Mahrous et al v. LKM Enterprises, LLC et al

Filing 20

ORDER AND REASONS granting 15 Motion to Certify Class as stated herein. IT IS FURTHER ORDERED that the parties meet and confer in good faith regarding the notice and consent forms that will be distributed to class members within 15 days of the ent ry of this order. IT IS FURTHER ORDERED that defendants shall have 30 days from the date of this order to provide plaintiffs with a computer-readable database containing all potential opt-in plaintiffs' names, last known mailing addresses, telep hone numbers, and email addresses. IT IS FURTHER ORDERED that potential class members may opt in to this collective action if they provide their consent forms to plaintiffs' counsel no later than 90 days from the date the Court approves notice. Signed by Judge Sarah S. Vance on 6/26/2017. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
HASSAN MAHROUS, HAMED
YOUSEF, AND MURAD MUBARAK,
on behalf of themselves and all others
similarly situated, ET AL
VERSUS

CIVIL ACTION

NO. 16-10141

LKM ENTERPRISES, LLC, LKM
CONVENIENCE, LLC AND LENNY
MOTWANI

SECTION “R” (4)

ORDER AND REASONS
Before the Court is plaintiffs Hassan Mahrous, Hamed Yousef, and
Murad Mubarak’s motion to proceed as a collective action and facilitate
notice under 29 U.S.C. § 216(b). For the following reasons, the Court grants
the motion.

I.

BACKGROUND
Plaintiffs bring this action on behalf of themselves and a putative

class of similarly situated current and former employees against LKM
Enterprises, LLC; LKM Convenience, LLC; and Lenny Motwani (“LKM

Defendants”).1 Plaintiffs allege defendants willfully violated the Fair Labor
Standards Act (FLSA). 2

A.

Procedural Background

Plaintiffs raised the same FLSA claims in an earlier civil action, Mejia
v. Brothers Petroleum, LLC, No. 12-2842 (E.D. La. filed Nov. 28, 2012).3 The
Mejia action was initially brought in November 2012 against a group of
convenience stores operating under the name Brothers Food Mart, owned
and operated by Imad Hamdan (“Hamdan Defendants”).4 In July 2014,
Judge Helen Berrigan granted the plaintiffs’ motion to proceed as a collective
action in that case. Mejia, 2014 WL 3530362. On June 30, 2015, the
plaintiffs filed a third amended complaint adding the LKM Defendants to the
Mejia case.5
Imad Hamdan asked the court to stay the Mejia proceedings because
of a criminal investigation into his alleged employment of undocumented
workers at Brothers Food Mart. 6

1
2
3
4
5
6

In September 2014, Judge Berrigan

R. Doc. 1 at 1-2 ¶ 1.
Id. at 9 ¶ 43.
R. Doc. 15-1 at 4.
Complaint at 1-2, No. 12-2842, ECF No. 1.
Third Amended Complaint at 2-4, No. 12-2842, ECF No. 205.
Motion to Stay, No. 12-2842, ECF No. 88.
2

granted a partial stay of discovery as to undocumented workers in order to
safeguard Hamdan’s Fifth Amendment right against self-incrimination.7
Judge Berrigan later recused herself and the case was transferred to this
section of the court. 8 In September 2015, the Court converted the partial stay
into a complete stay of the proceedings. 9
The parties held a status conference with the Court on March 17,
2016. 10 At the status conference, the Court provided plaintiffs with the
opportunity to move to sever their claims against the LKM Defendants from
their claims against the Hamdan Defendants and file an amended
complaint. 11 The Court directed the Clerk, if an amended complaint was
filed, to assign a new case number to the amended complaint with a notation
that the case is related to the Mejia litigation. 12 The Court granted the
plaintiffs’ motion to sever their claims against the LKM Defendants. 13 On
June 14, 2016, the plaintiffs filed a collective action complaint against the
LKM Defendants.14

7
8
9
10
11
12
13
14

Order on Motion to Stay, Mejia, No. 12-2842, ECF No. 107.
Order Re-Allotting Case, Mejia, No. 12-2842, ECF No. 114.
Order on Motion to Continue, Mejia, No. 12-2842, ECF No. 211.
R. Doc. 1-1 at 1.
Id. at 2.
Id.
Order on Motion to Sever, Mejia, No. 12-2842, ECF No. 236.
R. Doc. 1.
3

B.

