Nieto v. Pizzati Enterprises, Inc. et al

Filing 55

ORDER: IT IS HEREBY ORDERED that Defendants' 15 Motion to Stay Plaintiff's Motion for Conditional Class Certification is DENIED. IT IS FURTHER ORDERED that Nieto's 13 Motion for Conditional Class Certification is GRANTED IN PART an d DENIED IN PART. The motion is GRANTED IN PART to the extent that Nieto requests that the Court conditionally certify the proposed class, approve an opt-in period of 90 days, and require Defendants to provide Plaintiffs with the names and last known addresses of the potential opt-in plaintiffs within two weeks. The motion is DENIED IN PART to the extent that Nieto requests that the Court approve Plaintiff's proposed notice and consent form in its current form.IT IS FURTHER ORDERED that Not ice shall be sent to: "All individuals who workedor are working performing manual labor for Pizzati Enterprises, Inc. or Pizzati Labor Services, Inc. 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." IT IS FURTHER ORDERED that the parties are to submit a joint Proposed Notice and Consent Form within 10 days of the date of this Order. If the parties are unable to agree on a Prop osed Notice and Consent Form, the parties shall submit: (1) their proposed notices and consent forms; and (2) their objections, with supporting authority, to the other party's proposed notice and consent form, within 10 days of this Order, and r equest an expedited status conference on the matter. IT IS FURTHER ORDERED that the opt-in period for putative class members shall be 90 days from the date that a final notice is approved by this Court. Signed by Judge Nannette Jolivette Brown on 3/27/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WENDY NIETO, on behalf of herself and
other persons similarly situated

CIVIL ACTION

VERSUS

NO. 16-5352

PIZZATI ENTERPRISES, INC., et al.

SECTION: “G” (2)
ORDER

Plaintiff Wendy Nieto (“Nieto”), on behalf of herself and other persons similarly situated,
alleges that Defendants Pizzati Enterprises, Inc., Pizzati Labor Services, Inc., Miriam Pizzati,
Maria Murillo, and Taylor Enterprises of Louisiana, LLC (collectively “Defendants”) failed to pay
her overtime wages in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207.1
Pending before the Court are: (1) Defendants’ “Motion to Stay Plaintiff’s Motion for Conditional
Class Certification”2 and (2) Nieto’s “Motion for Conditional Class Certification.”3 Having
reviewed the motions, the memoranda in support and in opposition, and the applicable law, the
Court will deny Defendants’ motion to stay and grant Nieto’s motion for conditional class
certification.
I. Background
Nieto originally filed this action, on behalf of herself and others similarly situated, alleging
that she worked as a manual laborer for Defendants Pizzati Enterprises, Inc., Pizzati Labor
Services, Inc., Miriam Pizzati, and Maria Murillo and that Defendants failed to pay her overtime

1

Rec. Doc. 1 at 1.

2

Rec. Doc. 15.

3

Rec. Doc. 13.

1

wages in violation of FLSA.4 Nieto has since amended her complaint to add Plaintiffs Anderson
Inoa (“Inoa”), Hector Campos (“Campos”), Juan Ortega (“Ortega”), Karen Alvarez (“Alvarez”),
Nestor Jose Meza Arco (“Arco”), and Olman Hernandez (“Hernandez”) and to name Taylor
Enterprises of Louisiana, LLC (“Taylor Enterprises”) as an additional Defendant.5 Plaintiffs state
that they all worked as manual laborers for Defendants and that Defendants’ jobsites are populated
by at least twenty other manual laborers.6 Plaintiffs seek unpaid wages, interest, liquidated
damages, attorneys’ fees, and costs on behalf of themselves and other similarly situated employees
who worked for Defendants during the past three years.7 Plaintiffs also seek declaratory and
injunctive relief.8
On May 12, 2016, Nieto filed a complaint in this action on behalf of herself and all others
similarly situated.9 On November 29, 2016, the Court ordered Nieto to file an amended complaint
within 21 days to adequately plead the amount of overtime compensation due as required to state
a claim for unpaid overtime compensation under FLSA.10 On December 6, 2016, Nieto filed a first
amended complaint,11 and Defendants filed an answer to the first amended complaint on January
10, 2017.12 On January 30, 2017, the magistrate judge granted Nieto’s motion to file a second

4

Rec. Doc. 1 at 1.

5

Rec. Doc. 41-1 at 1.

6

Id. at 2.

7

Id.

8

Id. at 2.

9

Rec. Doc. 1.

10

Rec. Doc. 30 at 28.

11

Rec. Doc. 31.

12

Rec. Doc. 38.

2

amended complaint to add six Plaintiffs and to name Taylor Enterprises, who is alleged to be
another employer of Plaintiffs, as a Defendant.13
On August 19, 2016, Nieto filed the instant motion for conditional class certification.14
Defendants filed an opposition to the motion for conditional class certification on September 6,
2016.15 With leave of Court, Nieto filed a reply on September 16, 2016.16 On September 6, 2016,
Defendants filed the instant motion to stay consideration of Nieto’s motion for conditional class
certification.17 On September 20, 2016, Nieto filed an opposition to the motion to stay.18
II. Parties’ Arguments
A.

Defendants’ Motion to Stay Consideration of Nieto’s Motion for Conditional Class
Certification
1.

