Peterson, et al. v. Universal Medical Equipment & Resources, Inc. et al

Filing 40

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 2/21/2017. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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ANDRE PETERSON, et al.,

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Plaintiffs,

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v.

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UNIVERSAL MEDICAL EQUIPMENT
& RESOURCES, INC., et al.,

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Defendants.
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Civil Action No. RDB-16-596

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MEMORANDUM OPINION
Named plaintiffs Andre Peterson, John Grant, and Michelle Jones (collectively,
“plaintiffs”), on behalf of themselves and others similarly situated, have filed a Complaint
against defendants Universal Medical Equipment & Resources, Inc. (“UMER”) and Eyibio
Adah, UMER’s owner, (collectively, “defendants”) alleging violations of the Fair Labor
Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”), the Maryland Wage and Hour Law
(“MWHL”), Md. Code Ann., Lab. & Empl. § 3-401, et seq., and the Maryland Wage Payment
and Collection Law (“MWPCL”), Md. Code Ann., Lab. & Empl. § 3-501, et seq. Specifically,
plaintiffs allege that defendants failed to pay plaintiffs minimum wages and overtime
compensation in violation of federal and state law. 1 (Counts I and II, ECF No. 1 at ¶¶ 6874.) Defendants have filed an Answer to the Complaint (ECF No. 13), and the parties have
undertaken discovery.

