Brantley et al v. Smtih et al

Filing 109

ORDER denying 40 Motion to Conditionally Certify a Collective Action Class and to Certify a Rule 23 Class; denying 50 Motion to Strike Doc. 40-10, Doc. 40-21, and Portions of Doc. 40-7. Signed by Chief Judge J. Randal Hall on 07/27/2018. (jlh)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

LEROY BRANTLEY, JR; HAROLD H.

*

RICKS; ROGER SMITH; and SHON

*

BUTLER, on behalf of themselves
*
and all others similarly situated,*
CV 617-089

V.

HANOI-HOUSE MEG. CO.; and

DONALD FLANDERS,
Defendants.

ORDER

Before

Certify

a

Class.

the

Court

Collective
(Doc.

is

Plaintiffs'

Action

40.)

For

Class

the

Motion

and

to

following

to

Conditionally

Certify

a

Rule

23

reasons.

Plaintiffs'

Defendant

Handi-House

motion is DENIED.

I.

Plaintiffs
Mfg.

Co.

Flanders.

BACKGROUND

are former employees of

C'Handi-House"),

which

is

owned

by

Defendant

Donald

Plaintiffs allege that Handi-House's General Manager,

James Akridge, and Director of Sales, John Wilkerson, operated
^

Defendants

ask

the

Court

to

strike

some

of

the

evidence

attached

to

Plaintiffs' motion to certify on the grounds that it contains inadmissible
hearsay. (Doc. 50.) Due to the preliminary nature of a motion to certify a
class, the Federal Rules of Evidence are not stringently applied.
Fisher v.
Ciba
Specialty
Chem.
Corp.,
238
F.R.D.
273,
279 (S.D.
Ala.
2006).

Accordingly,

Defendants'

Motion

to

Strike

Portions of Doc. 40-7 (doc. 50) is DENIED.

Doc.

40-10,

Doc.

40-21,

and

y

an

illegal

permission.^
Messrs.

payday

lending

enterprise

with

Mr.

Flanders's

(Ricks Dep., Doc. 86, at 96, 97, 109.)
Akridge

and

Wilkerson

would

lend

money

to

Defendants' employees with an interest rate that was generally
around six dollars for every twenty dollars borrowed.

135.)

If

an

employee

borrowed

money,

Messrs.

(Id. at

Akridge

and

Wilkerson would endorse and cash the employee's paycheck, deduct

the amount the employee had borrowed plus interest, and return
the remainder to the employee.

(Smith Dep., Doc. 40-13, at 52-

53; Johnson Dep., Doc. 78-1, at 67.)

Plaintiffs claim that the

interest payments charged resulted in employees receiving less
than minimum wage, in violation of the Fair Labor Standards Act

C'FLSA"), 29 U.S.C. § 206.^

Plaintiffs initiated this case on

June 27, 2017, and now move for certification pursuant to the
FLSA and Federal Rule of Civil Procedure 23.

II.

A.

DISCUSSION

Cer-bification of a Collective Action Under the FLSA

The FLSA provides that a plaintiff may bring a ''collective
action"

on

behalf

of

himself

and

other

similarly

situated

^ Messrs. Akridge and Wilkerson were initially named as defendants in this
action but those claims were later dropped.

(Doc. 85.)

^ In addition to the FLSA, Plaintiffs assert claims for, inter alia, usury;

violation of Georgia's Payday Lending Act, O.C.G.A. § 16-17-1; and violation
of the federal Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.
§ 1962. (Compl., Doc. 1,
59-126.)

employees.

29 U.S.C. § 216(b).

plaintiffs

vindicate

the

rights

''A collective action allows . .

advantage

by the

of

pooling

lower

of

individual

resources.

costs

The

to

judicial

system benefits by efficient resolution in one proceeding of
common

issues of law

and fact arising

from

the

same

alleged

[unlawful] activity.'' Hoffman-La Roche, Inc. v. Sperling, 493
U.S. 165, 170 (1989).
Rule

of

Civil

Unlike a class certified under Federal

Procedure

23,

the

FLSA

requires

that

putative

class members affirmatively opt-in to the class by providing the
court with written consent, communicating their intent to be a

class member who will be bound by the court's judgment.

Id.;

Hipp V. Liberty Nat'1 Life Ins. Co., 252 F.3d 1208, 1216 (11th
Cir. 2001).

The Eleventh Circuit has recommended a two-phase approach
to certification under 29 U.S.C. § 216(b).

1217.

In the notice stage, the court decides whether notice

should be given to potential class members.
stage

Hipp, 252 F.3d at

imposes

Dollar Stores,

a ''fairly
Inc., 551

lenient" burden.
F.3d

1233,

Id.
Morgan

1260-61 (11th

The notice
v.
Cir.

Family
2008)

Conditional certification will be granted if the plaintiff shows
two elements:

(1) that there are other employees who wish to

opt-in; and (2) that those employees are similarly situated with
respect to their job duties and pay.

Id. at 1258-59; Dybach v.