Defendants’ Arguments in Support of the Motion to Stay

In their motion, Defendants request that the Court stay consideration of Nieto’s motion for
conditional class certification,19 because: (1) at the time that Defendants filed this motion,
Defendants’ motion to dismiss20 was still pending before the Court; and (2) Defendants should be
afforded the opportunity to conduct limited discovery before responding to Nieto’s motion for
conditional certification.21 Defendants argue that they should be given leave to complete limited

13

See Rec. Docs. 41, 45.

14

Rec. Doc. 13.

15

Rec. Doc. 14.

16

Rec. Doc. 19.

17

Rec. Doc. 15.

18

Rec. Doc. 20.

19

Rec. Doc. 13.

20

Rec. Doc. 8.

21

Rec. Doc. 15-1 at 1.

3

pre-conditional certification discovery to test the evidence Nieto has proffered in support of her
assertion that the proposed collective action members are similarly situated.22 Defendants aver that
it is appropriate for courts to order limited discovery before conditional certification so that
defendants may “test the veracity of plaintiffs’ . . . allegation that they are similarly situated victims
of a common decision, policy, or plan.”23
Defendants assert that Nieto’s complaint alleges that she regularly worked more than 40
hours in a week and did not receive overtime compensation but that Nieto has not provided
declarations from any other employees that she alleges could be similarly situated.24 Defendants
acknowledge that the Fifth Circuit has held that the usual practice in FLSA cases is for a district
court to determine whether conditional certification is appropriate based solely on pleadings and
affidavits.25 However, Defendants argue, there is no rule prohibiting discovery or consideration of
evidence outside the pleadings and affidavits.26
2.

Nieto’s Arguments in Opposition to the Motion to Stay

In opposition to Defendant’s motion to stay, Nieto argues that the motion should be denied,
because Defendants have not made any attempts to begin discovery in this matter and discovery
on class issues is not necessary under the Lusardi approach to determining conditional FLSA
certification.27 If the motion is granted, Nieto requests that the statute of limitations be tolled during

22
Id. at 3 (citing Clay v. Huntington Ingalls, Inc., 2011 U.S. Dist. LEXIS 155351, at *11 (E.D. La. Sept. 29,
2011) (Zainey, J.)).
23

Id. at 5 (citing Green v. Harbor Freight Tools USA, Inc., 2010 U.S. Dist. LEXIS 16094, at *4–5 (D. Kan.
Feb. 23, 2010)).
24

Id. at 6.

25

Id. (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207 (5th Cir. 1995)).

26

Id. (citing Perez v. Guardian Equity Mgmt., LLC, 2011 U.S. Dist. LEXIS 73219, at *14 (S.D. Tex. July 7,

27

Rec. Doc. 20 at 1.

2011)).

4

the stay in the interests of fairness and justice.28 According to Nieto, under the Lusardi approach,
conditional certification is generally determined only on the pleadings and affidavits, and more
extensive discovery is contemplated after conditional class certification.29 This approach, Nieto
argues, allows class members to preserve their claims while still guaranteeing defendants the
ability to decertify at a later point in the litigation.30
Nieto next argues that Defendants have not attempted to schedule Nieto’s deposition or
propounded any discovery requests, even though they claim to need discovery.31 Moreover,
according to Nieto, Defendants are already in possession of the records pertinent to class
certification.32 Nieto contends that Defendants have not responded to her discovery request and
that Defendants should be able to determine which employees are similarly situated from their
own payroll records.33 Moreover, Nieto argues, there is no requirement under FLSA that a plaintiff
include the names or declarations of other similarly situated opt-in plaintiffs.34 However, Nieto
argues that since the filing of Defendants’ motion, three other employees have opted in to the
action, which suggests the existence of other employees who desire to join the collective action.35

28

Id.

29

Id. at 2 (citing Mooney, 54 F.3d at 1213–1214).

30

Id.

31

Id. at 2–3.

32

Id. at 3.

33

Id.

34

Id. (citing Banegas v. Calmar Corp., No. 15-593 (E.D. La. Aug. 6, 2015)).

35

Id. at 4 (citing Rec. Doc. 16).

5

B.

Nieto’s Motion for Conditional Class Certification
1.

Nieto’s Arguments in Support of the Motion for Conditional Certification

In her motion to conditionally certify the class, Nieto requests that the Court conditionally
certify this case as a collective action pursuant to 29 U.S.C. § 216(b) and conditionally certify a
class of Defendants’ employees limited to:
“All individuals who worked or are working performing manual labor for Pizzati
Enterprises, Inc. or Pizzati Labor Services, Inc. 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.”36
Nieto further requests that the Court direct Defendants to provide Nieto with the names and last
known addresses of the potential opt-in plaintiffs and to approve sending of the class notice to the
potential opt-in plaintiffs.37 Nieto also requests that the Court approve an opt-in period of 90
days.38 In support of conditional certification, Nieto submits her declaration and paychecks she
received from Defendants.39
Nieto argues that at the early “notice stage” of a FLSA action, the standard for establishing
whether a plaintiff is similarly situated to a putative class is a lenient one.40 According to Nieto,
for purposes of authorizing notice during this stage, a court need only make a preliminary
determination whether there exists a class of potential similarly situated individuals.41 Nieto
contends that her allegations and declarations establish that there is a likely class of similarly

36

Rec. Doc. 13-1 at 5.

