Lopez et al v. Hal Collums Construction, LLC et al
Filing
23
ORDER & REASONS: granting in part 11 Motion for Conditional Class Certification, Judicial Notice, and for Disclosure of the Names and Addresses of the Potential Opt-In Plaintiffs as set forth in this Order and Reasons, and that the above-captioned matter is conditionally certified as a collective action pursuant to 29 U.S.C. § 216(b). Counsel are instructed to comply with deadlines as set forth in document. Signed by Judge Carl Barbier on 11/18/15. (sek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LOPEZ ET AL.
CIVIL ACTION
VERSUS
NO: 15-4113
HAL COLLUMS
CONSTRUCTION, LLC ET AL.
SECTION: “J”(4)
ORDER & REASONS
Before
the
Court
is
a
Motion
for
Conditional
Class
Certification, Judicial Notice, and for Disclosure of the Names
and Addresses of the Potential Opt-In Plaintiffs (Rec. Doc. 11)
filed by Plaintiffs, Rene Osmin Lopez and Jose Moran, and an
opposition thereto (Rec. Doc. 18) filed by Defendants, Hal Collums
Construction, LLC, Central City Millworks, LLC, and Hal Collums.
Having considered the motion and legal memoranda, the record, and
the applicable law, the Court finds that the motion should be
GRANTED IN PART for the reasons set forth more fully below.
FACTS AND PROCEDURAL BACKGROUND
This
litigation
Defendants
pursuant
comprises
to
the
Fair
Plaintiffs’
Labor
claims
Standards
Act
against
(FLSA)
regarding unpaid overtime wages. Plaintiffs filed their Complaint
against Defendants on behalf of themselves and other persons
similarly situated on September 3, 2015. (Rec. Doc. 1.) Plaintiffs
allege
that
they
were
hired
to
work
as
manual
laborers
for
Defendants to assist with residential and commercial construction
projects in Louisiana. Id. at 5. Plaintiffs assert that Defendants
paid them and other similarly situated employees at an hourly rate
for work performed. Id. Furthermore, Plaintiffs allege that they
were working in excess of forty hours per week and were not exempt
from
FLSA’s
Defendants
overtime
failed
requirement.
to
pay
them
Id.
and
Plaintiffs
other
allege
similarly
that
situated
employees the proper overtime wages, as required by the FLSA. Id.
Consequently, Plaintiffs claim that Defendants willfully violated
the provisions of the FLSA by unlawfully depriving them of proper
overtime compensation. Id. at 5-6. As a result, Plaintiffs seek to
recover
unpaid
back
wages,
interest,
liquidated
damages,
declaratory and injunctive relief, and reasonable attorney’s fees
and costs. Id. at 6-7.
On October 26, 2015, Plaintiffs filed the instant Motion for
Conditional
Class
Certification,
Judicial
Notice,
and
for
Disclosure of the Names and Addresses of the Potential Opt-In
Plaintiffs
(Rec.
Doc.
11)
and
requested
oral
argument.
In
conjunction with allowing this action to proceed collectively,
Plaintiffs ask the Court to direct the Defendants to provide
Plaintiffs with a list of potential opt-in plaintiffs, to approve
the
sending
of
the
proposed
notice
to
the
potential
opt-in
plaintiffs, and to approve an opt-in period of six months. (Rec.
Doc. 11-1, at 6.) Defendants opposed the motion on November 10,
2015. (Rec. Doc. 18). The motion is now before the Court on the
2
briefs, without oral argument, as the Court determined that oral
argument was unnecessary.
PARTIES’ ARGUMENTS
Plaintiffs
asks
the
Court
to
conditionally
certify
this
collective action and authorize, under court supervision, notice
to all similarly situated employees whom Defendants employed.
(Rec. Doc. 11-1, at 5.) Specifically, the putative class, to which
Plaintiffs seek to facilitate notice, consists of a class of
Defendants’ employees limited to:
All individuals who worked or are working performing
manual labor for Defendants Hal Collums Construction
LLC, Central City Millworks, LLC, and Hal Collums during
the previous three years and who are eligible for
overtime pay pursuant to the FLSA, 29 U.S.C. § 207 and
who did not receive full overtime compensation.
