MARTINEZ SOLAIS V. DABBUSCO, ET AL.
Filing
62
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 03/14/2016, that the Certification Motion (Docket Entry 14 ) is GRANTED insofar as the Court conditionally certifies a class defined as "all individuals who work ed in the kitchen at Vesuvio's II Pizza & Grill, Inc. between March 13, 2012, and the deadline for the opt-in period, who, at any time during this period, were not permitted to accurately record their hoursworked." FURTHER that the parties attempt to reach accommodation on a notification plan, Notice of Conditional Certification, Consent to Join Form, and production of contact information for putative plaintiffs. On or before April 1, 2016, the parties shall file a Joint Statu s Report regarding their efforts to agree on these matters, including their joint or individual proposals for such matters. If the parties agree on the Notice of Conditional Certification and Consent to Join Form, they shall submit, in addition to a n English version, a Spanish translation of these jointly proposed documents prepared by a certified Spanish-English translator. FURTHER that Plaintiff's Protective Order Motion (Docket Entry 17 ) and Defendants' Protective Orde r Motion (Docket Entry 23 ) are DENIED. Nevertheless, the Court directs all parties and their agents to scrupulously refrain from any communication that is coercive, misleading, or otherwise abusive, including communication that may contrad ict or undermine the forthcoming court-approved class notice. The parties and their agents must exhibit particular caution in any oral communications with putative plaintiffs. FURTHER that Plaintiff's Motion to Strike (Docket Entry 42 ) is DENIED. FURTHER that Plaintiff's Objection (Docket Entry 54 ) is SUSTAINED. Plaintiffs need not pay the $1,875 in attorney and paralegal fees identified in Objection Exhibit L (Docket Entry 54 -12).(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MIRIAM MARTINEZ SOLAIS,
on behalf of herself and all
others similarly situated,
Plaintiff,
v.
VESUVIO’S II PIZZA & GRILL, INC.
and GIOVANNI SCOTTI D’ABBUSCO,
Defendants.
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1:15cv227
MEMORANDUM OPINION AND ORDER
This case comes before the Court on “Plaintiff’s Motion for
Conditional Certification Pursuant to the Fair Labor Standards Act”
(Docket
Entry
14)
(the
“Certification
Motion”);
“Plaintiff’s
Emergency Motion for a Protective Order” (Docket Entry 17) (the
“Plaintiff’s Protective Order Motion”); “Defendants’ Motion for
Protective Order” (Docket Entry 23) (the “Defendants’ Protective
Order Motion”); “Plaintiffs’ Motion to Strike Affidavits of Russell
Thomas, James Wilson, Jason Howe, and Christopher Cates” (Docket
Entry 42) (the “Motion to Strike”); and “Plaintiff’s Memorandum
Regarding
the Reasonableness
of
Defendants’
(Docket Entry 54) (the “Objection”).
Claimed
Expenses”
For the reasons that follow,
the Court will grant the Certification Motion as detailed herein;
will
deny
Protective
Plaintiff’s
Order
Motion
Protective
Order
(collectively,
Motion,
the
Defendants’
“Protective
Order
Motions”),
and
the
Motion
to
Strike;
and
will
sustain
the
Objection.
BACKGROUND
On behalf of certain kitchen workers at Vesuvio’s II Pizza &
Grill, Inc. (“Vesuvio’s II”), Plaintiff Miriam Martinez Solais (the
“named Plaintiff”) initiated a putative collective action under the
Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., (the “FLSA”)
and a putative class action under the North Carolina Wage and Hour
Act, N.C. Gen. Stat. §§ 95-25.1 et seq., against Giovanni Scotti
D’Abbusco
(the
(collectively
“Individual
with
Defendant”)
Individual
Defendant,
and
Vesuvio’s
II
the
“Defendants”).
(Docket Entry 1.) According to the Complaint, Defendants failed to
pay named Plaintiff and other kitchen workers minimum wages and
overtime, as mandated by law.
30, 34.)
(See, e.g., id., ¶¶ 2-4, 14, 17-18,
A few months later, named Plaintiff filed a Consent to
Join Suit as Party Plaintiff on behalf of Mateo San Agustin
Alvarado (the “opt-in Plaintiff,” and collectively with named
Plaintiff, the “Plaintiffs”).
(Docket Entries 12, 12-1.)
Thereafter, named Plaintiff filed the Certification Motion, in
connection with which Defendants sought discovery (see Docket Entry
13
at
2-3).1
In
particular,
Defendants
requested
“initial
1
Citations herein to Docket Entry pages utilize the
document’s internal pagination if unified internal pagination
exists. In the absence of such pagination, the Docket Entry page
citations utilize the CM/ECF footer’s pagination.
2
discovery
on the
manner and
Plaintiff or her counsel.”
means of recruitment
(Id. at 3.)
by
[named]
After hearing argument of
counsel regarding the requested discovery (see Docket Entry 21),
the Court authorized “limited discovery pertaining to the named
Plaintiff and the opt-in Plaintiff on the subject of factual issues
raised by [named Plaintiff’s] Motion for Conditional Certification
(but not any equitable defenses related to alleged recruitment of
potential plaintiffs as proposed by Defendant[s] in [Defendants’]
Rule 26f Report)” (Text Order dated June 30, 2015).