Plaintiffs also seek to recover damages under the MWHL and through the quasi-contractual theory of unjust
enrichment. (Counts III and IV, ECF No. 1 at ¶¶ 75-86.)
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Currently pending before this Court is Plaintiffs’ Motion for Conditional Certification
of a Collective Action under 29 U.S.C. § 216(b) of the FLSA (“Plaintiffs’ Motion”) (ECF
No. 26). The parties’ submissions have been reviewed, and no hearing is necessary. See
Local Rule 105.6 (D. Md. 2016). For the reasons stated below, Plaintiffs’ Motion for
Conditional Certification (ECF No. 26) is GRANTED IN PART and DENIED IN PART.
Specifically, it is GRANTED as to the conditional certification of a class consisting of “[a]ll
current and former medical transport drivers who worked for Universal Medical Equipment
& Resources, Inc. (“Universal”) or Eyibio Adah (“Adah”) from October 11, 2013 to the
present.” See ECF No. 32-2 at 1. The Motion is further GRANTED IN PART and
DENIED IN PART as to the contents and manner of the proposed Notice. The parties
shall be directed to confer and submit a joint proposed notice consistent with the
determinations set forth below.
BACKGROUND
Plaintiffs are Maryland residents who were employed by defendants UMER and Adah
for varying terms between March 2013 and June 2015. (ECF No. 1 at ¶¶ 6-8.) Plaintiffs
were employed by defendants for approximately three months (Peterson), approximately
eight months (Grant), and approximately nine months (Jones). (Id.) Plaintiffs worked as
medical transport drivers who transported customers to and from medical appointments
throughout Maryland. (Id. at ¶ 16.) In conjunction with their Motion, plaintiffs filed a series
of Declarations in which they state that they: were paid the same daily rate regardless of
hours worked (ECF No. 26-2 at ¶ 4); used vehicles owned by defendants (Id. at ¶ 5); worked
roughly the same number of hours per day (approximately 4:30 a.m. to 6:00 p.m.) (Id.); and
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were directed by their supervisor Mr. Adah which routes they would complete (Id. at ¶ 6).
See also ECF No. 26-3 at ¶¶ 4-6, ECF No. 26-4 at ¶¶ 4-7. The Complaint alleges that
defendants failed to pay their employees the legal minimum wage and failed to pay their
employees overtime wages to which they were entitled. (ECF No. 26 at ¶¶ 68-74.)
STANDARD OF REVIEW
Under the FLSA, a plaintiff may bring an action on behalf of himself and other
employees so long as the other employees are “similarly situated” to the plaintiff. 29 U.S.C.
§ 216(b); see also Quinteros v. Sparkle Cleaning, Inc., 532 F. Supp. 2d 762, 771 (D. Md. 2008). As
this Court has previously noted, Section 216 “establishes an ‘opt-in’ scheme, whereby
potential plaintiffs must affirmatively notify the court of their intentions to be a party to the
suit.” Quinteros, 532 F. Supp. 2d at 771 (citing Camper v. Home Quality Mgmt., Inc., 200 F.R.D.
516, 519 (D. Md. 2000)). Section 216(b) provides, in relevant part, that:
An action . . . may be maintained against any employer . . . 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.
29 U.S.C. § 216(b).
Furthermore, this Court has employed a two-step inquiry when deciding whether to
certify a collective action under the FLSA. Syrja v. Westat, Inc., 756 F. Supp. 2d 682, 686 (D.
Md. 2010); Banks v. Wet Dog Inc., No. CIV.A. RDB-13-2294, 2015 WL 433631, at *1 (D. Md.
Feb. 2, 2015). First, upon a minimal evidentiary showing that a plaintiff can meet the
substantive requirements of 29 U.S.C. § 216(b), the plaintiff may proceed with a collective
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action on a provisional basis. Second, following discovery, the court engages in a more
stringent inquiry to determine whether the plaintiff class is “similarly situated” in accordance
with the requirements of § 216. Rawls v. Augustine Home Health Care, Inc., 244 F.R.D. 298, 300
(D. Md. 2007) (internal citations omitted). The Court then renders a final decision regarding
the propriety of proceeding as a collective action. Id. The second, more “stringent” phase
of collective action certification under the FLSA is often prompted by a defendant’s filing of
a motion to decertify, and thus is referred to as the “decertification stage.” Syrja, 756 F.
Supp. 2d at 686.
Whether to grant conditional certification is a matter of the court’s discretion. Syrja,
756 F. Supp. 2d at 686 (stating that “[d]eterminations of the appropriateness of conditional
collective action certification . . . are left to the court’s discretion[]”); see also Hoffmann–La
Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989). As the Court has explained, the “paramount
issue in determining the appropriateness of a conditional class certification is whether
plaintiffs have demonstrated that potential class members are ‘similarly situated.’” Williams v.
Long, 585 F. Supp. 2d 679, 684 (D. Md. 2008).
Plaintiffs bear the burden of showing that their claims are “similarly situated,” but
courts have ruled that “similarly situated” need not mean “identical.” See, e.g., Hipp v. Liberty
Nat. Life Ins. Co., 252 F.3d 1208, 1217 (11th Cir. 2001). This Court has held that a group of
FLSA plaintiffs is similarly situated if they can show they were victims of a common policy,
scheme, or plan that violated the law. Mancía v. Mayflower Textile Servs. Co., CIV.A. No. CCB–
08–273, 2008 WL 4735344, at *3 (D. Md. Oct. 14, 2008).