Id. In their motion, Plaintiffs allege that Defendants’ violations
of the FLSA are not personal to Plaintiffs, but rather are part of
a general policy of Defendants not to pay their employees overtime.
Id. at 8-9.
Plaintiffs argue that they have presented sufficient evidence
that there is a similarly situated putative class. In support of
their motion, Plaintiffs rely on the allegations in their Complaint
and the attached declarations of Jose Moran, Rene Osmin Lopez, and
Rene Orlando Lopez, 1
which set forth the following allegations:
(1) Plaintiffs and the putative class worked as manual laborers
1
On September 25, 2015, Plaintiffs filed a Notice of Class Member Opt-In (Rec.
Doc. 4) with an attached consent form signed by Rene Orlando Lopez.
3
for the Defendants; (2) Plaintiffs and the putative class were
supervised by Defendants’ foremen; (3) Plaintiffs and the putative
class worked the same shifts and took breaks at the same time; (4)
Plaintiffs and the putative class were paid roughly the same
amounts; (5) Plaintiffs and the putative class often worked more
than forty hours per week; and (6) Plaintiffs and the putative
class did not receive overtime for hours worked in excess of forty
during any particular work week. Id. at 14. For these reasons,
Plaintiffs argue that the putative class is similarly situated, as
required for conditional certification of a collective action
under the FLSA.
Next, Plaintiffs argue that the Court should approve the
proposed notice attached to their motion and allow Plaintiffs’
counsel
to
send
the
notice
to
potential
opt-in
plaintiffs.
According to Plaintiffs, the proposed notice is timely, accurate,
and informative, as required. Id. at 20. Plaintiffs point out that
a similar notice has been approved by various courts in the Eastern
District. Id. at 20 n.7. In addition, because many of Defendants’
employees may be Spanish-speaking, Plaintiffs request that the
Court approve a Spanish translation of the proposed notice, which
Plaintiffs intend to send out along with the English version. Id.
at 20 n.8.
Plaintiffs also ask that this Court order the Defendants to
produce the names, last known addresses, and dates of employment
4
of the potential class members no later than two weeks after the
signing of the order. Id. at 21. According to Plaintiffs, district
courts routinely grant disclosure of the names and addresses of
the potential opt-in plaintiffs in conjunction with authorizing
notice.
Lastly, Plaintiffs argue that the Court should allow for an
opt-in period of six months. Id. At least some of Defendants’ past
and
present
employees,
including
Plaintiffs,
are
non-English
speaking. Id. Because of the difficulties often associated with
noticing non-English speaking laborers in FLSA cases, Plaintiffs
contend that a six-month opt-in period is appropriate in this case.
Id. Furthermore, Plaintiffs maintain that nothing prevents the
parties from litigating the underlying issues while the opt-in
period
runs,
and
Plaintiffs
claim
that
Defendants
are
not
prejudiced by an opt-in period of six months. Id. at 22.
In opposition, Defendants argue that the Court should deny
Plaintiffs’
motion
for
conditional
certification
because
Plaintiffs have failed to satisfy their burden of showing that
there are others who are similarly situated to Plaintiffs who
desire to opt in to this lawsuit. (Rec. Doc. 18, at 8.) Defendants
argue that Plaintiffs have failed to identify potential plaintiffs
other than the one additional person, Rene Orlando Lopez, who has
filed notice with this Court. Id. Moreover, Defendants argue that
the
three
declarations
attached
5
to
Plaintiffs’
motion
are
“basically the same” and contain conclusory allegations that are
insufficient to warrant conditional certification. Id. at 6-7.
