Auffray et al v. FXFL, LLC et al
Filing
128
MEMORANDUM OPINION AND ORDER re: 55 MOTION to Certify Class (Conditionally Certify A Collective Action Under The FLSA), filed by John Jenkins, Kyle Auffray. Plaintiffs' motion for conditional certification of a collective action under the FLSA is denied without prejudice to renewal in the event that the Court denies Mr. Halem's motion to dismiss Plaintiffs' FLSA claims. The Clerk of Court is directed to terminate the motion pending at Dkt. No. 55. (As further set forth in this Order) (Signed by Judge Gregory H. Woods on 11/16/2016) (kl)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
KYLE AUFFRAY, and JOHN JENKINS, on :
behalf of themselves and all others similarly situated,
:
:
Plaintiffs, :
:
-against:
:
FXFL, LLC, BRIAN WOODS, and ALAN
:
:
PACE,
:
Defendants. :
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 11/16/16
1:15-cv-9379-GHW
MEMORANDUM OPINION
AND ORDER
GREGORY H. WOODS, United States District Judge:
I.
BACKGROUND
Plaintiffs in this action are former players, coaches, assistant coaches, and other hourly
employees who worked for the Fall Experimental Football League, also known as the “FXFL.” The
complaint alleges that the FXFL was a professional minor league football organization which
partially served as a feeder system for the National Football League, and which committed various
wage and hour violations in connection with Plaintiffs’ employment and the employment of
potential Fair Labor Standards Act (“FLSA”) opt-in plaintiffs. In addition to claims under the
FLSA, Plaintiffs bring claims under the state labor laws of New York, Massachusetts, and Florida as
well as claims for breach of contract.
On July 21, 2016, Plaintiffs filed a motion to conditionally certify a collective action under
the FLSA. Later, on November 16, 2016, the Court granted defendant Michael Halem, who was not
a named defendant in this action until September 27, 2016, leave to file a motion to dismiss
Plaintiffs’ FLSA claims. Because Mr. Halem’s motion, if successful, would completely eliminate
Plaintiffs’ claims under the FLSA, Plaintiffs’ motion for conditional certification of a collective
action is denied without prejudice to renewal in the event that Mr. Halem’s motion to dismiss is
denied by the Court.
Plaintiffs filed their motion for conditional certification of a collective action pursuant to 29
U.S.C. § 216(b) on July 21, 2016. Dkt. No. 55. Pursuant to the Court’s July 19, 2016 order setting a
briefing schedule for this motion, Defendants’ opposition was due no later than two weeks
following the date of service of Plaintiffs’ motion. Dkt. No. 54. On August 17, 2016, Plaintiffs
submitted a letter asking that the Court grant Plaintiffs’ motion, given that no Defendant had filed
an opposition as of that date. Dkt. No. 72. The Court denied that request on August 22, 2016, and
sua sponte extended Defendants’ deadline to file an opposition to August 27, 2016. Dkt. No. 74. No
defendant opposed the motion as of that date either, however.
On September 26, 2016, the Court granted Plaintiffs’ motion for leave to amend the
complaint to name as a defendant Mr. Michael Halem, Dkt. No. 101, and Plaintiffs thereafter filed
an amended complaint naming Mr. Halem as a defendant on September 27, 2016, Dkt. No. 102.
On October 26, 2016, Mr. Halem filed a letter requesting a pre-motion conference with respect to
an anticipated motion to dismiss the FLSA claims in the amended complaint pursuant to the
statutory exemption available at 29 U.S.C. § 213 which, in brief, exempts from the minimum wage
and overtime requirements of the FLSA certain amusement or recreational establishments which do
not operate for more than seven months per year. During a pre-motion conference on November
16, 2016, the Court granted Mr. Halem leave to file a motion to dismiss Plaintiffs’ FLSA claims
pursuant to that exemption, and set a briefing schedule for the motion.
II.
LEGAL STANDARD
The FLSA provides that an action for unlawful employment practices may be brought “by
any one or more employees for and on behalf of himself or themselves and other employees
similarly situated.” 28 U.S.C. § 216(b). Unlike class actions, FLSA collective actions need not satisfy
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the requirements of Fed. R. Civ. P. 23, and only plaintiffs who “opt in” by filing consents to join the
action are bound by the judgment. Mendoza v. Ashiya Sushi 5, Inc., No. 12-cv-8629 (KPF), 2013 WL
5211839, at *2 (S.D.N.Y. Sept. 16, 2013). District courts have “‘discretion, in appropriate cases, to
implement [§ 216(b)] . . . by facilitating notice to potential plaintiffs’ of the pendency of the action
and of their opportunity to opt-in as represented plaintiffs.” Myers v. Hertz Corp., 624 F.3d 537, 55455 (2d Cir. 2010) (quoting Hoffman–La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989) (alteration in
original)).