This
motions
discovery
for
generated
protective
multiple
orders
that
motions
the
Court
to
compel
resolved
and
in
a
Memorandum Opinion and Order on October 16, 2015 (Docket Entry 51)
(the “Order”).
As relevant to the instant dispute, the Order
denied the parties’ requests for expense-shifting regarding their
motions, but specified (1) that Plaintiffs’ counsel would bear any
late cancellation and expedited scheduling expenses for opt-in
Plaintiff’s remote deposition and (2) that Defendants and opt-in
Plaintiff would equally divide the videoconferencing expenses for
that deposition. (Id. at 40-42.) The Order instructed the parties
to confer regarding Defendants’ claimed expenses and to notify the
Court of any objections.
(Id. at 43-44.)2
The Order further
directed the parties to “negotiate in good faith in a meaningful
2 The Objection contests certain of these expenses.
generally Docket Entries 54, 54-12.)
3
(See
attempt to resolve any other discovery disputes that may arise and
to develop a consent protective order as to any materials entitled
to protection under Rule 26(c)(1)” of the Federal Rules of Civil
Procedure (the “Rules”).
(Id. at 45.)
To date, the parties have
not submitted any consent protective orders to the Court.3
Similarly, the parties have not indicated that they have
resolved
their
competing
Motions
for
Protective
Order,
which
primarily seek to prohibit each other’s communication with putative
plaintiffs.
(See Docket Entry 17 at 2; Docket Entry 23 at 3-4.)
To the contrary, Defendants rely on Defendants’ Protective Order
Motion
in
requesting
(Docket Entry 53 at 2.)
certain
class
notification
procedures.
Accordingly, the Court will first resolve
the Protective Order Motions and related Motion to Strike before
addressing the Certification Motion and Objection.
DISCUSSION
I.
Motion to Strike
As an initial matter, Plaintiffs ask the Court to strike,
pursuant to Rule 12(f), the affidavits of Christopher Cates, Jason
Howe, Russell Thomas (“Thomas”), and James Wilson “filed in support
of Defendants’ Reply in Support of their Motion for Protective
Order” (the “Affidavits”).
(Docket Entry 42 at 1; see Docket
3 At the parties’ request (see Docket Entry 59), the Court
(per United States District Judge Loretta C. Biggs) stayed this
action until February 1, 2016, to permit mediation of this dispute.
(Docket Entry 60.)
In February, the parties reported that
mediation failed. (See Docket Entry 61.)
4
Entries 38-2 through 38-5.)
Rule 12(f) authorizes courts to
“strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”
12(f) (emphasis added).
Fed. R. Civ. P.
Although occasionally used in common
parlance to refer generically to any court filing, “pleading” is a
term of art under the Rules.
JHRG LLC v. StormWatch, Inc., No.
1:09cv919,
at
2011
WL
3111971,
*5
(M.D.N.C. July
26,
2011).
Specifically, Rule 7(a) identifies which documents qualify as
pleadings in federal cases.
Id.; see also General Tire & Rubber
Co. v. Watkins, 331 F.2d 192, 195-96 (4th Cir. 1964) (analyzing
whether filing constituted “a pleading within the meaning of [the]
Rule[s]” by reference to Rule 7(a), which “defines pleadings”).
Under that Rule, the complaint; any third-party complaint; answers
to
(1)
such
complaints,
(2)
any
crossclaims,
and
(3)
any
counterclaims; and, “if the court orders one, a reply to an
answer,” constitute the pleadings.
Fed. R. Civ. P. 7(a).
This
definition does not include affidavits in support of motions for
protective
orders
and
their
supporting
memoranda.
See
id.
Therefore, the Court will not strike the Affidavits; nevertheless,
in analyzing Defendants’ Protective Order Motion, the Court will
consider — to the extent applicable — Plaintiffs’ contentions that
the Affidavits contain prejudicial and irrelevant information (see
Docket Entry 43 at 9-11).
See JHRG, 2011 WL 3111971, at *5.
5
II.
Protective Order Motions
The parties each seek to limit the other side’s communication
with putative class members.
Entry 23 at 3.)
(See Docket Entry 17 at 2; Docket
As a general matter, both the plaintiff and the
defendant in an FLSA action may communicate with unrepresented
prospective class members.
See Longcrier v. HL-A Co., Inc., 595
F. Supp. 2d 1218, 1225-26 (S.D. Ala. 2008).
The Court possesses
relatively broad discretion, however, to limit such communications.
Id. at 1226.
Accordingly, courts restrict communications that are
“misleading,
communications
coercive,
that
or
seek
to
otherwise
abusive,”
“undermine
cooperation
including
with
or
confidence in class counsel” or to “undermine or contradict” a
court-approved class notice.
Inc.,
929
F.
Supp.
2d
quotation marks omitted).
1100,
Stransky v. HealthONE of Denver,
1105
(D.
Colo.
