Brown et al v. White's Ferry, Inc. et al
Filing
10
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 10/27/11. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
DEBBRA BROWN, et al.
:
v.
:
Civil Action No. DKC 11-1683
:
WHITE’S FERRY, INC., et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this dispute
over alleged unpaid wages is a motion filed by Plaintiffs Debbra
Brown
and
James
Parker
to
facilitate
identification
notification of similarly situated employees.
and
(ECF No. 5).
The
issues are fully briefed and the court now rules pursuant to
Local Rule 105.6, no hearing being deemed necessary.
For the
reasons that follow, Plaintiffs’ motion will be denied without
prejudice.
I.
Background
On June 20, 2011, Plaintiffs filed a complaint, on behalf
of themselves and similarly situated others, against Defendants
White’s
Ferry,
unpaid
regular
Inc.,
and
and
Malcolm
overtime
Brown,
wages,
seeking
liquidated
to
recover
damages,
and
attorneys’ fees pursuant to the Fair Labor Standards Act of 1938
(“FLSA”), as amended, 29 U.S.C. §§ 201, et seq., and related
state law provisions.
According to the complaint, Plaintiffs
were employed by Defendants on a full-time basis from April 1,
2009, through August 13, 2010, working primarily in Defendants’
“store and café located in Dickerson, Maryland.”
9).
(ECF No. 1 ¶
Plaintiffs “regularly and typically worked about eighty
(80) hours per week” and were paid “a flat monthly salary” of
$1,500.00 (for Ms. Brown) and $1,600.00 (for Mr. Parker).
(Id.
at ¶¶ 10, 11).
Figuring their hourly rate by dividing their
monthly
by
salaries
the
number
of
hours
worked,
Plaintiffs
allege that they were paid significantly less than the federal
minimum wage and that they were never paid overtime rates for
hours worked in excess of forty per week.
Plaintiffs further
assert that they are similarly situated to other current and
former
White’s
Ferry
employees
who
“were
not,
or
are
not
currently, paid by Defendants as prescribed by the FLSA for
hours worked each week.”
Defendants
allegations.
answered
(Id. at ¶ 19).
on
(ECF No. 3).
July
19,
denying
all
material
On August 9, Plaintiffs filed the
pending motion to facilitate identification and notification of
similarly situated employees, attaching supporting declarations,
a proposed notice, and a proposed opt-in form.
Defendants
have
opposed
Plaintiffs’
motion
(ECF
Plaintiffs have filed papers in reply (ECF No. 9).
2
(ECF No. 5).
No.
8)
and
II.
Analysis
Subsection
216(b)
of
the
FLSA
establishes
an
“opt-in”
scheme pursuant to which putative plaintiffs must affirm their
intention to become a party to a lawsuit:
An action . . . maybe maintained against any
employer . . . in any Federal or State court
of competent jurisdiction by any one or more
employees for and in behalf of 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).
The Supreme Court of the United States has
recognized that “district courts have discretion, in appropriate
cases, to . . . facilitat[e] notice to potential plaintiffs.”
Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989).
As
Judge
Blake
explained
in
Camper
v.
Home
Management, Inc., 200 F.R.D. 516, 519-20 (D.Md. 2000):
The threshold issue in determining
whether to exercise this discretion is
whether the plaintiffs have demonstrated
that potential class members are “similarly
situated.” 29 U.S.C. § 216(b). While courts
employ different standards to determine
whether plaintiffs have made a sufficient
showing to warrant court facilitated notice,
I agree with the conclusion of Judge Legg in
this District that a plaintiff should be
required “to make a preliminary factual
showing that a similarly situated group of
potential plaintiffs exists” before court
assistance is granted. D’Anna v. M/A–COM,
Inc., 903 F.Supp. 889, 893–94 (D.Md. 1995).
Mere allegations in the complaint are not
3
Quality
sufficient;
some
factual
showing
by
affidavit or otherwise must be made. See,
e.g., Sperling v. Hoffman–LaRoche, Inc., 118
F.R.D. 392, 406–07 (D.N.J. 1988) (holding
that
evidence
of
“similarly
situated”
plaintiffs must be “sufficiently developed”
to allow court facilitated class notice),
aff’d in part, dismissed in part, 862 F.2d
439 (3d Cir. 1988), aff’d, 493 U.S. 165, 110
S.Ct. 482, 107 L.Ed.2d 480 (1989); accord
Severtson v. Phillips Beverage Co., 137
F.R.D. 264, 266 (D.Minn. 1991) (“As a matter
of sound case management, a court should,
before offering such assistance, make a
preliminary
inquiry
as
to
whether
a
manageable class exists . . . [P]laintiffs
must submit evidence establishing at least a
colorable basis for their claim that a class
of ‘similarly situated’ plaintiffs exist”).
For initial collective action certification under § 216(b),
courts
generally
“require
nothing
more
than
substantial
allegations that the putative class members were together the
victims of a single decision, policy, or plan.”
F.R.D. at 407.
initial
“When sufficient evidence in the record at the
‘notice’
stage
appropriate,
however,
a
outright.”
Purdham
v.
F.Supp.2d
Corp.,
544,
333
Ultimately,
Sperling, 118
547
it
court
can
Fairfax
(E.D.Va.
