Hill v. Johnnys Pizza House Inc

Filing 26

ORDER denying 17 Motion to Strike class allegations. IT IS FURTHER ORDERED that plaintiff file a motion for conditional certification of a collective action within the next 30 days. Signed by Magistrate Judge Karen L Hayes on 9/18/15. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
DONALD HILL, individually and on
behalf of similarly situated persons

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CIVIL ACTION NO. 15-1062

VERSUS

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JUDGE ROBERT G. JAMES

JOHNNY’S PIZZA HOUSE, INC.

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MAG. JUDGE KAREN L. HAYES

MEMORANDUM ORDER
Before the undersigned Magistrate Judge, on reference from the District Court, is a
motion to strike class allegations [doc. # 17] filed by defendant Johnny’s Pizza House, Inc. The
motion is opposed. For reasons assigned below, the motion is DENIED.1
Background
On April 6, 2015, Donald Hill filed the instant collective action under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq., against his former employer, Johnny’s Pizza
House, Inc. (“JPH”). Hill contends that JPH failed to reimburse delivery drivers for the
reasonably approximate costs of the business use of their vehicles which caused the drivers’
wages to fall below the FLSA minimum wage during some or all workweeks. Hill seeks to bring
this collective action on behalf of himself and similarly situated JPH pizza delivery drivers to

1

As this is not one of the motions excepted in 28 U.S.C. § 636(b)(1)(A), nor dispositive
of any claim on the merits within the meaning of Rule 72 of the Federal Rules of Civil
Procedure, this ruling is issued under the authority thereof, and in accordance with the standing
order of this court. Any appeal must be made to the district judge in accordance with Rule 72(a)
and L.R. 74.1(W).

recover the unpaid minimum wages owed by defendant.2
On August 27, 2015, JPH filed the instant motion to strike plaintiff’s “class” allegations
because he failed to move for class certification within 90 days after filing his complaint as
required by Local Rule 23.1. On September 4, 2015, plaintiff filed his opposition. JPH filed its
reply on September 14. Thus, the matter is ripe.
Analysis
JPH contends that the court should strike plaintiff’s “class” allegations because he failed
to comply with Local Rule 23.1's requirement that a class action plaintiff move for certification
of the class pursuant to Rule 23(c)(1) of the Federal Rules of Civil Procedure within 90 days after
suit is filed.3 Plaintiff stresses, in response, that Local Rule 23.1 is inapplicable because he is not

2

The instant suit appears to be one of many FLSA actions brought by pizza delivery
drivers against their employers. See e.g., Stubrud v. Daland Corp., Civ. Action No. 14-2252 (D.
Kan.).
3

Local Rule 23.1 provides that,
In any case sought to be maintained as a class action:
A. The complaint shall bear next to its caption the designation, "Complaint- Class
Action";
1.
Refer to the portions of FRCvP 23 under which it is claimed that
the suit is properly maintainable as a class action;
2.
Make allegations thought to justify the maintenance of the claim as
a class action, including, but not necessarily limited to:
a.
the size (or approximate size) and definition of the alleged class,
b.
the basis upon which the plaintiff (or plaintiffs) claims,
(i)
to be an adequate representativeof the class, or
(ii)
if the class is comprised ofdefendants, that those named as parties
are adequate representatives of the class,
3.
The alleged questions of law or fact claimed to be common to the
class; and
4.
In actions claimed to be maintainable as class actions under FRCvP
23(b)(3), allegations thought to support the findings required by
that subdivision.
2

seeking class certification under Rule 23; rather, he is seeking to prosecute a collective action
under the FLSA.4 The court agrees.
The Fifth Circuit has remarked that inasmuch as Rule 23(c) provides for “opt out” class
actions, whereas FLSA § 16(b) requires class members to “opt in,” the “two types of class
actions are mutually exclusive and irreconcilable.” LaChapelle v. Owens-Illinois, Inc., 513 F.2d
286, 289 (5th Cir.1975) (emphasis added). Similarly, Ҥ 16(b) precludes pure Rule 23 class
actions in FLSA suits.” Id. Moreover, Rule 23 is not needed in FLSA suits because the latter,
“in effect, constitutes a congressionally developed alternative to the F.R.Civ.P. 23 procedures.”
Donovan v. Univ. of Texas at El Paso, 643 F.2d 1201, 1206 (5th Cir. 1981) (citations omitted);
see also C. Wright & A. Miller 7A Fed. Practice and Procedure § 1754 (3d ed.) (representative
suits under the FLSA preempt Rule 23 and its requirements).
In Baldridge v. SBC Communications, Inc., the Fifth Circuit declined to apply Rule 23(f)
to support an interlocutory appeal in an FLSA § 216(b) collective action case because, as the
court appreciated it, the matter did not present a Rule 23 class action. Baldridge v. SBC
Commc'ns, Inc., 404 F.3d 930, 932 (5th Cir.2005). Finally, district courts in this circuit have
declined to apply local rule deadlines for seeking Rule 23 class certification to FLSA actions.
Rousseau v. Frederick's Bistro, LTD, Civ. Action No. 09-651, 2010 WL 1425599, at *2 (W.D.

