Fung Chung v. Affordable Battery, Inc et al
ORDER denying 12 Motion to Certify Class Signed by Judge James I. Cohn on 8/29/2012. (ams)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 12-60612-CIV-COHN/SELTZER
KEMAR FUNG CHUNG, on his own
behalf and others similarly situated,
AFFORDABLE BATTERY, INC.,
AMERICAN TOWING AND AUTOMOTIVE
OF BROWARD, LLC, and CURTIS SOLES,
ORDER DENYING MOTION TO CERTIFY CLASS
THIS CAUSE is before the Court on Plaintiff’s Motion for Conditional Certification
of an FLSA Collective Action and to Authorize Notice to Potential Members of the
Collective Class [DE 12] (“Motion”). The Court has considered the Motion, Defendants’
Response [DE 15], and is otherwise fully advised in the premises.
On April 5, 2012, Plaintiff Kemar Fung Chung brought this action on behalf of
himself and all others similarly situated against Defendants Affordable Battery, Inc.,
Iman Nonahal d/b/a American Towing, and Curtis Soles.1 See Complaint [DE 1].
Plaintiff asserts claims for unpaid overtime compensation and unpaid minimum wages
against all Defendants under the Fair Labor Standards Act, 29 U.S.C. § 216(b) (“FLSA”).
Plaintiff also alleges a retaliation claim against Defendants Affordable Battery, Inc., and
The court notes that this Motion appears to be based on the original Complaint
[DE 1]. An Amended Complaint [DE 29] has been filed that substitutes Defendant
American Towing and Automotive of Broward, LLC in place of Defendant Iman Nonahal
d/b/a American Towing. However, this change in parties does not alter the Court’s
analysis of the Motion.
Curtis Soles under Florida’s Workers’ Compensation Act, Fla. Stat. § 440.205. See id.
According to the Complaint, Plaintiff worked as a driver and dispatcher for
Defendants from 2009 until December 2011. Id. ¶ 19. Plaintiff alleges that Defendants
failed to compensate him and similarly situated employees for all overtime hours they
worked, and failed to pay them minimum wage for certain services. Id. ¶¶ 21-26.
Plaintiff further alleges that Defendants Affordable Battery, Inc., and Curtis Soles
terminated his employment after he sought legal counsel regarding recovery of
expenses for a workplace injury.
On May 11, 2012, Plaintiff filed the instant Motion seeking class certification.
Defendant opposes the motion.
II. LEGAL STANDARDS
Section 216(b) of the FLSA permits an employee to bring an action against his
employer for FLSA violations on behalf of himself and “other employees similarly
situated.” 29 U.S.C. § 216(b) (1998). Moreover, § 216(b) contains an opt-in provision
that requires all similarly situated employees to consent in writing before becoming
party-plaintiffs. Id. It is well settled in the Eleventh Circuit that a district court has the
authority to issue an order requiring notice to similarly situated persons in order to
facilitate the opt-in process. See Grayson v. K Mart Corp., 79 F.3d 1086, 1097 (11th Cir.
1996); Dybach v. State of Fla. Dep’t of Corr., 942 F.2d 1562, 1567 (11th Cir. 1991).
Before determining whether to exercise such power, however, “the district court should
satisfy itself that there are other employees . . . [(1)] who desire to ‘opt-in’ and [(2)] who
are ‘similarly situated’ with respect to their job requirements and with regard to their pay
provisions.” Dybach, 942 F.2d at 1567-68.
Under Dybach’s first requirement, a plaintiff must show that there are other
employees who desire to opt-in before a court can conditionally certify a class. Dybach,
942 F.2d at 1567-68. In making this showing, a plaintiff cannot rely on speculative,
vague, or conclusory allegations. Rodgers v. CVS Pharm., Inc., No. 8:05-CV770T27MSS, 2006 WL 752831, at *3 (M.D. Fla. Mar. 23, 2003); see also Manzi v. Hartman &
Tyner, Inc., No. 11-60426-CIV, 2011 WL 2110279, at *2 (S.D. Fla. May 25, 2011) (citing
Grayson, 79 F.3d at 1097, and Rodgers, 2006 WL 752831, at *3); Abrego v. Baker
Landscape Corp., No. 10-80944-CV, 2010 WL 5330520, at *2 (S.D. Fla. Dec. 2, 2010).
Instead, the plaintiff must offer “detailed allegations supported by affidavits which
successfully engage defendants’ affidavits to the contrary.” Grayson, 79 F.3d at 1097.
The Eleventh Circuit recommends a two-tiered approach in determining whether
to certify and notify a § 216(b) opt-in class. Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d
1208, 1219 (11th Cir. 2001). Under this approach, the Court initially applies a lenient
standard when deciding whether to conditionally certify a class in the early stages of
litigation, and applies a more rigorous standard in the later stages of litigation, usually
when the defendant files a motion for decertification. See id. at 1218, 1219. This case
is currently in the early stages of litigation, so the Court applies the lenient standard.
Even under the lenient standard, however, a plaintiff still has “the burden of
demonstrating a reasonable basis for crediting [his] assertions that aggrieved individuals
existed in the broad class that [he] proposed.” Haynes v. Singer Co, Inc., 696 F.2d 884,
887 (11th Cir. 1983).
Here, the Court concludes that Plaintiff has failed to meet his burden as to the
first Dybach requirement. Dybach, 942 F.2d at 1567-68. Plaintiff asserts that the
proposed class consists of “dispatchers, drivers, or non-exempt employees paid an
hourly wage” who were employed by the Defendants. Compl. ¶ 15. According to the
Complaint, “The exact number of members of the class . . . is unknown at this time,
however it is estimated that there are not less than fifteen members.” Id. ¶ 16.2 Plaintiff
offers no further detail, either in the Complaint or this Motion, regarding the makeup of
the class. Nor has he produced any evidence that other employees wish to opt-in. Such
unsupported allegations that FLSA violations are widespread throughout a company,
and that additional plaintiffs will join the suit, are insufficient to support class certification.
See Morgan v. Family Dollar Stores, Inc. 551 F.3d 1233, 1261 (11th Cir. 2008) (citing
Haynes, 696 F. 2d at 887). Therefore, Plaintiff’s Motion will be denied.
Based on the foregoing, it is hereby ORDERED AND ADJUDGED that Plaintiff’s
Motion for Conditional Certification of an FLSA Collective Action and to Authorize Notice
to Potential Members of the Collective Class [DE 12] is DENIED.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 29th day of August, 2012.
Copies provided to:
Counsel of record via CM/ECF
The Court notes that Plaintiff has removed these allegations in his Amended
Complaint [DE 29], and has not added any new class allegations in the Amended
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