Jones et al v. Hoffberger Moving Services, LLC.
Filing
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MEMORANDUM. Signed by Judge James K. Bredar on 11/8/13. (hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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HERBERT JONES, et al.
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Plaintiffs
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v.
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HOFFBERGER MOVING
SERVICES LLC, et al.
CIVIL No. 13-cv-0535-JKB
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Defendants
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MEMORANDUM
This lawsuit was filed on February 19, 2013 by Plaintiffs Herbert Jones and Joseph Jones
against Defendant Hoffberger Moving Services LLC (“HMS”) (1) as a putative collective action
for failing to pay wages due under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. 206, et
seq., and (2) as a putative class action for violations of the Maryland Wage Payment and
Collection Act (“MWPCA”) and the Maryland Wage and Hour Law (“MWHL”). (Compl., ECF
No. 1.) Plaintiffs twice amended the complaint (First Am. Compl., ECF No. 18; Sec. Am.
Compl., ECF No. 47.) In the first amended complaint, Plaintiffs added Rodney McFadden and
Raymond Green as plaintiffs and removed the count alleging violations of the MWCPA. (First
Am. Comp.) In the second amended complaint, Plaintiffs added Margaret A. Hoffberger and
Michael S. Hoffberger (collectively, with HMS, “Defendants”) as defendants and also added
back in a count for alleged violations of the MWPCA. In the second amended complaint,
Plaintiffs also ceased bringing their state law claims as a putative class action. (Sec. Am.
Compl.) Thus, presently before the Court is a three-count complaint, in which Plaintiffs seek to
bring their claims under the FLSA (Count III) as a collective action pursuant to 29 U.S.C.
§ 216(b). (Id.)
On July 23, 2013, this Court allowed this case to proceed as a collective action under
§216(b). (ECF No. 26.) On July 30, 2013, it granted Plaintiffs’ unopposed request to extend the
deadline for sending opt-in notices to putative collective action members until August 8, 2013.
(ECF. No. 29). On August 27, 2013, the Court granted Plaintiffs’ unopposed request to extend
the deadline to either accept or reject Defendants’ offer of judgment until September 11, 2013.
(ECF No. 59.) As of November 6, 2013, thirty-nine plaintiffs—including Plaintiffs Jones, Jones,
McFadden, and Green—have opted-in to the collective action.
Now pending before the Court is Plaintiffs’ motion for extension of time and other relief.
(ECF No. 67.) The issues have been briefed and no hearing is required. Local Rule 105.6. For
the reasons set forth below, the motion will be GRANTED IN PART and DENIED IN PART.
I.
BACKGROUND
Plaintiffs’ motion arises out of a July 17, 2013 communication sent by Defendants to
putative collective action members who, at the time, were current employees of HMS. (ECF No.
67 ¶ 10; ECF No. 77 at 3-4.) On that date Curtis Stanton, an HMS dispatcher responsible for
distributing work assignments to HMS employees, handed out affidavits to HMS employees.1
(ECF No. 81-5 at 46, 77; ECF No. 67-3.) These affidavits were accompanied by a cover letter on
HMS letterhead. In relevant part, this cover letter reads:
Attached hereto is an Affidavit relating to the litigation filed against the Company
in the United States District Court about wages you have been paid or may be
entitled to. You should read this document carefully and sign it only if it is true
and correct.
1
Although Plaintiffs’ reply brief suggests “affidavits were drafted for all current HMS employees, including some
named plaintiffs,” there is no allegation that anyone who was a party to the lawsuit as of July 17 received an
affidavit from Mr. Stanton. (ECF No. 81 at 6.)
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You are NOT under any obligation to sign this affidavit and you may refuse to do
so for any reason. Your employment with the Company WILL NOT be affected
in any way if you choose not to sign. YOU WILL NOT BE TERMINATED IF
YOU DO NOT WANT TO SIGN THE AFFIDAVIT.
You may consult your own lawyer about whether you should sign [sic] this
Affidavit before signing it.
(ECF No. 67-3.) The affidavits themselves read, in relevant part:
4.
I understand that I am not required to use transportation supplied by the
Company to any job site.
5.
On those occasions when I have used Company supplied transportation to
any job site I have not been required to nor did I perform any work on behalf of
the Company during the time I was travelling to the job site.
6.
If I was asked to perform any work for the Company at the Warehouse I
was paid for the time spent performing such tasks.
7.
If I was asked to drive a Company vehicle to or from any job site I was
paid for all such time.
(Id.)
