Cruz Mejia et al v. Brothers Petroleum, LLC et al

Filing 204

ORDER AND REASONS - plaintiff's motion 193 to conditionallycertify a collective action is DENIED.. Signed by Chief Judge Sarah S. Vance on 6/12/15. (Reference: 13-4831)(jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
REINA PRADA MEDINA

CIVIL ACTION

Plaintiff,
NO: 13-4831
VERSUS
BROTHERS BEHRMAN HWY., INC. AND
BROTHERS STUMPF & TERRY PARKWAY,
INC.

SECTION: R(4)

Defendants.

ORDER AND REASONS
Plaintiff Reina Prada Medina moves the Court to conditionally
certify a Fair Labor Standards Act (FLSA) collective action under
29

U.S.C.

plaintiff's

§

216(b).
proposed

The

Court

collective

denies
class

is

the

motion

duplicative

because
of

a

previously-filed FLSA collective action currently pending before
the Court.

I.

Background
Plaintiff filed this collective action on June 18, 2013

against defendants, Brothers Behrman Hwy. and Brothers Stumpf &
Terry Parkway, alleging that the defendants failed to pay plaintiff
and

other

"similarly

violation of the FLSA.1

1

situated"

employees

overtime

wages

in

More specifically, plaintiff alleges that

R. Doc. 1. This case was originally filed before another
section of the court but was transferred to this Section on March

defendants violated the FLSA's overtime wage provision "through a
ruse of double-booking employee pay-rolls by paying [employees]
from multiple entities when in fact they only worked at one
physical

location."2

Plaintiff

now

moves

the

Court

to

conditionally certify a collective action "on behalf of a class of
all current and former nonexempt employees employed by Brothers
Behrman Hwy., Inc. and Brothers Stumpf & Terry Parkway, LLC after
June 18, 2010, who worked overtime hours but were not paid overtime
wages during all or part of their employment."3
The defendants in this action are two of many "Brothers Food
Mart" convenience stores operating in Louisiana.

The individual

stores are set up as separate companies, some of which share common
ownership, and some of which are individually owned and operated.4
Imad F. Hamdan owns and operates the Brothers Stumpf & Terry
location, and Abdel Raoyf Mousa owns and operates the Brothers
Behrman Hwy. location.5
Both corporate defendants, as well as their respective owners,
are also named defendants in another FLSA action currently pending
before the Court, Mejia, et al. v. Bros. Petroleum, LLC, et al.,

16, 2015 in accordance with Local Rule 3.1.1E.
2

R. Doc. 25-1 at 1.

3

Id. at 6.

4

R. Doc. 26-1 at 1.

5

R. Docs. 26-1 and 26-2.
2

R. Doc. 28.

Civ. A. No. 12-2842.6
approximately

forty

In Mejia, plaintiffs filed suit against
different

Brothers

Food

Mart

locations,

including Brothers Stumpf & Terry Parkway and Brothers Behrman
Hwy., alleging that all forty Brothers Food Mart locations failed
to pay their employees overtime wages in violation of the FLSA.7
The Second Amended Complaint in

Mejia

also alleges that all

defendants, including Brothers Stumpf & Terry Parkway and Brothers
Behrman Hwy., allowed their employees to work interchangeably for
all Brothers Food Mart locations.8

On July 16, 2014, Judge

Berrigan granted the Mejia plaintiffs' motion to conditionally
certify a collective action, defining the collective action to
include
[a]ll current and former non-exempt, hourly employees who
have been employed by Brothers Petroleum, LLC d/b/a
Brothers Food Mart or Brothers Food Mart in the State of
Louisiana during the time period of November 9, 2009
through the present.9
Judge Berrigan further ordered the Mejia defendants to provide
plaintiffs' counsel with a list of all potential opt-in plaintiffs'
names, last known mailing addresses, and email addresses so that

6

The Mejia action was also filed before another section of
this Court. Judge Berrigan transferred the matter to this
section of the Court on September 12, 2014. See Civ. A. No. 122842, R. Doc. 114.
7

R. Doc. 113. The Second Amended Complaint also alleges a
violation of the FLSA's minimum wage provisions. Id. at 2.
8

Civ. A. No. 12-2842, R. Doc. 113 at 7.