Defendants
further
argue
that
the
job
duties,
job
requirements, and hourly rates for the laborer positions that the
Plaintiffs and Rene Orlando Lopez held were different from those
of the various other positions at Hal Collums Construction, LLC
(“HCC”) and Central City Millworks, LLC (“CCM”). Id. at 10. In
support of this argument, Defendants provide the Declaration of
Hal Collums, the Managing Officer for both HCC and CCM, which
describes the various positions at HCC and CCM during the relevant
time period. 2 (Rec. Doc. 18-1.) Although Defendants believe that
the Court should deny Plaintiffs’ motion, if the Court holds
otherwise,
Defendants
argue
condition
certification
to
that
the
persons
2
Court
employed
should
by
limit
Defendants
its
as
For example, HCC employs persons in three positions: Field Carpenter, Field
Carpenter Helper, and Field Laborer. (Rec. Doc. 18-1, at 1.) Field Carpenter is
considered a skilled position with an hourly rate between $15 and $25. Id. at
1-2. Field Carpenter Helper is considered a semi-skilled position with an hourly
rate between $11 and $15. Id. at 2. Field Laborer is considered an unskilled
position with an hourly rate between $9 and $11. In addition, CCM employs
persons in seven positions: Bench Carpenter, Shop Carpenter Helper, Shop
Laborer, Painter, Painter Helper, Millwright, and Machine Operator. Id. at 2.
Bench Carpenter is considered a skilled position similar to Field Carpenter at
HCC, but with an hourly rate between $13 and $19.50. Id. Shop Carpenter Helper
is a position with job duties, responsibilities, and hourly rates comparable to
those of Field Carpenter Helper at HCC. Id. Shop Laborer is a position with job
duties, responsibilities, and hourly rates comparable to those of Field Laborer
at HCC. Id. Painter is considered a skilled position with an hourly rate between
$12 and $16. Id. at 3. Painter Helper is considered a semi-skilled position
with an hourly rate between $10 and $13. Id. Millwright is considered a skilled
position with an hourly rate between $15 and $20. Id. Lastly, Machine Operator
is considered a skilled position with an hourly rate between $12 and $16. Id.
6
“Laborers” at an hourly rate between $9 and $11. (Rec. Doc. 18, at
10.)
Next, Defendants argue that Plaintiffs’ proposed notice is
premature and improper. Id. at 13. Defendants contend that the
Court should refrain from issuing notice in this case until after
Plaintiff’s motion for conditional certification is resolved, and
then only after the parties have met and conferred on the notice
or briefed the issue before the Court if agreement cannot be
reached. Id. In any event, Defendants object to the specific
language of the proposed notice for several reasons. Id. at 1516.
Defendants also object to Plaintiffs’ proposed six-month optin period. Id. at 10-12. Defendants argue that a six-month period
is both unreasonable and excessive, noting that the majority of
reported decisions offer an opt-in period of thirty to ninety days.
Id. at 10. According to Defendants, a shorter opt-in period is in
the best interest of potential opt-in plaintiffs as it allows them
to avoid statute of limitations defenses and, as a result, prevents
potential opt-in plaintiffs from losing their “similarly situated”
status by the creation of two classes of opt-in plaintiffs (i.e.,
those filing within the statute of limitations and those filing
outside of the statute of limitations). Id. at 11. Therefore,
Defendants request an opt-in period of thirty days. Id. at 12.
7
Lastly, Defendants contend that the declarations of Rene
Osmin Lopez and Rene Orlando Lopez attached to Plaintiffs’ motion
should be stricken. Id. at 12. Defendants cite the statute of
limitations applicable to FLSA violations and point out that
neither declaration states how long the declarant was employed by
Defendants
or
when
his
employment
ended.
Id.
Furthermore,
Defendants argue that the declarations do not reflect personal
knowledge regarding the conduct of Defendants during the relevant
time period. Id. at 13.
LEGAL STANDARD
Section 207 of the FLSA provides the mandatory parameters for
overtime pay. 29 U.S.C. § 207. Section 216(b) of the FLSA affords
workers a right of action for violations of these parameters. Id.
§ 216(b). Such workers may sue individually or collectively on
behalf of “themselves and other employees similarly situated.” Id.
