Ortiz-Patino v. Kamcor, Inc et al

Filing 23

Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered. Plaintiffs motion for conditional certification ECF No. 4 is DENIED without prejudice. Plaintiff is granted leave to renew the motion with supplemental information addressing the issues discussed in this order or to more narrowly define the proposed class. Plaintiff shall file his renewed motion by June 11, 2018. SO ORDERED.(McDonagh, Christina)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ALEJANDRO ORTIZ-PATINO, on behalf of
himself and all others similarly situated,
Plaintiff,
v.
KAMCOR, INC, MECHANICAL
MAINTENANCE AND DESIGN, INC., and
NICK S. BEAVER,
Defendants.

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Civil Action No. 17-cv-12400-ADB

MEMORANDUM AND ORDER DENYING
MOTION FOR CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION
BURROUGHS, D.J.
The Court has reviewed Plaintiff’s motion for conditional certification of a collective
action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. [ECF No. 4].
Plaintiff proposes certification of a class consisting of “all employees of Kamcor, Inc. and
MMDI in the United States, from February 5, 2015, to the present, who worked as welders, pipe
fitters, ship fitters, machinists, electricians, marine painters, and other skilled laborers.” Id. at 12.
While courts can grant conditional certification based on a single affidavit where appropriate,
see, e.g., Khamsiri v. George & Frank’s Japanese Noodle Rest. Inc., No. 12-cv-0265-PAE, 2012
WL 1981507, at *1 (S.D.N.Y. June 1, 2012), at this stage, Plaintiff’s affidavit and supporting
documentation are not sufficient to demonstrate that conditional certification should be granted. 1
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Defendants argue that the Court should apply the standards governing class-action certification
under Federal Rule of Civil Procedure 23 to the instant motion. A large majority of district courts
within the First Circuit have rejected that approach, however. See Trezvant v. Fidelity Emp’r
Servs. Co., 434 F.Supp.2d 40, 42–43 (D. Mass. 2006) (majority of courts within First Circuit use
two-tier approach instead of applying Rule 23 standards); see also Roberts v. TJX Cos., Inc., No.
13-cv-13142-ADB, 2017 WL 1217114, at *2 (D. Mass. Mar. 31, 2017) (applying two-tier
approach, and collecting cases); Cunha v. Avis Budget Car Rental, LLC, 221 F. Supp. 3d 178,

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First, although Plaintiff seeks certification of a nationwide class, the affidavit does not
provide any information as to Defendants’ pay policies at locations other than Boston and
Fairhaven, Massachusetts. While it may be possible that Defendants employ the same pay
policies nationwide, the affidavit does not provide any reason to believe that this is true. “For a
class to extend beyond the named plaintiffs’ own work location, they must demonstrate that
employees outside of the work location for which the employee has provided evidence were
similarly affected by the employer’s policies.” Travers v. JetBlue Airways Corp., No. 08-cv10730, 2010 WL 3835029, at *2 (D. Mass. Sept. 30, 2010) (internal quotation marks and citation
omitted). The plaintiff “need not ‘demonstrate the existence of similarly situated persons at every
location in the proposed class,’ but ‘must demonstrate that there existed at least one similarly
situated person at a facility other than [their] own.’” Id. (quoting Adams v. Inter–Con Sec. Sys.,
Inc., 242 F.R.D. 530, 537 (N.D. Cal. 2007); see also Davine v. Golub Corp., No. CIV.A. 1430136-MGM, 2015 WL 1387922, at *2 (D. Mass. Mar. 25, 2015) (same, quoting Travers); Perez
v. Prime Steak House Rest. Corp., 959 F. Supp. 2d 227, 231 (D.P.R. 2013) (same). Therefore,
given the absence of any information concerning workers and pay policies at other locations, the
Court is not able to certify a nationwide class.
Next, Plaintiff’s proposed class would include “welders, pipe fitters, ship fitters,
machinists, electricians, marine painters, and other skilled laborers,” but Plaintiff’s affidavit does
not provide a basis to conclude that individuals working in these particular job categories were
181–82 (D. Mass. 2016) (two-tier approach); Davine v. Golub Corp., No. CIV.A. 14-30136MGM, 2015 WL 1387922, at *1 (D. Mass. Mar. 25, 2015) (same). Consistent with the First
Circuit majority, the Court employs the two-tier approach here, which at the first stage requires
only that the plaintiff satisfy a “fairly lenient standard” requiring him to show there is a
“reasonable basis for [his] claim that there are other similarly situated employees,” and which
“typically results in conditional certification of a collective action.” Prescott v. Prudential Ins.
Co., 729 F. Supp. 2d 357, 364 (D. Me. 2010) (internal quotation marks and citations omitted).
The present motion, however, fails to satisfy even this lenient standard.
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subject to the same pay policies. Plaintiff states that he “performed welding and ship fitting” for
Defendants, and he further asserts that he spoke with other employees at the Boston and
Fairhaven locations who were paid in the same manner as Plaintiff, but he provides no
information concerning the other employees’ job titles. Thus, based on the information
presented, the Court is not able to determine that the class should include the job categories that
Plaintiff has identified.
Accordingly, Plaintiff’s motion for conditional certification [ECF No. 4] is DENIED
without prejudice. Plaintiff is granted leave to renew the motion with supplemental information
addressing the issues discussed in this order or to more narrowly define the proposed class.
Plaintiff shall file his renewed motion by June 11, 2018.
SO ORDERED.
May 10, 2018

/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

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