9

Civ. A. No. 12-2842, R. Doc. 79 at 3.
3

plaintiffs'

counsel

could

facilitate

members of the collective action.10

notice

to

all

potential

The defendants in this case

contend, and plaintiff does not dispute, that plaintiff was among
the potential opt-in plaintiffs who received notice of the Mejia
action in the fall of 2014.11
After both cases were transferred to this section of the
court, the Court consolidated the cases to facilitate a more
efficient resolution of the related disputes.12

Although the Court

recently granted a motion to dismiss the Mejia plaintiffs' claims
against

Lenny

Motwani,

LKM

Enterprises,

and

LKM

Convenience,

Brothers Behrman Hwy. and Brothers Stumpf & Terry Parkway did not
join the motion to dismiss.13

Thus, Brothers Behrman Hwy. and

Brothers Stumpf & Terry Parkway remain defendants in both FLSA
actions pending before the Court.

II.

Applicable Law
Section 216(b) of the FLSA permits employees to bring suit

against an employer for FLSA violations as a collective action on
behalf of themselves and "other employees similarly situated."
U.S.C. § 216(b).

29

"Congress' purpose in authorizing § 216(b)

10

Id. at 8.

11

R. Doc. 26 at 7.

12

R. Doc. 192.

13

See Civ. A. No. 12-2842
4

[collective] actions was to avoid multiple lawsuits where numerous
employees have allegedly been harmed by a claimed violation or
violations of the FLSA by a particular employer."

Sandoz v.

Cingular Wireless LLC, 553 F.3d 913, 919 (5th Cir. 2008) (quoting
Prickett v. DeKalb Cnty., 349 F.3d 1294, 1297 (11th Cir. 2003)).
Unlike a class action under Rule 23, however, a collective action
under Section 216(b) binds only those employees who affirmatively
"opt-in" to the suit: "[N]o employee shall be a party plaintiff to
any such action unless he gives his consent in writing to become
such a party and such consent is filed in the court in which such
action is brought."

29 U.S.C. § 216(b).

District courts have

broad discretion in deciding whether to grant or deny certification
and broad authority over notice in order to prevent the misuse of
such actions. Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170
(1989); Xavier v. Belfor USA Group, Inc., 585 F. Supp. 2d 873, 876
(E.D. La. 2008).

III. Analysis
Defendants argue that the Court should deny plaintiff's motion
to conditionally certify a collective action under the "first to
file

rule."14

More

specifically,

defendants

argue

that

the

"collective action proposed by plaintiff substantially overlaps

14

R. Doc. 26 at 6.
5

with the conditionally-certified collective action in Mejia, which
precludes a separate collective action in this case."15
Under the first to file rule, when related cases are pending
before two federal courts, the court in which the case was last
filed may refuse to hear it if the issues raised by the two cases
substantially overlap.

Int'l Fidelity Ins. Co. v. Sweet Little

Mexico Corp., 665 F.3d 671, 677 (5th Cir. 2011).

"The concern

manifestly is to avoid the waste of duplication, to avoid rulings
which may trench upon the authority of sister courts, and to avoid
piecemeal resolution of issues that call for a uniform result."
West Gulf Mar. Assoc. v. ILA Deep Sea Local 24, 751 F.2d 721, 729
(5th Cir. 1985).
related

cases

Thus, the first to file rule applies "where

are

pending

before

two

judges

in

the

same

district . . . as well as where related cases have been filed in
different districts."

Save Power Ltd. v. Syntek Fin. Corp., 121

F.3d 947, 950 (5th Cir. 1997); Dillard v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 961 F.2d 1148, 1161 n.28 (5th Cir. 1992)
("The same concern with avoiding duplicative litigation is present
where similar suits have been filed in two courts within the same
district.").
To determine whether the issues substantially overlap, the
court looks at whether the core issues are the same, or if much of
the proof adduced would likely be identical.

15

Id.
6

Int'l Fidelity, 665

F.3d at 678.
considers

If the overlap is less than complete, the court

"such

factors

as

the

extent

of

the

overlap,

the

likelihood of conflict, the comparative advantage and the interest
of each forum in resolving the dispute."
second-filed

court

need

only

Id.

determine

Furthermore, the

whether

there

is

a

likelihood of substantial overlap; it is up to the first-filed
court to determine whether there actually is a substantial overlap
that requires consolidation.

