McCall v. Soft-Lite L.L.C.

Filing 21

Memorandum Opinion and Order: The Court defers any ruling on #15 plaintiff's motion for conditional certification and stays all proceedings until the Sixth Circuit resolves the appeal in A&L Homecare & Training Center, L.L.C. v. Holder (Nos. 22-3101/22-3102). The parties are directed to monitor the Holder appeal and, upon its resolution, to promptly advise this Court of that fact in writing and shall include a joint proposal for lifting the stay and proceeding with the instant case in light of such resolution. Judge Sara Lioi on 1/18/2023. (V,A)

Case: 5:22-cv-00816-SL Doc #: 21 Filed: 01/18/23 1 of 4. PageID #: 252

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JIMMIE MCCALL, on behalf of himself and
all others similarly situated,

PLAINTIFF,
vs.
SOFT-LITE L.L.C.,

DEFENDANT.

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CASE NO. 5:22-cv-816

JUDGE SARA LIOI
MEMORANDUM OPINION
AND ORDER

Before the Court is the motion of plaintiff Jimmie McCall (“McCall” or “plaintiff”) for
conditional certification, expedited opt-in discovery, and court-supervised notice to potential optin plaintiffs, with a memorandum in support (Doc. Nos. 15 and 15-1). Defendant Soft-Lite L.L.C.
(“Soft-Lite” or “defendant”) has filed its opposition (Doc. No. 19) and plaintiff filed a reply (Doc.
No. 20). For the reasons set forth herein, the Court will defer ruling on this motion and the case is
stayed until further order.
McCall, a former employee of Soft-Lite, initiated this action on May 18, 2022, by filing
his complaint alleging violations by Soft-Lite of the Fair Labor Standards Act, 29 U.S.C. §§ 201–
219 (“FLSA”). (Doc. No. 1.) McCall seeks to bring claims on behalf of others “similarly situated”
and, to that end, he now seeks an order of this Court conditionally certifying a collective consisting
of “[a]ll former and current manufacturing employees of Soft-Lite L.L.C. between the last three

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years and the present.” (Id. ¶ 36.)1 In his motion, McCall identifies how his complaint “states [five]
ways in which [p]laintiff and the [c]ollective are similarly situated[.]” (Doc. No. 15-1 at 14.2)
McCall’s motion applies a well-recognized two-step conditional certification process that
seems to have been first used in Lusardi v. Xerox Corp., 118 F.R.D. 351, 352 (D. N.J. 1987) to
determine whether potential plaintiffs are “similarly situated.” Under that process, the Court may
conditionally certify a collective (giving notice to potential plaintiffs who may wish to opt in and
providing a period of limited discovery on the “similarly situated” requirement) and then, after the
limited discovery, consider whether to decertify the collective.
The Sixth Circuit “does not appear to have expressly adopted Lusardi, although the circuit
has acknowledged that district courts use the bifurcated certification framework.” Holder v. A&L
Home Care & Training Ctr., LLC, 552 F. Supp. 3d 731, 741–42 (S.D. Ohio 2021) (collecting
cases). But the Fifth Circuit has expressly rejected this two-step process because “on the one hand,
its flexibility has led to unpredictability, [while] on the other hand, its rigidity distracts district
courts from the ultimate issues before it.” Swales v. KLLM Transport Servs., L.L.C., 985 F.3d 430,
441 (5th Cir. 2021) (holding that “a district court should identify, at the outset of the case, what
facts and legal considerations will be material to determining whether a group of ‘employees’ is
‘similarly situated[]’ [a]nd then it should authorize preliminary discovery accordingly.”).
Although the court in Holder conditionally certified a collective, the employer has appealed
that decision to the Sixth Circuit, raising the following question for review:

1

As is very typical in this type of case, McCall also brings a class action pursuant to Fed. R. Civ. P. 23 to remedy
alleged violations of the Ohio Minimum Fair Wage Standards Act, Ohio Rev. Code § 4111.03 (“OMFWSA”). This
fact does not negatively affect the analysis herein.
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All page number references herein are to the consecutive page numbers applied to each individual document by the
electronic filing system, a citation practice recently adopted by this Court despite a different directive in the Initial
Standing Order for this case.

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Whether the district court and other district courts are bound to follow the
lenient and Plaintiff-friendly two-step certification process detailed in Lusardi v.
Xerox Corp., 118 F.R.D. 351, 352 (D. N.J. 1987) (predating Twombly and Iqbal)
or if the district court ‘should rigorously enforce [the similarity requirement] at the
outset of the litigation’ after a period of preliminary discovery as held in Swales v.
KLLM Transport Services, L.L.C., 985 F.3d 430, 443 (5th Cir. 2021).
A&L Homecare & Training Ctr., LLC v. Holder, Sixth Circuit Case No. 22-3101/22-3102 (Doc.
No. 20, Brief of Appellant, at 10–11). Oral argument in the case was conducted on December 7,
2022, and an opinion will likely issue relatively soon.
As a result, Soft-Lite argues in its opposition brief that this Court should defer any ruling
on McCall’s conditional certification motion until the Sixth Circuit resolves Holder. (Doc. No. 19,
at 11–12.) This Court agrees. Holder supplies the potential for a complete rejection by the circuit
of the “conditional” certification process. Since the instant case is still “young,” judicial economy
urges a stay pending the Holder decision. Other district courts in this circuit have reached the same
conclusion. See McLemore v. KAV Health Grp., LLC, No. 3:22-cv-155, 2022 WL 17490394 (S.D.
Ohio Nov. 18, 2022) (Gentry, M.J.); Woods v. First Transit, Inc., No. 1:21-cv-739, 2022 WL
4465752 (N.D. Ohio Sept. 26, 2022) (Fleming, J.); Cordell v. Sugar Creek Packing Co., No. 2:21cv-755 (S.D. Ohio Aug. 16, 2022) (Marbley, J.); Lovendahl v. The Kroger Co., No. 1:21-cv-350,
2022 WL 594806 (S.D. Ohio Feb. 28, 2022) (Barrett, J.).
Accordingly, the Court will defer any ruling on McCall’s motion for conditional
certification and hereby stays all proceedings until the Sixth Circuit resolves the Holder appeal.

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The parties are directed to monitor the Holder appeal and, upon its resolution, to promptly
advise this Court of that fact in writing and shall include a joint proposal for lifting the stay and
proceeding with the instant case in light of such resolution.

IT IS SO ORDERED.
Dated: January 18, 2023
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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