Redus v. CSPH Inc

Filing 64

MEMORANDUM OPINION AND ORDER granting 20 Motion for Notice to Potential Plaintiffs and Conditional Certification filed by John Michael Redus. The Motion is GRANTED, except that certain objections to the form of Plaintiff's proposed notice are SUSTAINED. The parties are reminded of the Court's requirement to engage in a Rule 16 conference, within 30 days of the close of the opt-in period, for the purpose of presenting an agreed proposed Scheduling Order and Case Management Plan to the court. See First Phase Sched. Ord. [ECF # 12 ] (Ordered by Chief Judge Barbara M.G. Lynn on 5/17/2017) (Attachments: # 1 Additional Page(s) Notice, # 2 Additional Page(s) Consent to Join Lawsuit) (aaa)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

JOHN MICHAEL REDUS, on behalf of
himself and others similarly situated,
Plaintiff,
v.
CSPH, INC., d/b/a DOMINO’S PIZZA
Defendant.

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Civil Action No. 3:15-cv-2364-M

MEMORANDUM OPINION AND ORDER
Before the Court is a Motion for Notice to Potential Plaintiffs and Conditional Certification
[ECF #20], filed by Plaintiff John Michael Redus. For the following reasons, the Motion is
GRANTED, except that certain objections to the form of Plaintiff’s proposed notice are
SUSTAINED.
Background
Plaintiff brings this putative collective action on behalf of himself, and others similarly
situated, against Defendant CSPH, Inc., d/b/a Domino’s Pizza. He sues under 29 U.S.C. §216(b), a
provision of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., to recover unpaid
wages and to be reimbursed for expenditures. Defendant is a Domino’s Pizza franchisee that
operates more than thirty stores in the Dallas, Texas area. Plaintiff worked as a pizza delivery
driver for Defendant at its Store No. 6806.
By his lawsuit, Plaintiff alleges that Defendant required him, and all of its delivery drivers,
to maintain, at their own expense, “operable, safe and legally-compliant automobiles” for use in
delivering Defendant’s pizzas. Pl. Compl. [ECF #1] at 3, ¶15. Because of these requirements,
Plaintiff and other individuals who worked for Defendant as delivery drivers allegedly purchased
gasoline, automobile parts and fluids, repair and maintenance services, and insurance, “all for the
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primary benefit of Defendant.” Id., ¶16. Plaintiff and Defendant’s other drivers also allegedly
incurred job-related expenses, including fees for cellular telephone services, uniform items,
laundering services, and maps, flashlights, and batteries, for Defendant’s primary benefit. Id.
Defendant paid Plaintiff and its other drivers an hourly wage, plus a set amount for each delivery
for their automobile expenses. Id., ¶17. However, the amount Defendant paid its drivers allegedly
was insufficient to reimburse them for their actual automobile expenses incurred in carrying out
their duties as delivery drivers. Id. at 4, ¶18. Id. Based on those alleged facts, Plaintiff avers
Defendant failed to pay its delivery drivers the minimum wage guaranteed to them by the FLSA.
Plaintiff moves to conditionally certify this collective action and approve court-facilitated
notice to a class defined as “all current and former delivery drivers who work or worked at
Defendant’s stores in the previous three years.” Defendant responds that Plaintiff’s Motion should
be denied because his claims lack substantive merit. Defendant further argues that Plaintiff has
failed to establish that he is entitled to conditional certification. Finally, Defendant objects to the
form of notice proposed by Plaintiff. The Motion has been fully briefed and is ripe for
determination.
Legal Standards and Analysis
Section 216(b) of the FLSA authorizes a plaintiff to bring a collective action on behalf of
similarly-situated persons, provided that any person who desires to become a part of the collective
action files a written consent. 29 U.S.C. § 216(b). District courts have discretion to allow a party
asserting an FLSA claim on behalf of others to notify potential plaintiffs that they may choose to
“opt-in” to the suit. See Hoffmann–La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989); Behnken
v. Luminant Min. Co., LLC, 997 F.Supp.2d 511, 515 (N.D. Tex. 2014) (Fitzwater, J.) (citing
Barnett v. Countrywide Credit Indus., Inc., 2002 WL 1023161, at *1 (N.D. Tex. May 21, 2002)
(Lynn, J.)). Although the Fifth Circuit has not adopted a specific test to determine when courts
should exercise their discretion to facilitate notice or certify a collective action, this Court has used
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the two-stage test that prevails among federal courts. See Barnett, 2002 WL 1023161, at *1; see
also Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995) (declining to adopt specific
standard, but finding no abuse of discretion where district court applied prevailing standard).
At the first stage of the prevailing test, the Court makes an initial inquiry into whether the
plaintiff has provided sufficient evidence that similarly situated potential plaintiffs exist. Barnett,
2002 WL 1023161, at *1 (quoting Hall v. Burke, 2002 WL 413901, at *2 (N.D. Tex. Mar. 11,
2002)). The Court uses a lenient standard to determine whether similarly situated persons exist, and
if it determines that such persons do exist, then it “conditionally certifies” the class. Id. To establish
that employees are similarly situated, a plaintiff must show that they are “‘similarly situated’ with
respect to their job requirements and with regard to their pay provisions. [The] positions need not
be identical, but similar.” Id. (citing Tucker v. Labor Leasing, Inc., 872 F. Supp. 941, 947 (M.D.
Fla.1994)). At the second stage, after notice, time for opting-in, and discovery have taken place, the
Court reexamines the class to determine if it remains comprised of similarly situated persons. Id. If
the Court finds that the class is not made up of similarly situated persons, then it may decertify the
class, usually upon a motion filed by the defendant. Id.
Judged against the relevant standard, the Court concludes that Plaintiff has satisfied his
burden to justify conditional certification of a potential class, and the Court exercises its discretion
to permit Plaintiff to notify potential class members of the pending lawsuit. The Court determines
that Plaintiff has provided sufficient evidence to establish, at this stage in the litigation, that
similarly situated potential plaintiffs exist. It is undisputed that Defendant is a Domino’s pizza
franchisee that operates over thirty restaurants in the Dallas, Texas area. See Def. Resp. Br. [ECF
#22] at 6. Plaintiff has submitted two declarations, one from himself and the other from a former
co-worker, Russell Rowe, stating that each declarant worked for Defendant as delivery drivers until
approximately March or April of 2014. See Pl. Mot., Ex. 6, ¶1 & Ex. 7, ¶1. Both declarations
explain that the declarants’ primary job duties were to deliver pizzas and other food items to
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Defendant’s customers, and that, in furtherance of those duties, Defendant required them to
maintain and pay for operable, safe, and legally-compliant automobiles, which forced them to incur
expenses for gas, parts, repair and maintenance services, and insurance. See id., ¶¶2, 3. Plaintiff
also submitted copies of Defendant’s own documents, including a “Domino’s Pizza Job
Description” for a delivery driver, a “Team Member Handbook,” and an employee orientation slide
presentation, that show that all of Defendant’s delivery drivers perform the same basic job duties
and are subject to the same work requirements. See id., Ex. 3 & Ex. 5 at 68. The job description
states that the job duties for a driver are to “[d]eliver product by car and then to door of customer.”
Id., Ex. 3. The description further provides that it is a requirement for the job of driver that the
individual have “access to [an] insured vehicle which can be used for delivery.” Id. Plaintiff’s
declarations establish that each of Defendant’s delivery drivers is subject to the same pay
procedures and driver reimbursement policies. See id., Ex. 6, ¶¶4-5 & 7, ¶¶4-5. Among other
things, Plaintiff’s declarations state that Defendant paid Plaintiff and Rowe pursuant to a
reimbursement policy that they understood applied to all of Defendant’s drivers. Id., ¶4. Plaintiff
and Rowe aver that the reimbursements Defendant paid were inadequate to fully reimburse them
for the expenses they incurred in carrying out their job duties. See id,
Defendant attempts to short-circuit Plaintiff’s request for conditional certification by filing
contemporaneously with its response to Plaintiff’s Motion a motion for summary judgment on the
ground that Plaintiff does not have a viable FLSA claim because it provided Plaintiff a “reasonable
approximation” of his reimbursable expenses during his employment. By separate Order, however,
the Court has denied Defendant’s motion for summary judgment as premature. Defendant may
reurge its arguments for dismissal on the merits after the parties have had a full opportunity for
discovery, the deadlines for which will be established in a Second Phase Scheduling Order to be
entered after the opt-in period closes. Additionally, the Court will entertain a motion by Defendant