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Plaintiffs’ allegations thus “must consist of more than ‘vague allegations’ with ‘meager
factual support,’ but [they] need not enable the court to reach a conclusive determination
whether a class of similarly situated plaintiffs exists.” Id. at *2 (quoting D’Anna v. M/A–
COM, Inc., 903 F. Supp. 889, 893 (D. Md. 1995). Moreover, “[w]hen sufficient evidence in
the record at the initial ‘notice’ stage makes it clear that notice is not appropriate, . . . a court
can . . . deny certification outright.” Syrja, 756 F. Supp. 2d at 686 (quoting Purdham v. Fairfax
Cnty. Pub. Sch., 629 F. Supp. 2d 544, 547 (E.D.Va. 2009)). Plaintiffs may rely on “affidavits
or other means” to make the required showing. Williams, 585 F. Supp. 2d at 683; see also
Bouthner v. Cleveland Const., Inc., CIV.A. No. RDB-11-0244, 2012 WL 738578, at *4 (D. Md.
Mar. 5, 2012); Ruiz v. Monterey of Lusby, Inc., CIV.A. No. DKC 13-3792, 2014 WL 1793786, at
*1–2 (D. Md. May 5, 2014).
ANALYSIS
A. Conditional Certification
Plaintiffs request that this Court conditionally certify a collective action with a class
consisting of “[a]ll current and former medical transport drivers who worked for Universal
Medical Equipment & Resources, Inc. (“Universal”) or Eyibio Adah (“Adah”) from October
11, 2013 to the present.” (ECF No. 32-2 at 1.) While plaintiffs initially requested a broader
definition of the class, plaintiffs indicate in their reply brief that the limitations proposed by
defendants to “medical transport drivers,” employed by defendants from October 11, 2013,
is appropriate. (ECF No. 32 at 6.)
Defendants, as a matter of economy and “[i]n light of the ‘modest’ amount of proof
required by Plaintiffs at [the conditional certification] stage,” do not oppose Plaintiffs’
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Motion for conditional certification, but do seek to limit and/or modify the contents and
manner of plaintiffs’ proposed Notice. (ECF No. 29 at 4.)
While the Court might grant Plaintiffs’ Motion outright on the basis that defendants
do not oppose the relief sought, it is worth noting that conditional certification would
nonetheless be warranted here in light of the fact that plaintiffs worked “for the same
employer, at the same worksite, under the same supervisors, with the same job
responsibilities,” and were paid the same daily rate, $80.00 per day. (ECF No. 26 at 8-9.)
Thus, plaintiffs are similarly situated so as to warrant conditional certification under 29
U.S.C. § 216(b). See Quinteros, 532 F. Supp. 2d at 771. Accordingly, Plaintiffs’ Motion for
Conditional Certification (ECF No. 26) is GRANTED IN PART.
It bears note that several aspects of plaintiffs’ employment with defendants
distinguish the instant case from Brown v. Rapid Response Delivery, Inc., RDB-16-1203, 2017 WL
55858 (D. Md. Jan. 4, 2017), a recent opinion in which this Court denied the motion for
conditional certification filed by a proposed class of delivery drivers. In Brown, the proposed
class of drivers “were never compensated based on the time spent working, but only for the
distances traveled to make their deliveries.” Id. at *3. In addition, the drivers in Brown exercised
discretion/control over the assignments they accepted and the manner and time in which
they would complete their assignments. Id. at *3. Finally, the absence of any records
reflecting drivers’ actual work hours and the need for “individualized determinations for
each class member, coupled with the need for ‘speculative reconstruction’ of each plaintiff’s
work hours,” made conditional certification inappropriate. Id. at *4.

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In this case, by contrast, plaintiffs were paid the same daily rate regardless of hours
worked (ECF No. 26-2 at ¶ 4); used vehicles owned by defendants (Id. at ¶ 5); worked
roughly the same number of hours per day (approximately 4:30 a.m. to 6:00 p.m.) (Id.); and
were directed by their supervisor which routes they would complete (Id. at ¶ 6). See also ECF
No. 26-3 at ¶¶ 4-6, ECF No. 26-4 at ¶¶ 4-7. While some individualized determinations may
be required to determine the extent of plaintiffs’ damages should liability be established, 2 the
nature and extent of these calculations pale in comparison to those present in Brown, where
the drivers were paid based on mileage driven and not on hours worked. Brown, 2016 WL
55858 at *3 (citing Archer v. Freedmont Mortg. Corp., No. CIV.A. GLR-12-1099, 2013 WL
93320, at *3 (D. Md. Jan. 7, 2013)).
B. Notice Form
Pursuant to the FLSA, a Notice of Collective Action “must provide accurate and
timely notice to potential plaintiffs so they may make informed decisions about whether to
join a collective action.” Arnold v. Acappella, LLC, BPG-15-3001, 2016 WL 5454541, at *4
(D. Md. Sept. 29, 2016). However, “[t]he district court has broad discretion regarding the
‘details’ of the notice sent to potential opt-in plaintiffs.” Id. (citing Mcfeeley v. Jackson St.
Entm’t, LLC, DKC 12-1019, 2012 WL 5928902, at *5 (D. Md. Nov. 26, 2012). See generally
Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 171, 110 S. Ct. 482, 487, 107 L. Ed. 2d 480
(1989).

