Dean v. Akal Security Inc
MEMORANDUM ORDER denying 119 Motion to Amend. Signed by Magistrate Judge Joseph H L Perez-Montes on 2/9/2018. (crt,Tice, Y)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
CIVIL ACTION NO. 1:17-CV-00543
AKAL SECURITY, INC.,
MAGISTRATE JUDGE PEREZ-MONTES
Before the Court is a Motion to Amend the Collective Action Notice Procedure
Due to Change in Facts (“Motion to Amend”) (Doc. 119) filed by Plaintiff Hayward
Dean (“Dean”). Defendant Akal Security, Inc. (“Akal”) opposes. (Doc. 121). Because
there is no evidence that the current notice procedure ordered by this Court is
insufficient, Dean’s Motion to Amend (Doc. 119) is denied.
Dean filed this action under 29 U.S.C. § 216(b) on behalf of himself and other
similarly situated current and former employees against Akal for alleged violations
of the Fair Labor Standards Act (“FLSA”). Dean is an Air Security Officer (“ASO”)
responsible for the supervision of deportees during flights back to their home country.
(Doc. 46). After depositing deportees in their home country, Dean alleges he would
return with the rest of the flight crew to the United States. (Doc. 46). Dean alleges
Akal failed to pay him and a class of similarly situated employees minimum wages
for “lunch breaks” employees were forced to work through. (Doc. 46).
Dean further alleges some of these wages – in the event that the hour “lunch
break” worked through would have caused the employee to work over forty (40) hours
per week – are overtime wages remaining unpaid. (Doc. 46). Dean also alleges Akal
ignored the evidence of hours actually worked by ASOs, and uniformly deducted ASO
pay by one hour on every return flight to the United States. (Doc. 46).
This Court granted in part and denied in part Dean’s Motion for Collective
Action Certification under the FLSA (the “Order”).
conditionally certified the class and authorized Dean to send notice and consent
forms, via mail or email, to potential opt-ins. 1 (Doc. 116). The Court also authorized
Dean to post notice to prospective class members at Akal’s Alexandria, Louisiana and
San Antonio, Texas locations in the same areas they are required to post FLSA
notices until the opt-in period closes for every potential opt-in employee. (Doc. 116).
The Court ordered the parties to confer and submit a joint proposed notice for
approval in accordance with the Order. (Doc. 116). On November 30, 2017, the
parties filed a Notice of Joint Submission of Proposed Notice of Action and Form
Consent to Joint Lawsuit (the “Notice”). 2 (Doc. 118). Now, Dean seeks to amend the
Order due to a change in facts. (Doc. 119).
The potential opt-ins include current and former Akal employees who worked as ASOs at the
Alexandria, Louisiana or San Antonio, Texas locations. (Doc. 116).
On January 26, 2018, at a 90-day telephone conference, the parties advised the Court they wanted a
ruling on the Notice, and an extension of discovery deadlines. (Doc. 124). The parties’ Notice was not
filed in a manner that allowed for Court approval. The Court informed the parties to confer and
properly file an amended Notice to include a proposed order. (Doc. 124).
Law and Analysis
To participate in a collective action, each employee must give his consent in
writing by notifying the court of his intent to opt in. See 29 U.S.C. § 216(b). 3 District
courts are provided with discretionary power to implement the collective action
procedure through the sending of notice to potential plaintiffs. See Rodriguez v.
Alsalam, Inc., 2017 WL 699820 at *2 (E.D. La. 2017) (citing Lima v. Int'l Catastrophe
Sols., Inc., 493 F. Supp. 2d 793, 797 (E.D. La. 2007)). The notice must be “timely,
accurate and informative.” See id.; Hoffmann–La Roche Inc. v. Sperling, 493 U.S.
165, 169–170 (1989).
In an FLSA action, “the notice must be the best practicable, reasonably
calculated, under all the circumstances, to apprise interested parties of the pendency
of the action and afford them an opportunity to present their objections. The notice
should describe the action and the plaintiffs' rights in it.” Richardson v. Wells Fargo
Bank, N.A., 839 F.3d 442, 455 (5th Cir. 2016).
The Supreme Court has remarked that the benefits of the collective action
“depend on employees receiving accurate and timely notice concerning the pendency
of the collective action, so that they can make informed decisions about whether to
participate.” Hoffmann-La Roche Inc., 493 U.S. at 170. The district courts enjoy a
“managerial responsibility to oversee the joinder of additional parties to assure that
the task is accomplished in an efficient and proper way.” Id. Thus, the district courts
Section 16(b) of the FLSA, 52 Stat. 1060, as amended, 29 U.S.C. § 216(b), provides that “[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.”
have a substantial interest in overseeing communications that are transmitted in
single actions involving multiple parties. Id.
Both parties affirm that as of December 1, 2017, Akal lost its contract with the
Department of Homeland Security, and is no longer the provider (or employer) of
ASOs at the Alexandria, Louisiana and San Antonio, Texas locations at issue in this
case. (Docs. 119, 121). Since Akal no longer controls the premises, Dean now seeks
to amend the Order to authorize notice via email and mail as an alternative to posting
at the jobsite. (Doc. 119). Akal opposes Dean’s motion arguing that Akal was not
ordered to post notice, but rather, Dean was authorized to do so. (Doc. 121). Akal
also asserts that sending notice via both mail and email is redundant and encourages
potential class members to join the litigation. (Doc. 121). Akal also argues Dean has
not produced evidence to indicate notice via mail or email is insufficient. (Doc. 121).
As it stands, the Order authorizes, upon approval of Notice and consent forms,
Dean to mail or email the Notice and consent forms to potential class members. (Doc.
Dean is also authorized by this Court to post Notice to prospective class
members at Akal’s Alexandria, Louisiana and San Antonio, Texas locations. (Doc.
116). While the record is clear that Akal no longer has the contract for ASOs for these
locations (Doc. 119, 121), Dean may still mail or email the approved Notice and
consent forms to potential class members. Seeing no evidence to indicate otherwise,
the Court finds the option of either method sufficient to apprise potential class
members of this action and the potential to opt-in. See Richardson, 839 F.3d at 455;
Hoffmann-La Roche Inc., 493 U.S. at 170.
IT IS ORDERED that Dean’s Motion to Amend (Doc. 119) is DENIED.
THUS DONE AND SIGNED in chambers in Alexandria, Louisiana, this
_______ day of February, 2018.
Joseph H.L. Perez-Montes
United States Magistrate Judge
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