Beron v. Alvarez

Filing 73

ORDER: The Court overrules Alvarez's objection 41 to Armando Castro's Notice of Consent to Join. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 11/8/2011. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
NESTOR BERON, on Behalf of
Himself and Those Similarly
Situated,
Plaintiffs,
v.

Case No.

8:10-cv-1014-T-33TBM

MIGUEL ALVAREZ d/b/a Gustech
Communications-Orlando,
Defendant.
______________________________/
ORDER
This cause is before the Court pursuant to Alvarez’s pro
se objection to Armando Castro’s Notice of Consent to Join
this FLSA action. (Doc. # 41). For the reasons that follow,
the Court overrules Alvarez’s objection.
I.

Background
On

April

28,

2010,

Beron,

a

satellite

installer,

initiated this FLSA action against Alvarez pursuant to 29
U.S.C. § 216(b). (Doc. # 1).

Angel Rivera, also a satellite

installer, filed a Notice of Consent to Join as an opt-in
Plaintiff several days later on May 4, 2010. (Doc. # 4).
On June 3, 2010, the Court entered its FLSA Scheduling
Order. (Doc. # 8).
Armando

Castro

On June 16, 2010, Beron, Rivera and

each

filed

Answers

to

the

Court’s

Interrogatories. (Doc. # 10). On July 12, 2010, Alvarez filed

a verified summary of hours worked for Beron, Rivera, and
Castro. (Doc. # 13).

The parties engaged in settlement

conferences pursuant to the FLSA Scheduling Order; however,
the parties were unable to reach a compromise. (Doc. ## 14,
15).
on

The parties filed a Case Management Report (Doc. # 16)

September

2,

2010,

and

the

Court

entered

its

Case

Management and Scheduling Order (Doc. # 17) on October 4,
2010.

Among other deadlines, the Court established

October

29, 2010, as the deadline for filing third party claims,
motions to join parties, and motions to amend pleadings. (Doc.
# 17 at 1).
On April 18, 2011, Armando Castro, also a satellite
installer, filed a Notice of Consent to Join. (Doc. # 38).
Alvarez, who is appearing pro se, raised an objection to
Castro’s Consent to Join, charactering it as untimely under
the Case Management and Scheduling Order and indicating, “the
Plaintiff does not have the legal authority to add Mr. Armando
Castro as a joined Plaintiff to this action.” (Doc. # 41).
Beron responded by asserting that “allowing Mr. Castro’s
consent to join will not prejudice any parties.” (Doc. # 43 at
2).1

1

It should be noted that Alvarez has not objected to the
inclusion of opt-in Plaintiff Angel Rivera. Angel Rivera’s
2

II.

Legal Standard
The FLSA expressly permits collective actions against

employers accused of violating the FLSA’s mandatory overtime
provisions. See 29 U.S.C. § 216(b) (“[a]n action . . . may be
maintained against any employer . . . by any one or more
employees for and in behalf of himself or themselves and other
employees similarly situated.”).
actions

brought

pursuant

to

In prospective collective
Section

216(b),

potential

plaintiffs must affirmatively opt into the collective action.
Id.

(“No employee shall be a party plaintiff to any such

action unless he gives his consent in writing to become such
a party and such consent is filed in the court in which such
action is brought.”)
Pursuant to Section 216(b), certification of collective
actions in FLSA cases is based on a theory of judicial economy
by

which

“[t]he

judicial

system

benefits

by

efficient

resolution in one proceeding of common issues of law and fact
arising from the same alleged” activity. Hoffmann-La Roche,
Inc. v. Sperling, 493 U.S. 165, 170 (1989).
III. Analysis
This case is set for a jury trial during the present

Notice of Consent to Join (Doc. # 4) was filed on May 4, 2010.
3

trial term.

Alvarez objects to Castro’s inclusion in this

suit. Beron, on the other hand, requests that the Court allow
Castro to participate in this action as an opt-in Plaintiff
even though Castro did not file his notice of consent to join
until one year after the complaint was filed:
Even though Mr. Castro’s consent to join was
inadvertently not [timely] filed with this Court,
Defendant had more than sufficient notice of Mr.
Castro’s desire to join this lawsuit. Mr. Castro
filed Answers to this Court’s Interrogatories (see
Doc. # 10-1), Defendant filed a verified summary
[of hours worked] for Mr. Castro (See Doc. # 13),
Defendant attempted to notice Mr. Castro for a
deposition (See Exhibit A), and Defendant even
served a request for production of documents to Mr.
Castro (See Exhibit B).
Defendant can claim no
surprise that Mr. Castro filed a consent to join
this lawsuit since Defendant has acted as if Mr.
Castro filed such consent initially.
(Doc. # 43 at 2).
Alvarez’s only objection to the inclusion of Castro as an
opt-in Plaintiff is that Castro’s Notice of Consent to Join
was filed after the Court’s joinder deadline.

After due

consideration, the Court determines that the ends of justice
compel allowing Castro to participate in the imminent jury
trial as an opt-in Plaintiff.

Alvarez has been aware of

Castro’s status as a claimant since the inception of this
suit,

as

evidenced

by

Castro’s

answers

to

the

Court’s

Interrogatories (Doc. # 10) and Alvarez’s filing of a verified

4

summary of Castro’s hours worked. (Doc. # 13).

Alvarez is

correct in his assertion that Castro’s Notice of Consent to
Join was untimely filed.

However, since the parties have

“acted as if [Castro] was a part of this lawsuit from day
one,” the Court overrules Alvarez’s objection to Castro’s
Notice of Consent to Join.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
The Court overrules Alvarez’s objection (Doc. # 41) to
Armando Castro’s Notice of Consent to Join.
DONE and ORDERED in Chambers, in Tampa, Florida, this 8th
day of November, 2011.

Copies: Counsel and Parties of Record

5