After distributing the affidavits, Mr. Stanton read the affidavits to those employees who
did not know how to read and answered some of the employees’ questions. (ECF No. 81-5 at
49.) Approximately thirty-five (ECF No. 81 at 6) to forty (ECF No. 77 at 4) employees signed
the affidavit. Of these, three have opted into the collective action. (Id.)
II.
LEGAL STANDARD
Once a court has granted conditional certification for a case to proceed as a collective
action and collective action members have filed their consent-to-join forms, “(1) plaintiffs’
counsel may communicate freely with those members and (2) defense counsel may not
communicate with such individuals about the substance of the collective action.” 2 Ellen C.
Kears, The Fair Labor Standards Act (2d ed. 2010) 19-103 (collecting cases). However, the
standards governing communications with putative collective action members prior to
conditional certification are less clear.
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As a general matter, district courts enjoy broad discretion to limit communications
between parties and putative collective action members in order to avoid the potential for abuse.
See Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981); Kleiner v. First Nat’l Bank of Atlanta, 751
F.2d 1193, 1202 (11th Cir. 1985) (“Unsupervised, unilateral communications with the plaintiff
class sabotage the goal of informed consent by urging exclusion on the basis of a one-sided
presentation of the facts without opportunity for rebuttal.”); Slavinski v. Columbia Ass’n, Inc.,
CCB-08-890, 2011 WL 1310256 (D. Md. Mar. 30, 2011). As this Court held in Law Offices of
Leonard I. Desser, P.C. v. Shamrock Communications Inc., No. JKB-12-2600, 2013 WL
2552141 (June 10, 2013), a court’s duty is to ensure that “communications with [potential
members of the plaintiff class] are neutral, balanced, and complete.” Id. at *3.
However, this discretion, though broad, is not limitless. Gulf Oil, 452 U.S. at 100.
Indeed, “[u]ntil they ‘opt-in,’ prospective . . . plaintiffs are not yet parties to the action, they have
no attorney, and no attorney-client relation is yet in issue.” Parks v. Eastwood Ins. Sevs., 235 F.
Supp. 2d 1082, 1083 (C.D. Cal. 2002). In particular, where, as here, a communication occurs
before a court has granted conditional certification, such a communication is not inappropriate
because employers may “communicate with unrepresented prospective class members about the
lawsuit and even . . . solicit affidavits from them concerning the subject matter of the suit.”
Longcrier v. HL-A Co., Inc., 595 F.Supp.2d 1218,1226; Slavinski, 2011 WL 1310256 at *3.
Therefore, a plaintiff who moves for the court to limit communications between a
defendant and putative members of the collective action must show “(1) that a particular form of
communication occurred . . . and (2) that the particular form of communication at issue is
abusive in that it threatens the proper functioning of the litigation.” Longcrier, 595 F. Supp. 2d at
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1226-27 (internal quotation marks omitted) (quoting Cox Nuclear Medicine v. Gold Cup Coffee
Servs., Inc., 214 F.R.D. 696, 697-98 (S.D. Ala. 2003)).
While the inquiry into whether a particular form of communication is abusive is factspecific, examples in the case law provide this Court with guidance. Most notably, the inherently
coercive nature of the employer-employee relationship, by itself, is insufficient to demonstrate
that a communication was improper. Compare Slavinski, 2011 WL 1310256 at *4 (holding that
an employer’s contacts with its employees was not abusive where employer did not misrepresent
facts about or discourage participation in the lawsuit); Kerce v. West Telemarketing Corp., 575
F.Supp.2d 1354, 1366-67 (S.D. Ga. 2008) (declining to strike declarations collected by an
employer from 16 employees during the pre-certification stage because there was “no evidence
that [the employer] misrepresented facts about the lawsuit, discouraged participation in the suit,
or undermined the class’ confidence in, or cooperation with, class counsel”); with Longcrier, 595
F.Supp. at 1227-28 (finding communications between employer and prospective class members
abusive where employer conducted a survey without disclosing to employees the existence of a
class action or that the declarations might strip them of the right to join the lawsuit); O’Brien v.
Encotech Constr. Servs., Inc., 203 F.R.D. 346, 348 (N.D. Ill. 2001) (finding communications
between employer and prospective class members abusive where employer obtained releases
from employees in exchange for money).
