Herrera-Velazquez et al v. Plantation Sweets, Inc. et al

Filing 42

ORDER granting 9 Motion to Certify Class. Conditional class is defined and instructions to parties given. Signed by Chief Judge Lisa G. Wood on 7/6/15. (slt)

R the Uniteb btatto flitritt Court
for the Ooutbiern 3itritt of Qeorgia
'tateboro Thbtion
EMILIANO HERRERA-VELAZQUEZ,
GASPAR RESENDIZ-ALVAREZ,
HILDEBERTO VELAZQUEZ-CAMACHO,
ISAIAS MARTINEZ-ZAVALA, MARTHA
HUNTER, HEATHER PARKER, JOSEPH
LITTLES, MICHAEL LEE ARMSTRONG,
PATRICK CONEY, CHERYL WRIGHT,
TAMMIE ANTHONY, ANGELA DAY,
LINDA POPE, JUAN HERNANDEZMARQUEZ; AND ALL OTHERS
SIMILARLY SITUATED,

CV 614-127

Plaintiffs,
V.

PLANTATION SWEETS, INC.,
VIDALIA PLANTATION, INC.,
RONALD A. COLLINS, NARCISO
PEREZ, AND PEREZ FORESTRY, LLC,
Defendants.
ORDER

Emiliano Herrera-Velazquez and the other plaintiffs
("Plaintiffs") bring this action alleging violations of the Fair
Labor Standards Act ("FLSA") and breach of contract (Dkt. no. 8
at 28-36). They name as defendants Plantation Sweets, Inc.,
Vidalia Plantation, Inc., Ronald A. Collins, Narciso Perez, and
Perez Forestry, LLC (collectively "Defendants") . Id. at 5-6.
The Plaintiffs now move the Court for conditional class
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certification under FLSA (Dkt. no- 9). Upon due consideration,
the Court GRANTS the motion.
DISCUSSION

FLSA authorizes plaintiffs to bring a collective action on
behalf of similarly situated employees. 29 U.S.C. § 216(b).
§ 216(b) class certification, unlike that under Federal Rule of
Civil Procedure 23, requires putative class members to opt in to
the action by providing the court with written consent in order
to become a class member "and be bound by the outcome of the
action." Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208,
1216 (11th Cir. 2001)
To facilitate the certification process, courts use a twotiered approach.

Id. at 1218 (citing Mooney v. Aramco Servs.

Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995)).

The first tier of

certification is the notice stage, when the Court determines
whether notice of the pending action should be given to putative
class members. Id. The Court applies a "fairly lenient
standard" to determination of the propriety of notice and
typically grants conditional certification of a collective
action. Id. The second tier of certification, generally
precipitated by a defendant's motion for decertification,
usually occurs after discovery is largely complete. Id. At
that time the Court, applying a more stringent standard,

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determines whether the class members are in fact similarly
situated. Id.
This case resides at the notice

stage of FLSA

certification. At this stage, the Court conducts a preliminary
inquiry into whether other employees (1) are similarly situated
with regard to job requirements and pay provisions and (2) wish
to opt in to the pending suit.

Dybach v. Fla. Dep't of Corr.,

942 F.2d 1562, 1567-68 (11th Cir. 1991) .

If the Court finds

both considerations met, conditional certification follows.
The Plaintiffs argue that (1) their submission of eighteen
consent-to-sue forms and four declarations demonstrates other
employees wish to opt in; and (2) the declarations suffice to
show other farm workers are similarly situated to the Plaintiffs
in job requirements and pay practices (Dkt. no. 9 at 8-10) . The
Defendants do not oppose the conditional class certification,
though they reserve the right to move for decertification as
discovery progresses (See Dkt. nos. 25 at 2-3; 33 at 2). The
Defendants also advocate for editing the language of the opt-in
form proposed by the Plaintiffs (Dkt. nos. 25 at 3-4; 33 at 3)
The Court finds that the Plaintiffs have demonstrated that
conditional class certification is proper. Eighteen consent-tosue forms and four declarations by the Plaintiffs are sufficient
to show a desire to opt in. See Davis v. Charoen Pokphand
(USA), Inc., 303 F. Supp. 2d 1272, 1277 (M.D. Ala. 2004) (noting
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that courts affirm the existence of other employees who wish to
opt in based on affidavits); Harper v. Lovett's Buffet, Inc.,
185 F.R.D. 358, 362 (M.D. Ala. 1999) (affirming presence of optin plaintiffs based on fifteen affidavits) . Likewise, the
declarations stating that the farm workers share job
requirements and piece rate compensation are sufficient to show
that the Plaintiffs are similarly situated. See, e.g., Monroe
v. FTS USA, LLC, 257 F.R.D. 634, 638 (W.D. Tenn. 2009) (finding
proposed class similarly situated to plaintiffs where all
employees performed "the same job functions" and received pay
under the same piece rate compensation scheme)
Although the Defendants do not oppose the conditional
certification, they do seek revisions to the notice itself (Dkt.
nos. 25 at 3-4; 33 at 3) . Facilitation of this notice is within
the Court's discretion. Hoffmann-La Roche Inc. v. Sperlig, 493
U. S. 165, 169 (1989). "By monitoring preparation and
distribution of the notice, a court can ensure that it is
timely, accurate, and informative." Id. at 172. The opt-in
notice should be consistent with the pleadings and briefing and
should be not be "'factually inaccurate, unbalanced, or
misleading.'" Earle v. Convergent Outsourcing, Inc., 2013 WL
6252422, at