37

Id. at 6.

38

Id.

39

Id.

40

Id. at 11.

41

Id. (citing White v. Integrated Elec. Techs., Inc., 2013 WL 2903070, at *8 (E.D. La. June 13, 2013)).

6

situated individuals entitled to receive notice.42 Nieto argues that her sworn declaration shows that
the putative class is similarly situated because Nieto and the putative class: worked as laborers for
Defendants; were supervised by Defendants’ employees; worked the same shifts and took breaks
at the same time; performed the same basic tasks; were paid roughly the same amounts; often
worked more than 40 hours per week; and did not receive overtime for hours worked in excess of
40 during any particular week.43
Nieto contends that these violations and the fact that they stem from Defendants’ general
failure to pay overtime demonstrate that this action does not arise from circumstances that are
purely personal to Nieto, but rather from a generally applicable rule, policy, or practice.44 Nieto
further argues that her allegations of common practices that resulted in FLSA violations suffice to
meet her preliminary burden of demonstrating that the putative class is similarly situated for the
purposes of 29 U.S.C. § 216(b)45 and that there is a class of similarly situated workers entitled to
receive notice of this suit.46
According to Nieto, the Court has discretion to authorize notice to be sent to potential optin plaintiffs in this FLSA action.47 Nieto notes that the statute of limitations on individual workers’
claims under FLSA are not automatically tolled, so prompt certification and notice advances the
remedial goals of FLSA.48 Moreover, Nieto argues that notice promotes judicial economy and

42

Id. at 12.

43

Id. at 13.

44

Id. at 14.

45

Id.

46

Id. at 15 (citing Grayson v. Kmart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996)).

47

Id.

48

Id. at 18 (citing 29 U.S.C. § 216(b), 29 U.S.C. § 257).

7

ensures that only those similar situated will join the action.49 Nieto contends that her proposed
notice is accurate and informative and requests that the Court approve her proposed notice.50
According to Nieto, the proposed notice makes clear that only those employees who did not receive
overtime are entitled to join.51
To facilitate the sending of the notice and consent forms, Nieto also moves the Court for
an order directing Defendants to provide names and last known addresses of potential class
members.52 According to Nieto, district courts routinely grant disclosure of the names and
addresses of potential opt-in plaintiffs in conjunction with authorizing notice and the Supreme
Court has approved of this practice.53 Nieto requests that the Court order Defendants to produce
this information within two weeks after signing of the order.54 Finally, Nieto requests an opt-in
period of 90 days to allow sufficient time for Defendants’ past and present employees, many of
whom are non-English speaking, to opt-in to the suit.55
2.

Defendants’ Arguments in Opposition to the Motion for Conditional
Certification

In opposition to the motion for conditional certification,56 Defendants first incorporate all
of their arguments from their motion to stay consideration of the motion for conditional

49

Id. at 18–19.

50

Id. at 19 (citing Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 172 (1989)).

51

Id. at 19–20.

52

Id. at 20.

53

Id. (citing Hoffman-LaRoche, 493 U.S. at 170).

54

Id.

55

Id. at 21.

56

Rec. Doc. 14.

8

certification57 and contend that they are entitled to conduct pre-conditional certification discovery
for the same reasons presented in their motion to stay.58 Defendants next argue that Nieto bears
the burden to demonstrate that she and each member of the putative class are similarly situated.59
According to Defendants, the Fifth Circuit has not definitively adopted an approach that district
courts should utilize when determining whether plaintiffs are similarly situated for FLSA
purposes,60 but the two-step Lusardi approach has been embraced more often by courts than the
Shushan approach.61 Defendants contend that under either approach, certification is improper here
because of the highly individualized claims presented by Nieto, specifically whether each laborer
to whom Nieto wishes to send notice worked more than 40 hours in a workweek.62
Defendants argue that conditional certification under the Lusardi approach is not automatic
and that although the standard for conditional certification is lenient, Nieto must still make
substantial allegations that putative class members were victims of a single decision, policy, or
plan infected by unlawful conduct.63 According to Defendants, affidavits containing only
conclusory allegations are not sufficient to meet the plaintiff’s burden.64 Rather, according to
Defendants, courts look to whether plaintiffs have: identified specific characteristics that unify
potential class members; obtained and submitted affidavits of potential class members; obtained

57

Rec. Doc. 15.

58

Rec. Doc. 14 at 2.

59

Id. at 5 (citing Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208 (11th Cir. 2001)).

60

Id.

61

Id. at 6 (citing Basco v. Wal-Mart Stores, Inc., 2004 U.S. Dist. LEXIS 12441, at * 14 (E.D. La. Jul. 2,
2004) (Duval, J.)).
62

Id. at 7 (citing Mooney, 54 F.3d at 1216).

63

Id. (citing Hoffman-LaRoche, 118 F.R.D. at 406).

64

Id. (citing H&R Block, Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D. Tex. 1999)).