In Desser, this Court struck affidavits obtained by a defendant from potential members of
a plaintiff class after the Court was unable to determine that the affidavits were obtained after
neutral and balanced communications. Desser, 2011 WL 1310256 at *4. In particular, the Court
relied on the fact that the defendant could not show that it had:
[P]rovided each person contacted with a copy of the complaint, explained all of
the allegations of misconduct under the federal Telephone Consumer Protection
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Act . . . , explained to the customers [,i.e. potential members of the plaintiff class,]
that their provision of affidavits was completely voluntary and would not affect
their business relationship with Defendant, told them that they could consult a
lawyer of their choosing, provided them with name and contact information for
Plaintiff’s counsel, or explained to them that providing Defendant with an
affidavit could affect their ability to participate in the lawsuit or to receive
monetary compensation from Defendant.
Id. See also Keystone Tobacco Co. v. United States Tobacco, 238 F. Supp. 2d 151, 153 (D.D.C.
2002) (noting that provision of copy of complaint to putative class members necessarily provided
them with contact information for plaintiffs’ counsel). But see Longcrier, 595 F. Supp. 2d at
1231 (holding that it was not necessary for defendant to identify plaintiffs’ counsel or provide
contact information to potential class members).
III.
ANALYSIS
The July 17 communication between Defendants and members of the putative collective
action at issue in this case is not the ideal of a “neutral, balanced, and complete” communication.
Indeed, it failed to provide each person contacted with (1) a copy of the complaint, (2) an
explanation of all the allegations of misconduct under the FLSA, and (3) the name and contact
information for Plaintiffs’ counsel. (ECF No. 67-3.)
However, it did include some important information. It noted that the attached affidavit
related to “litigation filed against the Company in the United States District Court about wages
you have been paid or may be entitled to.” Further, it explained to recipients that their provision
of affidavits was completely voluntary and would not affect their employment relationship with
Defendants. (Id.) Finally, the communication advised putative collective action members that
they could consult an attorney. (Id.)
The inclusion of this information distinguishes the communication in the present case
from the circumstances in Desser where the Court was uncertain as to the content of the
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communication. The Court finds that the deficiencies at issue here are insufficient to threaten
“the proper functioning of the litigation.” As a result, the Court finds no basis to either strike the
affidavits or to limit communications between parties and putative collective action members.
The Court further finds that Plaintiffs have not shown that Defendants acted in bad faith. The
Court takes note of Plaintiffs’ undisputed allegation that HMS drafted affidavits for Mr. Joseph
Jones and Mr. Raymond Green who were already named plaintiffs in this case on July 17. (ECF
No. 61 at 16-17.) However, as Plaintiffs concede, these affidavits were never delivered to Mr.
Jones and Mr. Green and, therefore, do not constitute an impermissible communication with a
represented party. (Id. at 17.)
That said, the July 17 communication was also not the ideal of a “neutral, balanced, and
complete” communication and therefore may have caused some confusion among certain
putative collective action members. As a result, the Court will allow Plaintiffs five business days
from the date of the accompanying order to send to all current HMS employees who are putative
collective action members an additional notice of collective action and a letter explaining their
rights as they relate to the collective action. In addition, the Court will extend the collective
action opt-in period for an additional twenty-one days from the date of the accompanying order.
The Court cannot, however, extend the deadline for Plaintiffs to accept Defendants’ offer
of judgment.
The offer of judgment therefore stands unmodified as to the twenty-five
individuals named in Exhibit A of the stipulated and agreed partial judgment (ECF No. 67-2).
That offer expired on September 11, 2013, as mutually agreed by the parties. (ECF No. 54.).
Further, the Court also notes that the additional offer made in Defendants’ submission, styled
“response to motion for extension of time and other relief and memorandum of law,” (ECF No.
77 at 5) is a legal nullity. Indeed, that offer was conditional on the court denying Plaintiffs’
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request to extend the collective action opt-in deadline. Given that the Court is ordering such an
extension, that offer is void.2
Finally, the Court advises both parties to take all necessary steps and precautions to
ensure that all future communications with members of the putative collective action are
“neutral, balanced, and complete.” Should either party fail to meet this standard, the Court will
take appropriate measures.
IV.
CONCLUSION
Accordingly, an order shall issue GRANTING IN PART and DENYING IN PART
Plaintiffs’ motion for extension of time and other relief (ECF No. 67).
Dated this 8th day of November, 2013.
BY THE COURT:
/s/
James K. Bredar
United States District Judge
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Defendants are free to make other offers of judgment, pursuant to Rule 68. Fed. R. Civ. P. 68. Any such offers
could include any member of the putative collective action, including those listed in Exhibit A of the stipulated and
agreed partial judgment. (ECF No. 67-2.)
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