Escobar et al v. Ramelli Group, L.L.C. et al

Filing 36

ORDER AND REASONS granting 31 Motion to Certify Class. Plaintiffs' Complaint is conditionally certified to proceed as a collective action. Further Ordered that Defendants shall provide Plaintiffs in a computer-readable data file with the names, current or last known addresses, e-mail addresses, and telephone numbers of potential collective action plaintiffs within fourteen days of the filing of this Order. Signed by Judge Jane Triche Milazzo. (ecm)

Case 2:16-cv-15848-JTM-JCW Document 36 Filed 07/17/17 Page 1 of 8

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DARWIN ESCOBAR, et al.,
individually and on behalf
of all others similarly situated

CIVIL ACTION

VERSUS

NO: 16-15848

RAMELLI GROUP, L.L.C. et al.

SECTION: “H”(2)

ORDER AND REASONS
Before the Court is a Motion to Certify a Collective Action Pursuant to
Section 216(b) of the FLSA filed by Plaintiffs Darwin Escobar, Rigoberto
Garcia, Selvin A. Portillo, Gustavo A. Reyes Ramirez, and Selvin Vasquez on
behalf of themselves and others similarly situated as well as a request to
approve a proposed notice to all FLSA collective class members (Doc. 31). For
the following reasons, the Motion is GRANTED.
BACKGROUND
Plaintiffs allege that they are former employees of Defendant Ramelli
Group, L.L.C. Plaintiffs filed this lawsuit in October of 2016 on their behalf
and on the behalf of those similarly situated. Plaintiffs seek collective action
under the Fair Labor Standards Act, alleging that Ramelli Group, L.L.C. et al.
wrongfully failed to pay appropriate overtime wages.
Plaintiffs ask the Court to conditionally certify a class to proceed as a
collective action. Plaintiffs seek certification of a class including:
1

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All individuals who were employed by Ramelli Group, L.L.C.,
Ramelli Janitorial, Inc., Robert C. Ramelli, K.C. Staffing L.L.C.
and/or K.C. Staffing Solutions, L.L.C. as landscape laborers paid
by the hour during any workweek from October 26, 2013 through
the time notice of this action is provided.
In addition to certification, Plaintiffs request: (1) that the Court order
Defendants to provide Plaintiffs’ counsel within 14 days the names, last known
mailing addresses, and last known e-mail addresses of all potential collective
action plaintiffs; (2) approve the proposed and consent form; (3) and authorize
notice of this collective action to potential members of the FLSA collective
class.
LEGAL STANDARD
The Fair Labor Standards Act (FLSA) allows for a plaintiff to bring a
claim on his own behalf and on the behalf of others who are “similarly
situated.”1

A collective action affords plaintiffs “the advantage of lower

individual costs to vindicate rights by the pooling of resources.” 2 Efficient
resolution in one proceeding of common issues of law and fact benefits the
judicial system.3 The FLSA does not define what it means for employees to be
“similarly situated.”
Courts have utilized two methods for determining whether plaintiffs are
similarly situated, commonly referred to as the Lusardi approach and the
Shushan approach.4 The Fifth Circuit has not determined whether either
approach is required; however, the Eastern District of Louisiana has
29 U.S.C §216.
Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989).
3 Id.
4 Mooney v. Aramco Services Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995), ocerruled on other
grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 (2003).
1
2

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consistently applied the approach first articulated in Lusardi v. Werox Corp.,
118 F.R.D. 351 (D.N.J. 1987).5 This approach uses a two-step analysis. First
at the “notice stage,” the court determines whether notice should be given to
potential members of the collective action, “usually based only on the pleadings
and any affidavits.”6 Because the court has little evidence at this stage, “this
determination is made using a fairly lenient standard, and typically results in
‘conditional certification’ of a representative class.”7
The second approach is articulated in Shushan v. University of Colorado,
132 F.R.D. 263 (D. Colo. 1990). Under this approach, a court applies the same
“similarly situated” inquiry as applied in Rule 23 class certification.
Accordingly, a court looks to “numerosity,” “commonality,” “typicality,” and
“adequacy of representation” to determine whether a class should be certified.
Under Lusardi, although the standard for certification at the notice
stage is lenient, courts generally require “at least substantial allegations that
the FLSA Collective Class Members were together the victims of a single
decision, policy, or plan infected by discrimination.”8 “Courts determining
whether plaintiffs have submitted substantial allegations of a single plan have
looked to ‘whether potential plaintiffs were identified . . . whether affidavits of
potential plaintiffs were submitted . . . and whether evidence of a widespread
discriminatory plan was submitted.’”9