B. Within 90 days after the filing of a complaint in a class action, unless this
period is extended on motion for good cause appearing, the plaintiff shall move
for a certification under FRCvP 23(c)(1), as to whether the case is to be
maintained as a class action.
LR. 23.1(A-B) (emphasis added).
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Indeed, aside from a single reference to “potential class members” in the complaint, the
court does not discern any “class” allegations (as opposed to “collective” action allegations) that
could be stricken.
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Tex. Apr. 7, 2010); Cone v. Dekra Emission Check, Inc., Civ. Action No. 04-1191, 2004 WL
2186550, at *3 (N.D. Tex. Sept. 23, 2004); see also Whitworth v. Chiles Offshore Corp., Civ.
Action No. 92-1504, 1992 WL 235907, at *1 (E.D. La. Sept. 2, 1992) (holding that Uniform
District Rule 1.12, the antecedent of Local Rule 23.1, did not apply to a collective action under
the FLSA).5
In any event, given the considerable authority above, as well as defendant’s recognition
that this matter appears to be an issue of first impression for the court, the undersigned finds
good cause to extend the 90 day period for plaintiff to seek class certification. See Cone, supra;
and Walker v. City of Bogalusa, Civ. Action No. 96-3470, 1997 WL 370139, at *1 (E.D. La. June
25, 1997). In addition, JPH has not demonstrated any material prejudice as a result of the delay.
To the contrary, a delay inures to defendant’s benefit because, ordinarily, the statute of
limitations is not tolled until a claimant files written consent with the court. See 29 U.S.C. §
256.6
The sole prejudice identified by JPH in its motion stems not from plaintiff’s delay in
seeking certification, but from the court’s anticipated use of a two-step certification process. As
aptly noted by defendant, the Fifth Circuit has declined to establish a legal standard for
collective-action certification. Roussell v. Brinker Int'l, Inc., 441 F. App'x 222, 224-25 (5th Cir.

5

To the extent that it is not otherwise distinguishable, the undersigned declines to follow
the outlier decision, Osborne v. Prudential Ins. Co. of Am., Civ. Action No. 10-2465, 2010 WL
4103680, at *2 (C.D. Cal. Oct. 14, 2010).
6

The court notes that another claimant, David Summers, recently filed a notice of
consent to join in this action. [doc. # 22]. Thus, even if the 90 day deadline to seek class
certification applied to FLSA collective actions, plaintiff’s counsel could circumvent the rule by
severing Summers’ claim and seeking certification in his then separate suit.
4

2011) (citation omitted). Thus, it has devolved upon the district courts to choose between two
prevailing standards, “one involving a multi-factor ‘similarly situated’ test, and the other akin to
the standard for Rule 23 class actions.” Id. (citation omitted). The district courts usually follow
the “similarly situated” test which is typified by, and named after Lusardi v. Xerox Corp., 118
F.R.D. 351 (D. N.J. 1987); Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir.1995),
overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148 (2003).
The court intends to follow the Lusardi framework in the present case.
The Fifth Circuit explained the Lusardi similarly situated test, as follows,
[u]nder Lusardi, the trial court approaches the “similarly situated” inquiry via a
two-step analysis. The first determination is made at the so-called “notice stage.”
At the notice stage, the district court makes a decision- usually based only on the
pleadings and any affidavits which have been submitted-whether notice of the
action should be given to potential class members.
Because the court has minimal evidence, this determination is made using a fairly
lenient standard, and typically results in “conditional certification” of a
representative class. If the district court “conditionally certifies” the class, putative
class members are given notice and the opportunity to “opt-in.” The action
proceeds as a representative action throughout discovery.
Mooney, supra.
At the initial notice stage, the “courts appear to require nothing more than substantial allegations
that the putative class members were together the victims of a single decision, policy, or plan
infected by discrimination.” Id. (citation omitted).
The court ordinarily does not reach the second step of the Lusardi approach until after
discovery is completed, and defendant re-visits the issue via appropriate motion. Id. At the
second stage, the court has more information to make a determination as to whether the claimants
are similarly situated, and whether the matter should be permitted to proceed to trial as a

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representative action. Id. If the claimants are not similarly situated, then the district court will
decertify the class, and either dismiss the opt-in plaintiffs without prejudice or sever them. See
Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516 (5th Cir.2010).
Under the two-step Lusardi certification process, plaintiff should require little discovery
before filing his initial motion for conditional certification. Accordingly, the court will impose a
30 day deadline for plaintiff to file his motion for conditional certification.
Conclusion
For the foregoing reasons, the undersigned finds that defendant’s motion is not welltaken. Accordingly,
IT IS ORDERED that the motion to strike class allegations [doc. # 17] is hereby
DENIED.
IT IS FURTHER ORDERED that plaintiff shall file a motion for conditional
certification of a collective action within the next 30 days from the date of this order.
In Chambers, at Monroe, Louisiana, this 18th day of September 2015.

__________________________________
KAREN L. HAYES
UNITED STATES MAGISTRATE JUDGE

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