While defendants do not oppose conditional certification, they do not concede liability in this case. Among
other possible defenses, defendants assert in their Opposition that the FLSA’s exemption for drivers
providing taxi services may be applicable. (ECF No. 29 at 1.)

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While the parties in this case have made efforts to reconcile several of their
disagreements as to the contents and manner of the proposed Notice of Collective Action
form, 3 several issues regarding the proposed Notice remain unresolved.

The Court’s

determinations on these issues are addressed in turn below.
1. Statement that Notice is Approved by Court
The Notice shall state: “A court authorized this notice. This is not a solicitation from
a lawyer.” Defendants’ proposed additions to this portion of the Notice are denied.
2. Statement of Defendants’ Defenses
The Notice shall state: “Defendants deny the allegations and claim that they are not
liable for unpaid wages, damages, fees, or costs in this lawsuit.” Defendants’ proposed
additions regarding their specific defenses and/or counterclaims are denied.
3. Statement regarding Choice of Counsel
The Notice shall state that: “You may also retain your own counsel, as described
below,” as set forth in plaintiff’s proposed amended Notice. (ECF No. 32-2 at 2.)
4. Statement of Address of Defense Counsel
The Notice shall contain the name and address of defense counsel, as set forth in
plaintiffs’ proposed amended Notice (ECF No. 32-2).
5. Statement of Contingency Fee Arrangement
The Notice shall state: “If the case is successful, class counsel will seek to recover
their costs and attorney’s fees either from defendants or from any settlement or recovery
See ECF No. 32 at 6. Notably, plaintiffs agree to limit the definition of the class and to forego their request
for a Court Order requiring production of contact information for putative plaintiffs. Id.

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approved by the Court.” The percentage of the contingency fee arrangement shall not be
included.
6. Posting of the Notice
In light of the nature of putative plaintiffs’ work and the cessation of defendants’
medical transport activities, the notice is not required to be posted. See Adah Decl., ECF
No. 29-1 at ¶ 7.

Plaintiffs’ counsel may contact putative plaintiffs using the contact

information already provided by defense counsel.
7. Issuance of Reminder Notice
Plaintiffs are not authorized to issue a reminder Notice.
8. Applicable Statute of Limitations
The three year statute of limitations in this case runs from October 11, 2013. This
date is uncontested. See ECF No. 32-2. Accordingly, only drivers who were employed by
defendants on or after this date may opt into the class.

The parties shall confer and submit a joint proposed notice consistent with
these determinations within fourteen (14) days of this Memorandum Opinion and
Order.
CONCLUSION
For the reasons stated above, Plaintiffs’ Motion for Conditional Certification (ECF
No. 26) is GRANTED IN PART and DENIED IN PART. Specifically, it is GRANTED
as to the conditional certification of a class consisting of “[a]ll current and former medical
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transport drivers who worked for Universal Medical Equipment & Resources, Inc.
(“Universal”) or Eyibio Adah (“Adah”) from October 11, 2013 to the present.” See ECF
No. 32-2 at 1. The Motion is further GRANTED IN PART and DENIED IN PART as to
the contents and manner of the proposed Notice. The parties shall be directed to confer
and submit a joint proposed notice consistent with the determinations set forth herein.
A separate Order follows.
Dated: February 21, 2017

__________/s/___________
Richard D. Bennett
United States District Judge

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