Hane v. On Time Securing, Inc.
Memorandum Opinion and Order: Plaintiff's motion for conditional certification and court-authorized notice (Doc. No. 34 ) is granted. The Court conditionally certifies the following collective: All present and former hourly employees of defendants during the period beginning three years preceding the commencement of this action to the present who worked more than forty hours in one or more workweeks and were not paid an overtime premium for some or all of those hours worked in exces s of forty in a workweek. Further, with the benefit of this ruling, the parties shall jointly submit for the Court's approval their proposed notice to potential plaintiffs, along with the proposed consent form, in accordance with the deadlines in the Case Management Plan and Trial Order, which is issuing separately. (Related Doc. No. 35 ). Judge Sara Lioi on 9/20/2017. (P,J)
Case: 5:16-cv-02002-SL Doc #: 43 Filed: 09/20/17 1 of 8. PageID #: 834
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
ON TIME SECURING, INC., et al.,
CASE NO. 5:16-cv-2002
JUDGE SARA LIOI
Before the Court is the motion of plaintiff Christopher Hane (“plaintiff” or “Hane”) for
conditional certification and court-authorized notice. (Doc. No. 34 [“Mot.”].) Defendants On Time
Securing, Inc. and Keith Maxim (collectively “defendants”) filed a memorandum in opposition
(Doc. No. 40 [“Opp’n”]), and plaintiff filed a reply (Doc. No. 42 [“Reply”]). For the reasons set
forth below, plaintiff’s motion is granted.
I. PROCEDURAL BACKGROUND
On August 10, 2016, plaintiff filed his complaint against On Time Securing, Inc. (“On
Time”)1 alleging violations of the overtime provisions of the Fair Labor Standards Act, 29 U.S.C.
§§ 201-219 [“FLSA”], and the prompt pay provisions of Ohio Rev. Code § 4113.15.
After little more than a week, defendant appeared and the parties jointly moved to stay the
litigation and to refer it to mediation before the assigned magistrate judge. The Court granted this
request and a mediation was set for September 29, 2016.
While the proceedings outlined here occurred, plaintiff filed a first amended complaint, adding two defendants: Keith
Maxim (“Maxim”), On Time’s president, and Laura Maxim, alleged to be an officer or manager of On Time. (Doc.
No. 21 [“FAC”].) Following the Case Management Conference, the parties jointly agreed to the dismissal of defendant
Laura Maxim without prejudice. (See Doc. Nos. 36, 37.)
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Subsequently, on the parties’ joint motion indicating “complications gathering and
analyzing records[,]” resulting in their “not [being] sufficiently prepared to enter into mediation[,]”
(Doc. No. 13), the Court asked the magistrate judge to “assist the parties with their records
collection dilemma and, thereafter, reschedule the mediation.” (Doc. No. 14.)
The mediation was rescheduled to November 1, 2016, but the day before the mediation the
parties again moved to continue, indicating a need for more time to “continue to exchange
documentation and meet and confer in an attempt to resolve the matter short of mediation.” (Doc.
No. 17.) The mediation was rescheduled to November 29, 2016 and was conducted on that date,
but was ordered reconvened on December 16, 2016.
On December 15, 2016, the parties jointly moved to lift the stay and return the case to the
Court’s active docket representing that “any further attempts to mediate will be a waste of the
Court’s and the parties’ time and resources.” (Doc. No. 19.) The parties requested a Case
Management Conference (“CMC”), which the Court set for February 10, 2017.
The CMC was conducted and an initial case management plan set deadlines for filing and
briefing certification motions.2 (See Doc. No. 31.) The instant motion timely followed.