9

and submitted consent forms of potential class members; and submitted specific evidence of a
widespread unlawful plan on the part of the employer.65 Defendants contend that where, as here,
plaintiffs have not submitted substantial allegations, district courts will not hesitate to deny
motions to conditionally certify FLSA actions.66
According to Defendants, Nieto’s proposed definition of the putative collective action
members would require an individualized analysis of each workweek of each worker to determine
whether that worker worked overtime and should be sent notice of the collective action.67
According to Defendants, this type of individualized assessment precludes any finding that
collective action treatment, even conditionally, is appropriate.68 Defendants argue that the Court
should deny Nieto’s motion for conditional certification without a showing that the putative class
action members worked more than 40 hours in a workweek.69 Defendants further contend that
damages in this case would require a case-by-case inquiry and that conditional certification should
be denied as a result.70
Defendants next argue that Nieto’s proposed notice is defective, because the document is
misleading and implies that anyone receiving notice may join the lawsuit even though the opt-in
definition requires the laborers to have worked over 40 hours in a workweek.71 Defendants further

65

Id. (citing England v. New Century Fin. Corp., 370 F.Supp.2d 504, 506 (M.D. La. 2005)).

66

Id. at 8 (citing England, 370 F.Supp.2d at 511).

67

Id. at 9.

68

Id.

69

Id. at 10.

70

Id.

71

Id.

10

contend that the notice should contain a brief explanation of their bases for disputing liability.72
Defendants further argue that the proposed notice does not contain the contact information for
defense counsel.73 Defendants reserve any further objections to the proposed notice until it may be
necessary to address them if the Court denies Defendants’ motion for a stay and conditionally
certifies the action.74
Next, Defendants contend that Nieto’s proposed opt-in period is too long, because Nieto’s
counsel has been soliciting former and current employees of Defendants since January 2015.75
Defendants further argue that notice is not mandatory and that the opt-in period should be limited
to 30 days at most.76 Defendants assert that their understanding is that in the event of conditional
certification, the parties would be asked to confer and agree upon a proper notice.77 Thus,
Defendants contend that Nieto’s proposed notice is premature.78
3.

Nieto’s Reply in Further Support of the Motion for Conditional Certification

In reply, Nieto argues that her claims against Defendants are not individualized.79 Nieto
contends that if Defendants’ arguments regarding individualized assessment were correct, then
collective FLSA actions would not be possible.80 According to Nieto, some variation in the hours

72

Id. at 11.

73

Id. (citing Tolentino v. C&J Spec-Rent Servs., Inc., 716 F.Supp.2d 642, 655 (S.D. Tex. 2010)).

74

Id.

75

Id.

76

Id. at 11–12 (citing Kaiser v. At the Beach, Inc., 2009 U.S. Dist. LEXIS 109362, at *16 (N.D. Okla. Nov.

24, 2009)).
77

Id. at 12.

78

Id.

79

Rec. Doc. 19 at 1.

80

Id. at 1–2.

11

that potential opt-in plaintiffs have worked does not preclude conditional class certification.81
Nieto contends that Defendants are applying an incorrect standard and that at this stage, the Court
is only determining whether notice should be given to potential class members.82 According to
Nieto, nothing in her motion suggests that the proposed class is particularly individualized, as all
putative plaintiffs were manual laborers who were not paid overtime.83 Nieto argues that aside
from differences in hours worked, Defendants do not argue any other individualized differences
among the class members.84
Nieto again argues that Defendants’ request for discovery is inappropriate at this stage,
because at this stage, Nieto has plausibly alleged a common policy or practice by Defendants of
not paying overtime, which is supported by her complaint and declaration.85 Moreover, Nieto
argues that Defendants have not attempted to conduct discovery and have not responded to Nieto’s
written discovery.86 Nieto notes that there are already workers opting in to the suit and that
Defendants have not provided any evidence of mistake or error on the part of Nieto.87 Finally,
Nieto argues that her proposed notice has been approved by numerous courts in the Eastern District
of Louisiana, including this Court, and that Defendants’ arguments alleging its deficiency should
be rejected.88

81

Id. at 2.

82

Id. (citing Rendon v. Global Tech. Solutions, No. 15-00242, 2015 WL 8042169, at * 15 (E.D. La. Dec. 4,
2015) (Brown, J.)).
83

Id. at 3.

84

Id.

85

Id. at 3–4.

86

Id.

87

Id. at 4.

88

Id.

12

III. Law and Analysis
A.

Conditional Certification of a Collective Action under FLSA
FLSA sets forth requirements for minimum wage, overtime pay, and record keeping for

certain employees who are not exempt because they hold executive, administrative, or professional
positions.89 FLSA also creates a private right of action for employees when these rights are
violated.90 Under § 216(b) of FLSA, one or more employees can pursue a collective action in a
representative capacity on behalf of similarly situated employees.91 There are two requirements to
proceed as a representative action: (1) all plaintiffs must be “similarly situated” and (2) a plaintiff
must consent in writing to take part in the suit.92 This latter requirement means that a representative
action follows an “opt-in” rather than an “opt-out” procedure.93 As the Supreme Court has
explained, “[a] collective action allows . . . plaintiffs the advantage of lower individual costs to
vindicate rights by the pooling of resources.”94
FLSA does not define “similarly situated.” Instead, district courts routinely utilize a twostep method, which was originally articulated in Lusardi v. Xerox Corporation95 and described in
detail by the Fifth Circuit in Mooney v. Aramco Services Co.96 Under this approach, a court first

89

See 29 U.S.C. §§ 206(a)(1), 207(a)(1), 213(a)(1).

90

See 29 U.S.C. § 216(b).

