Dean v. Billings et al
ORDER granting 18 plaintiff's Motion for Conditional Class Certification, to Approve Notice and Consent, for Authorization to Conduct Discovery on the Identity of All Putative Class Members and Authorization to Send Notice to Potential Class Members (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 12/1/2017. (ks)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
URIKA DEAN, on Behalf of Herself and
All Others Similarly Situated,
MICHAEL BILLINGS (d/b/a)
MIDWAY ISLAND, and MIDWAY
Case No. CIV-16-1459-M
Before the Court is plaintiff’s Motion for Conditional Class Certification, to Approve
Notice and Consent, for Authorization to Conduct Discovery on the Identity of All Putative Class
Members and Authorization to Send Notice to Potential Class Members, filed November 2, 2017.
Defendants have filed no response. Pursuant to § 216(b) of the Fair Labor Standards Act, 29
U.S.C. § 201 et seq. (“FLSA”), plaintiff now moves the Court to grant conditional class
certification, to approve plaintiff’s proposed Notice and Consent forms, to order defendant to
identify putative class members within a reasonable time frame, and to authorize plaintiff’s counsel
to send Notice and Consent forms to the proposed class members.
To proceed as a collective action under the FLSA, plaintiff must show that she and other
putative collective action members are “similarly situated.” 29 U.S.C. § 216(b). Although §
216(b) does not define the term “similarly situated,” the Tenth Circuit has endorsed the ad hoc
method of determination. Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1105 (10th Cir.
Under the ad hoc method, “a court typically makes an initial ‘notice stage’ determination
of whether plaintiffs are ‘similarly situated.’” Id. at 1102 (internal citations omitted). This initial
determination “require[s] nothing more than substantial allegations that the putative class members
were together the victims of a single decision, policy, or plan.” Id. (internal quotations and
citations omitted). After the parties have completed discovery, and often prompted by a motion to
decertify, “the court then makes a second determination, utilizing a stricter standard of ‘similarly
situated.’” Id. at 1103. During the second determination, the court reviews several factors,
including: “(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; (3) fairness
and procedural considerations; and (4) whether plaintiffs made the filings required by the [FLSA]
before instituting suit.” Id. (internal quotations and citation omitted).
Having carefully reviewed plaintiff’s motion and the court file, the Court finds that plaintiff
has set forth substantial allegations that the putative class members were together the victims of a
single decision, policy, or plan, and the Court, therefore, finds that plaintiff and the other putative
collective action members are “similarly situated.” Accordingly, the Court finds that plaintiff’s
proposed class should be conditionally certified.
Additionally, having reviewed plaintiff’s proposed notice to proposed class and consent to
join form, the Court finds the Notice and Consent forms are appropriate and, hereby, approves
plaintiff’s Notice and Consent forms. Further, having reviewed plaintiff’s motion, the Court finds
authorization should be granted to conduct discovery on the identity of all putative class members.
Accordingly, the Court GRANTS plaintiff’s Motion for Conditional Class Certification, to
Approve Notice and Consent, for Authorization to Conduct Discovery on the Identity of All
Putative Class Members and Authorization to Send Notice to Potential Class Members [docket no.
18] and CONDITIONALLY CERTIFIES the following class: Current and former exotic dancers
who worked for defendants and were subject to defendants’ classification of dancers as
independent contractors at any time from 2013 through the present. Defendants are hereby
ORDERED to produce to plaintiff’s counsel the names, last known address, and telephone
numbers of each entertainer retained by defendants Michael Billings and/or Midway Island, LLC
as an independent contractor from March 1, 2013, through the present, within fourteen (14) days
of the date of this Order. Further, the Court hereby AUTHORIZES plaintiff to provide potential
class members with Notice and Consent forms, substantially in the form provided as Exhibit 1 to
plaintiff’s motion, via first class mail and internet website posting.
IT IS SO ORDERED this 1st day of December, 2017.
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