2013)
(internal
To justify a communication constraint,
a party “must show (1) that a particular form of communication has
occurred or is threatened to occur and (2) that the particular form
of communication at issue is abusive in that it threatens the
proper functioning of the litigation.”
Longcrier, 595 F. Supp. 2d
at 1226-27 (internal quotation marks omitted); see also Gulf Oil
Co. v. Bernard, 452 U.S. 99, 101 (1981) (explaining that “an order
limiting communications between parties and potential class members
should be based on a clear record and specific findings that
reflect a weighing of the need for a limitation and the potential
6
interference with the rights of the parties”).
Once the movant
makes a qualifying “specific record showing . . . of the particular
abuses
by
which
it
is
threatened,”
a
court
may
limit
communications, “giving explicit consideration to the narrowest
possible relief which would protect the respective parties.”
Gulf
Oil, 452 U.S. at 102 (internal quotation marks omitted).
A.
Defendants’ Protective Order Motion
Defendants
contend
that
named
Plaintiff
has
improperly
solicited individuals to join this collective action and that this
solicitation
necessitates
(Docket Entries 23, 41.)
certain
communication
constraints.
In support of this assertion, Defendants
offer Individual Defendant’s July 2015 affidavit (Docket Entry 221) (the “Defendant’s Affidavit”) and the June 2015 Affidavit of
Manuel Gil (“Gil”) (Docket Entry 22-2) (the “Gil Affidavit”). (See
Docket Entry 23 at 1-3.)
Defendant’s Affidavit states that a
“former employee told [Individual Defendant] that th[e] former
employee and others had been solicited to join the lawsuit by
[named Plaintiff] and her lawyer.”
(Docket Entry 22-1 at 6.)
Defendant’s Affidavit recounts additional items that “the former
employee said” and that “[t]he former employee told [Individual
Defendant]”
employee’s
regarding
alleged
participation
in
efforts
the
to
lawsuit.
solicit
(Id.
the
at
former
6-7.)
Defendant’s Affidavit indicates that the former employee made these
7
statements sometime in or after December 2014, but provides no
further details regarding the former employee.
(Id. at 5-7.)
The Gil Affidavit similarly recounts statements that a “former
employee
of
Defendant
Vesuvio[’s]
II”
made
regarding
three
telephone conversations that the former employee allegedly had with
two unidentified women and named Plaintiff.
(Docket Entry 22-2 at
1-2.) The affidavit refers to this former employee as “J. Doe” but
provides no further details regarding this individual or the timing
of any of the recounted events.
describes
a
telephone
Plaintiff
and
this
call
former
(Id.)
that
Finally, the Gil Affidavit
Gil
employee.
overheard
between
According
to
named
the
Gil
Affidavit:
During the call, [named] Plaintiff told J. Doe that
[named] Plaintiff herself was now very close to receiving
her own work permit, which would permit her to work in
the United States lawfully. She suggested to J. Doe that
if J. Doe had worked with her that J. Doe could, too, be
in the same situation. She told J. Doe that if J. Doe
met with her and a third party in a public place, they
could accomplish it quietly and that J. Doe would not
have to inform his/her family of the arrangement.
[Gil’s] impression was that [named] Plaintiff was
offering to assist J. Doe in securing a work permit or
other benefit, just as she was in the process of
receiving, if J. Doe met with her and a third party.
(Id. at 2.)
The
former
employee’s
statements
regarding
what
named
Plaintiff and other individuals allegedly told the former employee
“are hearsay because they are used to prove the truth of the out of
court
and
unsworn
assertions
of
8
a
non-witness,”
namely
this
unidentified
former
employee.
North
Am.
Clearing,
Inc.
v.
Brokerage Computer Sys., Inc., 666 F. Supp. 2d 1299, 1311 (M.D.
Fla. 2009); see also Fed. R. Evid. 801(c).
As such, they cannot
support the requested communication constraint.
U.S.
at
103
n.18
(explaining
that
“unsworn
See Gulf Oil, 452
allegations
of
misconduct” cannot justify communication ban); Flint Hills Sci.,
LLC v. Davidchack, Civ. Action No. 00-2334-KHV, 2001 WL 1718291, at
*2 (D. Kan. Dec. 3, 2001) (observing that “a protective order
should not issue on th[e sole] basis” of “the hearsay allegations
of [an] affidavit” (internal quotation marks omitted)); see also
North Am. Clearing, 666 F. Supp. 2d at 1311-12 (concluding that
hearsay in affidavit cannot justify grant of summary judgment).4
As to named Plaintiff’s comments during the telephone call
overheard by Gil, to the extent such matters constitute a nonhearsay “admission of an opposing party” (Docket Entry 38 at 3-4),
they cannot salvage Defendants’ Protective Order Motion.
The
various comments “as reported by [affiant] Gil” (id. at 5) do not
establish
the
necessary
clear,
“specific
record
showing”
particular abuses to justify the requested restraint.
452 U.S. at 101-02.
of
Gulf Oil,
In particular, the comments do not clearly
establish that named Plaintiff has solicited — or will solicit in
4
Hearsay in an affidavit constitutes the functional
equivalent of an unsworn allegation.
See, e.g., North Am.
