McSwiggin et al v. Omni Limousine

Filing 24

ORDER Granting 23 Stipulated Notice, Consent to Join and FLSA Notice. Signed by Judge James C. Mahan on 8/18/2015. (Copies have been distributed pursuant to the NEF - DC)

Case 2:14-cv-02172-JCM-NJK Document 23 Filed 08/14/15 Page 1 of 2

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Mark R. Thierman, Nev. Bar No. 8285
[e-mail]
Joshua D. Buck, Nev. Bar No. 12187
[e-mail]
Leah L. Jones, Nev. Bar. No. 13161
[e-mail]
THIERMAN BUCK, LLP
7287 Lakeside Drive
Reno, Nevada 89511
Tel. [phone]
Fax. [phone]

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Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

THIERMAN BUCK, LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail]; www.thiermanbuck.com

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Case No.: 2:14-cv-02172-JCM-NJK

CHRISTY MCSWIGGIN and KEVIN
MCSWIGGIN, on behalf of themselves and
all others similarly situated,

STIPULATED [PROPOSED] NOTICE,
[PROPOSED] CONSENT TO JOIN AND
[PROPOSED] ORDER APPROVING
FLSA NOTICE

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Plaintiffs,

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vs.
OMNI LIMOUSINE; and DOES 1 through
50, inclusive,

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Defendant(s).

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Plaintiffs CHRISTY MCSWIGGIN and KEVIN MCSWIGGIN (“Plaintiffs”), and
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Defendant OMNI LIMOUSINE (“Defendant”), through their respective counsel, hereby
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submit their stipulated proposed forms of the Notice, Consent to Join and Order Approving
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FLSA Notice.
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Pursuant to the Court’s Order dated July 16, 2015 (ECF Doc. No. 21), the parties have
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met and conferred regarding the changes to the documents ordered by the court and have
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arrived at mutually acceptable forms. The revised [Proposed] Notice of Pendency of FLSA
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STIPULATION

Case 2:14-cv-02172-JCM-NJK Document 23 Filed 08/14/15 Page 2 of 2

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Collective Action Lawsuit is attached hereto as Exhibit A, the Consent to Join Lawsuit Filed

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Under the Federal Fair Labor Standards Act is attached hereto as Exhibit B and the [Proposed]

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Order Approving FLSA Notice is attached hereto as Exhibit C.

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Dated: August 14, 2015.

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THIERMAN BUCK, LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail]; www.thiermanbuck.com

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THIERMAN LAW FIRM

HOLLAND AND HART, LLP

/s/ Joshua D. Buck
Mark R. Thierman, Esq., Nev. Bar No. 8285
Joshua D. Buck, Esq., Nev. Bar No. 12187
Leah L. Jones, Nev. Bar. No. 13161
7287 Lakeside Drive
Reno, Nevada 89511
Attorneys for Plaintiffs

/s/Anthony L. Hall
Anthony L. Hall Esq., Nev. Bar No. 5977
5441 Kietzke Lane
Second Floor
Reno, NV 89511
Attorneys for Omni Limousine

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ORDER

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IT IS SO ORDERED.
Dated this ___ day of August, 2015.
August 18, 2015.

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_____________________________________
UNITED STATES JUDGE
UNITED STATES DISTRICT JUDGE

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STIPULATION

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EXHIBIT A

EXHIBIT A

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Case No.: 2:14-cv-02172

CHRISTY MCSWIGGIN and KEVIN
MCSWIGGIN, on behalf of themselves and
all others similarly situated,

[PROPOSED] NOTICE OF PENDENCY
OF FLSA COLLECTIVE ACTION
LAWSUIT

Plaintiffs,
vs.

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OMNI LIMOUSINE; and DOES 1 through
50, inclusive,
Defendant(s).

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TO: All current and former employees who were employed by Omni Limousine
(“Omni”) as limousine drivers at any time from December 19, 2011 to the present.

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RE: Fair Labor Standards Act lawsuit filed against OMNI LIMOUSINE.