91

See id. (“An action to recover the liability . . . may be maintained against any employer (including a public
agency) in any Federal or State court of competent jurisdiction by any one or more employees for and on behalf of
himself or themselves and other employees similarly situated.”).
92

See Chapman v. LHC Group, Inc., No. 13-6384, 2014 WL 6318785, at *6 (E.D. La. Nov. 13, 2014) (Brown,

J.).
93

See id. (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1212 (5th Cir. 1995), overruled on other
grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)).
94

Johnson v. Big Lots Stores, Inc., Nos. 04-3201, 05-6627, 2007 WL 5200224, at *2 (E.D. La. Aug. 21,
2007) (Vance, J.) (citing Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989)).
95

118 F.R.D. 351, 359 (D.N.J. 1987).

96

54 F.3d 1207, 1215 (5th Cir. 1995). See also Johnson, 2007 WL 5200224 at *2 (“Since Mooney, district

13

determines at the “notice stage” whether notice should be given to potential members of the
collective action, and this determination is usually made on the basis of “only . . . the pleadings
and any affidavits.”97 Because the court typically has little evidence at this first stage, the
determination of conditional certification “is made using a fairly lenient standard, and typically
results in ‘conditional certification’ of a representative class.”98 At this stage, courts generally do
not require more than “substantial allegations that the putative class members were together the
victims of a single decision, policy, or plan” and only a modest factual basis is required.99
At the notice stage, a plaintiff must generally demonstrate that: “(1) there is a reasonable
basis for crediting the assertion that aggrieved individuals exist; (2) those aggrieved individuals
are similarly situated to the plaintiff in relevant respects given the claims and defenses asserted;
and (3) those individuals want to opt in to the lawsuit.”100 The burden to show that plaintiffs are
similarly situated rests on the plaintiff,101 but “[a] plaintiff need only demonstrate a reasonable
basis for the allegation that a class of similarly situated persons may exist.”102 Plaintiffs need not
be identically situated,103 and even plaintiffs who operate in different geographical locations and

courts in the Fifth Circuit have uniformly used [the Lusardi approach] to determine whether a collective action should
be certified under the FLSA.”) (internal citations omitted).
97

See id. at 1213–14.

98

Id. at 1214.

99

See Chapman v. LHC Group, Inc., No. 13-6384, 2014 WL 6318785, at *6 (E.D. La. Nov. 13, 2014) (Brown,
J.) (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 n.8 (5th Cir. 1995)).
100
Lang v. DirecTV, Inc., No. 10–1085, 2011 WL 6934607, at *4 (E.D. La. Dec. 30, 2011) (Brown, J.); see
also Morales v. Thang Hung Corp., No. 08–2795, 2009 WL 2524601, at *2 (S.D. Tex. Aug. 14, 2009); Hickson v.
U.S. Postal Serv., No. 09–83, 2010 WL 3835887, at *5, 2010 U.S. Dist. LEXIS 104112, at *18 (E.D. Tex., July 22,
2010).
101
Bridges v. Absolute Lawn Care LA, LLC, No. 16-448, 2016 WL 6440326, at *9 (E.D. La. Nov. 1, 2016)
(Brown, J.) (citing England v. New Century Fin. Corp., 370 F. Supp. 2d 504, 507 (M.D. La. 2005)).
102

Id. (internal citation omitted).

103

Id. (internal citation omitted).

14

under different managers and supervisors may be deemed similarly situated in some
circumstances, such as when they share similar job titles and responsibilities.104 “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.”105 A plaintiff
must do more than show the mere existence of other similarly situated persons, because “there is
no guarantee that those persons will actually seek to join the lawsuit.”106 Only those employees
who affirmatively “opt-in” to the suit are bound by a collective action under FLSA.107
If conditional certification is granted, the case then proceeds through discovery as a class
action to the “merits stage,” at which time the defendants may move for decertification.108 At that
time, a more stringent approach governs, and the court considers: (1) the extent to which
employment settings are similar or disparate; (2) the extent to which any of the employer’s
defenses are common or individuated; and (3) fairness and procedural concerns.109 The court
makes “a factual determination on the similarly situated question,”110 either allowing the

104

Id. (internal citation omitted).

105

Id. (internal citation omitted).

106

Id. See also Tolentino v. C & J Spec–Rent Serv., Inc., 716 F. Supp. 2d 642, 647 (S.D. Tex. 2010) (citing
Ali v. Sugarland Petroleum, Civ. A. No. 09–cv–0170, 2009 WL 5173508, at *2 (S.D. Tex. Dec. 22, 2009). See also
H & R Block, Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D. Tex. 1999) (“[A]lthough the standard for satisfying the first
step is lenient, . . . the court still requires at least substantial allegations that the putative class members were together
victims of a single decision, policy or plan”) (internal quotation omitted)).
107

29 U.S.C. § 216(b) (“[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.”).
108

Bridges, 2016 WL 6440326, at *9 (citing Mooney, 54 F.3d at 1214).

109

Id. (citing Kuperman v. ICF Int’l, No. 08-565, 2008 WL 4809167, at *5 (E.D. La. Nov. 3, 2008) (Barbier,

110

Id. (citing Mooney, 54 F.3d at 1214).

J.)).

15

representative action “to proceed to trial” or decertifying the class and dismissing without
prejudice the claims of opt-in plaintiffs.111
B.

Analysis
1.