Clearing, 666 F. Supp. 2d at 1312 (“[The hearsay declarant’s]
statements to [affiant] are hearsay without exception and thus are
inadmissible as substantive evidence.”).
9
the future — participation in this action.
Indeed, even Gil
understood that, to receive the offered assistance, the former
employee only had to “me[e]t with [named Plaintiff] and a third
party” rather than join any lawsuit.
(Docket Entry 22-2 at 2.)
Thus, because Defendants have not established a clear record of
attempted solicitation, the Court will deny Defendants’ Protective
Order Motion.
B.
Plaintiff’s Protective Order Motion
Plaintiffs meanwhile contend that Defendants have improperly
threatened putative plaintiffs in an attempt to dissuade their
pursuit of this FLSA action.
(See Docket Entries 17, 18, 26.)
In
support, Plaintiffs offer the declarations of (1) Maria Xochilt
Murrieta Martinez (“Martinez”) (Docket Entry 18-1) (the “Martinez
Declaration”),5 (2) Silvia B. Nelson (“Nelson”) (Docket Entry 18-2)
(the “Nelson Declaration”), and (3) opt-in Plaintiff (Docket Entry
18-7) (the “Alvarado Declaration”).
As relevant to Plaintiff’s
Protective Order Motion, the declarations include the following
statements:
First, the Martinez Declaration states that, on December 22,
2014, Individual Defendant told Martinez to tell Plaintiff to “stop
pursuing any potential lawsuit against Defendant[s]” or else “she
ran the risk of arrest and deportation.”
(Docket Entry 18-1 at 1-
5 Martinez’s declaration identifies her as named Plaintiff’s
former sister-in-law. (Docket Entry 18-1 at 1.)
10
2.)
Martinez further asserts that Individual “Defendant also told
[Martinez] to advise [named Plaintiff] that the police were already
looking
for
her
as
he
had
hired
a
private
investigator
and
confirmed her immigration status, . . ., and she would probably be
deported.”
(Id. at 2.)
According to the Nelson Declaration,
Nelson received a call on December 29, 2014, from named Plaintiff,
who recounted the conversation between Individual Defendant and
Martinez.
(Docket Entry 18-2 at 2.)
Thereafter, Nelson states,
Nelson participated in a telephone call with Individual Defendant’s
wife, who “denied the allegations of such threats, but said it
could have been the private investigator they hired who may have
made those comments.”
(Id.)
The Nelson Declaration further states that named Plaintiff
told Nelson on January 28, 2015, that a Roxboro police officer had
called named Plaintiff and “told [her] that he knew about the
unpaid wages dispute between [named Plaintiff] and Defendants and
asked her to come in ‘to explain her side of the story.’”
2-3.)
(Id. at
Nelson states that she subsequently participated in a call
with Detective Cates of the Roxboro Police Department, during which
Detective Cates indicated that he was investigating a complaint
that Individual Defendant filed against named Plaintiff.
3.)
(Id. at
Nelson asserts that Detective Cates (1) said he “was aware of
the pending civil case against Vesuvio’s II,” (2) admitted working
security for Defendants, but denied being friends with Individual
11
Defendant, and (3) “angrily stated that he was issuing two (2)
warrants
for
[named
Plaintiff’s]
arrest
immediately.”
(Id.)
Shortly thereafter, according to the Nelson Declaration, named
Plaintiff “called the office to advise us that she had been
arrested.”
(Id.)
Finally, the Alvarado Declaration states that (1) during a
government investigation of Defendants’ pay practices, Individual
Defendant instructed opt-in Plaintiff to respond in a certain way
to
any
queries
regarding
whether
he
was
properly
paid;
(2) Individual Defendant and Defendants’ manager, Alfredo, began
treating opt-in Plaintiff differently at work following named
Plaintiff’s arrest; (3) Alfredo told opt-in Plaintiff to consider
quitting or else he “ran the risk that what happened to [named
Plaintiff] could happen to [opt-in Plaintiff] as well[;]” and
(4) shortly after this conversation with Alfredo, a car followed
opt-in Plaintiff for several blocks on his way home from work.
(Docket Entry 18-7 at 2-3.)
Additionally, in their memorandum in
support of Plaintiff’s Protective Order Motion, Plaintiffs assert
that “some putative plaintiffs who have contacted Plaintiff’s
counsel have indicated that they were hesitant to join the action,
cooperate with an ongoing U.S. DOL investigation, or to even
discuss Defendants’ practices precisely because they were afraid of
what Defendants would do to anyone who participated.”
Entry 18 at 5.)
12
(Docket
In response, Defendants filed various affidavits contesting
Plaintiffs’
description
Affidavit,
Individual
of
events.
Defendant
First,
denies
(1)
in
Defendant’s
threatening
named
Plaintiff in his conversation with Martinez, (2) reporting named
Plaintiff to the Roxboro Police Department, (3) instructing opt-in
Plaintiff to respond in a specific manner to queries about his pay,
and (4) intimidating or coercing opt-in Plaintiff.
22-1
at
6,
Affidavit”),
8-9.)
