Morris et al v. Barefoot Communications Inc et al

Filing 34

ORDER granting 30 Motion to Certify Class. Signed by the Honorable R. Bryan Harwell on 2/22/2017. (hcic, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
H.A. MORRIS, and JAMES LENHART
individually and on behalf of a class
of similarly situated individuals,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
BAREFOOT COMMUNICATIONS, INC. )
and CHRISTOPHER PACKER,
)
)
Defendants.
)
____________________________________)

Civil Action No.: 4:15-CV-01115-RBH

ORDER

This matter is before the Court to consider Plaintiffs’ Motion for Conditional Certification
of a Collective Action and to Provide Notice Under the Fair Labor Standards Act, 29 U.S.C.
§ 216(b) [ECF #30]. Both parties have had the opportunity to extensively brief the issues raised
in the motions, and this Court has thoroughly considered all pleadings filed in this case.1
Factual Background and Procedural History
On March 9, 2015, Plaintiffs filed their Complaint against Defendants Barefoot
Communications, Inc. (“Barefoot”) and Christopher Packer, alleging violations of the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq. (the “FLSA”). [ECF #1]. Plaintiffs worked for Defendants
as satellite television installation technicians. [ECF #1, p. 2]. Plaintiffs allege that Defendants
mischaracterized Plaintiffs, as well as other similarly situated employees, as independent
contractors, rather than employees. [ECF #1, p. 1]. In so doing, Defendants allegedly deprived

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Under Local Civil Rule 7.09 (D.S.C.), “hearings on motions may be ordered by the Court in its discretion.
Unless so ordered, motions may be determined without a hearing.” Upon review of the briefs, the Court finds
that a hearing is not necessary.

Plaintiffs of overtime, minimum wage, and other wages in violation of the FLSA. [ECF #1, p. 1].
Thus, Plaintiffs brought a cause of action under the FLSA for failure to pay overtime wages and
failure to pay minimum wages. [ECF #1]. Plaintiffs brought the action as a collective action on
behalf of individuals similarly situated under 29 U.S.C. § 216(b). Plaintiffs now request this Court
grant their motion for conditional certification and to order notices be sent to potential opt-in
individuals who performed similar satellite installation services for Barefoot and who were
classified as independent contractors. On August 16, 2016, Plaintiffs filed their Motion requesting
conditional certification and notice be sent pursuant to 29 U.S.C. § 216(b). [ECF #30-1].
Defendants responded on September 3, 2016, indicating that while they do not oppose
conditionally certifying the class in this matter, they oppose the content of the proposed notice and
consent forms. [ECF #31, p. 2]. Moreover, Defendants argue that this Motion should be denied
because Plaintiffs failed to consult with Defendants prior to filing their Motion in accordance with
Local Civil Rule 7.02. [ECF #31, p. 2]. Therefore, Defendants argue that should they be held
liable in this case, Defendants should not be required to pay the costs and fees related to
Plaintiffs’ Motions for Conditional Certification. [ECF #31, p. 2]. Plaintiffs respond that they
have provided the requisite notice under Local Civil Rule 7.02. [ECF #33]. Plaintiffs also indicate
that they consent to using Defendants’ proposed notice form, attached as Exhibit “A” to
Defendants’ response brief. Plaintiffs have also provided an opt-in form as Exhibit “2” to their
reply brief, which reflects the requested changes of Defendants. [ECF #33-2, Exhibit 2].
Standard of Review
Plaintiffs filed their Motion pursuant to Section 216(b) of the FLSA.
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This Section

provides:
An action . . . may be maintained against any employer (including a public agency)
in any Federal or State court of competent jurisdiction 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 to become such a party and such consent is filed in the court
in which such action is brought.
29 U.S.C. § 216(b).

Several district courts employ a two-step process in analyzing the

certification of a collective action under the FLSA. At the first step, the court generally considers
“whether other similarly situated employees should be notified.” Curtis v. Time Warner Enter.Advance Newhouse Partnership, No. 3:12-CV-2370-JFA, 2013 WL 1874848, at *2 (D.S.C. May
3, 2013). The second step is triggered by an employer’s motion for decertification and typically
occurs after substantial discovery has taken place. Id.
Under step one, Court’s often require a plaintiff show a “reasonable basis” for his or her
claim that there are other similarly situated employees. Id. (citing Morgan v. Family Dollar Stores,
Inc., 551 F.3d 1233, 1258-62 (11th Cir. 2008). Alternatively, courts have required plaintiffs to
“make a ‘modest factual showing’ that they and potential opt-in plaintiffs ‘together were victims
of a common policy or plan that violated the law.’” Id. (citing Myers v. Hertz Corp., 624 F.3d
537, 554-55 (2d Cir. 2010)). Under this step, the plaintiff’s burden has been described as “fairly
lenient” because the court is trying to determine whether “similarly situated” plaintiffs exist. Id.
Still, the plaintiff bears the burden of demonstrating that notice is appropriate. MacGregor, 2011
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WL 2981466, at *2 (citing D’Anna v. M/A-COM, Inc., 903 F. Supp. 889, 894 (D. Md. 1995)).
The Court’s discretion to facilitate notice in these cases is not without bounds. MacGregor, 2011
WL 2981466, at *2. Courts should not exercise this discretion unless the plaintiff has shown that
the facts and circumstances of the case present a class of “similarly situated” aggrieved employees.
Id. (citing Purdham v. Fairfax Cnty. Pub. Schs., 629 F. Supp. 2d 544, 547-48 (E.D. Va. 2009).
If a court were to grant a motion for conditional certification, the defendant may file a
motion for decertification, at which time a more stringent standard under the second step must be
met. Id. at *3. The second step usually occurs near the end of discovery, and the courts have
considered a number of factors, including (1) disparate factual and employment settings of
individual plaintiffs; (2) the various defenses available to defendants that appear to be individual
to each plaintiff; and (3) fairness and procedural considerations. Id.
Discussion
Defendants argue as their only ground for denial of this Motion that Plaintiffs failed to
satisfy the District Court of South Carolina’s Local Civil Rule 7.02. This rule requires the party
filing a motion to affirm that he or she has conferred or attempted to confer with opposing
counsel and attempted in good faith to resolve the matter contained in the motion. There are a few
limited exceptions to this requirement specifically outlined in the Rule.
Here, Plaintiffs argue that they have satisfied their obligations under this Rule. To that
end, Plaintiffs have attached as Exhibit 1, the Affidavit of Plaintiffs’ counsel, Thomas P. Fowler,
to their reply brief. [ECF #33-1].