Defendants’ Motion to Stay

In their motion to stay consideration of Nieto’s motion to conditionally certify the class in
this action, Defendants argue that a stay is warranted, because: (1) Defendants’ motion to dismiss
was pending before the Court; and (2) Defendants need to conduct limited discovery before
responding to Nieto’s certification motion.112 In opposition to the motion for a stay, Nieto argues
that the Lusardi approach generally does not contemplate pre-certification discovery and that
Defendants are already in possession of the records pertinent to conditional class certification and
have not made any efforts to commence discovery despite their assertion that limited discovery is
necessary.113
The Court has broad discretion to stay proceedings and “[t]he proponent of a stay bears the
burden of establishing its need.”114 First, the Court notes that, since the filing of the instant motion
to stay, it has ruled on Defendants’ motion to dismiss.115 Second, Defendants argue that the Court
should refrain from ruling on Nieto’s motion for conditional certification until limited discovery
has been conducted.116 However, as the Court noted supra, at this stage of the litigation, i.e. the
“notice stage,” the Court determines whether notice should be given to potential members of the
collective action, and this determination is usually made on the basis of “only . . . the pleadings

111

Id.

112

Rec. Doc. 15.

113

Rec. Doc. 20 at 2–3.

114

Clinton v. Jones, 520 U.S. 681, 706 (1997).

115

See Rec. Doc. 30.

116

Rec. Doc. 15-1 at 4.

16

and any affidavits.”117 While discovery prior to conditional certification is not prohibited under
the Lusardi approach, at this stage in the litigation, courts generally do not require more than
“substantial allegations that the putative class members were together the victims of a single
decision, policy, or plan,” and only a modest factual basis is required.118
The Court notes that Defendants have cited to several district court cases in which some
discovery had been conducted prior to conditional certification.119 However, none of the cases
cited by Defendants support their contention that the Court should delay consideration of Nieto’s
motion to conditionally certify the action in this case. Here, Defendants have not shown that
additional discovery is necessary at this early stage of the litigation. Accordingly, the Court will
deny Defendants’ motion to stay consideration of Nieto’s motion for conditional certification of
the class and consider Nieto’s motion.
2.

Nieto’s Motion for Conditional Certification

At the notice stage, the determination of conditional certification “is made using a fairly
lenient standard, and typically results in ‘conditional certification’ of a representative class.”120
Generally, courts do not require more than “substantial allegations that the putative class members
were together the victims of a single decision, policy, or plan,” and only a modest factual basis is
required.121 Here, Plaintiffs allege that they worked for Defendants as manual laborers for time

117

See id. at 1213–14.

118

See Chapman v. LHC Group, Inc., No. 13-6384, 2014 WL 6318785, at *6 (E.D. La. Nov. 13, 2014)
(Brown, J.) (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 n.8 (5th Cir. 1995)).
119
See, e.g., McKnight v. D. Houston, Inc., 756 F. Supp.2d 794 (S.D. Tex. 2010) (noting that some discovery
had taken place prior to the motion for conditional certification).
120

Rendon v. Global Tech. Solutions, LLC, No. 15-242, 2015 WL 8042169 (E.D. La. Dec. 4, 2015) (Brown,
J.) (citing Mooney, 54 F.3d at 1212).
121

Id.

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periods between 2012 and 2016, and that they normally worked more than 40 hours per week.122
Plaintiffs allege that on average, they worked for Defendants between nine and ten hours per day,
six days per week.123 Plaintiffs further allege that the Defendants never paid Plaintiffs one and a
half times their respective hourly rates for all hours worked in excess of 40 in a workweek.124
While working for Defendants as manual laborers, Plaintiffs allege that they were paid
hourly wages between $10.00 and $17.00.125 Plaintiffs also allege that some of the paychecks that
they received for their employment with Defendants bore the name “Pizzatti Enterprises, Inc.” and
that some of the paychecks that they received bore the name “Pizzatti Labor Services, Inc.”126
Finally, Plaintiffs allege that Defendants provide labor and construction services for commercial
and residential construction projects and that Defendants regularly employ more than 20
employees at various worksites.127 In support of the motion to conditionally certify the class, Nieto
also submits her declaration in which she states that she regularly worked more than 40 hours a
week and was never paid overtime wages for those hours.128 In the declaration, Nieto further
declares that she knows from conversations with her co-workers that they were not paid overtime
either.129 Nieto specifically mentions three co-workers, Jose, Felix, and Karen, who were also
manual laborers for Pizzati Labor Services, Inc. and told Nieto that they had not received overtime

122

Rec. Doc. 46 at 8.

123

Id.

124

Id. at 5.

125

Id. at 2–5. Specifically, Plaintiffs allege that Defendants paid the following hourly wages: $10.00 to Nieto,
$14.00 to Inoa, $17.00 to Campos, $15.00 to Ortega, $10.00 to Alvarez, $13.50 to Arco, and $17.00 to Hernandez.
126

Id. at 6.

127

Id. at 8.

128

Rec. Doc. 13-4 at 1.

129

Id.

