Smith v. Servicemaster Holding Corp. et al

Filing 100

RULING denying 45 Motion to Compel Discovery without prejudice to the pltf re-urging it or filing another motion after the court decides the motion for conditional certification of a collective action. Signed by Magistrate Judge Stephen C. Riedlinger on 9/30/2011. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JOHN SMITH, ON BEHALF OF
HIMSELF AND A CLASS OF THOSE
SIMILARLY SITUATED

CIVIL ACTION
NUMBER 10-444-BAJ-SCR

VERSUS
SERVICEMASTER HOLDING CORP.,
ET AL
RULING ON MOTION TO COMPEL DISCOVERY
Before the court is Plaintiff’s Motion to Compel filed by
plaintiff John Smith.

Record document number 45.

The motion is

opposed.1
Plaintiff brought this representative action for violations of
the

Fair

Labor

Standards

Act

(“FLSA”)

against

defendants

ServiceMaster Holding Corp., ServiceMaster Company, Inc., Terminix
International Company, L.P., and Terminex International, Inc.
Plaintiff alleged that he worked as a termite technician in the
defendants’ Baton Rouge, Louisiana branch from approximately May
2007 to December 2007.

He claimed on behalf of himself, and for

all other persons employed by the defendants as a pest or termite
technicians throughout the United States at any time within the
nationwide FLSA period, that the defendants violated the FLSA by
engaging in a common policy and practice of not compensating the

1

Record document number 54. Plaintiff also filed a reply
memorandum. Record document number 59.

technicians for all the hours they worked and refusing to pay them
overtime wages.
Plaintiff filed this collective action for violations of the
FLSA under 29 U.S.C. § 216(b) in the Western District of Tennessee
on July 14, 2009.

On April 8, 2010 William Craig, a pest control

technician, filed a notice of consent to join in the collective
action.2

This case proceeded in the Tennessee district court for

approximately one year.
entered,3

discovery

During this time a scheduling order was

commenced

focusing

on

collective

action

certification issues, a stipulated protective order was issued,4
and this motion was filed by the plaintiff.
Defendants then filed a Motion to Change Venue and Transfer
the Action to the Middle District of Louisiana and a Motion to Stay
consideration of the plaintiff’s Motion to Compel.5

Both motions

were granted and the case was transferred to this court.6

At the

time of the transfer this motion was still pending.
After

2

a

careful

review

of

the

record

in

light

of

the

Record document number 44.

3

Record document number 31. This scheduling order was later
modified. Record document number 52.
4

Record document number 39.

5

Record document numbers 60 and 62.

6

Record document numbers 66, 79, and 81.
2

applicable law in the Fifth Circuit,7 the proper course at this
time is to deny the pending motion without prejudice to the
plaintiff re-urging it or filing another motion later.
Plaintiff’s collective action is governed by § 216(b), which
provides in part as follows:
An action to recover the liability prescribed in either
of the preceding sentences 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 in behalf of himself or themselves and
other employees similarly situated. No 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.
The Fifth Circuit has not established a standard for FLSA
collective action certification, declining to choose between the
two methods it set forth in Mooney v. Aramco Services8 - the twostep Lusardi v. Xerox Corp.9 method and the spurious class action
method of Sushan v. University of Colorado.10

Since Mooney the

prevailing method used by district courts in the Fifth Circuit has

7

Since this case was filed in the Tennessee district court,
the parties cited and relied on Sixth Circuit decisions in their
memoranda.
8

54 F.3d 1207 (5th Cir. 1995).

9

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

10

132 F.R.D. 263 (D.Colo. 1990); Roussell v. Brinker
International Incorporated, 2011 WL 4067171 (5th Cir. Sept. 14,
2011).
3

been

the

Lusardi

two-step

method.11

The

Lusardi

method

is

consistent with the Fifth Circuit’s statements that there is a
fundamental, irreconcilable difference between the class action
described by Rule 23, Fed.R.Civ.P., and the collective action
provided by the FLSA.

The Fifth Circuit, in comparing § 216(b) of

the FLSA to Rule 23(c), has stated that Rule 23 provides for “opt
out” class actions, and the FLSA provision allows as class members
only

those

who

“opt

in.”

These

two

types

of

actions

are

fundamentally different, mutually exclusive and irreconcilable.
Sandoz v. Cingular Wireless LLC., 553 F.3d 913, 916 (5th Cir.
2008), citing, LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286,
288-89 (5th Cir. 1975).12
Plaintiffs in an FLSA collective action have the burden of
establishing

that

they

are

similarly

situated

to

the

other

employees. England, 370 F.Supp.2d at 507. Section 216(b) requires
that the employees be similarly, not identically, situated.