The Second Circuit has approved a two-step method to certify FLSA collective actions.
Myers, 624 F.3d at 555. “The first step involves the court making an initial determination to send
notice to potential opt-in plaintiffs who may be ‘similarly situated’ to the named plaintiffs with
respect to whether a FLSA violation has occurred.” Id. Courts may approve sending notice if
“plaintiffs make a ‘modest factual showing’ that they and potential opt-in plaintiffs ‘together were
victims of a common policy or plan that violated the law.’” Id. (quoting Hoffman v. Sbarro, Inc., 982 F.
Supp. 249, 261 (S.D.N.Y. 1997)). “The second stage of collective action certification occurs after
notice is sent, the opt-in period ends, and discovery closes.” Mendoza, 2013 WL 5211839, at *3. “At
the second stage, the district court will, on a fuller record, determine whether a so-called ‘collective
action’ may go forward by determining whether the plaintiffs who have opted in are in fact
“similarly situated” to the named plaintiffs. The action may be ‘de-certified’ if the record reveals
that they are not, and the opt-in plaintiffs’ claims may be dismissed without prejudice.” Myers, 624
F.3d at 555.
Importantly, and as noted above, the decision whether to grant a motion for conditional
certification of an FLSA collective action lies within the discretion of the district court. In HoffmanLa Roche, the Supreme Court discussed whether a district court adjudicating a lawsuit under the Age
Discrimination in Employment Act (“ADEA”) could authorize and facilitate notice of the pending
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action. In that case, the Court noted that the ADEA “incorporates enforcement provisions of the
Fair Labor Standards Act,” including the FLSA’s provision concerning collective actions. 493 U.S.
at 167-68. The Court went on to hold that “district courts have discretion, in appropriate cases, to
implement 29 U.S.C. § 216(b) . . . by facilitating notice to potential plaintiffs.” Id. at 169; see also
Myers, 624 F.3d at 554 (“Although they are not required to do so by the FLSA, district courts ‘have
discretion, in appropriate cases, to implement [§ 216(b)] . . . by facilitating notice to potential
plaintiffs’ of the pendency of the action and their opportunity to opt-in as represented plaintiffs.”)
(quoting Hoffman-La Roche, 493 U.S. at 169) (alteration in original). Plainly, conditional certification
of a collective action is not mandatory, even where named plaintiffs are able to show that they are
similarly situated to potential opt-in plaintiffs.
III.
DISCUSSION
As discussed, the Court has granted Mr. Halem leave to file a motion to dismiss Plaintiffs’
FLSA claims pursuant to the statutory exemption found at 29 U.S.C. § 213. That provision provides
that the FLSA’s minimum wage and overtime requirements do not apply to:
(3) any employee employed by an establishment which is an amusement or
recreational establishment, organized camp, or religious or non-profit educational
conference center, if (A) it does not operate for more than seven months in any
calendar year, or (B) during the preceding calendar year, its average receipts for
any six months of such year were not more than 33 ⅓ per centum of its average
receipts for the other six months of such year, except that the exemption from
sections 206 and 207 of this title provided by this paragraph does not apply with
respect to any employee of a private entity engaged in providing services or
facilities (other than, in the case of the exemption from section 206 of this title, a
private entity engaged in providing services and facilities directly related to skiing)
in a national park or a national forest, or on land in the National Wildlife Refuge
System, under a contract with the Secretary of the Interior or the Secretary of
Agriculture.
If Mr. Halem’s motion is successful, Plaintiffs’ FLSA claims would be dismissed, and any collective
action would not proceed. And had Mr. Halem been named as a defendant in this case from the
outset, his motion to dismiss would have been presented to the Court prior to consideration of any
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motion for conditional certification of a collective action. Here, however, Mr. Halem was not added
this case until September 27, 2016, several months after Plaintiffs filed their motion. Under the
circumstances, the Court exercises its discretion to deny Plaintiffs’ motion for conditional
certification, without prejudice to renewal in the event that the Court denies Mr. Halem’s motion to
dismiss Plaintiffs’ FLSA claims. In making this ruling, the Court has not assessed the merits of
Plaintiffs’ motion, and expresses no views on whether Plaintiffs have made the factual showing
necessary to conditionally certify a collective action under the FLSA.
IV.
CONCLUSION
Plaintiffs’ motion for conditional certification of a collective action under the FLSA is
denied without prejudice to renewal in the event that the Court denies Mr. Halem’s motion to
dismiss Plaintiffs’ FLSA claims.
The Clerk of Court is directed to terminate the motion pending at Dkt. No. 55.
SO ORDERED.
Dated: November 1 , 2016
New York, New York
__________________________________
________ ___________
_ ___ __________
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GREGORY H
GREGORY H. WOODS
GOR
United States District Judge
nited
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