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wages that they were due.130 Nieto also submits two paycheck stubs issued to her, one bearing the
name “Pizzati Labor Services, Inc.” and one bearing the name “Pizzati Enterprises, Inc.”131
Under the lenient standard at the notice stage, the Court finds that Plaintiffs’ specific
allegations and affidavit provide “substantial allegations that the putative class members were
together the victims of a single decision, policy, or plan” by Defendants regarding overtime
compensation.132 Considering Nieto’s declaration that she knows of co-workers who have not
received overtime compensation and the fact that six Plaintiffs have already joined the litigation,
Nieto has shown “there is a reasonable basis for crediting the assertion that aggrieved individuals
exist” and that “those individuals want to opt in to the lawsuit.”133
Moreover, Plaintiffs’ allegations demonstrate that “those aggrieved individuals are
similarly situated” to Nieto given the claims and defenses asserted.134 All of the named Plaintiffs
allege that: they worked as manual laborers for Defendants in Louisiana for time periods between
2012 and 2016; they normally worked more than 40 hours a week, on average between 9 and 10
hours a day; Defendants failed to pay them overtime wages; and Defendants paid them by check,
with some checks bearing the name “Pizzati Labor Services, Inc.” and others bearing the name
“Pizzati Enterprises, Inc.”135 At the notice stage, “[a] plaintiff need only demonstrate a reasonable

130

Id. at 2.

131

Rec. Doc. 13-3.

132
See Chapman v. LHC Group, Inc., No. 13-6384, 2014 WL 6318785, at *6 (E.D. La. Nov. 13, 2014)
(Brown, J.) (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 n.8 (5th Cir. 1995)).
133

Lang v. DirecTV, Inc., No. 10–1085, 2011 WL 6934607, at *4 (E.D. La. Dec. 30, 2011) (Brown, J.); see
also Morales v. Thang Hung Corp., No. 08–2795, 2009 WL 2524601, at *2 (S.D. Tex. Aug. 14, 2009); Hickson v.
U.S. Postal Serv., No. 09–83, 2010 WL 3835887, at *5, 2010 U.S. Dist. LEXIS 104112, at *18 (E.D. Tex., July 22,
2010).
134

Lang, 2011 WL 6934607 at *4.

135

Rec. Doc. 46 at 2–6, 8.

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basis for the allegation that a class of similarly situated persons may exist,”136 and the Court finds
that Nieto has met that burden here.
The Court notes that Defendants argue that they are entitled to discovery before conditional
certification and that potential opt-in plaintiffs are not similarly situated because an “individualized
analysis” will be required to determine whether a potential opt-in plaintiff has worked more than
40 hours in a workweek and thus “fits” into the class proposed by Nieto.137 For the reasons set
forth by the Court supra, the Court finds that Defendants are not entitled to discovery before
consideration of conditional certification. As to Defendants’ arguments regarding “individualized
analysis,” the Court notes that Defendants appear to argue that Plaintiffs are required to allege or
demonstrate at this stage the exact number of hours worked by every potential opt-in plaintiff in
order to demonstrate that conditional certification of the proposed class is warranted.
However, Nieto need not show that potential opt-in plaintiffs are identically situated,138
and even plaintiffs who operate in different geographical locations and under different managers
and supervisors may be deemed similarly situated in some circumstances, such as when they share
similar job titles and responsibilities.139 Aside from arguing that potential opt-in plaintiffs may
have worked a different number of hours, Defendants do not point to any other differences that
suggest that Nieto is not similarly situated to the putative class. At this stage, Nieto is not required
to prove the exact number of hours worked by each potential opt-in plaintiff, nor is she required
to show that all of the potential opt-in plaintiffs worked the same number of overtime hours. This
is especially true, since proof of the exact number of hours worked by each potential opt-in plaintiff

136

Id. (internal citation omitted).

137

Rec. Doc. 14 at 9.

138

Id. (internal citation omitted).

139

Id. (internal citation omitted).

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would require information that appears to be in the hands of Defendants.140 Given the lenient
standard at this stage, the Court finds that Nieto has demonstrated that potential opt-in plaintiffs in
the proposed class are similarly situated and has set forth “substantial allegations that the putative
class members were together the victims of a single decision, policy, or plan.”141 Accordingly, the
Court finds that conditional certification of Nieto’s proposed class and notice to potential class
members are warranted at this time.
The Court notes that, in addition to seeking conditional certification of its proposed class,
Nieto asks the Court to: approve her proposed notice; approve the sending of the class notice to
potential opt-in plaintiffs; approve an opt-in period of 90 days; and order Defendants to provide
Plaintiffs with the names and last known addresses of the potential opt-in plaintiffs.142 The Court
notes that Defendants have objected to Nieto’s proposed notice, because they argue: the proposed
notice is misleading and implies that anyone receiving the notice may join the suit; the notice
contains no explanation of Defendants’ basis for disputing liability; and the notice does not contain
the contact information for defense counsel.143 Defendants also contend that a 90-day opt-in period
is too long, considering that Nieto has allegedly been soliciting current and former employees of
Defendants to join the suit since January 2015.144
As to Nieto’s proposed opt-in period, the Court notes that it has previously denied a request
for a 90-day opt-in period in a FLSA collective action where the plaintiffs did not present any
evidence of difficulty in tracking down potential class members, such as a language barrier or

140

See Rendon v. Global Tech. Solutions, No. 15-00242, 2015 WL 8042169, at * 15 (E.D. La. Dec. 4, 2015)
(Brown, J.) (holding that employers should not be able to “escape liability by taking advantage of their monopoly on
the information plaintiffs may need to prove their case”).
141

Id.

