Geiger et al v. H&H Franchising Systems, Inc. et al
ORDER granting in part and denying in part 68 Motion to Certify Class Revised Motion to Conditionally Certify a Collective Action and Facilitate Notice under 29 U.S.C. § 216(b). The original motion 44 Motion to Certify Class is DENIED AS MOOT. The Court approves the issuance of a notice consistent with this Order and sets the deadline for opting into this action as February 9, 2019. Signed by Chief Judge Frank D. Whitney on 11/27/2018. (brl)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
DOCKET NO. 3:17-cv-00738-FDW-DSC
ROSEANN GEIGER and
SHERRI HOLLEY, individually and on )
behalf of all others similarly situated
H.H. FRANCHISING SYSTEMS, INC., )
d/b/a HOME HELPERS, a foreign )
KATHLEEN HOLDEN, an individual; and )
GLENN HOLDEN, an individual,
THIS MATTER is before the Court on Plaintiffs’ Motion for Conditional Certification and
Judicial Notice under 29 U.S.C. § 216(b), (Doc. No. 44), as well as Plaintiffs’ Revised Motion
(Doc. No. 68) filed “to clarify the identity of the moving party” after this matter was stayed against
Roseann Geiger, one of the plaintiffs. In light of this Revised Motion, the original motion (Doc.
No. 44) is DENIED AS MOOT.
In addition to seeking the Court’s approval of the proposed Notice of Collective Action
Lawsuit and the corresponding Consent to Become Party Plaintiff form, Plaintiff Holley also seeks
conditional certification under the Fair Labor Standards Act (“FLSA”) of a collective class defined
[A]ll current and former in-home caregiver employees who regularly worked 24hour shifts and/or who worked more than 40 hours per week, are/were employed
by H.H. Franchising Systems, Inc. d/b/a Home Helpers; and/or Glenkat, Inc.;
Kathleen Holden and Glenn Holden (collectively, “Defendants”) in North Carolina
from December 24, 2014[,] to the present.
(Doc. No. 68, p. 2). Defendants object to Plaintiff’s Motion. (Docs. Nos. 72, 74), and Plaintiff
Holey replied (Docs. Nos. 73, 75). The Motion is now ripe for resolution. For the reasons below,
the Court GRANTS IN PART AND DENIES IN PART the Motion for Conditional Certification
and Judicial Notice.
As stated by the Supreme Court when addressing Section 216(b) of Title 29, a “collective
action allows . . . plaintiffs the advantage of lower individual costs to vindicate rights by the
pooling of resources” and benefits the judicial system “by efficient resolution in one proceeding
of common issues of law and fact arising from the same alleged discriminatory activity.”
Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1983) (addressing action under the Age
Discrimination in Employment Act of 1967, which incorporates 29 U.S.C. § 216(b) through 29
U.S.C. § 626(b)).
These benefits, however, depend on employees receiving accurate and timely
notice concerning the pendency of the collective action, so that they can make
informed decisions about whether to participate. Section 216(b)'s affirmative
permission for employees to proceed on behalf of those similarly situated must
grant the court the requisite procedural authority to manage the process of joining
multiple parties in a manner that is orderly, sensible, and not otherwise contrary to
statutory commands or the provisions of the Federal Rules of Civil Procedure. See
Fed. Rule Civ. Proc. 83.
Id. Therefore, the Supreme Court recognized that “it lies within the discretion of a district court
to begin its involvement early, at the point of the initial notice, rather than at some later time[,]”
id. at 171, and held “that district courts have discretion, in appropriate cases, to implement 29
U.S.C. § 216(b) (1982 ed.) . . . by facilitating notice to potential plaintiffs[,]” id. at 169.
The Court, in the exercise of its discretion, concludes that Court approval of a notice is
appropriate on this record when limited to individuals who worked for the Glenkat franchise and
not “all North Carolina franchises.” Thus, to the extent requested, the Court denies Plaitniff’s
request to send notice to “ALL IN-HOME CAREGIVER EMPLOYEES EMPLOYED BY H.H.
FRANCHISING SYSTEMS, INC., d/b/a HOME HELPERS and/or GLENKAT, INC. IN NORTH
CAROLINA.” Plaintiff has plead, attested to facts, and filed documentation supporting a plausible
FLSA claim on behalf of similarly situated plaintiffs who worked for the Glenkat franchise. (See
Doc. No. 69). Plaintiff has made a sufficient showing of a common policy or practice by the
Glenkat franchise. See e.g., Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010) (“The court
may send this notice after plaintiffs make a ‘modest factual showing’ that they and potential optin plaintiffs ‘together were victims of a common policy or plan that violated the law.’” (citation
omitted)); McLaurin v. Prestage Foods, Inc., 271 F.R.D. 465, 469 (E.D.N.C. 2010) (same).
