Hilpipre et al v. Kenco Logistics Services L.L.C.
Filing
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MEMORANDUM OPINION AND ORDER re 20 Motion for Issue of Notice filed by Jim Paterson, Sheila Hilpipre. See text of Order for details. The Notice and Opt-in forms shall be mailed by plaintiffs on or before 9/26/12. The Opt-in form must be returned and filed with the court on or before 11/27/12. The class shall be closed as of 11/27/2012. Signed by Judge Mark W Bennett on 8/28/12. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
SHEILA HILPIPRE and JIM
PATERSON, Individually and on behalf
of all others similarly situated,
No. C 12-3034-MWB
Plaintiffs,
vs.
KENCO LOGISTICS SERVICES,
L.L.C.,
MEMORANDUM OPINION AND
ORDER REGARDING MOTION TO
ISSUE NOTICE
Defendant.
___________________________
This is a putative class action pursuant to the Fair Labor Standards Act (FLSA),
29 U.S.C. § 201 et seq., and Rule 23 of the Federal Rules of Civil Procedure, and in
accordance with the Iowa Wage Payment Statute, IOWA CODE § 91A et seq., against
defendant Kenco Logistics Services, L.L.C., (Kenco).
The claims seek overtime
compensation for time spent prior to the start of the plaintiffs’ shifts to perform
calisthenics and other exercise, washing and maintaining personal protective equipment
at home, and attending unscheduled post-shift meetings and working past scheduled
shifts when Kenco did not meet daily production goals. The plaintiffs filed their Class
Action Complaint, Representative Collection Action Complaint, And Jury Demand
(docket no. 1) on May 22, 2012. Kenco filed its Answer (docket no. 19) on August 1,
2012, denying the plaintiffs’ claims and asserting sixteen affirmative defenses.
This case is now before me on the parties’ August 24, 2012, Stipulated Motion
To Issue Notice (docket no. 20). In their Stipulated Motion, the parties request that the
court approve the form and distribution of a Notice and proposed Opt-In Consent Form
to putative class members, as well as conditional certification of a § 216(b) collective
action, without prejudice to Kenco’s arguments for decertification of the class at a later
date. In Exhibit B, the proposed Notice Of Collective Action Lawsuit, the people
eligible to join this lawsuit, i.e., the putative class members, are defined as follows:
[A]ll individuals who:
1.
were directly employed by Kenco (not a temporary
service) in the State of Iowa as hourly paid, nonexempt, production employees or other similarly
titled positions at any time between May 22, 2009,
and May 22, 2012,
2.
did not sign a Separate Agreement when the plant
closed,
3.
worked unpaid time before or after the start of their
scheduled shifts, and/or
4.
were required to maintain their personal protective
equipment on their own time.
Stipulated Motion, Exhibit B, § III (emphasis in the original).
In mid-2008, in Bouaphakeo v. Tyson Foods, Inc., 564 F. Supp. 2d 870, 890-94
(N.D. Iowa 2008), I addressed in some detail the legal standards for collective actions
under 29 U.S.C. § 216(b) and, more specifically, the requirements for conditionally
certifying such a collective action. I noted that the Eighth Circuit Court of Appeals had
not yet elaborated on what “similarly situated” means, for purposes of a collective
action and authorization of notice, see id. at 890, and I now note that the Eighth Circuit
Court of Appeals still does not appear to have done so. Thus, I will turn directly to
application of the standards set out in Bouaphakeo to the question of conditional
certification of a collective action in this case.
In light of the parties’ Stipulation, I conclude that the plaintiffs have made more
than mere allegations to support their contention that similarly-situated potential
plaintiffs exist. See id. at 892. Evidence that Kenco has identified a list of 102 putative
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collective action members and the fact that thirteen such persons have already joined
this action is persuasive evidence that the defendant employer should be put to the
expense and effort of notice to a conditionally-certified class of claimants. See id. at
892 & 896. Similarly, the parties’ Stipulation is adequate evidence of a widespread
discriminatory plan (without prejudice to Kenco’s eventual challenges to final
certification on this or any other ground), as well as evidence that a manageable class
exists. See id. I conclude that, on the present showing, conditional certification is
appropriate, because the plaintiffs have offered more than substantial allegations that
the putative collective action members were similarly-situated and were together the
victims of a single decision, policy, or plan. Id. at 896-97. I also find the parties’
stipulated definition of the class and the form of Notice are appropriate under the
circumstances. Id.
THEREFORE, the parties’ August 24, 2012, Stipulated Motion To Issue Notice
(docket no. 20) is granted, as follows:
1.
This action is conditionally certified as a § 216(b) collective action
without prejudice to Kenco proffering its arguments against continued certification at
the second, or decertification, state of the proceedings, after substantial and reciprocal
discovery has been completed;
2.
The Notice and Notice program set forth in the Stipulated Motion and
accompanying exhibits are reasonable and the most practicable notice under the
circumstances of this case, and Notice in the form and manner requested is authorized
by United States first class mail to all 102 persons to inform them of their right to optin to this overtime lawsuit. More specifically,
a.
Kenco shall provide plaintiffs’ counsel with a list containing the
names, addresses, and job titles of all 102 potential opt-in members described in
the Stipulated Motion and exhibits on or before September 5, 2012;
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b.
Plaintiffs’ counsel is authorized to send the list of potential opt-in
members to the United States Post Office and to use skip tracing, if necessary, to
obtain the best possible contact information for the potential opt-in members;
c.
Plaintiffs’ counsel is authorized to distribute the Notice set forth in
Exhibit B via first class United States mail only;
d.
Plaintiffs’ counsel is authorized to include a pre-stamped return
envelope and the agree-to Opt-In Consent Form in Exhibit A with each Notice
mailed; and
e.
A secondary mailing of the Notice materials is authorized, if the
first mailings are returned as undeliverable.
In such an instance, plaintiffs’
counsel may engage a vendor to secure follow-up addresses for a second mailing
of the approved Notice materials which may not be made more than sixty days
after the first Notice mailing;
3.
The Notice and Opt-in forms shall be mailed by plaintiffs on or before
September 26, 2012. The Opt-in form must be returned and filed with the court on or
before November 27, 2012. The class shall be closed as of November 27, 2012.
IT IS SO ORDERED.
DATED this 28th day of August, 2012.
______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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