142

Rec. Doc. 13-1 at 6.

143

Rec. Doc. 14 at 10–11.

144

Id. at 11.

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dispersal of the plaintiffs.145 Here, however, Nieto asserts that many of the potential opt-in
plaintiffs are non-English speaking and that addresses provided by Defendants may be out of
date.146 Thus, the Court finds that providing notice to potential plaintiffs may be time-consuming
and burdensome. Accordingly, the Court finds that a 90-day opt-in period is appropriate.
As to Nieto’s proposed notice, the Court finds it appropriate to follow its past practice and
orders the parties to confer regarding the form and content of Nieto’s proposed notice and consent
form.147 The parties are to submit a joint Proposed Notice and Consent Form within 10 days of the
date of this Order. If the parties are unable to agree on a Proposed Notice and Consent Form, the
parties shall submit: (1) their proposed notices and consent forms; and (2) their objections, with
supporting authority, to the other party’s proposed notice and consent form, within 10 days of this
Order, and request an expedited status conference on the matter. The Court expects counsel for the
parties to confer in good faith in an attempt to come forward with a joint proposal for judicial
notice and consent form. Finally, to facilitate efficient notice to potential opt-in plaintiffs, the
Court will grant Nieto’s request for an order that Defendants provide Plaintiffs with the names and
last known addresses of the potential opt-in plaintiffs within two weeks. The parties are to meet
and confer to determine the most effective method to transfer this information to Plaintiffs.
IV. Conclusion
For the foregoing reasons, the Court finds that Defendants have not shown that additional
discovery is necessary before conditional certification is decided. Accordingly, the Court will deny
Defendants’ motion to stay consideration of Nieto’s motion for conditional certification. The Court

145

See Marshall v. Louisiana, No. 15-1128, 2016 WL 279003, at *12 (E.D. La. Jan. 22, 2016) (Brown, J.)
(quoting Lima v. Int’l Catastrophe Solutions, 493 F.Supp.2d 793, 804 (E.D. La. 2007) (finding that a 90-day opt-in
period was too long where plaintiffs had not demonstrated any hurdles to providing notice to plaintiffs).
146

Rec. Doc. 13-1 at 21.

147

See Lang, 2011 WL 6934607 at *10; Bridges v. Absolute Lawn Care LA, LLC, 16-448, 2016 WL 6440326,
at *12 (E.D. La. Nov. 1, 2016) (Brown, J.).

22

finds that Nieto has demonstrated that potential opt-in plaintiffs are similarly situated and has set
forth “substantial allegations that the putative class members were together the victims of a single
decision, policy, or plan.”148 Accordingly, the Court finds that conditional certification of Nieto’s
proposed class and notice to potential class members is warranted at this time. Considering the
potential hurdles to notice identified by Nieto in this case, the Court finds that providing notice to
potential plaintiffs may be time-consuming and burdensome. Accordingly, the Court finds that a
90-day opt-in period is appropriate.
Finally, the Court finds it appropriate to follow its past practice and orders the parties to
confer regarding the form and content of Nieto’s proposed notice and consent form. The parties
must submit a joint Proposed Notice and Consent Form within 10 days of the date of this Order.
If the parties are unable to agree on a Proposed Notice and Consent Form, the parties shall submit:
(1) their proposed notices and consent forms; and (2) their objections, with supporting authority,
to the other party’s proposed notice and consent form, within 10 days of this Order, and request an
expedited status conference on the matter. To facilitate efficient notice to potential opt-in plaintiffs,
the Court will grant Nieto’s request for an order that Defendants provide Plaintiffs with the names
and last known addresses of the potential opt-in plaintiffs within two weeks. The parties are to
meet and confer to determine the most effective method for transferring this information to
Plaintiffs.
IT IS HEREBY ORDERED that Defendants’ “Motion to Stay Plaintiff’s Motion for
Conditional Class Certification”149 is DENIED.

148

Id.

149

Rec. Doc. 15.

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IT IS FURTHER ORDERED that Nieto’s “Motion for Conditional Class
Certification”150 is GRANTED IN PART and DENIED IN PART. The motion is GRANTED
IN PART to the extent that Nieto requests that the Court conditionally certify the proposed class,
approve an opt-in period of 90 days, and require Defendants to provide Plaintiffs with the names
and last known addresses of the potential opt-in plaintiffs within two weeks. The motion is
DENIED IN PART to the extent that Nieto requests that the Court approve Plaintiff’s proposed
notice and consent form in its current form.
IT IS FURTHER ORDERED that Notice shall be sent to: “All individuals who worked
or are working performing manual labor for Pizzati Enterprises, Inc. or Pizzati Labor Services,
Inc. 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.”
IT IS FURTHER ORDERED that the parties are to submit a joint Proposed Notice and
Consent Form within 10 days of the date of this Order. If the parties are unable to agree on a
Proposed Notice and Consent Form, the parties shall submit: (1) their proposed notices and consent
forms; and (2) their objections, with supporting authority, to the other party’s proposed notice and
consent form, within 10 days of this Order, and request an expedited status conference on the
matter.

150

Rec. Doc. 13.

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IT IS FURTHER ORDERED that the opt-in period for putative class members shall be
90 days from the date that a final notice is approved by this Court.
NEW ORLEANS, LOUISIANA, this 27th day of March, 2017.

________________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

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