Second,
Defendants’
in
his
manager
affidavit
denies
(Docket Entry
(the
opt-in
“Alfredo
Plaintiff’s
assertions that he treated opt-in Plaintiff poorly and warned optin Plaintiff to quit his job.
(Docket Entry 22-3 at 2-3.)
further
of
disclaims
Plaintiff.
knowledge
(Id. at 3.)
the
car
that
Alfredo
followed
opt-in
Third, in his affidavit (the “Thomas
Affidavit”), private investigator Thomas states that Defendants
hired him to investigate whether named Plaintiff had previously
pursued unpaid wage claims against other employers; that Thomas
reported named Plaintiff to the Roxboro police on approximately
January 12, 2015; and that Defendants did not ask or encourage
Thomas to report named Plaintiff to the police. (Docket Entry 38-2
at 2-4.)
affidavit
Fourth and finally, Detective Cates states in his
(the
Plaintiff’s
“Cates
civil
suit
Affidavit”)
against
that
he
Defendants
learned
while
of
named
interviewing
Individual Defendant on January 26, 2015, as part of the police
investigation of named Plaintiff.
13
(Docket Entry 38-5 at 3-4.)
Against this backdrop, Plaintiffs have not established the
“clear record”
of
specific
abuse
that Gulf
Oil
requires
for
communication limitations. See 452 U.S. at 101-02. To begin with,
Defendant’s Affidavit and the Alfredo Affidavit collectively deny
the existence of, or at least Individual Defendant’s and Alfredo’s
involvement in, the threatening conduct described in the Martinez
Affidavit and the Alvarado Affidavit.
This disputed conduct
constitutes an insufficient evidentiary basis for the requested
relief.
Moreover,
because
unsworn
assertions
cannot
justify
communication limitations, see id. at 103 n.18, the assertion about
putative plaintiffs’ fears in Plaintiffs’ memorandum (see Docket
Entry 18 at 5) likewise provides an insufficient basis for the
requested relief. As a result, Plaintiff’s Protective Order Motion
hinges
on
the
Nelson
Affidavit.
Nelson’s
statements
about
Individual Defendant’s wife’s comments, named Plaintiff’s comments,
and Detective Cates’ comments during the various telephone calls
constitute inadmissible hearsay.
North Am. Clearing, 666 F. Supp.
2d at 1311; Fed. R. Evid. 801(c). Additionally, even setting aside
the hearsay impediment, Plaintiffs have not established a basis to
attribute to Defendants Detective Cates’ decision to issue arrest
warrants for named Plaintiff.
Accordingly, the Court denies
Plaintiff’s Protective Order Motion.
14
C.
Future Communications
The Protective Order Motions allege various improprieties by
Plaintiffs and Defendants from December 2014 (see, e.g., Docket
Entry 18-1 at 1) through, at the latest, June 2015 (see Docket
Entry 22-2 at 3).
For the reasons stated above, the parties have
not shown that this alleged conduct — which occurred between nine
and fifteen months ago — satisfies the Gulf Oil standard for
limiting communications.
Nevertheless, given the course of this
litigation, the Court directs all parties and their agents to
scrupulously refrain from any communication that is “misleading,
coercive, or otherwise abusive,” including communication that may
“undermine or contradict” the forthcoming court-approved class
notice.
Stransky, 929 F. Supp. 2d at 1105 (internal quotation
marks omitted). The parties must exhibit particular caution in any
oral communications, as “unsupervised oral solicitations, by their
very nature, are wont to produce distorted statements on the one
hand and the coercion of susceptible individuals on the other.”
Kleiner v. First Nat’l Bank of Atlanta, 751 F.2d 1193, 1206 (11th
Cir. 1985).
III.
Certification Motion
Having resolved the Protective Order Motions, the Court turns
to Plaintiff’s Certification Motion, which seeks FLSA conditional
certification of a class of Vesuvio’s II employees.
15
A.
FLSA Standards
Under the FLSA, an employee can pursue an action for unpaid
overtime and minimum wages on “behalf of himself . . . and other
employees similarly situated.”
29 U.S.C. § 216(b).
For FLSA
purposes, “[p]utative class members are similarly situated . . . if
they raise a similar legal issue as to coverage, exemption, or
nonpayment o[f] minimum wages or overtime arising from at least a
manageably similar factual setting with respect to their job
requirements and pay provisions.”
McLaurin v. Prestage Foods,
Inc., 271 F.R.D. 465, 469 (E.D.N.C. 2010) (internal quotation marks
omitted).6
To become a party plaintiff, each “similarly situated”
employee must “give[] his consent in writing to become such a party
and such consent [must be] filed in the court in which such action
is brought.”
29 U.S.C. § 216(b).
Courts employ a two-stage
certification procedure for FLSA collective actions.
Houston v.
URS Corp., 591 F. Supp. 2d 827, 831 (E.D. Va. 2008).
At the first stage, known as conditional certification, “the
court determines whether the putative class members’ claims are
sufficiently similar to merit sending notice of the action to
possible members of the class.”
