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
Copies
All parties and counsel of record
to:
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