West Gulf Mar., 751 F.2d at 730.

Here, the Court has already found substantial overlap between
the two FLSA actions and consolidated the cases on March 16, 2015.16
Thus, strictly speaking, the first to file rule is not implicated.
See Save Power Ltd., 121 F.3d at 950 (first to file rule applies to
related

cases

pending

before

different

judges).

The

Court

nevertheless finds that the principles underlying the first to file
rule--the avoidance of duplicative litigation and the interests of
judicial economy--require the Court to deny plaintiff's motion to
certify a second collective action in this case.
As an initial matter, the defendants in this case--Brothers
Stumpf

&

Terry

Parkway

and

Brothers

Behrman

Hwy.--are

made

defendants in the Mejia matter.

Additionally, both actions seek

damages

alleged

related

to

defendants'

failure

employees overtime wages as required by the FLSA.

16

R. Doc. 192.
7

to

pay

their

In Mejia, the

Court has already conditionally certified a collective action class
including
[a]ll current and former non-exempt, hourly employees who
have been employed by Brothers Petroleum, LLC d/b/a
Brothers Food Mart or Brothers Food Mart in the State of
Louisiana during the time period of November 9, 2009
through the present.17
Here,

plaintiff

seeks

conditional

certification

of

a

second

collective class, defined to include
all current and former nonexempt employees employed by
Brothers Behrman Hwy., Inc. and Brothers Stumpf & Terry
Parkway, LLC after June 18, 2010, who worked overtime
hours but were not paid overtime wages during all or part
of their employment."18
Plaintiff's proposed collective class falls entirely within the
scope of the conditionally certified class in Mejia.
words,

any

potential

opt-in

plaintiff

to

this

In other

action

would

necessarily also be a potential opt-in plaintiff in the Mejia
action.

Indeed, as mentioned above, defendants represent, and

plaintiff does not dispute, that plaintiff was among the class of
potential opt-in plaintiffs who received notice of the Mejia action
in the fall of 2014.19

Thus, the only real difference between the

cases are the identities of the named plaintiffs and the attorneys
prosecuting the actions.

Accordingly, although the FLSA does not

preclude plaintiff from maintaining an independent, individual

17

Civ. A. No. 12-2842, R. Doc. 79 at 3.

18

Id. at 6.

19

R. Doc. 26 at 7.
8

action, plaintiff is not entitled to conditional certification of
a class that is entirely duplicative of the conditionally certified
class in Mejia.

See Alvarez v. Gold Belt, LLC, Civ. A. No. 08-

4871, 2011 WL 1337457, at *2 (D.N.J. Apr. 7, 2011) ("Because the
[previously
plaintiff

filed]

must

action

choose

has

been

between

opting

conditionally
in

to

that

continuing independently with his own action here.

certified,
action,

or

Certification

of a separate collective action is not available to plaintiff at
this time.");

LaFleur v. Dollar Tree Stores, Inc., Civ. A. No. 12-

363, 2012 WL 4739534, at *8 (E.D. Va. Oct. 2, 2012) ("To permit
FLSA claims to proceed in this case as to [plaintiff-employees]
would be duplicative and wasteful and would directly contravene the
spirit and intent of the 'first to file' rule, particularly with
respect to FLSA collective actions."); Ortiz v. Panera Bread Co.,
Civ. A. No. 10-1424, 2011 WL 3353432, at *2 (E.D. Va. Aug. 2, 2011)
("The first-to-file rule is particularly appropriate in the context
of competing FLSA collective actions, which threaten to present
overlapping classes, multiple attempts at certification in two
different

courts,

and

complicated

settlement

negotiations.").

Indeed, to allow plaintiff to seek conditional certification under
these circumstances would not only lead to likely confusion and
judicial waste, but would also "frustrate the underlying rationale
for using the [collective] action mechanism."

9

In re Wells Fargo

Home Mortgage Overtime Pay Litig., MDL No. 06-01779, 2008 WL
4712769, at *2 (N.D. Cal. Oct. 23, 2008).

IV.

Conclusion
For the foregoing reasons, plaintiff's motion to conditionally

certify a collective action is DENIED.

12th
New Orleans, Louisiana, this _____ day of June, 2015.
_____________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

10