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INTRODUCTION

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The purpose of this notice is to advise you of the existence of a lawsuit under the Fair
Labor Standards Act (“FLSA”) that has been filed against the above-listed company and to advise
you of your legal rights in connection with this lawsuit.

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DESCRIPTION OF THE LAWSUIT
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(a)
On December 19, 2014, Plaintiffs CHRISTY MCSWIGGIN and KEVIN
MCSWIGGIN (“Plaintiffs”) filed a class and collective action complaint against OMNI
LIMOUSINE; and DOES 1 through 50, inclusive (referred to throughout the rest of this Notice
as “Omni” or “Defendants”). Plaintiffs filed the class and collective action lawsuit on behalf of
themselves and all other similarly situated employees, alleging that Omni did not pay overtime
compensation, and failed to pay the correct hourly rate for overtime hours worked under the Fair
Labor Standards Act (“FLSA”), and thus should have paid them wages, including overtime. The
Plaintiffs seek backpay and damages.
(b)
Omni believes that Plaintiffs were properly paid or the work performed, denies
Plaintiffs’ claims, and denies that it is liable to Plaintiffs for any damages resulting from this
lawsuit. Omni believes that Plaintiffs and similarly-situated limousine drivers who worked for

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NOTICE OF THE PENDENCY OF FLSA COLLECTIVE ACTION LAWSUIT

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Omni are exempt from the provisions of the FLSA, and thus, not entitled to overtime
compensation.

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(c)

Individuals who join the lawsuit may be asked for evidence to support their claim.

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(d)
The Plaintiffs in this case are not seeking any determination of drivers’ tax status.
The lawyers involved in this lawsuit do not give tax advice. Your tax advisor is your best source
of information concerning your own individual circumstances and the effect, if any, that the
outcome of this case may have on your tax status.

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(e)
This Notice is not an expression by the court of any opinion as to the merits of any
claims or defenses asserted by any party to this action. You are under no obligation to respond
to this notice.

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DEFINITION OF WHO MAY PARTICIPATE IN THIS LAWSUIT

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To participate in this lawsuit, you must be a current or former employee who was or is
employed by Omni as a limousine driver at any time from approximately three (3) years (plus any
applicable tolling period, which is approximately 98 days) prior to the date you receive this notice
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YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT
1.
ASK TO BE INCLUDED: If you fit the definition above, you may join this case
by mailing the enclosed “Consent to Join” form to the third party administrator ("the
Administrator") at the following address:
CPT Group, Class Action Administrators
16630 Aston
Irving, CA 92606
If you want to join this lawsuit, you must send the form to the Administrator so the
attorneys prosecuting this case have time to file it with the Federal Court. While you have no
obligation to join this lawsuit, if you want to join it, the “Consent to Join” form must be
received by the Administrator by [90 days from the date of Order]. Consent to Join forms
received after [90 days from the date of the Order] will be rejected unless good cause is shown
for the delay.
2.
DO NOTHING: If you decide you do not want to join this lawsuit, do not return
the Consent to Join form. You will not be included in this collective action. You give up the
possibility of getting money or benefits that may come from a trial or settlement in this lawsuit if
those bringing the lawsuit are successful but you keep any rights you have to sue Omni separately
about the same legal claims provided that you act within the requisite time frame to do so under
the law.

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NOTICE OF THE PENDENCY OF FLSA COLLECTIVE ACTION LAWSUIT

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EFFECT OF JOINING THIS SUIT

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If you choose to join this case, you will be bound by the decision of the court, whether it
is favorable or unfavorable.
If you sign and return the “Consent to Join” form you are agreeing to designate the
Plaintiffs as your agents to:
1)
2)
3)

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4)

make decisions on your behalf concerning this lawsuit;
decide the method and manner of conducting this lawsuit;
enter into an agreement with Plaintiffs’ counsel concerning attorneys’ fees and
costs; and
decide all other matters pertaining to this lawsuit.