To participate in a collective action, each employee must “give[]
his consent in writing” by notifying the court of his intent to
opt in. Id. “District courts are provided with discretionary power
to implement the collective action procedure through the sending
of notice to potential plaintiffs.” Lima v. Int’l Catastrophe
Solutions, Inc., 493 F. Supp. 2d 793, 797 (E.D. La. 2007). The
notice must be “timely, accurate and informative.” Id. (citing
Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989)).
8
Before disseminating notice to potential plaintiffs, a court
must determine that the named plaintiffs and the members of the
potential collective class are “similarly situated.” Basco v. WalMart Stores, Inc., No. 00-3184, 2004 WL 1497709, at *3 (E.D. La.
July 2, 2004). Courts recognize two methods of determining whether
plaintiffs are sufficiently “similarly situated” to advance their
claims in a single collective action pursuant to § 216(b): the
two-stage class certification approach typified by Lusardi v.
Xerox Corp., 122 F.R.D. 463 (D.N.J. 1988), and the “spurious” class
action approach espoused by Shushan v. University of Colorado, 132
F.R.D. 263 (D. Colo. 1990). 3 Mooney v. Aramco Servs. Co., 54 F.3d
1207, 1213-14 (5th Cir. 1995), overruled on other grounds by Desert
Palace, Inc. v. Costa, 539 U.S. 90 (2003). The Fifth Circuit has
expressly refused to endorse either method over the other. Acevedo
v. Allsup’s Convenience Stores, Inc., 600 F.3d 516, 518-19 n.1
(5th Cir. 2010) (citing Mooney, 54 F.3d at 1216). However, Lusardi
is the prevailing approach among the district courts in this
circuit and around the country. See, e.g., Banegas v. Calmar Corp.,
No. 15-593, 2015 WL 4730734, at *3 (E.D. La. Aug. 10, 2015).
The Lusardi approach comprises two stages. Acevedo, 600 F.3d
at 519; Mooney, 54 F.3d at 1213. First, during the “notice stage,”
3Under the Shushan approach, the “similarly situated” inquiry in FLSA collective
action certification is considered to be coextensive with Rule 23 class
certification. In other words, the court looks at “numerosity,” “commonality,”
“typicality” and “adequacy of representation” to determine whether a class
should be certified. Mooney, 54 F.3d at 1214.
9
the court conducts an initial inquiry of “whether the putative
class members’ claims are sufficiently similar to merit sending
notice of the action to possible members of the class.” Acevedo,
600 F.3d at 519; accord Mooney, 54 F.3d at 1213-14. Courts usually
base this decision upon “the pleadings and any affidavits which
have been submitted.” Mooney, 54 F.3d at 1214. Because of the
limited evidence available at this stage, “this determination is
made using a fairly lenient standard, and typically results in
‘conditional
certification’
of
a
representative
class.”
Id.
(footnote omitted). Although the standard is lenient, “it is by no
means automatic.” Lima, 493 F. Supp. 2d at 798. If the court
conditionally certifies the class, putative class members are
given notice and the opportunity to opt in. Mooney, 54 F.3d at
1214. The case then proceeds through discovery as a representative
action. Id.
The
second
stage
is
usually
triggered
by
a
motion
for
decertification filed by the defendant, typically “after discovery
is largely complete and more information on the case is available.”
Acevedo, 600 F.3d at 519. At this stage, the court “makes a final
determination of whether all plaintiffs are sufficiently similarly
situated to proceed together in a single action.” Id. If the
plaintiffs are not similarly situated, the court decertifies the
class, and the opt-in plaintiffs are dismissed without prejudice.
Mooney, 54 F.3d at 1214.
10
DISCUSSION
A.
Conditional Certification of Collective Action
The fundamental inquiry presented by Plaintiffs’ motion at
this
conditional
certification
stage
is
whether
the
named
plaintiffs and members of the potential collective class are
“similarly situated” for purposes of § 216(b). The FLSA does not
define the term “similarly situated,” and the Fifth Circuit has
“not
ruled
on
how
district
courts
should
determine
whether
plaintiffs are sufficiently ‘similarly situated’ to advance their
claims together in a single § 216(b) action.” Prejean v. O’Brien’s
Response Mgmt., Inc., No. 12-1045, 2013 WL 5960674, at *4 (E.D.
