionally protected speech. Defendants argue that there has been no showing that Defendants' communications coercive or with potential class members advised were misleading, that improper. Defendants affiants not the participation was retaliation the basis of for the voluntary, to and they would discuss any of suffer any facts which formed refusing affidavits. The Court actions, does notes not that to Local this Rule 4.04, concerning class action. In the apply collective Case No. 8:07-CV-995-T-17MAP absence of a court order limiting communication, been, are Defendants' not improper. communications, whatever they may have The Court cautions the parties that failure to comply with Local Rule After 3.01(g) may result the in the denial of Court denies the the parties' Motion motions. and consideration, for in Limine the Motion Curative Instruction. II. Motion for Conditional Certification Plaintiffs move as a collective Labor for conditional to 29 certification U.S.C. who Sec. were of this of case the by action pursuant of all 216(b) Fair Standards as Act, persons or employed Defendants "Concrete Cutters'' "Operators" or who performed concrete cutting services on Defendants' behalf, at any time since June 11, at 2004, and who {the secured Defendants' Class"), ten trucks to and equipment their homes by "Proposed compel days of Court expedited production Defendants, within (10) order of the identification of all Proposed Class Members, including their and to authorize approved Notice last known home address and telephone of a numbers, Plaintiffs' to All counsel's mailing members courttheir Proposed Class concerning right Join. to opt into this collection that action by are filing a Consent 150 to Plaintiffs allege there in the approximately former and current Concrete Cutters Proposed Class. In their Response contend that in opposition to cannot Plaintiffs' establish a Motion, foundation Defendant Plaintiff for conditional that four certification of the separate companies Proposed Class. for Defendants of argue exist the purpose providing clients with concrete cutting services in separate is run by a geographical areas. Each of the corporate entities Case No. 8:07-CV-995-T-17MAP General Manager, Florida, except Speed Concrete Cutting for of Central which has a General Manager its Orlando operation and for its Tampa operation. Defendants argue that policy and respects. procedure within each division differs in material Defendants their trucks argue that Operators allege are never required to who at the take home. Defendants paid that employees take the work shop, their trucks home are site or the shop, if from the time to they arrive report to they are required until they arrive arrival shop they are home in the evening. Employees time shop they in Employees who must report the time of at the to Dispatch. from the at the pick up their at the truck paid arrive shop, trucks until are arrive back the the evening. employer. The serviced, fueled and maintained by Defendants further argue that not all Operators are paid at $20/hour on they a weekly basis. an Operators program are paid $15/hour when by the complete apprenticeship conducted employer. The pay of Operators may range from $15/hour to $18/hour. Central relevant Defendants argue that Speedy Concrete Cutting of 20 Operators during the Florida time. employed approximately Defendants Plaintiffs, dispute the accuracy of the Plaintiffs' job duties listed by and dispute representations regarding inspection of vehicles Operators employees an and equipment. Defendants dispute that and on argue the that occasions when regularly worked through have been has lunch, told to notify Dispatch Operator worked through lunch. Case No. 8:07-CV-995-T-17MAP A. Discussion Before the Court certification, involves itself in conditional that there are other the Court should determine and who are parties who want regard to the job to opt-in, similarly-situated with Dabeoc v. requirements and pay provisions. State of Florida Department of Corrections, 942 F.2d 1562, 1567 (11th Cir. 1991) . B. Existence of Employees Who Want to Opt-In Evidence of other employees who desire consents to join, or to opt-in may be evidence on the have filed to based on affidavits, existence of Consents to expert similarly situated employees. Join of eleven Plaintiffs. Plaintiffs of the Three Consents Join state lawsuit; consents in detail the policies which indicate case are the basis the be of this the to remaining eight be a party that to party voluntarily bound by any in this and settlement or judgment. The ruling on parties have conducted to Amend, that limited discovery. read depositions and The Court, in the Motion evidence other entities and documentary which clearly established Cutting, of how are all comprise The "Speedy Employee Concrete Handbook Inc.'7 