These decisions and agreements made and entered into by the representative Plaintiffs
will be binding on you if you join this lawsuit. However, the court has jurisdiction to determine
the reasonableness of any settlement with Omni, and any agreement concerning the
reasonableness of any attorneys’ fees and costs that are to be paid to the Plaintiffs’ counsel.
If Plaintiffs prevail in this litigation, the attorneys for the class will request that the court
either determine or approve the amount of attorneys’ fee and costs they are entitled to receive for
their services. The FLSA provides only for attorney fees for the Plaintiffs, if successful, and not
for Omni, although a Court could award Omni attorneys’ fees for misconduct or other reasons.
While the suit is pending, you may be asked to provide documents or information relating
to your work for Omni, you may have to submit to a deposition under oath, and you may be
required to otherwise participate in written or oral discovery proceedings and/or in a trial of this
matter.

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LEGAL EFFECT OF NOT JOINING THIS SUIT

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You do not have to join this lawsuit. If you do not wish to participate in this lawsuit, then
do nothing. If you choose not to join this lawsuit, you will not be affected by any judgment,
dismissal, or settlement rendered in this lawsuit, whether favorable or unfavorable to the class.
This means that if Plaintiffs win, you will not collect any money from this lawsuit; if Plaintiffs
lose, you will not lose any claims you may or may not have under the FLSA provided that you
file within the requisite statute of limitations (see section below). If you choose not to join this
lawsuit you are free to file your own lawsuit provided that you file within the requisite statute of
limitations (see section below)

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STATUTE OF LIMITATIONS ON POTENTIAL CLAIMS
The maximum period of time that you can collect unpaid wages under the FLSA is three
(3) years from when you worked the hours, but were not paid at least minimum wage, your regular

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NOTICE OF THE PENDENCY OF FLSA COLLECTIVE ACTION LAWSUIT

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rate, or the legally correct overtime rate. If the Plaintiffs cannot prove Omni acted willfully, the
statute of limitations is two (2) years.

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The statute of limitations continues to expire until you file with the court a written consent
to join this lawsuit, or initiate your own lawsuit to collect your unpaid wages.
NO RETALIATION OR COERCION PERMITTED

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Federal Law prohibits Defendant from retaliating against you for exercising your rights
under the FLSA to seek compensation. The law also prohibits Plaintiffs or their attorneys from
coercing you to join this lawsuit.

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YOUR IMMIGRATION STATUS DOES NOT MATTER IN THIS CASE

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You are entitled to back pay for the alleged unpaid wages and liquidated damages under
the FLSA even if you are not otherwise legally entitled to work in the United States. Bringing a
claim in the court for unpaid wages is not a basis for you to be deported from the United States.

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YOUR LEGAL REPRESENTATION IF YOU JOIN
If you choose to join this lawsuit and agree to be represented by the named Plaintiffs
through their attorneys, your counsel in this action will be:

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Mark R. Thierman and Joshua D. Buck
Thierman Buck, LLP
7287 Lakeside Drive
Reno, NV 89511
775-284-1500
Email: [e-mail]
www.thiermanbuck.com
FURTHER INFORMATION
Further information about this Notice, the deadline for filing a “Consent to Join” form, or
questions about this lawsuit may be obtained by contacting Thierman Buck, LLP at the contact
information listed immediately above.

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The court has taken no position in this case regarding the merits of the Plaintiffs’ claims
or of the Defendant’s defenses.
DO NOT CONTACT THE CLERK OF THE COURT

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DATED: August 18, 2015.

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______________________________________
U.S. DISTRICT COURT JUDGE
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NOTICE OF THE PENDENCY OF FLSA COLLECTIVE ACTION LAWSUIT

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EXHIBIT B

EXHIBIT B

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Case No.: 2:14-cv-02172

CHRISTY MCSWIGGIN and KEVIN
MCSWIGGIN, on behalf of themselves and
all others similarly situated,

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CONSENT TO JOIN LAWSUIT FILED
UNDER THE FEDERAL FAIR LABOR
STANDARDS ACT

Plaintiffs,

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vs.