La. Nov. 6, 2013) (quoting Acevedo, 600 F.3d at 518-19). Rather,
this determination requires a fact-intensive, ad hoc analysis. Id.
at *5; Kuperman v. ICF Int’l, No. 08-565, 2008 WL 4809167, at *5
(E.D. La. Nov. 3, 2008). Although a lenient standard is applied at
the notice stage, “the court still requires at least ‘substantial
allegations that the putative class members were together the
victims of a single decision, policy, or plan [that violated the
FLSA].’” H & R Block, Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D.
Tex. 1999) (citation omitted) (quoting Mooney, 54 F.3d at 1214
n.8).
“Courts have repeatedly stressed that Plaintiffs must only be
similarly—not
identically—situated
to
proceed
collectively.”
Prejean, 2013 WL 5960674, at *5 (quoting Falcon v. Starbucks Corp.,
11
580
F.
Supp.
certification
2d
is
528,
534
appropriate
(S.D.
Tex.
when
there
2008)).
is
“a
Conditional
demonstrated
similarity among the individual situations . . . [and] some factual
nexus which binds the named plaintiffs and the potential class
members together as victims of a particular alleged [policy or
practice].” Xavier v. Belfor USA Grp., Inc., 585 F. Supp. 2d 873,
877-78 (E.D. La. 2008). Thus, a court can foreclose a plaintiff’s
right to proceed collectively only if “the action relates to
specific circumstances personal to the plaintiff rather than any
generally applicable policy for practice.” Id. at 878. As mentioned
above, this determination is usually made based on the pleadings
and any affidavits that have been submitted. Mooney, 54 F.3d at
1214. “Overall, the evidence needed is minimal, and the existence
of
some
variations
between
potential
claimants
is
not
determinative of lack of similarity.” Banegas, 2015 WL 4730734, at
*4.
The Complaint alleges that Defendants treated Plaintiffs and
other similarly situated employees who performed manual labor as
exempt from FLSA’s overtime requirements and, as a result, never
paid them one and one-half times their regular rate of pay for
hours worked in excess of forty in a week. (Rec. Doc. 1, at 5.)
Attached to Plaintiffs’ motion are the declarations of the two
Plaintiffs, which provide more detail regarding the allegations in
the Complaint. In addition, Plaintiffs attached the declaration of
12
Rene Orlando Lopez, a potential opt-in class member. 4 In their
declarations, Plaintiffs state that they each worked alongside a
number of others employed by Defendants as laborers, who performed
the same job duties, worked the same shifts, and took breaks at
the same times. (Rec. Docs. 11-2, at 1; 11-3, at 1; 11-4, at 1.)
Although Plaintiffs and their coworkers “often worked at least
five hours of overtime,” Plaintiffs state that they were not paid
an overtime rate of pay. (Rec. Doc. 11-2, at 1-2.)
The
Court
finds
that
the
Complaint
and
the
attached
declarations set forth “substantial allegations that the putative
class members were together victims of a single decision, policy
or plan.” Mooney, 54 F.3d at 1214 n.8. The alleged policy of
failing to pay employees performing manual labor an overtime rate
for work performed in excess of forty hours in a week constitutes
a “factual nexus which binds the named plaintiffs and the potential
class members together.” Xavier, 585 F. Supp. 2d at 877-78. There
is
no
indication
circumstances
that
personal
this
to
policy
the
“relates
plaintiff[s].”
to
Id.
specific
at
878.
Accordingly, Plaintiffs have satisfied their lenient burden of
showing that they are “similarly situated” to the purported class.
4
The Court rejects Defendants’ argument that the declarations of Rene Osmin
Lopez and Rene Orlando Lopez should be stricken. Although their declarations do
not state the specific dates that their employment with Defendants ended, the
Court finds that the declarations reflect the declarants’ personal knowledge
and sufficiently show that the declarants performed work for the Defendants
during the relevant time period.