Fla. Dep't of Corrs., 942 F.2d 1562, 1567-68 (11th Cir. 1991).

The

presence

of

employees

who

wish

to

opt-in

is

demonstrated by affidavits or consent to sue forms.

usually
Davis v.

Charoen Pokphand (USA) ^ Inc., 303 F. Supp. 2d 1212, 1277 (M.D.
Ala. 2004).

Such evidence must consist of something more than

the plaintiff's bare belief that other employees exist.

Morgan,

551

279

F.3d

at

1261;

Home

v.

United

Servs.

Supp. 2d 1231, 1236 (M.D. Ala. 2003).
conditional
notice

of

certification,
the

action

and

putative
the

Ass'n,

to

members
opt-in

are

and

proceeds throughout discovery as a collective action.
F.3d at 1218.

F.

If the court grants

class

chance

Auto

given

the

case

Hipp, 252

The defendant may subsequently trigger the second

phase by filing a motion to decertify after discovery has been
largely completed.
Plaintiffs'

Id.

motion

was

filed

one

month

after

discovery

began and is therefore in the notice stage.

Even under this

fairly

have

lenient

demonstrate

Specifically,

standard,

that

however.

conditional

Plaintiffs

Plaintiffs

certification

provided

no

evidence

is

failed

warranted.

that there

other employees who wish to opt-in to this action.''
Plaintiffs come to meeting this standard is the

to

are

The closest
Affidavit of

'' Plaintiffs appear to be under the mistaken impression that 29 U.S.C. §
216(b) can be satisfied by showing that the representative plaintiffs are
willing to participate in this dispute. (See doc. 40-1, at 5 ("Plaintiffs .
. . offer their consent to be plaintiffs in a representative action.").) If
that
were
true,
the "other
employees" element
in
the
conditional
certification test adopted by Dybach would be superfluous.
Surely, by
initiating
a
lawsuit, the
class
representatives
will almost always
demonstrate that they are willing to participate in litigation.

Plaintiffs' Counsel, Jeffrey F. Peil,

who states that he has

spoken to one other employee who would be willing to become a
class representative if any representative is determined to be
inadequate.

(Peil Aff., Doc. 40-7, SI 10.)

Mr. Peil's statement

does not show that other employees wish to opt-in to this action
and is a bare assertion of his belief.

2d

at

1277

(refusing

to

See Davis, 303 F. Supp.

conditionally

certify

a

collective

action when plaintiff s only evidence of other members was her
own statement that she had spoken to twelve employees who wanted

to join the lawsuit); Saxton v. Title Max of Ala., Inc., 431 F.
Supp. 2d 1185, 1187 (N.D. Ala. 2006) (refusing to certify where
affidavits
suit).

only

showed

intent

to

participate

in

a

previous

Mr. Peil's statement also provides no details about the

opt-in employees so even accepting his statement as evidence
that there are other employees who wish to participate in this
case, the

Court

cannot determine

whether

similarly situated to Plaintiffs.

See

at

named

1188

(courts

should

compare

those

employees are

Saxton, 431 F. Supp. 2d
plaintiff

declarations) (citing Dybach, 942 F.2d at 1567)).
because

Plaintiffs

have

not

submitted

evidence

with

opt-in

Therefore,
showing

that

there are employees who wish to opt-in to this action that are

similarly situated to Plaintiffs, Plaintiffs' motion to proceed
as a collective action is DENIED.

B.

Certification Under Federal Rule of Civil Procedure 23

Plaintiffs also move for certification

of

Civil

under

Procedure

Rule

23,

a

23.

Before

court

must

under

considering

determine

the

whether

Federal

Rule

requirements

a

class

is

adequately defined and its members are reasonably ascertainable.
DeBremaecker

v.

Short,

433

F.2d

733,

734

(5th

Cir.

1970);

Bennett v. Hayes Robertson Group, 880 F. Supp. 2d 1270, 1278
(S.D. Fla. 2012).
strict,

it

must

While a definition does not need to be overly
not

be

vague

or

difficult

to

apply.

Hayes

Robertson Group, 880 F. Supp. 2d at 1278.

To satisfy the ascertainability element, the plaintiff must
propose a feasible way to identify class members.

Karhu v.

Vital Pharmaceuticals, Inc., 621 F. App'x 945, 948 (11th Cir.
2015); John v. Nat'1 Sec. Fire & Cas. Co., 501 F.3d 443, 445
(5th

Cir.

2007)

(''The

existence of an

ascertainable class of

persons to be represented by the proposed class representative
is an implied prerequisite of Federal Rule of Civil Procedure
23.'').

The merits of individual claims are only considered to

the extent necessary to determine whether Rule 23 is satisfied.
Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1188 n.l5
(11th Cir. 2003).

Thus, a class should not be certified if the

court must engage in individualized determinations of disputed

6

fact in order to ascertain a person's membership.