Factual Background

Defendants operate convenience stores in the greater New Orleans
area.15 Plaintiffs and other members of the putative class are current and
former non-exempt, hourly employees employed by the defendants as cooks,
cashiers, or general store operators in their convenience stores.16 The named
plaintiffs were employed by the defendants for various periods between 2010
and 2015.17
Plaintiffs allege that the defendants engaged in a deliberate and willful
policy and practice of failing to pay non-exempt, hourly employees overtime
pay as required under FLSA. 18 According to the complaint, the named
plaintiffs worked about 70-80 hours per week for the defendants but were
not paid legally required overtime for hours worked in excess of 40 hours per
week. 19

Plaintiffs further assert that defendants unlawfully deducted

required business expenses from their pay, failed to maintain proper time
records as required by law, and failed to compensate plaintiffs for all hours
worked.20 Plaintiffs seek payment of unpaid wages, liquidated damages,

15
16
17
18
19
20

Id. at 7 ¶ 30.
Id. at 2 ¶ 2.
Id. at 8 ¶ 34-36.
Id. at 1-2 ¶ 1.
Id. at 8 ¶ 38-39.
R. Doc. 1 at 10-11 ¶ 51-53.
4

statutory penalties, interest, costs, and attorney’s fees.21 They also ask that
defendants be enjoined from continuing their alleged unlawful policies.22
Plaintiffs now move to proceed as a collective action, asking the Court
to conditionally certify the collective under 29 U.S.C. § 216(b) and to
authorize notice to potential class members. 23

The plaintiffs seek to

represent a class consisting of:
All current and former non-exempt, hourly employees who
have been employed by LKM Enterprises, LLC; LKM
Convenience, LLC and Lenny Motwani d/b/a “Brothers Food
Mart” and/or “Magnolia Express,” or which were subsequently
known as “Magnolia Express,” in the State of Louisiana during
the time period of November 28, 2009 through the present. 24
Plaintiffs allege that members of this proposed class are similarly
situated because they all have similar job positions and requirements, are
subject to similar terms and conditions of employment, and are subject to
common policies and practices that deny them overtime pay and result in
unlawful deductions of the cost of required uniforms and nametags from
their wages. 25 Defendants do not oppose conditional certification but object

21
22
23
24
25

Id at 12.
Id.
R. Doc. 15 at 1-2.
Id. at 1.
R. Doc. 15-1 at 2-3.
5

to the plaintiffs’ proposed definition of the class, the form and content of the
proposed notice, and aspects of the plaintiffs’ request for information.26

II.

DISCUSSION
A.

Conditional Class Certification

Plaintiffs seek to bring this FLSA action on behalf of “themselves and
other employees similarly situated.” 29 U.S.C. § 216(b). Potential class
members must affirmatively opt-in to participate in a § 216(b) collective
action. Id. The Fifth Circuit has not adopted a specific approach to determine
when employees are “similarly situated,” but federal district courts
commonly apply the two-step Lusardi approach described in Mooney v.
Aramco Services Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995), overruled on
other grounds, 539 U.S. 90 (2003). See Esparza v. Kostmayer Construction,
LLC, No. 15-4644, 2016 WL 3567060, at *2-3 (E.D. La. July 1, 2016); Case v.
Danos & Curole Marine Contractors, LLC, Nos. 14-2775, 14-2976, 2015 WL
1978653, at *4 (E.D. La. May 4, 2015); White v. Integrated Elec.
Technologies, Inc., No. 11-2186, 2013 WL 2903070, at *3 (E.D. La. June 13,

26

R. Doc. 16 at 2.
6

2013); Williams v. Bally’s Louisiana, Inc., No. 5-5020, 2006 WL 1235904,
at *2 (E.D. La. May 5, 2006).
The first step of the Lusardi analysis is the “notice stage.” Mooney, 54
F.3d at 1213.

At this stage, the Court must determine whether to

conditionally certify a class and allow notice to potential class members. Id.
at 1213-14. Courts apply a “fairly lenient standard” that appears “to require
nothing more than substantial allegations that the putative class members
were together the victims of a single decision, policy, or plan.” Id. at 1214,
1214 n.8 (citing Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392, 407
(D.N.J. 1988)).
Plaintiffs meet the standard for conditional certification. They have
submitted affidavits alleging that the named plaintiffs and other potential
class members were subject to common unlawful practices and policies.27
Defendants’ practices allegedly included a refusal to pay overtime wages, a
requirement that employees pay for uniforms and nametags out of their
wages, a failure to pay the federal minimum wage as a result of unlawful
deductions, and a failure to maintain proper timekeeping records.28 Judge
Berrigan applied the Lusardi standard to conditionally certify a class based

