Roberson v. Restaurant Delivery Developers, LLC

Filing 46

ORDER: Plaintiff David Roberson's Motion for Issuance of Notice Pursuant to § 216(b) of the Fair Labor Standards Act (Doc. # 25 ) is GRANTED. Defendant Restaurant Delivery Developers shall produce to Roberson a complete list of every D oorstep Delivery driver in the nation who worked at any time between March 21, 2014 and present by October 5, 2017. The list shall include the known home address, telephone number, and email address of the delivery drivers. The Court approves dissemi nation of class notice via U.S. mail and via email. The Court rejects Roberson's proposal of sending reminders to potential opt-in plaintiffs. Roberson shall allow each individual up to ninety days from the date of mailing in which to return an opt-in consent form to Roberson's counsel. Signed by Judge Virginia M. Hernandez Covington on 9/18/2017. (DMD)

Case 8:17-cv-00769-VMC-MAP Document 46 Filed 09/18/17 Page 1 of 13 PageID 256

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DAVID ROBERSON,
Individually and on behalf
of all other similarly
situated individuals,
Plaintiff,
v.

Case No.: 8:17-cv-769-T-33MAP

RESTAURANT DELIVERY DEVELOPERS,
LLC d/b/a DOORSTEP DELIVERY,
Defendant.
______________________________/
ORDER
This matter comes before the Court upon consideration of
Plaintiff David Roberson’s Motion for Issuance of Notice
Pursuant to § 216(b) of the Fair Labor Standards Act (Doc. #
25), to which Defendant Restaurant Delivery Developers, LLC
responded on August 21, 2017. (Doc. # 43).
Roberson worked as a driver for an entity doing business
as Doorstep Delivery, using his own car to ferry food from
restaurants to hungry people at their homes. Although, among
other things, he wore a uniform and worked during set shifts,
Doorstep

Delivery

classified

Roberson

as

an

independent

contractor — an incorrect classification, Roberson says. He
claims that other Doorstep Delivery drivers have also been

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Case 8:17-cv-00769-VMC-MAP Document 46 Filed 09/18/17 Page 2 of 13 PageID 257

wrongly classified as independent contractors and would be
interested in joining his proposed FLSA collective action
seeking overtime and minimum wages. But Restaurant Delivery
Developers claims Roberson has not sufficiently shown that it
employed him or any other driver or that Restaurant Delivery
Developers is, in fact, Doorstep Delivery.
Employing the lenient conditional certification standard
and declining to review the merits of the underlying FLSA
claims, the Court determines a class of similarly situated
Doorstep Delivery drivers that would be interested in joining
the

collective

action

exists.

Therefore,

the

Motion

is

granted.
I.

Procedural Background
Roberson initiated this action on March 31, 2017. (Doc.

# 1). The Amended Complaint asserts claims under the FLSA,
Florida’s Minimum Wage Act, and Article X of the Florida
Constitution

on

behalf

of

himself

and

other

similarly

situated individuals. (Doc. # 23). Specifically, Roberson
alleges

that

he

and

other

delivery

drivers

working

for

Doorstep Delivery have been wrongly classified as independent
contractors in order to deprive them of overtime compensation
and the minimum wage under the FLSA. Additionally, Roberson
asserts that he and other Florida delivery drivers have been
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Case 8:17-cv-00769-VMC-MAP Document 46 Filed 09/18/17 Page 3 of 13 PageID 258

paid less than the state minimum wage. Roberson filed the
instant Motion, seeking to conditionally certify a nationwide
FLSA collective action, on July 11, 2017. (Doc. # 25).
Restaurant