However, statewide notice to all employees of Home Helpers, including those who worked for
franchises other than Glenkat, is not appropriate – particularly where other franchisees are not
named Defendants. Both the Court’s ability to orderly oversee the joining of parties and the
parties’ ability to timely complete discovery would be hindered if such broad notice were allowed.
See generally Sperling, 493 U.S. at 170; Mickles v. Country Club, Inc., 887 F.3d 1270, 1280 (11th
Cir. 2018) (affirming denial of conditional certification and notice as untimely).
The Court also declines to grant Plaintiff’s request to “conditionally certify” the collective
action. Conditional certification of a collection action is not required by the FSLA, the Supreme
Court, or the Fourth Circuit. Cf. Mickles, 887 F.3d at 1278 (holding that conditional certification
is not required to become a party plaintiff in light of the plain language of section 216(b) and the
Supreme Court’s holdings). The FLSA is distinct from Rule 23 in many ways and the Court does
not believe the term “conditional certification” embodies the discretionary case management
involvement permitted under 29 U.S.C. § 216(b). “[U]nlike in a class action filed pursuant to
Federal Rule of Civil Procedure 23 or a comparable state court rule, in a collective action under
the FLSA, a named plaintiff represents only himself until a similarly-situated employee opts in as
a ‘party plaintiff’ by giving ‘his consent in writing to become such a party and such consent is filed
in the court in which such action is brought.’” Simmons v. United Mortg. & Loan Inv., LLC, 634
F.3d 754, 758 (4th Cir. 2011) (quoting 29 U.S.C. § 216(b)).
Therefore, the Court concludes some modifications to Plaintiff’s Proposed Notice (Doc.
No. 69-5) are necessary.
Court intervention in the notice process for case management purposes is
distinguishable in form and function from the solicitation of claims. In exercising
the discretionary authority to oversee the notice-giving process, courts must be
scrupulous to respect judicial neutrality. To that end, trial courts must take care to
avoid even the appearance of judicial endorsement of the merits of the action.
Sperling, 493 U.S. at 174. To achieve this end, in addition to the modification to the proposed
class, the Court orders the following modifications to the Proposed Notice of Collective Action
Lawsuit (Doc. No. 69-5) (the “Notice”):
Modify the Notice to be sent to: “All current and former in-home caregiver employees who
regularly worked 24-hour shifts and/or who worked more than 40 hours per week, are/were
employed by H.H. Franchising Systems, Inc. d/b/a Home Helpers; and/or Glenkat, Inc.;
Kathleen Holden and Glenn Holden (collectively, “Defendants”) in North Carolina from
December 24, 2014[,] to the present.”
Modify the “Who Can Join This Lawsuit” section of the proposed Notice to be limited in
accordance with the above ruling regarding employees who worked for Home Helpers
franchisees other than Glenkat.
Add to the “Description of the Lawsuit” – “Glenkat, Inc. and Home Helpers deny that any
employee was not properly paid minimum and overtime wages. All employees were
properly paid under the Fair Labor Standards Act, and in particular were properly paid
according to Department of Labor standards and guidelines regarding payment for work
during sleep periods. Glenkat, Inc. and Home Helpers acted in good faith and contest any
liability as alleged by Plaintiff.” (See Doc. No. 72, p. 11).
The Court also declines to grant Plaintiff’s request to send additional notices or subsequent
notices. Given the timing of the Notice, the Court believes repetitive unsolicited contact
with potential party plaintiffs after the initial Notice by First Class Mail may create the
appearance of undue Court involvement in the solicitation of claims. To the extent Plaintiff
seeks email addresses for purposes of sending duplicative notice, the Court finds
duplicative notice by email inappropriate.
No later than December 4, 2018, Defendants shall produce a computer-readable data file
containing the names and addresses or all Potential Plaintiffs. The Court approves a 60day “opt-in period,” to begin December 11, 2018.
The Court sets the deadline of February 9, 2019, for opting into this action.
In light of these deadlines, the Court sua sponte modifies only the following deadlines1:
a. Discovery Completion
March 27, 2019
April 13, 2019
c. Dispositive Motions (filed)
April 27, 2019
All other deadlines, including the Dispositive Motions hearing week of June 3-14, 2019, and the trial setting for the
term beginning July 1, 2019, remain unaltered by this Order. Counsel and the parties should refer to the Case
Management Order (Doc. No. 48), which governs all other deadlines other than the modifications noted here.
THEREFORE, consistent with this Order, the Court GRANTS IN PART and DENIES IN
PART the Revised Motion Conditionally Certify a Collective Action and Facilitate Notice under
29 U.S.C. § 216(b) (Doc. No. 68). The original Motion (Doc. No. 44) is DENIED AS MOOT.
The Court approves the issuance of a notice consistent with this Order and sets the deadline for
opting into this action as February 9, 2019.
IT IS SO ORDERED.
Signed: November 27, 2018
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