An

FLSA collective action is appropriate when there is a demonstrated
similarity among the individual situations, that is, some factual
nexus which binds the named plaintiff and the other employees

11

Lang v. DirecTV, Inc., 735 F.Supp.2d 421, 434-35 (E.D. La.
2010); Johnson v. Big Lots Stores, Inc., 561 F.Supp.2d 567, 569
(E.D.La. 2008); England v. New Century Financial Corp., 370
F.Supp.2d 504, 509 (M.D. La. 2005).
12

See also, West v. Lowes Home Centers, Inc., 2010 WL 5582941(
W.D.La. Dec. 16, 2010), report and recommendation adopted by, 2011
WL 126908 (W.D.La. Jan. 14, 2011).
4

together as victims of a particular alleged policy or practice.
Id., at 508.
Under

Lusardi

the

trial

court

approaches

the

“similarly

situated” collective action requirement using a two-stage analysis:
(1) the notice stage, and (2) the merits stage.

In the notice

stage the court determines whether the plaintiffs are similarly
situated in order to give notice of the action to potential members
of the collective action.

This initial determination is usually

based only on the pleadings and any affidavits which have been
submitted.

Because typically little if any discovery has taken

place, this determination is usually made using a fairly lenient
standard and usually results in conditional certification of a
collective action.13

If the district court conditionally certifies

a collective action the potential members are given notice and the
opportunity to opt-in.

The case then proceeds as a collective

action throughout discovery. Mooney, 54 F.3d at 1213-14; Clarke v.
Convergys Customer Mgt. Group, 370 F.Supp.2d 601, 605-06 (S.D.Tex.
2005); England, supra.
After the opt-in period ends the second stage takes place.
Generally, the second-stage determination is precipitated by a

13

At the notice stage the courts appear to require nothing
more than substantial allegations that the employees were victims
of a single decision, policy or plan. While the standard at the
notice stage is not particularly stringent, it is not automatic.
Mooney, 54 F.3d at 1214, n. 8; Xavier v. Belfor USA Group, Inc.,
585 F.Sup.2d 873, 878 (E.D.La. 2008).
5

motion for decertification by the defendant, usually filed after
discovery is largely complete and the case is ready for trial.

At

this stage the court has much more information on which to base its
decision and makes a factual determination as to whether there are
similarly-situated employees who have opted in.
F.3d at 915, n. 2.

Id.; Sandoz, 553

Several factors are considered at this stage:

(1) the disparate factual and employment settings of the individual
plaintiffs; (2) the various defenses available to the defendant
which appear to be individual to each plaintiff; and, (3) fairness
and

procedural

improper.

considerations

that

England, 370 F.Supp.2d at

would

make

certification

509-10; West, supra, citing,

Mooney, 54 F.3d at 1213, n. 7.
If the court makes a factual finding that the plaintiff and
the opt-in plaintiffs are similarly-situated employees the court
allows the collective action to proceed to trial.
at 1214;

Sandoz,

Mooney, 54 F.3d

supra; Kaluom v. Stolt Offshore, Inc., 474

F.Supp.2d 866, 871 (S.D.Tex. 2007).14

If the court finds they are

not, the court decertifies the collective action, the opt-in
employees are dismissed without prejudice, and the original named
plaintiffs proceed to trial on their individual claims.

Id.

In light of the above legal principles this case should
proceed

in

accordance

with

the

14

Lusardi

two-step

method

for

See also, Gandhi v. Dell, Inc. 2009 WL 1940144 (W.D.Tex.,
July 2, 2009), report and recommendation adopted August 4, 2009.
6

determining whether a collective action under § 216(b) is proper.
It is apparent from the record that although the initial scheduling
order

entered

in

the

Tennessee

court

allowed

some

time

for

discovery focusing on collective action issues, the case was still
at the initial or notice stage.

Under Lusardi the court must

decide “whether to provide notice to fellow employees who may be
similarly situated to the named plaintiff, thereby conditionally
certifying

a

collective

action.”15

At

the

notice

stage

the

conditional certification decision is usually based only on the
pleadings and any affidavits.

Thus, under the more lenient

standard which governs at the first stage of the Lusardi analysis,
the present record and any discovery or other information that has
been obtained thus far is adequate for the court to make the
conditional certification determination, i.e. whether the named
plaintiffs and other employees are similarly situated in order to
give them notice of the action and the opportunity to opt in.
Therefore, it is unnecessary to resolve the merits of the
plaintiff’s motion at this time.

The next step in this litigation

is filing a motion for conditional certification of a collective
action, based on the pleadings, any affidavits, any discovery
obtained by the parties since the case was filed, and any other
available information relevant to the certification issue.
Accordingly, the Plaintiff’s Motion to Compel is denied,

15

Sandoz, 553 F.3d at n. 2.
7

without prejudice to the plaintiff re-urging it or filing another
motion

after

the

court

decides

the

motion

for

conditional

certification of a collective action.
Baton Rouge, Louisiana, September 30, 2011.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

8