*5 (M.D. Ala. Sept. 5, 2013) (quoting Maddox v.

Knowledge Learning Corp., 499 F. Supp. 2d 1338, 1344 (N.D. Ga.
2007))
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The Plaintiffs have already revised the proposed notice to
include two of the objections raised by the Defendants. The
Defendants first objected that the proposed notice seemed to
imply all employees of Narciso Perez and Perez Forestry who
resided outside Georgia were eligible (Dkt. no. 33 at 2-3); this
was remedied when the Plaintiffs removed the reference to
Georgia (See Dkt. no. 34 at 2, n. 2) . The Defendants also
wished the notice to include a clarification that the Defendants
dispute the allegations made by the Plaintiffs (Dkt. nos. 25 at
4; 33 at 3); this, too, has been remedied (See Dkt. no. 34 at 1,
n. 1).
The parties have two remaining disagreements.

They

disagree whether the word "minimum" should be included to modify
"wages" when describing the potential claims of opt-in
plaintiffs (See Dkt. nos. 25 at 4; 33 at 3; 34 at 1-2) - Since
the amended complaint includes both minimum wage claims and
overtime claims (Dkt. no. 8 at 28, 30), it would be inaccurate
to imply to potential plaintiffs that only minimum wage claims
were eligible for inclusion. In addition, the amended notice
already describes the possibility of both "lost minimum wages
and lost overtime wages" (Dkt. no. 34-1 at 3) . Therefore, the
Court finds that the amended notice provides sufficient
clarification on this point without further change.

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The parties also request different deadlines by which
additional class members must join. The Plaintiffs ask for five
months after they receive the list of potential plaintiffs from
the Defendants (Dkt. no. 9 at 17-18); some of the Defendants
request only ninety days (Dkt. no. 33 at 3) . Given the mobility
of the potential class, the Court agrees that it may prove
difficult to contact opt-in plaintiffs. In addition, the
Defendants have not shown they will be prejudiced by a longer
opt-in period. See Gonzalez v. Ridgewood Landscaping, Inc.,
2010 WL 1903602, at

*8 (S.D. Tex. May 10, 2010) (finding no

reason to shorten the opt-in time period when the defendant did
not show prejudice). Therefore, the Court grants to the
Plaintiffs the five months they request.
CONCLUSION

For the reasons outlined above, the Court

GRANTS

the

Plaintiffs' Motion for Conditional Certification (Dkt. no. 9)
In addition, the Court DIRECTS that:
1. The Conditional Class is defined as follows:
"All farmworkers employed by Plantation Sweets,
including those employed under the supervision of
Narciso Perez, to plant, cultivate, and harvest
agricultural products between November 2012 and
December 2014," and "All farmworkers so employed by
the Defendants who were also taken out of Georgia
to plant trees and produce between November 2012
and December 2014";
2. The Defendants must provide the Plaintiffs with a list
of names, last known permanent addresses, and social
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security numbers of all putative class members within
fourteen (14) days of this Order;
3. The amended notice proposed by the Plaintiffs and agreed
to by the Defendants and the opt-in consent form (Dkt.
no. 34-1) are approved;
4. The Defendants must post the amended notice at any
employer-provided worker housing and on the vehicles
used to transport workers; and
5. Potential opt-in, similarly situated plaintiffs must
consent to opt into this litigation no later than five
months from the date that the Defendants are required to
provide the Plaintiffs the list of names described in #2
above.

SO ORDERED,

this 6TH day of July, 2015.

LISA GODBEY OOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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