ASIRIFI et al v. OMNI ASSET MANAGEMENT, LLC et al

Filing 96

OPINION. Signed by Judge Dennis M. Cavanaugh on 1/24/2014. (nr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DORIS ASIRIFI and CHINWE
NWAFOR,
Plaintiffs,
v.

:

Hon. Dennis M. Cavanaugh

:
:

OPINION
Civil Action No, 2:11 -cv-04039 (DMC)(JBC)

WEST HUDSON SUB-ACUTE CARE
CENTER. LLC,
Defendant.

DENNIS M. CAVANAUGH, U.S.D.J.:
This matter comes before the Court upon the Motion for Conditional Class Certifi
cation
by Plaintiffs Doris Asirifi and Chinwe Nwafor (collectively “Plaintiffs”). Pursuant
to FED. R.
Civ. P 78, no oral argument was heard. Based on the following and for the reason
s expressed
herein. Plaintiffs’ Motion for Conditional Certification is denied without prejud
ice.

I.

1
BACKGROUNI)
Plaintiffs were employed as registered nurses at West Hudson Sub-Acute Care
Center.

LLC (“West Hudson”). a nursing facility. Plaintiffs claim that they are owed minim
um wages
and overtime under the Fair Labor Standards Act, 29 U.S.C.

§ 201. et seq.

(“FLSA’) and under

New Jersey Wage and Hour Law, N.J.S.A. 34:11 -56a e seq. (“NJWHL”).
and seek to maintain
this

action

individually and as a collective action under the ELSA. Plaintiffs assert that

i)efendant regularly deducted thirty minutes of paid time from Plaintiffs’ shits
to represent an
The facts from this section are taken from the parties’ pleadings.

unpaid meal break, regardless of whether such break was taken. Plaintiffs also
claim that they
worked in excess of their regularly scheduled shifis and were not paid for this
time.
Plaintiffs filed a Complaint on July 14. 2011 (ECF No. 1), an Amended Compl
aint on
March 16. 2012 (ECF No. 3 1). and a Second Amended Complaint on April 30.
2012 (FCF No.
40). Deftndant filed a Motion to Dismiss the Second Amended Complaint on June
7. 2012 (FCF
No. 43). This Motion was denied on January 29, 2013 (ECF No. 50). Defendant filed
an Answer
on February 28, 2013 (ECF No. 58). Plaintiffs filed the instant Motion for Condit
ional
Certification on July 23, 2013 C’Pl.’s Mot.,” ECF No. 76). Defendant filed an Oppos
ition on
August 20, 2013 (ECF No. 81). Plaintiffs tiled a Reply on August 27. 2013 (ECF
No. 83).
IL

STANDARD OF REVIEW
The Lair Labor Standards Act (“FLSA”) governs hour and wage practices and require
s.

among other things. that employers pay covered employees at least a specified minim
um wage

for work performed and overtime pay for hours worked in excess of forty hours per week.
29
U.S.C.

§

202, 207. The Act provides a mechanism that allows groups of such employees to

proceed together to seek recovery for violations of the act. Section 216(b) specifically
provides:
[ajn action to recover liability may be maintained against any employer by 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 action unless he
gives his consent in writingto become such a party and such consent is filed in the
court in which such action is brought.
...

...

29 U.S.C.

§

2 16(b). This provision allows a group of employees to proceed in a collective action.

which enables them to pool their resources to “vindicate their rights” at a lower cost. Hoffmann—
La Roche. Inc. v. Sperling. 493 U.S. 165, 170 (1985).
District courts have discretion in prescribing the terms of notice of communication from
the nmcd plaintitts to potential class membcis on vhose beh ill the action v s filed

