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)

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

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