Delivery

Developers

filed

its

Answer

on

August 7, 2017, in which it maintains that it does not do
business as Doorstep Delivery. (Doc. # 42). It then filed a
response to Roberson’s Motion for conditional certification
on August 21, 2017, elaborating further on its contention
that it is not the correct defendant for this action, as it
never hired Roberson or any other delivery driver. (Doc. #
43). The Motion is now ripe for review.
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) (“An 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.”). In prospective collective
actions

brought

pursuant

to

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

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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).
In making collective action certification determinations
under

the

FLSA,

courts

typically

follow

a

two-tiered

approach:
The first determination is made at the so-called
notice stage. At the notice stage, the district
court makes a decision-usually based only on the
pleadings and any affidavits which have been
submitted - whether notice of the action should be
given to potential class members.
Because the court has minimal evidence, this
determination is made using a fairly lenient
standard, and typically results in conditional
certification of a representative class. If the
district court conditionally certifies the class,
putative class members are given notice and the
opportunity to opt in. The action proceeds as a
representative action throughout discovery.
The second determination is typically precipitated
by a motion for decertification by the defendant
usually filed after discovery is largely complete
and the matter is ready for trial. At this stage,
the court has much more information on which to
base
its
decision,
and
makes
a
factual
determination on the similarly situated question.

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Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1218 (11th
Cir. 2001)(internal citations and quotation marks omitted).
To

maintain

a

collective

action

under

the

FLSA,

Plaintiffs must demonstrate that they are similarly situated.
Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1258
(11th

Cir.

2008).

Similarly

situated

employees

must

affirmatively opt into the litigation by giving their consent
in writing and filing their consent in the court in which
such action is brought. 29 U.S.C. § 216(b).
At

the

notice

stage,

the

Court

should

initially

determine whether there are other employees who desire to opt
into the action and whether the employees who desire to opt
in are similarly situated. Morgan, 551 F.3d at 1259; Dybach
v. State of Fla. Dep’t of Corrs., 942 F.2d 1562, 1567–68 (11th
Cir. 1991). This determination is made using a “fairly lenient
standard.” Hipp, 252 F.3d at 1218. The Plaintiffs bear the
burden of showing a reasonable basis for the claim that there
are

other

“detailed

similarly
allegations

situated

employees

supported

by

and

must

affidavits

offer
which

successfully engage defendants’ affidavits to the contrary.”
Morgan,

551

F.3d

at

1261

(internal

citations

omitted).

Essentially, at this stage of the proceedings, the Court must
determine whether there are other Doorstep Delivery drivers
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who are similarly situated and desire to opt in. Dybach, 942
F.2d at 1567–68.
III. Analysis
A.

Notice Will be Sent

In his Motion, Roberson argues that a similarly situated
class of Doorstep Delivery drivers exists across the country
and would be interested in joining the collective action.
(Doc. # 25). Roberson points outs that
three delivery drivers have already opted in to
join the case and four have submitted affidavits,
attesting that they have been subjected to a
similar
policy
of
being
classified
as
an
independent contractor for their delivery driver
duties, not getting paid time-and-a-half for the
hours that they work beyond forty each week, and
not receiving minimum wage for all work weeks.
(Id. at 10). Therefore, Roberson reasons, “Doorstep has a
nationwide policy of classifying its delivery drivers as
independent contractors and admittedly does not pay them
overtime.” (Id.).
Restaurant Delivery Developers does not challenge that
a class of similarly situated delivery drivers exists. But
Restaurant Delivery Developers still insists Roberson has not
met even the lower evidentiary burden to justify conditional
certification. According to Restaurant Delivery Developers,
Roberson cannot show that a class of similarly situated

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delivery drivers employed by Restaurant Delivery Developers
exists because Restaurant Delivery Developers never hired
Roberson or any other delivery driver. (Doc. # 43 at 3). While
Roberson and the opt-in drivers may very well work for
Doorstep Delivery, Restaurant Delivery Developers insists
that it is not Doorstep Delivery and presents affidavits of
its members attesting to that. (Id. at 1; Doc. ## 43-1, 432, 43-3, 43-4).
Nevertheless, at the conditional certification stage,
the Court must not review the merits of the case — including
whether

Restaurant

“employer,”

as

Delivery

defined

by

Developers

the

FLSA.