i4

it

1 6k). In order ftr a collective action to proceed under

§

216(h): (1) named plaintiffs must show

that potential class members are “similarly situated” and (2) members
must affirmatively opt
in. $g Armstrong v. Weichert Rea1tor No. 05—3 120, 2006 WL 14557
81, at *1 (D.Ni. May 19,
2006).
Although the FLSA does not define “similarly situated,” courts in the United
States Court
of Appeals for the Third Circuit employ a two—step approach: a notice and
conditional
certilication stage, and a tinal certification or decerti Ication stage. First,
the court determines
whether potential class members are similarly situated and should be given
notice of the
action. See Herring v. Hewitt Assocs., Inc., No. 06—267, 2007 U.S. Dist. LEXIS
53278 at *6_7
(D.NJ. July 27, 2007) (citing Morisky v. Public Service Elec. & Gas Co., 111
F.Supp.2d 493,
497 (D.N.J. 2000)). At this stage, the court usually only has evidence before
it in the form of
pleadings and affidavits, so it uses a fairly lenient standard to determine whethe
r potential
collective action members are similarly situated and the courts determination
“typically results
in conditional certification of a representative class.” Id. at * 7. Plaintiffs must
show a “factual
nexus between their situation and the situation of other current and former [emplo
yees] suffIcient
to determine that they are ‘similarly situated.” Herring, 2007 U.S. Dist. LEXIS
53278. at

*

13

(quoting Aguilino v. The Home Depot, Inc., No. 04—4100, 2006 U.S. Dist.
LEXIS 66084, at *5
(D.N.J. Sept. 6, 2006)). The merits of the plaintiffs claim need not be evalua
ted and discovery
need not he completed in order for such notice to be granted and disseminated,
Id. at
if the Court conditionally certifies and provides notice to potential plaintiffs.
“there is

*

14. Even
nothing

to

prevent a court from ‘modifying or reversing a decision on similar situatio
ns at a later time in the
action, as new facts emerge.” Id. at *12 (quoting Sperling v. Hoffman—Lakoche
, 118 F.R.D.
392, 407 (D.N.J. 1988)).

3

At the second stage, after the court has more evidence and is ready ftr trial, it will apply
a
stricter standard, See Morisky, ill F.Supp.2d at 497. If the court finds that the plainti
ffs are
similarly situated, it will make a final decision to proceed as a class action. Id.
III.

DISCUSSION
The only issue before the Court at this stage is whether Plaintiffs have shown that they

are similarly situated to potential class members. In Wright v. Lehigh Valley Hosp..
No. 10-43 1.
2010 WL 3363992, at i (E.D. Pa. Aug. 24, 2010). the plaintiff, a nurse, claimed that
she and
other nurses were not compensated for work they performed during overtime hours. The
plaintilY
stated that her paychecks and paystubs failed to accurately reflect her hours, and claime
d that she
‘worked alongside other registered nurses who similarly worked before and after their shifts
without being properly paid.” Id. at * 1. 4. However, the plaintiff provided no evidence
to show
the existence of these other similarly situated nurses. Id. at *4 The court fbund that “[the
plaintiffs] argument that Defendants must have violated other nurses rights because their
uniform policies and procedures allegedly violated her rights is insufficient to satisfy the
modest
factual sho\mg test

Id See also Rogeis

Ocean Cable Gip Inc ,No 10-41 98, 2011 \\ I

6887154, at *4 (D.N.J. Dec. 29, 2011) (“Although each plaintiff submitted an affidav
it stating
they worked in excess of 40 hours in a workweek, what they are essentially asking
the Court to
do is to assume that because they worked in excess of 40 hours in a workweek that the
other
technicians must have as well.”).
Similarly, in the present case, Plaintiffs have submitted time cards to evidence the hours
that they worked and argue that other potential class members are similarly situated becaus
e
Defendant’s policy was “uniformly instituted again all non-exempt employees” and “resulted in
hourly employees being denied proper compensation for all hours worked” (P1.’ s Mot. at II).

4

This argument suffers from the same flaw that existed in the

arguments set

forth

in

iigt and

Rogers, as the alleged application of a uniform policy does not, without more,
show that
potential class members are similarly situated. Accordingly, Plaintiffs’ Motion
is denied without
prej udice.
IV.

()NCLUSION
1
(
lor the foregoing reasons, Plaintiffs’ Motion for Conditional Certification is (ICfliC(1

without prejudice. An appropriate order follows this Opinion.

Date:
Original:
cc:

January 2Ol4
Clerks Office
Hon. James B. Clark U.S,M.J.
All Counsel of Record
File