27
28

R. Doc. 15-1 at 12.
Id. at 12-13.
7

on the same allegations.29 Mejia, 2014 WL 3530362, at *2-3. Defendants
acknowledge that plaintiffs’ burden at this stage is “lenient” and do not
oppose conditional certification, although they reserve the right to move for
decertification at a later point.30
The parties dispute the appropriate time period for the class. Plaintiffs
propose that the conditionally certified class include all current and former
non-exempt, hourly employees employed by the defendants in Louisiana
since November 28, 2009. 31 This proposed time period extends three years
before the date of the original complaint in Mejia. 32 Alternatively, plaintiffs
suggest a time period beginning three years before the filing of the third
amended complaint on June 30, 2015.33 The third amended complaint
added the LKM Defendants to the Mejia matter. 34 Defendants assert that
Plaintiffs’ class definition is overbroad and ask that the class be limited to
employees who worked for defendants within three years of the date of this
order. 35

29
30
31
32
33
34
35

Id. at 7, R. Doc. 16 at 2.
R. Doc. 16 at 2.
R. Doc. 15 at 1.
R. Doc. 19 at 3.
Id. at 4.
Id.
R. Doc. 16 at 4-5.
8

The statute of limitations to bring wage claims under FLSA is two
years, or three years in the case of willful violations. 29 U.S.C. § 255. In FLSA
collective actions, the statute of limitations continues to run as to individual
claims until a putative class member files a written consent to join the action.
29 U.S.C. § 256. Defendants thus argue that plaintiffs’ proposed class would
include untimely claims.36
At the conditional class certification stage, “courts have not been
consistent in whether the [class] time period runs relative to the date of the
complaint or relative to the date of the court’s order conditionally certifying
the matter as a collective action.” White, 2013 WL 2903070, at *10. Courts
in this District have ordered that FLSA collective action notices include all
persons employed up to three years before the date of the complaint. See
Case, 2015 WL 1978653, at *7; Mejia, 2014 WL 3530362; White, 2013 WL
2903070, at *10; but see Wellman v. Grand Isle Shipyard, Inc., No. 14-831,
2014 WL 5810529 at *5 (E.D. La. Nov. 7, 2014) (declining to use date of
complaint to determine notice period where claims would be barred by
statute of limitations); Camp v. The Progressive Corp., No. 01-2680, 2002
WL 31496661 at *6, *6 n.6 (E.D. La. Nov. 8, 2002) (same).

36

R. Doc. 16 at 5.
9

This case differs from most FLSA conditional certification cases
because of its complex procedural history. This matter presents unresolved
issues regarding the statute of limitations and possible tolling that the Court
need not address at time. Defendants will have the opportunity at the
appropriate time to challenge the timeliness of any claims brought by
putative plaintiffs who wish to opt-in to the litigation.
The Court defines the class period as beginning on June 30, 2012, three
years before the filing of the third amended complaint adding the LKM
Defendants. Although plaintiffs argue that the third amended complaint
relates back to the date of the original complaint, they do not explain how
this would affect the statute of limitations for potential opt-in plaintiffs.37
The Court thus finds that the appropriate reference point to define the class
is the date a complaint was filed against the LKM Defendants, who are the
subject of the conditional certification motion.

B.

Form of Notice and Consent Forms

Defendants contest several aspects of the plaintiffs’ proposed notice
to putative class members, including the notice’s description of defendants’
position and language that defendants claim constitutes improper

37

R. Doc. 19 at 3-4.
10

solicitation. 38 Defendants also request that the notice be modified to
inform potential class members that neither parties nor their counsel may
communicate with potential plaintiffs during the opt-in period unless the
potential plaintiff initiates communication. 39
Defendants request that counsel be ordered to meet and confer over
the draft notice. 40 Plaintiffs do not oppose this request but ask that the
Court set a deadline of 15 days from this order for the parties to meet and
confer and submit their agreed-upon notice. 41
The parties are directed to meet and confer within 15 days regarding
the form of the notice and consent forms. The parties are further directed
to submit a joint proposed notice and consent form within 21 days of this
order. If the parties are unable to agree, each party shall submit their
proposed notice and consent forms, along with their objections to the
opposing party’s notice and consent forms, to the Court within 21 days of
this order.

38
39
40
41

R. Doc. 16 at 3.
Id. at 9.
Id. at 3.
R. Doc. 19 at 8.
11

C.