See

is

Roberson’s

Kerce

v.

W.

Telemarketing Corp., 575 F. Supp. 2d 1354, 1358 (S.D. Ga.
2008)(“In considering a motion to conditionally certify the
class in a wage and hour dispute, the Court does not reach
the merits of the case.”); see also Barrus v. Dick’s Sporting
Goods, Inc., 465 F. Supp. 2d 224, 230 (W.D.N.Y. 2006)(“It is
not the Court’s role to resolve factual disputes, decide
substantive issues going to the ultimate merits or make
credibility determinations at the preliminary certification
stage of an FLSA collective action.”).
Therefore, the Court confines itself to analysis of
whether

a

class

of

similarly
7

situated

Doorstep

Delivery

Case 8:17-cv-00769-VMC-MAP Document 46 Filed 09/18/17 Page 8 of 13 PageID 263

drivers exists and whether those drivers would be interested
in opting in to the proposed FLSA collective action. The
evidence and affidavits provided by Roberson reasonably make
the necessary showing: three delivery drivers have opted-in,
all of whom were classified as independent contractors, and
various delivery drivers have submitted affidavits averring
that other delivery drivers would be interested in joining
the action. (Doc. # 25 at 10; Doc. # 25-4; Doc. # 25-5; Doc.
# 25-6; Doc. # 25-7). Restaurant Delivery Developers has not
contested these facts.
And

the

Developers’

Court

assertion

disagrees
that

with

granting

Restaurant
the

Motion

Delivery
would

be

futile as Restaurant Delivery Developers does not know the
names or addresses of Doorstep Delivery drivers. (Doc. # 43
at 5). Restaurant Delivery Developers presents no authority
for

the

proposition

that

a

motion

for

conditional

certification may be denied on futility grounds. And there is
reason to believe that Restaurant Delivery Developers has
access to information regarding drivers’ identities. Indeed,
the Doorstep Delivery website lists the same four members of
Restaurant Delivery Developers as the founders of Doorstep
Delivery. (Doc. # 25-3 at 4). And one member of Restaurant
Delivery Developers, Daniel Sinor, remarks in his affidavit
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that “[t]hrough a family corporation, [he] had access to
information on some aspects of the restaurant food delivery
business”

and was able to acquire

a copy

of

Roberson’s

contract with another company. (Doc. # 43-3 at ¶ 17).
Therefore,

a

court-approved

notice

will

be

sent

to

Doorstep delivery drivers. What remains to be determined is
the form that notice will take.
B.

Proposed Notice

Roberson has attached a proposed notice to be sent out
to other Doorstep Delivery drivers. (Doc. # 25-1). Roberson
proposes to send the notice to drivers nationwide who have
worked for Doorstep Delivery since March 31, 2014 — three
years before this action was initiated. (Doc. # 25 at 14).
Restaurant Delivery Developers raises no objections in its
response to the proposed scope of the class or the proposed
notice.
“Court-authorized notice in a class action context helps
to prevent ‘misleading communications’ and ensures the notice
is ‘timely, accurate, and informative.’” Trentman v. RWL
Commc’ns, Inc., No. 2:15-cv-89-FtM-38CM, 2015 WL 2062816, at
*3 (M.D. Fla. May 4, 2015)(quoting Hoffmann–La Roche, Inc. v.
Sperling, 493 U.S. 165, 171 (1989)). “[T]he notice to the
class should not appear to be weighted in favor of one side
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or the other.” Palma v. MetroPCS Wireless, Inc., No. 8:13–
cv–698-T-33MAP, 2014 WL 235478, at *1 (M.D. Fla. Jan. 22,
2014).