13
As noted above, Defendants contest the appropriateness of
conditional
certification
in
this
case,
where
the
motion
is
supported only by allegations in the pleadings and the declarations
of the two named Plaintiffs and Rene Orlando Lopez. Defendants
emphasize that Plaintiffs have identified only one individual who
is interested in joining the proposed FLSA collective action, and
they assert that Plaintiffs have therefore failed to satisfy their
burden. However, Defendants misconstrue the Plaintiffs’ burden at
the lenient notice stage. In the Fifth Circuit, “there is no
categorical rule that Plaintiffs must submit evidence at this time
that other [individuals] seek to opt-in to this case.” Perkins v.
Manson Gulf, L.L.C., No. 14-2199, 2015 WL 771531, at *4 (E.D. La.
Feb. 23, 2015) (quoting White v. Integrated Elec. Techs., Inc.,
No. 12-359, 2013 WL 2903070, at *7 (E.D. La. June 13, 2013)); see
also Banegas, 2015 WL 4730734, at *5 (“Taken to its logical
conclusion, Defendant's argument would result in a categorical
rule that conditional certification of a proposed FLSA collective
action is never appropriate where the complaint is not joined by
multiple named plaintiffs, or where the named plaintiff does not
attach affidavits of other potential class members who express an
interest in joining the action. This focus on the intent of
potential opt-in class members has no statutory basis in the
FLSA.”).
14
The Court declines to adopt a stricter rule, which is not
clearly statutorily-mandated, requiring a plaintiff to collect
additional affidavits from potential opt-in class members who have
the intent to join the action. The notice stage “requires the
plaintiff to show, at least, that similarly situated individuals
exist.”
Banegas,
2015
WL
4730734,
at
*5.
Here,
Plaintiffs’
declarations state that they worked in groups of approximately 610 other laborers, and that Defendants employed more than one crew.
Plaintiffs claim that these other laborers had the same job duties
as Plaintiffs did, and were compensated pursuant to a similar
policy. Furthermore, Plaintiffs allege personal knowledge of how
the other individuals were compensated, based on their experience
and conversations with their coworkers. Thus, Plaintiffs have
established
a
likelihood
that
a
group
of
similarly
situated
individuals exist.
Defendants also contend that conditional certification should
be limited to employees who worked as “Laborers” for Defendants at
hourly rates between $9 and $11. 5 “Whether at the notice stage or
on later review, collective action certification is not precluded
by the fact that the putative plaintiffs performed various jobs in
differing departments and locations.” Donohue v. Francis Servs.,
5
The Court assumes Defendants seek to limit conditional certification to
individuals employed by HCC in the position of Field Laborer and individuals
employed by CCM in the position of Shop Laborer. According to Hal Collums’s
declaration, these positions had comparable job duties and both received hourly
rates between $9 and $11.
15
Inc., No. 04-170, 2004 WL 1161366, at *2 (E.D. La. May 24, 2004)
(citing Heagney v. European Am. Bank, 122 F.R.D. 125, 127 (E.D.N.Y.
1988)). As mentioned above, similarly situated does not mean
identically situated. Prejean, 2013 WL 5960674, at *5. Further,
Plaintiffs
do
not
allege
that
they
were
singled
out
for
underpayment, but that all hourly employees working alongside them
performing manual labor were not paid the proper overtime rate.
Although Plaintiffs state that they were paid between $9 and $11
per hour, they claim that their co-workers, who performed the same
duties, were paid between $10 and $14 per hour. Given these facts
and the lenity with which conditional certification decisions must
be made, the Court finds that a FLSA class should be conditionally
certified to include:
All individuals who worked or are working performing manual
labor for Defendants Hal Collums Construction LLC, Central City
Millworks, LLC, and/or Hal Collums during the previous three years
who were paid on an hourly basis and who worked, at any time
therein, over forty hours per week without being paid one and onehalf times their regular rate of pay for hours worked in excess of
forty in a week.