Production of Contact Information

Plaintiffs ask that the Court order defendants to produce, within 14
days, a computer-readable database that includes the names of all potential
members of the class, along with their last known mailing address, email
address, telephone number, and social security number. 42
Defendants oppose the production of social security numbers on
privacy and security grounds.43 Plaintiffs have agreed to defer their request
for social security numbers until it becomes clear such information is
necessary to locate putative class members. 44 Therefore, the Court need
not consider the production of social security numbers at this time.
Defendants also oppose the production of telephone numbers. 45 They
argue that telephone numbers are unnecessary for notice and could
increase the risk of improper communications. 46 In response, plaintiffs
contend that text messages are the best form of notice because putative
class members may have changed addresses during the pendency of this
litigation. 47 Multiple courts in this District have ordered the production of

42
43
44
45
46
47

R. Doc. 15-1 at 15.
R. Doc. 16 at 6.
R. Doc. 19 at 7.
R. Doc. 16 at 7.
Id.
R. Doc. 19 at 5.
12

telephone numbers in similar cases. See Jones v. Yale Enf’t Servs., Inc., No.
14-2831, 2015 WL 3936135, at *3 (E.D. La. June 26, 2015); Case, 2015 WL
1978653, at *8; White, 2013 WL 2903070 at *11. Access to telephone
numbers will facilitate notice, and the Court orders defendants to produce
them.
Defendants further argue that the proposed time period for
production is too short and request 30 days rather than 14 days.48 Plaintiffs
do not oppose this request. 49 The Court orders that the names and contact
information of potential opt-in plaintiffs be produced within 30 days of the
date of this order.

D.

Length of Opt-in Period

The parties disagree on the length of time potential class members
should have to opt-in to the collective action. Plaintiffs propose that
putative plaintiffs return signed consent forms to plaintiffs’ counsel no later
than 120 days after the notice and consent forms are mailed. 50 Defendants
argue that this period is too long and request an opt-in period of 45 days

48
49
50

R. Doc. 16 at 7.
R. Doc. 19 at 8.
R. Doc. 15-1 at 16.
13

from the date the Court approves the notice. 51 In reply, plaintiffs contend
that a 120 day opt-in period is necessary because the contact information in
defendants’ possession is likely to be outdated and some putative plaintiffs
may be difficult to locate.52 Both parties cite district court opinions in
support of their proposed time periods, though defendants cite multiple
cases that provided a 60 day opt-in period. 53
The Court acknowledges that plaintiffs may face additional difficulties
in contacting potential class members as a result of the passage of time
since the third amended complaint was filed, but finds that an opt-in period
of 90 days from the date the Court approves notice is sufficient. See
Baricuatro v. Indus. Pers. & Mgmt Servs., Inc., No. 11-2777, 2012 WL
5986467, at *2 (E.D. La. Nov. 29, 2012).

III. CONCLUSION
For the foregoing reasons, IT IS ORDERED that plaintiffs’ motion to
conditionally certify this matter as a collective action is GRANTED. The
Court conditionally certifies this matter as a collective action including all

51
52
53

R. Doc. 16 at 9.
R. Doc. 19 at 6.
R. Doc. 16 at 8; R. Doc. 19 at 7.
14

current and former non-exempt, hourly employees who have been employed
by LKM Enterprises, LLC; LKM Convenience, LLC and Lenny Motwani
d/b/a “Brothers Food Mart” and/or “Magnolia Express,” or which were
subsequently known as “Magnolia Express,” in the State of Louisiana during
the time period of June 30, 2012 through the present.
IT IS FURTHER ORDERED that the parties meet and confer in good
faith regarding the notice and consent forms that will be distributed to class
members within 15 days of the entry of this order. The parties shall submit a
joint proposed notice and consent form to the Court within 21 days of the
entry of this order. If the parties are unable to agree, the parties shall each
submit to the Court within 21 days of this order: (1) their proposed notice
and consent forms and (2) their objections, with supporting authority, to the
opposing party’s notice and consent forms.
IT IS FURTHER ORDERED that defendants shall have 30 days from
the date of this order to provide plaintiffs with a computer-readable database
containing all potential opt-in plaintiffs’ names, last known mailing
addresses, telephone numbers, and email addresses. If there is any dispute
or uncertainty regarding whether an individual is a potential opt-in plaintiff,
the defendants shall produce the individual’s information.

15

IT IS FURTHER ORDERED that potential class members may opt in
to this collective action if they provide their consent forms to plaintiffs’
counsel no later than 90 days from the date the Court approves notice.
Plaintiff’s counsel shall file consent forms with the Court on an ongoing basis
and no later than two weeks after the end of the 90-day period.

26th
New Orleans, Louisiana, this _____ day of June, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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