“[I]n

exercising

the

discretionary

authority

to

oversee the notice-giving process, courts must be scrupulous
to respect judicial neutrality. To that end, trial courts
must take care to avoid even the appearance of judicial
endorsement of the merits of the action.” Hoffmann–La Roche,
493 U.S. at 174.
The Court approves the proposed form of the notice
submitted by Roberson. (Doc. # 25-1). And the Court agrees
that the proposed scope — all delivery drivers who worked for
Doorstep Delivery since March 21, 2014 — is appropriate, given
Roberson’s allegation that Restaurant Delivery Developers
willfully violated the FLSA. See Abdul-Rasheed v. KableLink
Commc’ns, LLC, No. 8:13-cv-879-T-24MAP, 2013 WL 5954785, at
*3 (M.D. Fla. Nov. 7, 2013)(“Plaintiff has alleged in his
complaint that Defendants willfully violated the FLSA. At
this early stage of the proceedings, the Court concludes that
Plaintiff’s allegation is sufficient to support his request
for a three-year period in the Court-authorized Notice.”).
The Court also agrees that providing notice via U.S.
mail and email is acceptable, with a 90-day period for drivers
to send in their opt-in notices after the notices are sent.
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Cf. Stuven v. Texas de Brazil (Tampa) Corp., No. 8:12-cv1283-T-24TGW, 2013 WL 610651, at *6 (M.D. Fla. Feb. 19,
2013)(“The Court is not persuaded that notice by email is too
intrusive,

and

will

permit

notice

to

be

made

in

this

manner.”); Harris v. Performance Transp., LLC, No. 8:14-cv2913-T-23EAJ, 2015 WL 1257404, at *6 (M.D. Fla. Mar. 18,
2015)(granting a 90-day opt-in period where “Defendant did
not object to this period” and noting “courts routinely grant
ninety-day opt-in periods”).
But the Court does not approve the sending of follow-up
communications by Roberson’s counsel to potential opt-in
plaintiffs. See Palma, 2014 WL 235478, at *3 (“[T]he Court
determines that it is not necessary to send any class members
‘reminder post cards.’ Sending a putative class member notice
of this action is informative; sending them a ‘reminder’ is
redundant.”); Trentman, 2015 WL 2062816, at *5 (“Plaintiff
may not email or otherwise send a reminder notice to the
remaining class members prior to the expiration of the optin period.”).
Restaurant Delivery Developers is directed to provide a
list of the potential opt-in plaintiffs’ names, last-known
mailing

addresses,

addresses,

work

last-known

locations

and
11

telephone
dates

of

numbers,

email

employment

to

Case 8:17-cv-00769-VMC-MAP Document 46 Filed 09/18/17 Page 12 of 13 PageID 267

Roberson’s counsel by October 5, 2017. If Restaurant Delivery
Developers is unable to provide such information, Roberson
may move to distribute the notice by different means, such as
posting notice on the Doorstep Delivery website. See Ciani v.
Talk of The Town Restaurants, Inc., No. 8:14-cv-2197-T-33AEP,
2015 WL 226013, at *6 (M.D. Fla. Jan. 16, 2015)(“The Court
notes that other courts have required that Class Notice be
posted at the workplace only after a showing that a defendant
has failed to cooperate in the collective action process.”).
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff David Roberson’s Motion for Issuance of Notice
Pursuant to § 216(b) of the Fair Labor Standards Act
(Doc. # 25) is GRANTED.

(2)

Defendant Restaurant Delivery Developers shall produce
to Roberson a complete list of every Doorstep Delivery
driver in the nation who worked at any time between March
21, 2014 and present by October 5, 2017. The list shall
include the known home address, telephone number, and
email address of the delivery drivers.

(3)

The Court approves dissemination of class notice via
U.S. mail and via email. The Court rejects Roberson’s

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proposal

of

sending

reminders

to

potential

opt-in

plaintiffs.
(4)

Roberson shall allow each individual up to ninety days
from the date of mailing in which to return an opt-in
consent form to Roberson’s counsel.
DONE and ORDERED in Chambers in Tampa, Florida, this

18th day of September, 2017.

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