Adams v. Citicorp Credit Servs.,
Inc., 93 F. Supp. 3d 441, 453 (M.D.N.C. 2015) (internal quotation
6
FLSA collective actions lack the “requirements of
numerosity, commonality, typicality and adequacy” associated with
Rule 23 class actions. Robinson v. Empire Equity Grp., Inc., Civ.
Action No. 09-1603, 2009 WL 4018560, at *1 n.8 (D. Md. Nov. 18,
2009).
16
marks omitted).7
Although “not a rubber-stamp approach,” the
conditional certification standard is “fairly lenient[:]”
the
plaintiff “need only make a relatively modest factual showing that
a common policy, scheme or plan that violated the law exists.”
Id.
(internal quotation marks and alterations omitted); see also Hart
v. Crab Addison, Inc., No. 13-CV-6458, 2015 WL 365785, at *2
(W.D.N.Y. Jan. 27, 2015) (“Unlike class certification motions under
Rule 23, motions for preliminary certification of FLSA collective
actions are more easily supported, and are designed to be made
prior to discovery.”).
Moreover, when evaluating conditional
certification, “the Court does not resolve factual disputes, decide
substantive
issues
on
the
merits,
or
make
credibility
determinations.”
Adams, 93 F. Supp. 3d at 454 (internal quotation
marks omitted).
These conditional certification standards guide
the Court’s analysis of the Certification Motion.
B.
Conditional Certification Analysis
i.
Plaintiffs’ Conditional Certification Contentions
According to named Plaintiff, “[t]his lawsuit challenges a
companywide practice that violates the FLSA:
Defendants failed to
pay named, opt-in and putative Plaintiffs minimum wage and overtime
7 The second stage, known as decertification, only occurs if
a defendant, “usually after discovery is virtually complete,” moves
to decertify a conditionally certified class. Long v. CPI Sec.
Sys., Inc., 292 F.R.D. 296, 299 (W.D.N.C. 2013). At that stage,
“courts apply a heightened fact specific standard to the ‘similarly
situated’ analysis.” Id.
17
premium pay for all of the hours that they worked above forty (40)
in
a
week
since
Defendants’
policy
was
to
employees from recording their hours worked.”
preclude
kitchen
(Docket Entry 15 at
12 (emphasis in original); see also id. at 5 (“Defendants’ practice
was to prevent kitchen employees from recording their actual
hours.”).) Plaintiffs request class certification on behalf of all
employees affected by this alleged companywide policy. (See, e.g.,
Docket Entry 1, ¶ 37 (identifying putative class as “[a]ll current
and/or former kitchen employees of Defendants . . . who were not
compensated for all of their hours worked, including minimum wage
and/or time and one-half for hours worked above forty (40) per
week”).)
relies
In moving for conditional certification, named Plaintiff
on
her
own
and
opt-in
Plaintiff’s
declarations
and
deposition transcripts.
Plaintiffs’ declarations state that Defendants failed to pay
them minimum wages and overtime for the hours they worked.
(See
Docket Entry 15-1, ¶¶ 1, 7, 9-10; Docket Entry 15-2, ¶¶ 1-2, 8.)
In their depositions, Plaintiffs provided additional details about
their hours and wages, further supporting their minimum wage and
overtime contentions.
(See, e.g., Docket Entry 36-1 at 16-21, 28-
29, 48; Docket Entry 39-1 at 25-26, 29-30, 32, 34, 37, 45.)
In
their declarations and depositions, Plaintiffs detail their job
duties and identify other workers with similar duties, hours, and
compensation experiences.
(See, e.g., Docket Entry 15-1, ¶¶ 3, 8;
18
Docket Entry 15-2, ¶¶ 4, 9; Docket Entry 36-1 at 47-48, 89-98;
Docket Entry 39-1 at 14-15, 26, 28-30, 32, 38-41.)
In her declaration and deposition, named Plaintiff states that
Defendants did not permit named Plaintiff and other kitchen workers
to record their hours.
(Docket Entry 15-1, ¶ 6; see, e.g., Docket
Entry 36-1 at 21-22, 89-93.)
In his deposition and declaration,
opt-in Plaintiff similarly states that, prior to January 2015,
Defendants did not permit kitchen workers to record their hours
worked.
(Docket Entry 15-2, ¶ 6; Docket Entry 39-1 at 48-52.)
Opt-in Plaintiff further testified that the clock Defendants used
to track workers’ hours after January 2015 inaccurately recorded
time, resulting in off-the-clock work.
(Docket Entry 39-1 at 57
(“What happened was it seemed like the hour was not set correctly,
because in the beginning when we would clock in the time seemed too
ahead and then when we would clock out the time was behind. So it
seemed like it was not set correctly, the times were not set. . . .
I would note my time by looking at my cell phone and then when I
would clock in at that time I would compare and the hours were not
the same.”).)
Opt-in Plaintiff testified that he reported these
inaccuracies to Defendants, who did not correct them.
(Id. at 57-
58.)
Use of an allegedly inaccurate time clock constitutes another
method of implementing Defendants’ purported policy of not paying
minimum wages and overtime by precluding accurate recording of
19
hours worked.