F.Supp.2d
“[t]he
makes
that notice is ‘appropriate.’”
has
.
.
County
2009)
1265,
plaintiff
clear
that
.
deny
Public
(citing
1273-74
the
notice
Holt
of
not
certification
Schools,
629
v.
Aid
(M.D.Ala.
burden
is
Rite
2004)).
demonstrating
D’Anna, 903 F.Supp. at 894.
In support of their motion, Plaintiffs rely on their own
declarations, which state, in pertinent part:
4
I have personal knowledge that at least
twenty-five (25) other similarly-situated
individuals exist: (1) who are not yet
parties to this lawsuit; (2) who are current
and former employees of Defendants; (3) who
worked more than forty (40) hours per week
for Defendants on a regular basis; (4) were
not paid [by] Defendants for all hours
worked at an hourly rate at least equal to
the Federal Minimum Wage; and (5) who were
never paid by Defendants at the rate of oneand-one-half (1½) times their regular hourly
rate for overtime hours worked each week in
excess of forty (40).
I have personal knowledge that other current
and former employees meeting the description
set forth above . . . have not yet joined
this lawsuit because they either have not
received notice of the suit or because these
individuals are afraid that if they join
this
lawsuit
they
may
be
subject
to
retaliation by Defendants and/or may be
terminated
from
their
employment
with
Defendants.
(ECF Nos. 5-2 ¶¶ 14, 15; 5-3 ¶¶ 14, 15).
The question presented by the instant motion is whether
these assertions constitute “substantial allegations that the
putative class members were together the victims of a single
decision,
policy,
or
Although
Plaintiffs
plan.”
are
only
Sperling,
required
118
to
F.R.D.
make
a
at
407.
“relatively
modest factual showing” to establish entitlement to conditional
class
certification,
adequate
factual
D’Anna,
showing
by
903
F.Supp.
affidavit
.
at
.
894,
.
may
and
“[a]n
suffice,”
Marroquin v. Canales, 236 F.R.D. 257, 259 (D.Md. 2006), the
showing
made
by
Plaintiffs
does
5
not
pass
muster.
Indeed,
Plaintiffs have done nothing more than assert, in conclusory
fashion, that there are similarly situated others.
Courts have
consistently found such bare assertions insufficient to satisfy
the plaintiff’s burden in this context.
Stores,
Inc.,
(“unsupported
256
F.Supp.2d
assertions
of
See Freeman v. Wal-Mart
941,
945
widespread
(W.D.Ark.
violations
2003)
are
not
sufficient to meet Plaintiff’s burden”) (citing Haynes v. Singer
Co., 696 F.2d 884, 887 (11th Cir. 1983)); H & R Block, Ltd. v.
Housden, 186 F.R.D. 399, 400 (E.D.Tex. 1999) (denying request
for
court
facilitated
notice
where
plaintiffs
“failed
to
identify potential plaintiffs, submit affidavits of potential
plaintiffs
or
submit
any
other
evidence
that
might
show
a
widespread plan of discrimination existed”); see also Slavinski
v. Columbia Ass’n, Inc., Civ. No. CCB-08-890, 2011 WL 1310256,
at *5 (D.Md. Mar. 30, 2011) (denying conditional certification
where
plaintiff
[alleged
provided
similarly
“no
evidence
situated]
employees
demonstrating
performed
similar
functions or similar levels of function to [Plaintiff]”).
neither
their
complaint
nor
their
declarations
do
that
In
Plaintiffs
provide any description of the nature of business operations at
White’s Ferry.
Not only have they failed to identify the names,
job titles, and/or job responsibilities of the alleged similarly
situated employees, they have described their own positions and
responsibilities
in
only
the
vaguest
6
of
terms.
Moreover,
Plaintiffs have provided no explanation as to the basis for
their belief that the alleged similarly situated employees are,
or were, in fact similarly situated (i.e., that they were not
exempt; that they were paid at an hourly rate below the federal
minimum wage; and that they were not paid an overtime premium
for hours worked in excess of forty per week).
As Judge Legg explained in D’Anna, 903 F.Supp. at 894
“As a matter of sound case management, a
court should, before offering [to assist
plaintiff
in
locating
additional
plaintiffs], make a preliminary inquiry as
to whether a manageable class exists. . . .
The courts, as well as practicing attorneys,
have a responsibility to avoid the ‘stirring
up’
of
litigation
through
unwarranted
solicitation.”
Severtson, 137 F.R.D. at
266-67. Furthermore, an employer should not
be unduly burdened by a frivolous fishing
expedition conducted by plaintiff at the
employer’s expense.
On the present record, the court cannot determine whether “a
manageable class exists,” nor can it fulfill its responsibility
of
“avoid[ing]
the
‘stirring
up’
of
litigation
through
unwarranted solicitation” and preventing a “frivolous fishing
expedition.”
Accordingly, Plaintiffs’ motion will be denied,
albeit without prejudice to Plaintiffs’ right to renew within
fifteen days.
7
III. Conclusion
For the foregoing reasons, Plaintiffs’ motion to facilitate
identification and notification of similarly situated employees
will be denied.
A separate order will follow.
________/s/_________________
DEBORAH K. CHASANOW
United States District Judge
8
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