The Court rejects Defendants’ argument that such a class is
problematic because it includes individuals from various positions
or with a slightly different rates of pay. It seems appropriate to
certify
the
collective
action
at
16
this
time
and
revisit
this
question
later
after
some
discovery.
As
discovery
proceeds,
Defendants may move to decertify or modify the conditionally
certified class as defined if appropriate.
B.
Proposed Notice
Plaintiffs submitted a proposed notice form along with their
motion. (Rec. Doc. 11-6.) As noted above, Defendants raise a number
of
objections
imparts
the
to
Plaintiffs’
district
court
proposed
with
notice.
discretionary
Section
216(b)
authority
to
facilitate notice to potential plaintiffs. Lima, 493 F. Supp. 2d
at 800 (citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165,
169 (1989)). When considering the content of the notice, courts
often find that these issues are best resolved by mutual agreement
of the parties. See, e.g., Banegas, 2015 WL 4730734, at *6;
Perkins, 2015 WL 771531, at *5. Accordingly, the parties are
directed to meet and confer regarding the proposed notice and
attempt to resolve these disputes in good faith as ordered below.
C.
Length of the Opt-In Period
Plaintiffs request an opt-in period of six months. Plaintiffs
state that they anticipate significant difficulties in locating
potential opt-in plaintiffs, noting that oftentimes the addresses
of non-English speaking laborers provided by the defendants in
FLSA cases are outdated or inaccurate. For this reason, Plaintiffs
contend
that
a
longer
opt-in
period
is
necessary.
However,
Defendants contend that a six-month period is both unreasonable
17
and excessive, and argue that a short opt-in period of thirty days
is more appropriate in this case.
Longer
opt-in
periods
have
been
granted
in
cases
where
potential plaintiffs are hard to contact due to their migration or
dispersal. See Roebuck v. Hudson Valley Farms, Inc., 239 F. Supp.
2d 234, 241 (N.D.N.Y. 2002) (allowing a nine-month opt-in period
because the potential plaintiffs were likely to have migrated to
other places within North America and other continents). The Court
finds that an opt-in period of ninety days is appropriate in this
case. See Case v. Danos & Curole Marine Contractors, L.L.C., No.
14-2775, 2015 WL 1978653, at *7 (E.D. La. May 4, 2015); Lima, 493
F. Supp. 2d at 804. This period sufficiently affords the Plaintiffs
the time needed to locate potential opt-in plaintiffs, but is not
so unreasonable as to be overly burdensome or excessive for the
Defendants.
CONCLUSION
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Conditional
Class Certification, Judicial Notice, and for Disclosure of the
Names and Addresses of the Potential Opt-In Plaintiffs (Rec. Doc.
11) is GRANTED IN PART, as set forth in this Order and Reasons,
and that the above-captioned matter is conditionally certified as
a collective action pursuant to 29 U.S.C. § 216(b).
IT IS FURTHER ORDERED that Defendants shall have fourteen
(14) days from the entry of this Court’s Order, or through and
18
including December 2, 2015, to produce the full names, dates of
employment,
and
last
known
addresses
of
all
potential
class
members.
IT IS FURTHER ORDERED that the parties meet, confer, and
thereafter submit to the Court a joint proposal of notice no later
than twenty-one (21) days from the entry of this Court’s Order, or
through and including December 9, 2015. If the parties are unable
to agree on the proposed notice, the parties shall file the
appropriate motion(s) with their objections no later than December
9, 2015.
IT IS FURTHER ORDERED that counsel for Plaintiffs shall have
thirty (30) days from the date the proposed notice is approved by
the Court to transmit the notice and consent form to all potential
class members via U.S. mail.
IT IS FURTHER ORDERED that potential class members may opt in
to this collective action if: (1) they have mailed, faxed, or
emailed their consent form to counsel for the class within ninety
(90) days after the notice and consent forms have been mailed out
to the class; or (2) they show good cause for any delay.
New Orleans, Louisiana, this 18th day of November, 2015.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?