See, e.g., Rosario v. Valentine Ave. Disc. Store,
Co., 828 F. Supp. 2d 508, 516 (E.D.N.Y. 2011) (explaining that
defendant had “at least two methods of implementing [its] policy”
of not paying minimum wages and overtime); Choimbol v. Fairfield
Resorts, Inc., 475 F. Supp. 2d 557, 564 (E.D. Va. 2006) (“All of
the [p]laintiffs allege that they were victims of [the d]efendants’
predominant policy of withholding minimum wages and overtime pay in
violation of the FLSA.
There is no question that, as required
under the conditional certification analysis, [the p]laintiffs name
Fairfield entities allegedly engaged in a common policy and scheme
which violated the FLSA, whether done by requiring ‘deposits’ or
withholding of wages.”).
This difference in methods does not
subject putative “[p]laintiffs to factually distinct defenses which
would work to undermine the benefit associated with collective
actions, including judicial economy and efficiency by avoiding
multiple lawsuits and repetitious evidence.”
Choimbol, 475 F.
Supp. 2d at 564. Through Plaintiffs’ declarations and depositions,
named Plaintiff has therefore “sufficiently shown that the members
of [her] proposed class are similarly situated for purposes of
conditional certification.”
ii.
Adams, 93 F. Supp. 3d at 454.
Defendants’ Certification Objections
Nevertheless, Defendants object to certification, for two
primary
reasons.
First,
Defendants
maintain
that
purported
inconsistencies in Plaintiffs’ testimony, as well as Individual
20
Defendant’s allegedly contradictory testimony, render conditional
certification improper.
(Docket Entry 53 at 6-15.)
Defendants’
contention in this regard simply “delves too deeply into the merits
of the dispute; such a steep plunge is inappropriate for such an
early stage of a FLSA collective action.
The crux of the matter is
whether Plaintiffs have made a modest factual showing that they
were victims of a common policy or scheme that contravenes the
FLSA. For the reasons articulated above, Plaintiffs have made this
modest showing.”
Essame v. SSC Laurel Operating Co. LLC, 847 F.
Supp. 2d 821, 826 (D. Md. 2012).8
Second, on the theory that “[o]pt-in Plaintiff’s claims for
pay periods prior to July 7, 2012 would be [time-]barred” and that
Plaintiffs “admit they did not work together at [Vesuvio’s] II
after
June
2012,”
Defendants
contend
that
“Plaintiffs
cannot
competently testify about what they observed about the other’s work
practices within the pertinent period for this case.”
Entry 53 at 9.)
(Docket
The date that Plaintiffs last worked together
8 Relatedly, Defendants contend that named Plaintiff was not
similarly situated to other employees because she purportedly
“reported her time in a different manner from that of other
employees.” (Docket Entry 53 at 11; see also id. (“According to
testimony by [Individual Defendant], Defendants required all
employees except [n]amed Plaintiff to record their hours in a
computerized time clock.”).)
This contention disregards opt-in
Plaintiff’s testimony that he (and others) did not use a time clock
prior to January 2015. (See Docket Entry 15-2, ¶ 6; Docket Entry
39-1 at 48-52.) The Court does not resolve such factual disputes
in the conditional certification analysis. See Adams, 93 F. Supp.
3d at 454.
21
remains a disputed evidentiary issue (compare id. at 4, 9, with
Docket
Entry
39
at
31),
not
subject
to
resolution
at
the
conditional certification stage, Adams, 93 F. Supp. 3d at 454.
Additionally, statute of limitations concerns do not undermine the
competency of opt-in Plaintiff’s testimony regarding similarities
between named Plaintiff and other putative plaintiffs.
See, e.g.,
Lujan v. Cabana Mgmt., Inc., No. 10-CV-755, 2011 WL 317984, at *5
(E.D.N.Y. Feb. 1, 2011) (explaining that, although affidavits from
individuals with time-barred claims “may carry less weight than
those of recent employees[, n]evertheless, they are probative of
employers’ wage and hour practices and they may corroborate the
claims of more recent violations” (citation omitted)); Fisher v.
Michigan Bell Tel. Co., 665 F. Supp. 2d 819, 828 (E.D. Mich. 2009)
(“Although the two opt-in [p]laintiff/deponents from the Kalamazoo,
and both Detroit call centers may not themselves have viable claims
during the statutory period, this does not undermine the fact that
[the p]laintiffs have provided relevant evidence supporting the
inclusion of these call centers in the class so that other putative
class members, who have viable claims, may receive notice of this
action.” (footnote omitted)).
Therefore, Defendants’ statute of
limitations contention does not preclude conditional certification.
iii.
Class Definition
Via Plaintiffs’ declarations and depositions, named Plaintiff
has “sufficiently shown that the members of [her] proposed class
22
are similarly situated for purposes of conditional certification.”
Adams, 93 F. Supp. 3d at 454. Accordingly, the Court conditionally
certifies the following class:
All individuals who worked in the
kitchen at Vesuvio’s II between March 13, 2012, and the deadline
for the opt-in period, who, at any time during this period, were
not permitted to accurately record their hours worked.9
C.
Notice
“The FLSA manifests a preference that when collective action
certification is granted, a court-controlled notice be provided to
potential putative plaintiffs, rather than permitting unregulated
solicitation efforts to secure joinder by those individuals.
