Palma et al v. Tormus Inc et al
Filing
20
ORDER AND REASONS granting in part and denying in part 19 Motion to Certify Class. Signed by Judge Ivan L.R. Lemelle. (ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILMER ALEX PALMA, ET AL.
CIVIL ACTION
VERSUS
NO. 15-3025
TORMUS INC., ET AL.
SECTION “B”(2)
ORDER AND REASONS
Before the Court is Plaintiffs’, Wilmer Alex Palma and Jacob
Lovo,
“Motion
for
Conditional
Class
Certification,
Judicial
Notice, and for Disclosure of the Names and Addresses of the
Potential Opt-in Plaintiffs” (Rec. Doc. 19). Plaintiffs seek the
Court’s approval of their cause being maintained as a Fair Labor
Standards Act (“FLSA”) collective action pursuant to 29 U.S.C. §
216(b) as well as approval of their proposed notice. Plaintiffs
further request that this Court allow Plaintiffs’ counsel to send
this court-approved notice to potential opt-in plaintiffs, permit
those plaintiffs to have six (6) months within which to respond,
and direct the Defendants to provide the Plaintiffs with the names
and last known addresses of the potential class members.
Local Rule 7.5 of the Eastern District of Louisiana requires
that memoranda in opposition with citations of authorities be filed
and
served
no
later
than
eight
(8)
days
before
the
noticed
submission date. The instant motion was noticed for submission on
February 24, 2016. (Rec. Doc. 29-4). No party has filed a motion
to continue the noticed submission date or filed a motion for
extension of time within which to oppose the motion. Accordingly,
the motion is deemed to be unopposed. It further appearing to the
Court that the motion has merit, with one minor exception, IT IS
ORDERED that Plaintiffs’ Motion is GRANTED in part and DENIED in
part, as set forth more fully below.
To the extent Plaintiffs request the Court’s conditional
certification of the proposed class as defined in Plaintiffs’
Motion, as well as a directive to Defendants to provide the
Plaintiffs with the names and last known addresses of the potential
class members, IT IS ORDERED that Plaintiffs’ Motion is GRANTED.
Defendants must comply within fourteen (14) days of the filing of
this Order.
The Court cannot, however, accommodate Plaintiffs’ request
for an opt-in period of six (6) months. Plaintiffs provide no legal
support
for
such
“[u]ndersigned
an
extensive
counsel
has
period
experience
and
merely
noticing
state
that
non-English
speaking laborers in FLSA cases, and oftentimes the addresses
provided by Defendants are outdated and/or inaccurate.” (Rec. Doc.
19-1 at 21). Quite ironically, in Plaintiffs’ argument that their
proposed notice is appropriate, Plaintiffs cite four other FLSA
collective action cases being pursued by their counsel within the
Eastern District of Louisiana, all of which involve potential class
members which are Spanish-speaking, as is the case here. In each
of these cases, the respective notice provides only a sixty (60)
2
day opt-in period. See Rios v. Classic Southern Home Construction,
Inc., No. CV-15-4104 (E.D. La. filed Sep. 3, 2015); Banegas v.
Calmar Corp., No. CV-15-593 (E.D. La. filed Feb. 25, 2015); Calix
v. Ashton Marine LLC, No. CV-14-2430 (E.D. La. filed Oct. 23,
2014); Martinez v. Southern Solutions Land Management LLC, No. CV14-2366 (E.D. La. July 31, 2015). Plaintiffs do not distinguish
this case or mention unique circumstances so as to justify tripling
the
opt-in
period,
but
instead
rely
on
an
unsupported
overgeneralization.
Further, this Court has been unable to locate any authority
so as to justify such an extensive opt-in period which has the
potential to delay resolution of this case.1 Although “[l]onger
opt-in
periods
plaintiffs
are
have
been
hard
to
granted
contact
in
due
cases
to
where
their
potential
migration
or
dispersal[,]”2 the Court has located scant case law permitting an
opt-in period exceeding 120 days (and 120 days is seemingly
uncommon). See, e.g., Order, Calix, No. CV-14-2430, (Rec. Doc. 311
at
1-2)
(allowing
a
sixty
(60)
day
opt-in
period
because
“potential plaintiffs may be difficult to contact due to the fact
that many are migratory workers”); Fernandes da Silva v. M2/Royal
1
A six month opt-in period would extend almost to the date of the pre-trial
conference, currently scheduled for September 8, 2016 (Rec. Doc. 18), and would
therefore have the potential to hinder parties’ efforts at settlement.
2 Lima v. Int'l Catastrophe Sols., Inc., 493 F. Supp. 2d 793, 804 (E.D. La.
2007) (denying plaintiffs’ request for a one year opt-in period and instead
allowing the plaintiffs ninety (90) days to locate potential opt-in plaintiffs
who have migrated to other areas so as to not overly burden defendants).
3
Const. of Louisiana, LLC, No. CV-08-4021, 2009 WL 3565949, *6 (E.D.
La. Oct. 29, 2009) (granting ninety (90) day opt-in period in case
where potential opt-in plaintiffs were Spanish-speaking); Camp v.
Progressive Corp., No. CV-01-2680, 2002 WL 31496661, *7 (E.D. La.
Nov. 8, 2002) (allowing an opt-in period of 120 days in light of
the upcoming holiday season in a case in which approximately 1,400
individuals eventually opted-in). But see Roebuck v. Hudson Valley
Farms, 239 F.Supp.2d 234, 240–42 (N.D.N.Y. 2002) (allowing for an
opt-in period of nine months largely due to fact that potential
plaintiffs had or were likely to have migrated to other places
within North America and other continents). In the absence of legal
authority or more persuasive facts, an opt-in period of six (6)
months is inappropriate.
However, in light of the aforementioned reasons provided by
Plaintiffs, as well as Defendants’ failure to oppose Plaintiffs’
Motion, this Court finds that an opt-in period of ninety (90) days
is warranted. Accordingly, to the extent Plaintiffs request an
opt-in period of six (6) months and approval of a notice reflecting
the same, IT IS ORDERED that Plaintiffs’ Motion is DENIED in part;
potential class members will have ninety (90) days from the date
on which Defendants provide the Plaintiffs with their names and
last known addresses and Plaintiffs’ notice must be amended to
reflect as much. To the extent that Plaintiffs request approval of
the proposed notice and Plaintiffs’ mailing of that notice, IT IS
4
ORDERED that Plaintiffs’ Motion is GRANTED in part, subject to the
above caveat concerning the relevant opt-in period.
A motion for reconsideration of this Order on behalf of the
Defendants
based
on
the
appropriate
Federal
Rule
of
Civil
Procedure, if any, must be filed within thirty (30) days of this
Order. The motion must be accompanied by opposition memoranda to
the original motion.
Because such a motion would not have been necessary had timely
opposition memoranda been filed by Defendants, the costs incurred
in connection with the motion, including attorney's fees, will be
assessed against the Defendants. See Fed. R. Civ. P. 16, 83. A
statement of costs conforming to Local Rule 54.3 shall be submitted
by Plaintiffs desiring to be awarded costs and attorney's fees no
later than eight (8) days prior to the noticed submission date of
the motion for reconsideration.
New Orleans, Louisiana, this 29th day of February, 2016.
_____________________________
UNITED STATES DISTRICT JUDGE
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