If the Court grants conditional

See, e.g., Xavier v. Belfor USA Group, Inc., 585 F.Supp.2d 873, 876 (E.D. La. 2008);
Johnson v. Big Lots Stores, Inc., 56 F.Supp.2d 559, 569 (E.D. La. 2008); Smith v. Offshore
Specialty Fabricators, Inc. 2009 WL 2046159, at *2 (E.D. La. July 13, 2009).
6 Mooney 54 F.3d at 1213-14.
7 Id. at 1214.
8 Smith, 2009 WL 2046159, at *2 (quoting H&R Block, Ltd. v. Housden, 186 F.R.D. 399, 400
(E.D. Tex. 1999)).
9 Id.
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certification, the case proceeds as a collective action through discovery.10
After discovery, the defendant may move for decertification.11 At that
point, the court decides, with the benefit of considerably more information,
whether the employees are similarly situated.12 At this time, the court makes
a factual inquiry into whether plaintiffs are similarly situated.13 Lusardi
applies a three-factor test to determine whether plaintiffs and potential
members of the collective action are similarly situated. Courts consider: “(1)
the extent to which the employment settings of employees are similar or
disparate, (2) the extent to which any defenses that an employer might have
are common or individuated; and (3) general fairness and procedural
considerations.”14
LAW AND ANALYSIS
In their Motion to Certify a Collective Action pursuant to Section 216(b)
of the FLSA and to Approve a Proposed Notice to All FLSA collective class
members, Plaintiffs request that this Court (1) conditionally certify this
collective action to potential members of the Collective Class; (2) order
Defendants to provide Plaintiffs’ counsel, within 14 days of such order, contact
information for each FLSA collective class member, and dates of employment
of each FLSA Collective Class Member; (3) approve the proposed judicial notice
and consent form; and (4) allow for a 90 day opt-in period. Defendant has not
opposed this motion. The Court will consider each of these arguments in turn.

Mooney, 54 F.3d at 1213-14.
Id.
12 Id.
13 Xavier, 585 F.Supp.2d at 878.
14 Johnson., 561 F.Supp.2d at 573.
10
11

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I.

Conditional

Certification

for

Purposes

of

Notice

and

Discovery
In support of their contention that they qualify for conditional class
certification, Plaintiffs have submitted six affidavits along with their pleadings
that allege Plaintiffs and FLSA collective class members were allegedly
employed by Ramelli Group and by K.C. Staffing and were not paid overtime
for working more than forty hours per week. Plaintiffs allegedly first worked
for Ramelli Group then for K.C. Staffing during the duration of their
employment. Allegedly, their jobs did not change after K.C. Staffing became
the new employer in 2016, and the Plaintiffs allege that K.C. Staffing, like
Ramelli Group, failed to pay overtime wages. The presence of multiple or joint
employers does not preclude conditional certification for a collective action
under the FLSA.15
Because this stage of the certification process is so lenient, the Plaintiffs
only need to show that “a few similarly situated individuals seek to join the
lawsuit.”16 The complaint contained six affidavits of employees of the joint
employers that alleged to have experienced the same failure to pay overtime
wages and know of dozens of other individuals employed by the Defendants
who were paid in the same manner.17 The Court finds this evidence sufficient
to warrant conditional class certification.
II.

Production of Contact Information
Counsel for Plaintiffs and FLSA collective class members request that

Alston v. DIRECTV, Inc., 2017 WL 2311588, at *3 (D. South Carolina May 26, 2017).
Simmons v. T-Mobile USA, Inc., 2007 WL 210008, at *8 (S.D. Tex. Jan. 24, 2007).
17 Doc. 31-1, pg. 1-6; Simmons, 2007 WL 210008, at *9 (“…a named plaintiff may submit
some form of evidence that the additional aggrieved persons exist and want to join suit.”).
15
16

