Hernandez v. Morning Call Coffee Stand, Inc.

Filing 9

ORDER AND REASONS: IT IS ORDERED that Plaintiff's 7 Motion to conditionally certify a class is GRANTED. IT IS FURTHER ORDERED that Plaintiff's proposed notice, R. Docs. 7-6, 7-7, is APPROVED. IT IS FURTHER ORDERED that Defendant Morning Call shall provide the names and last known addresses of potential class members. Signed by Judge Eldon E. Fallon on 10/6/2017. (cc: Morning Call Coffee Stand, Inc.)(jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

HERNANDEZ

CIVIL ACTION

VERSUS

NO. 17-2613

MORNING CALL COFFEE STAND, INC.

SECTION "L" (1)

ORDER & REASONS
Before the Court is Plaintiffs’ Motion to conditionally certify a Fair Labor Standards Act
(“FLSA”) collective action under 29 U.S.C. § 216(b). R. Doc. 7. Defendant has not responded.
After considering the parties’ briefs and the applicable law, the Court issues this Order &
Reasons.
I.

BACKGROUND

Plaintiff Antonia Hernandez (“Hernandez”) has filed this lawsuit as a putative class
action on behalf of herself and other similarly situated parties to recover unpaid overtime wages.
R. Doc. 1 at 1. Plaintiff claims that, while she was employed as a kitchen helper at Defendant
Morning Call Coffee Stand, Inc. (“Morning Call”), she was not paid one-and-a-half times her
hourly wage for hours worked in excess of forty (40) hours per week. R. Doc. 1 at 1. Plaintiff
claims that all overtime hours were paid in cash. R. Doc. 1 at 4. Plaintiff files this lawsuit under
the Fair Labor Standards Act (“FLSA”) and claims unpaid wages, interest, liquidated damages,
and attorney’s fees and costs. R. Doc. 1 at 1-2. Plaintiff also requests declaratory and injunctive
relief. R. Doc. 1 at 2.
On June 15, 2017, the Court entered the default of Defendant Morning Call because
Defendant has failed to appear, plead, or otherwise defend. R. Doc. 6.

II.

PRESENT MOTION

Plaintiff now seeks to maintain their case as a collective class action under 29 U.S.C. §
216(b) because they believe Defendant’s unemployment practices were uniform throughout its
business. Plaintiff also seeks approval of their proposed notice, and requests that the Court order
Defendant to disclose information regarding potential class members.
Plaintiff alleges that she, and at least twenty (20) coworkers, frequently worked for
Defendant more than forty (40) hours per week and were not paid overtime wages for overtime
work performed for Defendant. R. Doc. 7 at 6, 15. Plaintiff claims that Defendant’s unlawful pay
practices were commonly applied throughout the Defendant’s business and therefore, the
putative class members are similarly situated such that conditional certification is appropriate. R.
Doc. 7 at 6.
Plaintiff argues that conditional certification is urgent in this case because the statute of
limitations on individual workers’ claims are not automatically tolled until the worker filed a
consent-to-sue form with the Court. R. Doc. 7 at 21. Therefore, as time passes, workers lose
some of their ability to claim unpaid wages for time outside the limitations period. R. Doc. 7 at
21. Additionally, Plaintiff argues their burden is very low, and their allegations that Morning
Call applied the same policy or practice to all kitchen helper employees is sufficient to satisfy the
“fairly lenient standard” for conditional class certification. R. Doc. 7 at 16. Plaintiff contends
they have met that standard because they assert the same practices applied to all of Defendant’s
employees and have submitted Plaintiff’s paycheck stubs which demonstrate the putative class
members are similarly situated such that this Court should grant conditional certification. R. Doc.
7 at 16.
Finally, Plaintiff requests Court approval of their proposed notice, and argue it is
appropriate because the notice is “timely, accurate, and informative” as required by law. R. Doc.
7 at 23 (citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 172 (1989)). Plaintiff also

requests that this Court order Defendant Morning Call to produce the names and last known
addresses of all individuals who were employed at Morning Call and may be potential class
members, so that Plaintiffs may contact them to provide notice of this collective action. R. Doc.
7 at 23-24.
Defendant has not responded to Plaintiff’s motion.
III.

LAW AND ANALYSIS

The FLSA provides workers the right to sue collectively on behalf of themselves and
others “similarly situated” for violations of the Act's minimum wage provisions and overtime
protections. 29 U.S.C. § 216(b). “Unlike class actions governed by Rule 23 of the Federal Rules
of Civil Procedure, in which potential class members may choose to opt out of the action, FLSA
collective actions require potential class members to notify the court of their desire to opt-in to
the action.” Anderson v. Cagle’s Inc., 488 F.3d 945, 950 n.3 (11th Cir. 2007) (citing 29 U.S.C. §
216(b)). District courts have discretion to implement the collective action procedure by sending
notice to potential plaintiffs. Lentz v. Spanky’s Restaurant II, Inc., 491 F. Supp. 2d 663, 667–68
(5th Cir. 2007). Notice must be “timely, accurate and informative.” Hoffmann–La Roche, Inc. v.
Sperling, 493 U.S. 165, 169 (1989).
The Fifth Circuit has not yet established a legal standard for collective-action
certification, but has affirmed two different approaches. Portillo v. Permanent Workers, L.L.C.,
No. 15-30789, 2016 WL 6436839, at *2 (5th Cir. Oct. 31, 2016); Roussell v. Brinker Int'l, Inc.,
441 F. App’x 222, 226 (5th Cir. 2011); Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th
Cir. 1995), overruled on other grounds, Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). One
method for certifying collective-action claims involves a two-step “similarly situated” test, while
the other is more akin to the standard for Rule 23 class actions. Roussell, 441 F. App’x at 226. In
the present case, this Court finds it appropriate to apply Mooney's two-stage approach. Mooney,
54 F.3d at 1216.

