Rodgers et al v. Spar Business Services, Inc. et al

Filing 41

OPINION AND ORDER granting in part 25 Motion to Conditionally Certify Class. It is, therefore, ORDERED that the conditional certification is LIMITED to merchandisers utilized by SPAR in the greater Houston and Galveston areas from July 15, 2012, t o the present. It is further ORDERED that SPARs request that a third-party administrator be retained by Plaintiff to receive SPARs disclosures and to conduct the notification procedures is DENIED. ORDERED that the statute of limitations WILL BE TOL LED as of the date the Notice is mailed, but without prejudice to reconsideration after appropriate discovery has been completed. The Parties are ORDERED to promptly confer with regard to the timing of SPARs disclosures and the appropriate form of th e Notice to be sent. If these matters have not been resolved by December 11, 2015, the Parties SHALL so notify the Court and a prompt Hearing will be set to resolve any remaining disputes..(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, 3)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
MACEO RODGERS, ET AL.
V.
SPAR BUSINESS SERVICES, INC.,
ET AL.

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December 08, 2015
David J. Bradley, Clerk

CIVIL ACTION NO. G-14-055

OPINION AND ORDER
Before the Court by referral1 from the Honorable George C. Hanks, Jr., United States
District Judge, is the Plaintiff’s Motion to Conditionally Certify this case as a collective action
under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b). Having considered the
Parties’ submissions and the arguments of counsel at a Hearing on December 2, 2014, the
Court now issues this Opinion and Order.
Plaintiff alleges that the “merchandisers” under written agreements with the Defendants
(collectively “SPAR”) are actually employees, not independent contractors, and are entitle to
overtime pay. Consequently, Plaintiff seeks conditional certification to permit Notice of this
suit to be sent to all appropriate potential plaintiffs in every state, except California, so they
can make an informed choice about opting into this litigation. The Motion must be determined
under the well established two-stage approach of Lusardi v. Xerox Corporation, 118 F.R.D.
351 (D.N.J. 1987), as approved by the Fifth Circuit in Mooney v. Aramco Services, Co., 54

The referral was originally for a Report and Recommendation, however, the Parties
conceded that the Motion is a non-dispositive matter and Judge Hanks has now authorized the
determination of the Motion under 28 U.S.C. § 636(b)(1)(A).
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F.3d 1207, 1213-14 (5th Cir. 1995). To determine the first stage of Lusardi, the notice stage,
the Court employs a fairly lenient standard.
This Court finds that Plaintiff has sufficiently alleged a plausible claim that the potential
“class” members were subjected to a single policy or plan utilized by SPAR which may have
violated the overtime provisions of the FLSA. Therefore, insofar as the Motion (Instrument
no. 25) seeks conditional certification of some class of potential plaintiffs to receive Notice of
Suit, it is GRANTED.
The Court, however, further finds that at this juncture a virtual nationwide class is not
appropriate. It is, therefore, ORDERED that the conditional certification is LIMITED to
merchandisers utilized by SPAR in the greater Houston and Galveston areas from July 15,
2012, to the present.
The Court further finds that discovery could call into question the preemptive effect of
the arbitration clause, inserted after this case was filed into the 2014 Master Agreement signed
by all merchandisers, on the statutory right of the potential class members to make an informed
choice about joining this litigation after receiving notice. Cf. Billingsley v. CitiTrends, Inc.,
560 F.Appx. 914 (11th Cir. 2014). It is, therefore, further ORDERED that all potential
Plaintiffs, even those who have signed the 2014 Agreement, SHALL receive Notice; however,
the Notice sent to the potential Plaintiffs SHALL include an appropriate conspicuous statement
that the arbitration clause could possibly bar or limit their claim.

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It is further ORDERED that SPAR SHALL produce in a computerized or other usefriendly format the names, last known addresses, telephone numbers and, if known, email
addresses of all potential Plaintiffs; no social security numbers SHALL be provided unless the
Court first finds that the contact information for a specific person proves to be insufficient, that
the disclosure should be made, and that confidentiality SHALL be assured. Cf. Whitehorn
v. Wolfgang’s Steakhouse, Inc., 767 F.Supp. 2d 445, 448-49 (S.D. N.Y. 2011).
It is further ORDERED that SPAR’s request that a third-party administrator be retained
by Plaintiff to receive SPAR’s disclosures and to conduct the notification procedures is
DENIED.
Since the Parties agree that some tolling of the statute of limitations is appropriate, it
is further ORDERED that the statute of limitations WILL BE TOLLED as of the date the
Notice is mailed, but without prejudice to reconsideration after appropriate discovery has been
completed. Cf. Sandoz v. Cingular Wireless, LLC, 769 F.Supp. 2d 1047, 1064 (S.D. La.
2011).
The Parties are ORDERED to promptly confer with regard to the timing of SPAR’s
disclosures and the appropriate form of the Notice to be sent. If these matters have not been
resolved by

December 11, 2015, the Parties SHALL so notify the Court and a prompt

Hearing will be set to resolve any remaining disputes.
DONE at Galveston, Texas, this

8th

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day of December, 2015.