The
Court thus holds a managerial responsibility to oversee the joinder
of additional parties to assure that the task is accomplished in an
efficient and proper way.”
Adams, 93 F. Supp. 3d at 456 (internal
quotation marks and citation omitted).
Motion,
named
Plaintiff
requests
that
In the Certification
the
Court
approve
her
proposed notice and consent form and order Defendants (1) to
provide
certain
information
regarding
putative
plaintiffs
to
facilitate the notice process and (2) to post the notice and
consent form “at Defendants’ place of business.”
at 1.)
to
(Docket Entry 14
Defendants object to the proposed notice and consent form,
producing
certain
of
the
requested
information
regarding
9
In light of the potential three-year FLSA statute of
limitations, the class may extend “three years prior to the filing
of this action.” Adams, 93 F. Supp. 3d at 456 n.11.
23
putative plaintiffs, and to Plaintiffs’ distribution of the notice.
(Docket Entry 53 at 15-20.)
Defendants ask that the Court “allow
the [p]arties to collaboratively propose more just notice and
consent forms to th[e] Court for approval.”
(Id. at 18.)
Named
Plaintiff agrees to collaborate with Defendants, but asks for leave
to submit separate forms if the parties cannot agree on the
proposed notice and consent.
(See Docket Entry 58 at 3, 9.)
The
Court will direct the parties to attempt to reach accommodation on
these matters.
IV.
Objection
Defendants seek reimbursement from Plaintiffs for certain
attorney and paralegal time associated with Defendants’ motions to
compel and opt-in Plaintiff’s rescheduled deposition.
(Docket
Entry 56 at 2.) Plaintiffs object to these expenses as outside the
scope of the Court’s Order.
(See generally Docket Entry 54.)
The
Order specified that Plaintiffs’ counsel would bear any late
cancellation
or
expedited
scheduling
expenses
for
opt-in
Plaintiff’s deposition and that opt-in Plaintiff and Defendants
would
equally
deposition.
divide
the
videoconferencing
expenses
for
that
(Docket Entry 51 at 42; see also id. at 23 n.12
(explaining that Defendants enumerated the expenses they sought to
recover as “‘the video conferencing expenses at two sites, [in
North Carolina]
and
in
Ohio,
another
full
day
of translator
services, as well as a half day of translator services for August
24
12,
2015
because
of
the
late
notice
in
cancelling
[opt-in
Plaintiff’s] deposition’” (alterations in original) (quoting Docket
Entry 32-1 at 6)).)
Additionally, the Order explicitly denied
expense-shifting regarding Defendants’ motions to compel.
40.)
The
disputed
expenses
do
not
qualify
as
(Id. at
either
late
cancellation and expedited scheduling expenses or videoconferencing
expenses.
(See Docket Entry 54-12 at 2.)
Accordingly, the Court
sustains Plaintiffs’ Objection to the identified $1,875 in attorney
and paralegal fees (see id.).
CONCLUSION
The record warrants conditional certification as to certain
Vesuvio’s II kitchen workers, but the parties have not justified
their requested communication restrictions.
Moreover, Rule 12(f)
does not authorize striking the contested affidavits.
Finally,
Plaintiffs need not pay the disputed expenses.
IT IS THEREFORE ORDERED that the Certification Motion (Docket
Entry 14) is GRANTED insofar as the Court conditionally certifies
a class defined as “all individuals who worked in the kitchen at
Vesuvio’s II Pizza & Grill, Inc. between March 13, 2012, and the
deadline for the opt-in period, who, at any time during this
period,
were
not
permitted
to
accurately
record
their
hours
worked.”
IT IS FURTHER ORDERED that the parties attempt to reach
accommodation
on
a
notification
25
plan,
Notice
of
Conditional
Certification, Consent to Join Form, and production of contact
information for putative plaintiffs.
On or before April 1, 2016,
the parties shall file a Joint Status Report regarding their
efforts to
agree
on these
matters,
including
their
joint or
individual proposals for such matters. If the parties agree on the
Notice of Conditional Certification and Consent to Join Form, they
shall
submit,
in
addition
to
an
English
version,
a
Spanish
translation of these jointly proposed documents prepared by a
certified Spanish-English translator.
IT IS FURTHER ORDERED that Plaintiff’s Protective Order Motion
(Docket Entry 17) and Defendants’ Protective Order Motion (Docket
Entry 23) are DENIED.
Nevertheless, the Court directs all parties
and their agents to scrupulously refrain from any communication
that is coercive, misleading, or otherwise abusive, including
communication that may contradict or undermine the forthcoming
court-approved class notice.
The parties and their agents must
exhibit particular caution in any oral communications with putative
plaintiffs.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike
(Docket Entry 42) is DENIED.
26
IT IS FURTHER ORDERED that Plaintiff’s Objection (Docket Entry
54) is SUSTAINED.
Plaintiffs need not pay the $1,875 in attorney
and paralegal fees identified in Objection Exhibit L (Docket Entry
54-12).
This 14th day of March, 2016.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
27
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