II. FACTUAL BACKGROUND
In the first amended complaint, plaintiff alleges that On Time is in the business of
“servicing foreclosed homes[,]” and “handles all aspects of property preservation including
managing work distribution, work order management, documentation, and all other tasks related
Plaintiff’s complaint pleaded both § 216 collective action allegations (related to alleged FLSA overtime violations –
Count One) and Rule 23 class action allegations (related to alleged “prompt pay” violations under Ohio Rev. Code §
4113.15 – Count Two). In the Initial Case Management Plan, the Court set separate deadlines for filing the two
certification motions. The deadline for filing a Rule 23 motion has passed, with no motion filed and no extension
sought or granted. Therefore, plaintiff has abandoned any possible Rule 23 class action related to Count Two of the
FAC and may proceed on that count only as to himself.
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to property preservation.” (FAC ¶ 10.) The motion more specifically identifies the tasks related to
property preservation as including “such services as lock changing, winterizations, debris removal,
mold migration and landscaping services.” (Mot. at 153.3)
Plaintiff alleges that he and the potential opt-in plaintiffs were hourly employees of
defendants.4 (FAC ¶¶ 14, 16.) He has not identified exactly what tasks he or the others performed,
but, presumably, they each engaged in some or all of the specific tasks relating to On Time’s
property preservation business.5
Plaintiff alleges that he and the potential opt-ins “frequently worked more than forty (40)
hours in a single workweek, entitling them to overtime compensation under the FLSA.” (Id. ¶ 17.)
Defendants allegedly “failed to pay [plaintiffs] at a rate equal to one and one-half times their
regular rate unless [plaintiffs] worked at least fifty (50) hours in a week.” (Id. ¶ 19.) Plaintiff
alleges a collective of “similarly situated” employees. (Id. ¶ 23.)
III. LEGAL STANDARD
A collective action for unpaid overtime under the FLSA “may be maintained against any
employer . . . by any 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 such action unless he
gives his consent in writing[.]” 29 U.S.C. § 216(b); see also Comer v. Wal-Mart Stores, Inc., 454
All page number references are to the page identification number generated by the Court’s electronic docketing
Under the FLSA, “employer” includes “any person acting directly or indirectly in the interest of an employer in
relation to an employee[.]” 29 U.S.C. § 203(d). Therefore, Maxim can be held individually liable for an FLSA
violation. 29 C.F.R. § 791.2(b)(2); see also Mitchell v. Chapman, 343 F.3d 811, 827 (6th Cir. 2003) (“This Court has
interpreted the FLSA’s . . . language to impose individual liability on private-sector employers.”) (citations omitted)).
Plaintiff filed a notice that he was opting in to this collective action (see Doc. No. 3 [“Hane Consent”]), along with
two others (see Doc. No. 4 [“Emmick Consent”]; Doc. No. 6 [“Streeter Consent”]). Attached to the instant motion are
the declarations of Emmick and Streeter, each claiming to be “a laborer” for On Time. (Doc. No. 34-1 [“Emmick
Decl.”] ¶ 3 and Doc. No. 34-2 [“Streeter Decl.”] ¶ 3.) Plaintiff himself has filed no declaration or affidavit, resting
only on the allegations in the complaint that he was an “hourly employee.”
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F.3d 544, 546 (6th Cir. 2006).6 Further, FLSA actions are “forever barred unless commenced
within two years after the cause of action accrued, except that a cause of action arising out of a
willful violation may be commenced within three years after the cause of action accrued[.]” 29
U.S.C. § 255(a).
The Sixth Circuit has “‘implicitly upheld a two-step procedure for determining whether an
FLSA case should proceed as a collective action.’” Waggoner v. U.S. Bancorp, 110 F. Supp. 3d
759, 764 (N.D. Ohio 2015) (quoting Heibel v. U.S. Bank Nat’l Ass’n, No. 2:11–CV–00593, 2012
WL 4463771, at *2 (S.D. Ohio Sept. 27, 2012) (citing In re HCR ManorCare, Inc., No. 113866,
2011 WL 7461073, at *1 (6th Cir. Sept. 28, 2011)). “The first [step] takes place at the beginning
of discovery. The second occurs after all of the opt-in forms have been received and discovery has
concluded.” Comer, 454 F.3d at 546 (quotation marks and citations omitted).