On February 12, 2016, Plaintiffs first filed a Motion for

Conditional Certification. [ECF #18]. On March 24, 2016, the Parties filed a joint stipulation to
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the withdraw this motion to allow time for Defendants to conduct pre-certification discovery, and
the Parties set out a proposed amended scheduling order. [ECF #23].

Under this agreed-to

amended scheduling order, Plaintiffs would have until June 3, 2016 to re-file their Motion. [ECF
#23]. This re-filing date was extended until August 2, 2016 to allow Defendants sufficient time
to conduct depositions. [ECF #33-1, p. 2]. Thereafter, while the Parties discussed submitting a
new proposed consent amended scheduling order, Plaintiffs’ counsel inquired whether Defendants
would consent to conditional certification. [ECF #33-1, p. 2]. Mr. Fowler avers that defense
counsel indicated that consent was possible, but that Defendants wanted to complete depositions.
[ECF #33-1, p. 2].

After this conversation, Plaintiffs’ counsel testifies that he did not receive

any deposition notices from Defendants. Accordingly, on August 16, 2016, Plaintiffs filed this
Motion, under the belief that the previous discussion constituted the requisite conferral to satisfy
Local Rule Civil Rule 7.02.
This Court finds that Plaintiffs have, in good faith, complied with the Local Civil Rule
7.02. The Rule requires Parties to affirm that he or she conferred or attempted to confer with
opposing counsel in resolving the matter, here conditional certification. Based on the testimony
provided in Mr. Fowler’s affidavit, the emails attached to his affidavit, and Defendants’ indication
in their response brief that they do not oppose conditional certification, the Court declines to deny
the Motion on this ground. This Court further finds that Plaintiffs have met the standard under
the FLSA to show that conditional certification is appropriate in this case because Plaintiffs have
made a “modest factual showing” that other technicians are “similarly situated.” See Curtis, 2013
WL 1874848, at *2. Accordingly, this Court will grant Plaintiffs’ request to conditionally certify
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the proposed class. As it appears to this Court that Plaintiffs consent to Defendants’ proposed
notice form, attached as Exhibit “A” to Defendants’ response brief [ECF #31-1], this Court
approves this notice form. However, as pointed out by Plaintiffs, Defendants did not attach an
amended consent form to their response brief to reflect their requested changes. However,
Plaintiffs attached an amended consent form to reflect Defendants’ changes to their reply brief as
Exhibit “2.” [ECF #33-2]. This Court approves this consent form, as well. Plaintiffs request that
notice be sent to all current and former technicians who have worked for Defendants in the United
states within the past three years, and that the potential opt-in plaintiffs who desire to participate
in the lawsuit be provided ninety (90) days from the date of mailing to file consent forms with
this Court. Defendants have not indicated that they oppose this classification of potential plaintiffs
or the timeline set forth by Plaintiffs. Accordingly, this Court will allow notice to be sent to this
defined set of proposed class members and provide the requested ninety (90) days to file consent
forms. Further, as Plaintiffs have indicated, Defendants do not object to the notice and opt-in
form being issued to proposed class members via e-mail, in addition to U.S. mail. After reviewing
the case law provided by Plaintiffs supporting notice via e-mail, as well as U.S. mail, this Court
will allow this form of communication for the notice and opt-in form, as well. See Butler v.
Direct SAT USA, LLC, 876 F. Supp. 2d 560, 574-75 (D. Md. 2012) (explaining that district courts
have broad discretion regarding the “details” of the notice sent to potential opt-in plaintiffs, and
numerous courts around the country have allowed for 90 day opt-in periods, and further, that the
use of e-mail to notify potential plaintiffs is now the norm).

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Conclusion
The Court has thoroughly reviewed the entire record, including the pleadings, Plaintiffs’
Motion for Conditional Certification of a Collective Action and to Provide Notice under the FLSA,
Defendants’ response to the motion, Plaintiffs’ reply, and the applicable law. For the reasons
stated above, this Motion [ECF #30] is GRANTED. This Court authorizes Plaintiff to send the
agreed-to notice form, attached as Exhibit A to Defendants’ response brief [ECF #31-1], and the
consent to opt-in form attached to Plaintiffs’ response brief reflecting Defendants’ proposed
changes [ECF #33-2], via e-mail and U.S. mail to allow potential plaintiffs, as defined by
Plaintiffs in their motion, and as outlined in this Order, the requested time period of ninety (90)
days from the date of mailing to file consent forms with this Court.
IT IS SO ORDERED.
Florence, South Carolina
February 22, 2017

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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