Lea Family

P'ship Ltd. V. City of Temple Terrace, 2017 WL 4155459, at *2
(S.D. Fla. Sept. 19, 2017); Stalley v. ADS Alliance Data Sys.,
Inc., 296 F.R.D. 670, 679-80 (M.D. Fla. 2013).
In the instant case. Plaintiffs contend that class members

can be identified by Defendants' records.
''establish
members

ascertainability

can

plaintiff

be

must

identified

also

simply
using

establish

by

the

A plaintiff cannot

asserting

that

defendant's

that

the

class

records;

records

are

in

the

fact

useful for identification purposes, and that identification will

be

administratively feasible."

Karhu,

921

F. App'x

at 946.

Plaintiffs first suggest that class members can be identified by

using

a

evidence

list of the employee
shows

that

not

every

Messrs. Akridge or Wilkerson.

names

and

employee

salaries.
received

Yet the
loans

from

(See, e.g., Fluellen Dep., Doc.

78-2, at 26; Brantley Dep., Doc. 49-2, at 61.)

Thus, records

listing employee names and salaries would not identify which
employee received a loan and is therefore a class member.
Plaintiffs also suggest that members may be identified by

looking at the checks that were endorsed by Messrs. Akridge or
Wilkerson.

they

would

However, Messrs. Akridge and

sometimes

cash

employee

Wilkerson claim that

checks as

a favor to the

employee even if the employee had not borrowed money.
and Wilkerson Inter. Resp., Doc. 49-11, f 11.)

(Akridge

Moreover, the

interest rate charged by Messrs. Akridge and Wilkerson varied.
(Id.

f

9.)

Accordingly,

endorsement does

Messrs.

Akridge

and

class

member

not reveal whether a

loan and was charged more than 32% interest.

Wilkerson's
received

a

See Stalley, 296

F.R.D. at 679-80 (finding ascertainability not established where

plaintiffs

proposed

recipients

of

notified

that

defendant's

^^members

calls]

of

.

the

.

.

class

be

[of

actual

identified

and

based on [the defendant's] own records," because the

defendant's records indicated "merely the intended recipients"

(emphasis in original and internal quotations omitted)).
Plaintiffs' reliance on Terrill v. Electrolux Home Prods.,

Inc., 295 F.R.D. 671, 684 (S.D. Ga. 2013) is misplaced.

There,

customers of a washing machine manufacturer sued after a design
defect caused

plaintiffs

the

moved

washing

to

machine to destroy clothing.

certify

a

class

action

and

The

proposed

a

definition that included anyone who bought the machine within

the previous five years.

The defendant claimed that the class

was not ascertainable because there was a one-year period where
defendants sold washers with and without the design defect.

Id.

The

had

court

rejected

additional

records

defective.

Id.

that

Defendants

easily

identify

that
that

argument
could

because

identify

the

which

defendant
machines

were

Here, unlike Terrill, Plaintiffs have not shown

kept

records

class

that

members.
8

would

The

allow

records

the

Court

proposed

to

by

Plaintiffs might narrow down the potential members but the Court
will still be left with a list of members that would need to be

examined on an individual basis to determine whether each member

received

a

loan

from

Messrs.

Akridge

and

Wilkerson

and

was

charged more than 32% interest.

Plaintiffs

finally

provision.

that

can

ascertainability

suggest
remedied

by

be

any

problem

including

an

with

opt-out

To rely on self-identification, the plaintiff must

establish that self-identification is feasible.

Fisher v. Ciba

Specialty Chems. Corp., 238 F.R.D. 273, 301-02 (S.D. Ala. 2006).

Ascertaining

class

problematic.
identify

members

by

self-identification

is

usually

On the one hand, allowing plaintiffs to self-

without

giving

the

plaintiff's

defendant

challenge

the

membership

concerns.

the

Karhu, 621 F. App'x at 948.

opportunity

raises

due

to

process

On the other, if a

defendant is afforded such an opportunity, the trial will break
down into a series of mini-trials to determine which persons are

class members.

Id. at 949.

Here, Plaintiffs do not explain why

self-identification would not raise these problems.

Again, the

evidence shows that not every employee received a loan.

Thus,

to preserve Defendants' due process rights, the Court would need
to

engage

in

a

series

of

mini-trials

to

determine

if every

member who failed to opt-out had actually received a usurious
loan from Messrs. Akridge or Wilkerson.

Ill.

Plaintiffs

certification

have

is

CONCLUSION

failed

to

appropriate.

demonstrate

Conditional

that

class

certification

is

inappropriate because Plaintiffs have provided no evidence that
there are other employees who wish to opt-in.

Certification

under Rule 23 is likewise unsuitable because Plaintiffs have not

identified an administratively feasible method for identifying
class members.

Accordingly, Plaintiffs' Motion to Conditionally

Certify a Collective Action Class and to Certify a Rule 23 Class
(doc. 40) is DENIED.

ORDER ENTERED at Augusta, Georgia, this

day of July,

2018.

HALLf CHIEF JUDGE

unitedVstates district court
SOUTH^JRN DISTRICT OF GEORGIA

10