organized Cutting, operated. Speedy Concrete Inc., which is a part of the which record apply in to this all case, includes with no argued to the policies and procedures as to Operators, have differentiation that procedures location. according to While Defendants vary location, according discretion control of of General Managers, conditions the of Court notes that was actual from Operators' employment exercised Case No. 8:07-CV-995-T-17MAP one location. Defendants argue that the Consents to Join are unsworn declarations, affidavits and Defendants have stating submitted twenty-five their belief that the company from employees correctly calculated their overtime. Plaintiffs are required to demonstrate a commonality between the Plaintiffs' stage, claims the and those is of the proposed class. lenient. Based on the At the "notice" standard allegations of of the Verified Complaint, and the have which to include Join, allegations the Court company-wide policies, that in. Consents concludes want to Plaintiffs established that other employees opt C. Similarly Situated As to Alleged Violation In considering whether proposed class members the job 3) are similarly all held situated, the same Court title; whether considers: 2) whether 1) whether the in plaintiffs the same they worked geographic the location; the alleged violations occurred during same time period; 4) whether the plaintiffs and whether were subjected to and the same policies and practices, these policies practices were established 5) the in the same manner the and by the which same decision maker; extent to which actions constitute the violations claimed by Plaintiffs are similar. In this same Fort case, all members of the Proposed Class Inc. has hold the in and same job title. Lauderdale, Speedy Concrete Jacksonville, the Concrete Cutting, and offices Florida, in the Tampa Orlando, did not Savannah, Georgia; Cutters work Case No. 8:07-CV-995-T-17MAP geographic location. Some 2004 "Consent to Join" notices states indicate the 1997 same time period of and 2005, one Consent through 2007, frame. It is and other "Consent" disputed whether the same policies all notices do not Proposed Class allege a time members the were subjected to and practices; however, evidence supports a finding of uniform company-wide policies by one ultimate have formulated various and carried out Managers. decision-maker alleged four through separate General Plaintiffs FLA. violations, for non-payment required for required pre-trip heavy duty and lunch, inspections; specialized non-payment non-payment equipment; delivery of non-payment for working through and for required delivery shop. of Defendants' equipment to and from Defendants' Defendants claims. There argue is no that the law does test for not support Plaintiffs' whether an standard determining activity is integral and indispensable to an employee's principal activities; each case must be determined on in this case as its to own the facts. factual No basis discovery has for been conducted Plaintiffs' claims. After consideration, the Court of the finds that Plaintiffs are have established that situated. the members it is Proposed Class similarly Accordingly, ORDERED that the Motion for Conditional Certification is granted. This case to is 29 conditionally U.S.C. Sec. certified of the as a collective Labor as action pursuant Standards Act of 216(b) Fair all or persons who were employed by Defendants "Concrete Cutters" cutting services on "Operators," or who at performed concrete any time since June Defendants' behalf, 7 Case No. 8:07-CV-995-T-17MAP 11, 2004, and who secured Defendants' trucks and equipment at their homes. The Court has granted leave to Plaintiffs to file an Amended Complaint naming Speedy Concrete Cutting, Inc. and Jeffrey Winnick as the Court Defendants. directs Upon the filing of the the Amended Complaint, identification and of all Defendants last to provide known home Proposed Class members' numbers to Plaintiffs. addresses telephone The Court further directs the Plaintiffs and Defendants to confer as to a "Notice to All Proposed Class Members'' concerning their right to to opt into this and collective file It action by filing for a court Consent approval Join Lawsuit, eleven the proposed Notice is further within days. ORDERED that management order, the to parties be shall confer eleven as to an amended It is case filed within days. further ORDERED that denied as moot; moot; is the Motion for Lave to File Reply 58) is (Dkt. 20) is the Motion Set for Hearing (Dkt. denied as (Dkt. 67) and the Motion to Case Management Conference denied as moot. Case No. 8:07-CV-995-T-17MAP DONE and ORDERED in Chambers, in Tampa, Florida on this 29th day of September, 2009. A. United States Copies All parties and counsel of record to:

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