Holland v. Fulenwider Enterprises Inc. et al

Filing 29

ORDER denying without prejudice Pltf's 3 Motion for FLSA Conditional Collective Action Certification and Notice; granting parties leave to conduct limited conditional class certification to include not more than 10 depo sitions a side and necessary written discovery as to putative class members and any comparators Defts may identify; and deferring Defts' Request for Costs to time of issuance of Judgment unless amicably resolved as part of a global settlement. Signed by District Judge Max O. Cogburn, Jr. on 6/02/2017. (ejb) (Main Document 29 replaced on 6/2/2017) (kby).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:17-cv-00048-MOC-DLH
HELEN HOLLAND,

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Plaintiff,
Vs.
FULENWIDER ENTERPRISES INC.
TOM HIRUNPUGDI
PHOENIX TACO L.L.C
ERSKINE WHITE
MICHAEL FULENWIDER,
Defendants.

ORDER

THIS MATTER is before the court on plaintiff’s Motion for FLSA Conditional Collective
Action Certification and Notice. After the motion was fully briefed and competing affidavits were
filed, the court calendared the Motion for hearing. At the commencement of the hearing, plaintiff
announced that additional putative class members had “opted in” over the weekend. While no
affidavits had been secured from such putative members, plaintiff suggested that their claims
would be supportive of plaintiff’s contentions.
Based on the pleadings before the court at the time of the hearing, plaintiff would certainly
be able to move forward with her own FLSA claim, but she would be unable to secure conditional
collective action certification under prevailing law.

Rehberg v. Flowers Food, Inc., No.

3:12cv596, 2013 WL 1190290, at *2 (W.D.N.C. 2004). The additional, potential opt-in plaintiff’s
may, however, buttress plaintiff’s class claims and, in all fairness, this court needs to reset and
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consider whether the inclusion of these potential plaintiff’s alters the calculus. Defendants will
also need time to respond to whatever these additional plaintiffs may aver.
To that end, the court will deny the plaintiff’s Motion for FLSA Conditional Collective
Action Certification without prejudice. So as to possibly avoid an evidentiary hearing, the parties
will be granted leave to depose plaintiff, putative opt-in plaintiffs, and any employees or former
employees for either side who have provided an affidavit. Defendants’ request for costs is deferred
until (and if) this matter reaches judgment.
As discussed at the hearing, this court is not moved by allegations that a restaurant manager
had to pitch in and clean tables, help out on the line, or mop floors -- that is what successful
restaurant managers and owners do as this court knows from first-hand experience. What is
important is whether putative members of management were paid more than non-exempt
employees, whether they had authority over those employees, and whether they exercised that
authority. There should be ample records from the employer showing whether any given assistant
manager signed shift assignment sheets, approved the time or leave of a non-exempt employee,
was issued keys, and whether they ever hired, fired, or wrote-up a non-exempt employee. Indeed,
during any deposition, those records (or lack thereof) can be explored with the employee. Limited
written discovery supportive of any depositions will, therefore, also be allowed.
The parties are strongly encouraged to engage in early discussions aimed at resolving this
matter amicably as this court knows all too well the years and costs this type of litigation may
involve.

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ORDER
IT IS, THEREFORE, ORDERED that plaintiff’s Motion for FLSA Conditional
Collective Action Certification and Notice (#3) is DENIED without prejudice and the parties are
GRANTED leave to conduct limited conditional class certification to include not more than 10
depositions a side and necessary written discovery as to putative class members and any
comparators defendants may identify. Defendants’ Request for Costs is deferred to the time of
issuance of Judgment unless amicably resolved as part of a global settlement.

Signed: June 2, 2017

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