This case is only at the first step, where plaintiff bears the burden of showing that the
employees in the collective are “similarly situated.” Id. To satisfy this burden at the initial notice
stage, the plaintiff must only “make a modest factual showing” that he is similarly situated to the
other employees he is seeking to notify. Id. 546-47 (quotation marks and citations omitted). The
standard at the notice stage is “fairly lenient . . . and typically results in ‘conditional certification’
of a representative class[.]” Id. at 547 (quoting Morisky v. Pub. Serv. Elec. & Gas Co., 111 F.
Supp. 2d 493, 497 (D.N.J. 2000)) (further citation omitted). During this preliminary stage, a district
A collective action brought under § 216(b) is distinguishable from a Rule 23 class action in that plaintiffs in a
collective action must “opt-in” rather than “opt-out” of the lawsuit. The “opt-in” nature of the collective action
“heightens the need for employees to ‘receiv[e] accurate and timely notice concerning the pendency of the collective
action.’” Castillo v. Morales, Inc., 302 F.R.D. 480, 483 (S.D. Ohio 2014) (quoting Hoffmann-La Roche Inc. v.
Sperling, 493 U.S. 165, 170, 110 S. Ct. 482, 107 L. Ed. 2d 480 (1989)). The statute, therefore, vests in the district
court the discretion to facilitate notice to potential plaintiffs “in appropriate cases[.]” Hoffmann-La Roche, 493 U.S.
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court does not generally consider the merits of the claims, resolve factual disputes, or evaluate
credibility. Swigart v. Fifth Third Bank, 276 F.R.D. 210, 214 (S.D. Ohio 2011) (collecting cases).7
As regards the initial inquiry, the Sixth Circuit has observed that “plaintiffs are similarly
situated when they suffer from a single, FLSA-violating policy, and when proof of that policy or
of conduct in conformity with that policy proves a violation as to all the plaintiffs.” O’Brien v. Ed
Donnelly Enter., Inc., 575 F.3d 567, 585 (6th Cir. 2009).8 Plaintiffs may meet the similarly situated
requirement if they can demonstrate, at a minimum, that “their claims [are] unified by common
theories of defendants’ statutory violations, even if the proofs of these theories are inevitably
individualized and distinct.” Id.; see Harrison v. McDonald’s Corp., 411 F. Supp. 2d 862, 865-66
(S.D. Ohio 2005) (at this stage, a plaintiff must establish a “colorable basis” for his allegation that
others are similarly situated and should therefore be notified of the action) (quotation marks and
citations omitted); see also Lewis v. Huntington Nat’l Bank, 789 F. Supp. 2d 863, 867 (S.D. Ohio
2011) (at the initial notice stage, “the named plaintiff need only show that [his] position [is] similar,
not identical, to the positions held by the putative class members”) (alterations in original)
(quotation marks and citation omitted).
During the second step, courts have discretion to make a thorough finding regarding the “similarly situated”
requirement, based upon a more fully developed record. See Comer, 454 F.3d at 547. At this step, a court is more
inclined to consider “‘(1) disparate factual and employment settings of the individual plaintiffs; (2) the various
defenses available to defendant which appear to be individual to each plaintiff, [and] (3) fairness and procedural
considerations . . . .’” White v. MPW Indus. Servs., Inc., 236 F.R.D. 363, 367 (E.D. Tenn. 2006) (quoting Theissen v.
Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2001) (further citation omitted)). Should the district court
determine that, after this more rigorous and fact-intensive analysis, the claimants are similarly situated, “the district
court allows the representative action to proceed to trial. If the claimants are not similarly situated, the district court
decertifies the class, and the opt-in plaintiffs are dismissed without prejudice.” Douglas v. GE Energy Reuter Stokes,
No. 1:07CV077, 2007 WL 1341779, at *4 (N.D. Ohio Apr. 30, 2007).