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this Court order Defendants to provide a computer-readable data file that
includes the full names, current or last known addresses, e-mail addresses,
and phone numbers for current and former employees fitting the description of
the conditionally certified class. The defense has not opposed this request, and
the production of addresses and e-mail addresses is common practice, so the
Defendants are ordered to produce them.18 While less common in practice,
multiple courts in this District have ordered the production of telephone
numbers in similar cases.19 For members of the opt-in class for whom no
address is provided by the Defendants or whose court-approved notice is
returned to plaintiffs’ counsel as undeliverable, the Plaintiffs request to send
an agreed upon text message to each person’s last-known telephone number.
Courts have approved of the use of text messages because it facilitates notice
to class members who may have changed addresses before the opt-in period.20
Thus, this court approves the request for telephone numbers for notice
purposes.
Plaintiffs also request that the approved contact information be
delivered to them within fourteen days. They contend that to allow a longer
time period for the defense to provide the contact information could preclude
potential putative class members from joining in on the litigation. Plaintiffs
also claim that a longer time period lessens the amount available as
compensation based on the continually running statute of limitations. Unlike
Rule 23 class action suits, where the statute of limitations tolls for class
members at the time of the filing of the complaint, FLSA class actions do not
White v. Integrated Tech., Inc., 2013 WL 2903070 at *9 (E.D. La. June 13, 2013).
Jones v. Yale Enf't Servs., Inc., 2015 WL 3936135, at *3 (E.D. La. June 26, 2015); Case v.
Danos and Curole Marine Contractors, L.L.C., 2015 WL 1978653, at *8; White, 2013 WL
2903070 at *11.
20 Mahrous v. LKM Enterprises, L.L.C., 2017 WL 2730886 at *4 (E.D. La. June 26, 2017).
18
19

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toll a member’s statute of limitations until he or she individually opts into the
litigation.21 Courts in the Fifth Circuit have approved of a fourteen-day time
period, and Defendants have not opposed the time period set out by the
Plaintiffs.22 Thus, the Defendants are ordered to provide the approved contact
information to Plaintiffs’ counsel within fourteen days
III.

Judicial Notice
Plaintiffs have submitted proposed notice and consent forms to which

Defendants have not objected. The notice is based on the model Class Action
Notice available on the Federal Judicial Center website.23 The courts have
discretion to determine whether the notice gives accurate and timely notice
concerning the pendency of the collective action, so that the class members can
make informed decisions about whether to participate.24

The Court has

reviewed the proposed notice and finds that it adequately apprises potential
plaintiffs of their rights; accordingly, the same is approved.
IV.

Length of Opt-in Period
Plaintiffs request a 90-day time period after distribution of the notices

for interested Putative Class Members to file their consents with the Court.
The Defendants have not opposed this time period. Courts have allowed a 90day opt-in period in similar situations involving transient Spanish-speaking

Hoffman v. Sbarro, Inc., 982 F. Supp. 249, 260 (S.D.N.Y.1997).
Senegal v. Fairfield Industries, Inc., 2017 WL 1134153 at *9 (S.D. Tex. March 27, 2017).
23 http://www.fjc.gov/.
24 Hoffman-La Roche Inc., 493 U.S. at 170; Whitehorn v. Wolfgsng’s Steakhouse, Inc., 767
F.Supp.2d 445, 450 (S.D.N.Y. 2011).
21
22

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class members.25 Additionally, courts have previously held that a 90-day optin period is not prejudicial to the defense.26 The Court, therefore, approves an
opt-in period of 90 days.
CONCLUSION
For the forgoing reasons, Plaintiffs’ Motion is GRANTED.
IT IS ORDERED that Plaintiffs’ Complaint is conditionally certified to
proceed as a collective action, defining the following class:
All individuals who were employed by Ramelli Group, L.L.C.,
Ramelli Janitorial, Inc., Robert C. Ramelli, K.C. Staffing L.L.C.
and/or K.C. Staffing Solutions, L.L.C. as landscape laborers paid
by the hour during any workweek from October 26, 2013 through
the time notice of this action is provided.
IT IS FURTHER ORDERED that Defendants shall provide Plaintiffs
in a computer-readable data file with the names, current or last known
addresses, e-mail addresses, and telephone numbers of potential collective
action plaintiffs within fourteen days of the filing of this Order.
New Orleans, Louisiana this 17th day of July, 2017.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

Lopez v. Hal Collums Construction, L.L.C., 2015 WL 7302243, at *2, 7 (E.D. La. Nov. 18,
2015).
26 Lima v. Int’l Catastrophe Solutions, INC., 493 F.Supp.2d 793 at 804 (E.D. La. June 27,
2007).
25

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