Under this two-step process, the first determination is made at the so-called “notice
stage.” At the notice stage, the district court makes a decision whether notice should be given to
potential class members based on the pleadings, affidavits, and any other evidence which has
been submitted. Id. at 1213. Because the court has minimal evidence at this point, and plaintiffs
seeking conditional certification are not required to identify other potential collective action
members, this determination is made using a fairly lenient standard, and typically results in
“conditional certification” of a representative class. Id. at 1214. If the district court
“conditionally certifies” the class, putative class members are given notice and the opportunity to
“opt-in.” Id.
The second determination typically occurs after the defendant files a motion for
“decertification” after discovery is largely complete. Id. At this stage, the court has substantially
more evidence it can use in deciding whether the collective action members are similarly
situated. Id. If the claimants are similarly situated, the district court allows the representative
action to proceed to trial. Id. If the claimants are not similarly situated, the district court
decertifies the class, and the opt-in plaintiffs are dismissed without prejudice. Id. The original
plaintiffs can then proceed to trial on their individual claims. Id.
Because this case is presently at the “notice stage,” the Court must make a decision
whether conditional certification should be granted and whether notice of the action and right to
opt-in should be given to potential class members. At this point, plaintiff bears the burden of
making a preliminary factual showing that at least a few similarly situated individuals exist and
their rights were violated in similar ways. Nunez v. Orleans Shoring, LLC, No. 16-3005, 2016
WL 3746168, at *4 (E.D. La. July 13, 2016). “Although the standard for satisfying the first step
is lenient ... the court still requires at least substantial allegations that the putative class members
were together the victims of a single decision, policy, or plan infected by discrimination.” Smith
v. Offshore Specialty Fabricators Inc., No. 09-2985, 2009 WL 2046159, at *3 (E.D. La. July 13,

2009) (quoting H & R Block, Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D. Tex., 1999)) (internal
quotations and citations omitted). To determine whether plaintiffs have submitted substantial
allegations of a single plan, courts consider “whether potential plaintiffs were identified ...
whether affidavits of potential plaintiffs were submitted ... and whether evidence of a widespread
discriminatory plan was submitted.” Smith v. Offshore Specialty Fabricators Inc., No. 09-2985,
2009 WL 2046159, at *3 (E.D. La. July 13, 2009); see also Banegas, No. 15-593, 2015 WL
4730734, at *4 (E.D. La. Aug. 10, 2015) (“The plaintiff may satisfy this burden by submitting
evidence in the form of pleadings, affidavits and other supporting documentation.”).
Here, Plaintiff alleges that other similarly situated individuals exist and has supported this
allegation with Plaintiff’s written declaration and First Requests for Admission, R. Doc. 7-4.
Because Defendant has not timely responded to Plaintiff’s request for admissions, the admissions
are now deemed admitted pursuant to Federal Rule of Civil Procedure 36. Therefore, Defendant
has admitted that it “employed at least twenty other workers and/or kitchen helpers over the last
three years” and that “Defendant has a company-wide policy of not paying its employees oneand-half times their hourly rate for all hours worked in excess of forty in a workweek.” R. Doc.
7-4 at 3. Therefore, Plaintiff has satisfied their burden of demonstrating they are similarly
situated to the purported class.
Furthermore, in the interests of effectiveness of the class remedy and judicial economy,
the Court will exercise its discretionary authority to facilitate notice to potential opt-in plaintiffs.
See Hoffmann–La Roche, 493 U.S. 165. Because the Court finds that Plaintiff’s proposed notice
is “timely, accurate, and informative,” the Court approves Plaintiff’s proposed notice, both
English and Spanish versions. R. Docs. 7-6, 7-7; see Hoffmann–La Roche, 493 U.S. at 169. The
Court also approves an opt-in period of ninety (90) days. Finally, in order to facilitate sending
the notice and consent forms, and in an effort to bring Defendant Morning Call into the present
lawsuit, the Court orders the Defendant to provide the names and last known addresses of

potential class members.
IV. CONCLUSION
For the foregoing reasons,
IT IS ORDERED that Plaintiff’s Motion to conditionally certify a class, R. Doc. 7, is
GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s proposed notice, R. Docs. 7-6, 7-7, is
APPROVED.
IT IS FURTHER ORDERED that Defendant Morning Call shall provide the names and last
known addresses of potential class members.
New Orleans, Louisiana, this 6th day of October, 2017.

UNITED STATES DISTRICT JUDGE

CC: Morning Call Coffee Stand, Inc.
c/o Robert Hennessey
2925 Desert Court
Mandeville, LA 70448