Abrogated on other grounds by Campbell-Ewald Co. v. Gomez, -- U.S. --, 136 S. Ct. 663, 193 L. Ed. 2d 571 (2016).
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Although the motion does not identify the specific contours of the collective that plaintiff
seeks to conditionally certify, the first amended complaint does, as follows:
The Potential Opt-Ins who are “similarly situated” to Plaintiff with respect
to Defendants’ FLSA violations consist of:
All present and former hourly employees of Defendants during the
period beginning three years preceding the commencement of this
action to the present who worked more than forty hours in one or
more workweeks and were not paid an overtime premium for some
or all of those hours worked in excess of forty in a workweek.
(FAC ¶ 23.)
Defendants assert that conditional certification should not be granted and, if it is granted,
the two-year, as opposed to three-year, statute of limitations should apply.
Defendants argue that plaintiff has failed to meet his burden of showing that the potential
opt-ins are “similarly situated” because the allegations of the amended complaint, combined with
the declarations of Emmick and Streeter (there being no declaration from Hane), offer nothing
more than unsupported, conclusory assertions that do not meet even the “modest factual showing”
Defendants’ argument has some initial appeal. In the amended complaint, plaintiff alleges
that he “worked for Defendants as an hourly employee[,]” (FAC ¶ 7), as did the potential opt-in
plaintiffs (id. ¶¶ 14, 16), but he does not identify his job title or a single one of his job duties.
Plaintiff has submitted no declaration to buttress the allegations of his amended complaint as to
himself. The declarations of two potential opt-in plaintiffs state that each was employed by On
Time “as a laborer[,]” but there is no further detail supplied as to the nature of the duties of a
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laborer. Nor is there any indication that as a “laborer” either of these two persons performed the
same job, tasks, or duties that plaintiff performed.
That said, these three persons (and, presumably, others) were allegedly hourly employees
of defendants (although the answer denies that) who were not paid overtime for hours worked over
forty in certain workweeks (also denied). It is not entirely clear that the members of the collective
necessarily must have similar duties, since all hourly employees are typically non-exempt within
the meaning of the FLSA and, therefore, must be paid overtime. A collective can be conditionally
certified if the putative members “‘were victims of a common policy or plan that violated the
law[.]’” Comer, 454 F.3d at 547 (quoting Roebuck v. Hudson Valley Farms, Inc., 239 F. Supp. 2d
234, 238 (N.D.N.Y. 2002)).
The Court concludes that plaintiff has met the fairly lenient burden for conditional
certification of this action as a collective action, subject to decertification following discovery,
should that prove necessary.
Turning then to the appropriate statute of limitations, defendants argue that the three-year
period is not applicable in this case because plaintiff has not shown that defendants either knew
that, or showed reckless disregard for whether, their conduct violated the FLSA. (Opp’n at 82022, citing McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S. Ct. 1677, 100 L. Ed. 2d
115 (1988).) In contrast, plaintiff argues that defendants had notice by way of a prior FLSA lawsuit
and that, in any event, defendants’ argument is premature. (Mot. at 154; Reply at 830.) At this
early stage, and given the specific facts of this case, the Court will permit a three-year period for
the purpose of notice to potential plaintiffs. Should the collective otherwise prevail on the
underlying merits of the claims, whether willfulness has also been established is a question for
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For the reasons set forth herein, plaintiff’s motion for conditional certification and courtauthorized notice (Doc. No. 34) is granted. The Court conditionally certifies the following
All present and former hourly employees of defendants during the period beginning
three years preceding the commencement of this action to the present who worked
more than forty hours in one or more workweeks and were not paid an overtime
premium for some or all of those hours worked in excess of forty in a workweek.
Further, with the benefit of this ruling, the parties shall jointly submit for the Court’s
approval their proposed notice to potential plaintiffs, along with the proposed consent form, in
accordance with the deadlines in the Case Management Plan and Trial Order, which is issuing
IT IS SO ORDERED.
Dated: September 20, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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