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OMNI LIMOUSINE; and DOES 1 through
50, inclusive,

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Defendant(s).

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To:

CPT Group, Class Action Administrators

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16630 Aston

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Irvine, CA 92606

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I consent to become a party plaintiff in this lawsuit, and I hereby designate the named plaintiffs

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to act on my behalf. I understand that this lawsuit has been brought under the Fair Labor

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Standards Act (“FLSA”) against OMNI LIMOUSINE (“Omni”). I have read the Notice

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accompanying this Consent to Join. I work, or have worked, for Omni at some point from

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December 19, 2011 to the present.
Signature:

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Date signed:

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Print Name:

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Address:

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City, State & Zip:

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Telephone number:
Email:
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CONSENT TO JOIN

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EXHIBIT C

EXHIBIT C

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Case No.: 2:14-cv-02172-JCM-NJK

CHRISTY MCSWIGGIN and KEVIN
MCSWIGGIN, on behalf of themselves and
all others similarly situated,

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[PROPOSED] ORDER APPROVING
FLSA NOTICE

Plaintiffs,

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vs.

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OMNI LIMOUSINE; and DOES 1 through
50, inclusive,

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Defendant(s).

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The Court Orders as follows:
1.

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The Court adopts the attached Notice and Consent to Join form for use in this

2.

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Notice of this lawsuit will be sent to all current and former employees who are or

case.

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were employed by OMNI LIMOUSINE (“Omni”) as a limousine driver at any time from

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December 19, 2011 to the present.

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3.

If it has not already done so, within twenty-one (21) days of the date of this Order,

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Omni will provide to Plaintiffs’ counsel a list in electronic format (to the extent Omni maintains

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such information in electronic form in the ordinary course of business) of the (a) full name; (b)

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last known address; and (c) telephone number of each person who falls in the definition set forth

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in paragraph two (2) of this Order. Plaintiffs’ counsel will treat this information as confidential

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and will not disclose it to third parties.

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4.

Within twenty-eight (28) days of the date of this Order, the Claims Administrator

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shall mail a Notice, and a Consent to Join form to each person identified on the list discussed

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in Paragraph 3 of this Order.

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5.

Any person who wishes to opt into this lawsuit must properly complete and sign

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the Consent to Join form and return it to the Claims Administrator so that it is received no later

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than 90 days from the date of this Order.

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6.

If any notice package is returned undeliverable, Defendant will provide the

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social security number of that individual to Plaintiffs’ counsel for the limited purpose described

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in Paragraph 7.

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Plaintiff’s counsel will provide the Claims Administrator with social security

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numbers for the sole purpose of performing skip-traces to identify new mailing addresses for

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notices returned undeliverable. The Claims Administrator will promptly use the new mailing

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address provided by Plaintiffs’ counsel and mail the notice package to that alternate address.

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The Claims Administrator will keep a record of: (a) the date on which any notice package is

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returned undeliverable; (b) the date on which the undeliverable notice package is sent to an

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alternate address; and (c) any updated addresses. All copies of social security numbers,

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including any electronic file or other document containing the numbers, will be destroyed once

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the skip trace analysis is completed.

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8.

The Claims Administrator will date-stamp and number each properly completed

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Consent to Join form and accompanying envelope that is sent to them. The Claims

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Administrator will send a copy of the Consent to Join forms it receives to Plaintiffs’ and

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Defendant’s counsel on each Friday after the initial mailing.

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9.

Plaintiffs’ counsel will file the list of list of the people who timely returned

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Consent to Join forms identified above and the timely Consent to Join forms with the Court

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within thirty days after receipt, or earlier. Plaintiffs’ counsel will retain a copy of the list and

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the envelopes in which the Consent to Join forms were received.

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IT IS SO ORDERED

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DATED: August 18, 2015.

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______________________________________
U.S. DISTRICT COURT JUDGE
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