to decertify the class, after the potential opt-in plaintiffs have filed their Notices of Consent, if any.
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Defendant further argues that the lenient standard for determining whether to conditionally
certify the class should not apply because Plaintiff has already had an opportunity to conduct “all of
the discovery he could have possibly desired on the case.” Def. Resp. Br. at 7. Contrary to
Defendant’s assertion, the Court’s First Phase Scheduling Order permitted discovery limited solely
to the issue of whether this case is appropriate for litigation as a collective action under the FLSA.
See Order [ECF #12] at 1. Through that discovery, Plaintiff obtained some of the materials offered
in support of its Motion. However, Plaintiff has not had the opportunity to conduct all of the
discovery “he could have possibly desired,” and the Court declines to hold Plaintiff to any
heightened evidentiary standard. The Court has determined that Plaintiff’s evidence is sufficient to
establish that other potential plaintiffs exist who are similarly situated to Plaintiff with respect to
the job requirements and pay provisions at issue in this case, which is all that is required at this
stage of the litigation.
The Court next considers the form of notice that should be given to potential class members.
“The benefits of a collective action ‘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.’” Behnken, 997 F.Supp.2d at 523 (quoting Hoffman-La Roche, 493 U.S. at
170). “Consequently, district courts must exercise their discretion regarding the form and content of
the notice so as to ensure that the notice is accurate and that it includes information that would be
needed to make an informed decision about whether to join the lawsuit.” Id.
Defendant objects to the form of notice proposed by Plaintiff on various grounds, including:
(1) it is not limited to Store 6806; (2) it would require posting at Defendant’s stores; (3) it does not
refer to Defendant by its name, CSPH, Inc.; (4) it suggests Defendant was not entitled to take a tip
credit against the minimum wage it paid its drivers; (5) it fails to include a statement of
Defendant’s denial of Plaintiff’s claims; (6) it suggests opt-in plaintiffs will not be responsible for
costs, if the lawsuit is unsuccessful; and (7) it exaggerates the importance of the issue of overtime
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wages. Having carefully considered Defendant’s arguments, and Plaintiff’s response thereto, the
Court sustains several of Defendant’s objections. Specifically, the Court determines that mailing
the notice to the potential class members, rather than also posting them at all of Defendant’s store
locations, is sufficient to provide the potential opt-in plaintiffs with notice of the suit. Barnett, 2002
WL 1023161, at *2. The Court also sustains Defendant’s objections that the notice should refer to
Defendant by its name, CSPH, Inc., that the notice should include CSPH’s denial, and that
references to overtime wages should be deleted. However, the Court overrules Defendant’s
objection that the notice should be limited to Store 6806, the only store where Plaintiff worked. It is
undisputed that Defendant operates at least thirty Domino’s store locations in the Dallas area, and
that it employs drivers at each location. Plaintiff’s evidence establishes, for purposes of conditional
certification, that Defendant subjected drivers at all of its locations to the same job requirements
and pay and reimbursement provisions.
Conclusion
The Court GRANTS Plaintiff’s Motion for Conditional Certification and ORDERS
Defendant to provide to Plaintiff, within ten days of the date of this Order, a list of the names and
last-known addresses (in electronic form) of all current and former delivery drivers who were
employed by Defendant, at any of its store locations, from May 12, 2014 to the present.
By June 12, 2017, Plaintiff, through his counsel, shall send to each of these individuals a
Notice and a Consent to Join Lawsuit, in the forms attached. The signed Consent forms must be
dated or postmarked by September 12, 2017, and filed with the Court by September 26, 2017.
The parties are reminded of the Court’s requirement to engage in a Rule 16 conference,
within 30 days of the close of the opt-in period, for the purpose of presenting an agreed proposed
Scheduling Order and Case Management Plan to the court. See First Phase Sched. Ord. [ECF #12]
at 2.

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SO ORDERED.
May 17, 2017.
________________________________
BARBARA M. G. LYNN
CHIEF JUDGE

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