Detho v. BILAL et al

Filing 33

MEMORANDUM AND ORDER denying 31 Amended MOTION to Certify Class.(Signed by Judge Lee H Rosenthal) Parties notified.(ypippin, )

D e t h o v. BILAL et al

D o c . 33

IN THE UNITED STATES DISTRICT COURT F O R THE SOUTHERN DISTRICT OF TEXAS H O U S T O N DIVISION R A B IO DETHO, a n d ALL OTHERS S IM IL A R L Y SITUATED P l a i n t if f s , § § § § § V. § § A S IA BILAL; § S H E IK H MOHAMMED BILAL, § T E X A S ONE PETROLEUM CORP d/b/a, § R A C E W A Y # 6773; and § G R E E N SEA TRADING, INC. and § D e f e n d a n ts . §

C IV IL ACTION NO. H-07-2160

M E M O R A N D U M AND ORDER In this suit under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., R a b io Detho, who worked as a "cashier," "clerk," "gas station attendant," or "gas station c le rk " at a Raceway gas station in Houston, Texas from January 5, 2007 through April 5, 2 0 0 7 , alleges that the defendants, Asia Bilal, Sheikh Mohammed Bilal, and Texas One P e tro le u m Corp. d/b/a Raceway #6773, failed to pay her and similarly situated employees o v ertim e when they worked more than forty hours in a week. In an earlier opinion, this court ap p lied the two-stage procedure under Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 ( 5 t h Cir. 1995), in determining whether to certify the case as a collective action on a c o n d itio n a l basis. Under that standard, this court found that Detho had met the required m in im a l showing that there were other, similarly situated employees who were subject to a

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c o m m o n practice. This court nonetheless denied without prejudice Detho's motion for is s u a n c e of notice to a conditionally certified class because she had failed to make any sh o w in g as to whether other similarly situated individuals desired to opt in to the lawsuit. T h e only evidence in the record as to whether other employees wanted to opt in was the f o llo w in g statement in Detho's affidavit: I believe there are many current and former employees of Defendants who may b e interested in joining a collective action to recover for unpaid overtime c o m p e n s a tio n ; however, although I can only recall the first names "Raj" and " N a e e m ," I certainly remember these male employees. (D o c k e t Entry No. 20, Ex. A at 2). Recognizing that Detho lacked information as to the id e n tity of other similarly situated employees because she only worked a short time and was o f ten the only employee working in the gas station, this court ordered the defendants to p r o d u c e a list of employees who had worked for them during the past three years. The d e f e n d a n ts produced the names, dates of employment, and last known addresses of six f o rm e r and current employees. The names "Raj" and "Naeem" are not among them. D e th o has filed an amended motion for notice to potential plaintiffs and for expedited d isco v ery. (Docket Entry No. 31). The defendants have responded. (Docket Entry No. 32). T h e issue is the lack of any showing that other employees wish to opt in. Despite having b e e n provided the names and addresses of current and former employees, Detho's sole e v id e n c e that other similarly situated employees want to join the suit is the same statement s h e offered before: she believes that other employees will be interested. V a rio u s courts require some showing that at least some similarly situated individuals 2

w a n t to opt in to an FLSA suit before granting conditional certification. See, e.g., Dybach v . State of Fla. Dept. of Corr., 942 F.2d 1562, 1567­68 (11th Cir. 1991); Simmons v. TM o b ile USA, Inc., No. H-06-1820, 2007 WL 210008, at *9 (S.D. Tex. Jan. 24, 2007); Parker v . Rowland Express, Inc., 492 F. Supp.2d 1159, 1165 (D. Minn. 2007); King v. West Corp., N o . 8:04CV318, 2006 WL 118577, at * 12 (D. Neb. Jan.13, 2006); Lance v. The Scotts Co., N o . 04-5270, 2005 WL 1785315, at *9 (N.D. Ill. July 21, 2005); Mackenzie v. Kindred H o s p s . E., L.L.C., 276 F. Supp. 2d 1211, 1220­21 (M.D. Fla. 2003); Harper v. Lovett's B u ffe t, Inc., 185 F.R.D. 358, 361­62 (M.D. Ala. 1999); Hargrove v. Sykes Enters., Inc., No. C iv . 99-110, 1999 WL 1279651, at *4 (D. Or. June 30, 1999); Cash v. Conn Appliances, Inc., 2 F. Supp. 2d 884, 897 (E.D. Tex. 1997). The Fifth Circuit has not addressed this issue. In most cases, there are multiple plaintiffs or several current or former employees who s e e k to join the suit and who provide affidavits or declarations in support of the conditional c e rtif ic a tio n . In this case, by contrast, there is a single plaintiff; no affidavit or declaration o r statement identifying any specific former or current employee who wants to join the suit; a n d a total of only seven former and current employees (including Detho) over the past three ye a r s . The courts to consider this factor have recognized that "before a conditionalc e rtif ic a tio n motion may be granted, a named plaintiff (or plaintiffs) must proffer some e v id e n c e that other similarly situated individuals desire to opt in to the litigation [because] . . . [i]n the absence of such evidence, there would be no basis upon which the Court could

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c o n c lu d e that the action was an `appropriate case' for collective-action treatment," Parker, 4 9 2 F. Supp. 2d at 1165, and that "[o]thers' interest in joining the litigation is relevant to w h e th e r or not to put a defendant employer to the expense and effort of notice to a c o n d itio n a lly certified class of claimants," Simmons, 2007 WL 210008, at *9. One court has e x p la in e d the reasons for the requirement as follows: Simply put, a plaintiff must do more than show the mere existence of o t h e r similarly situated persons, because there is no guarantee that those p e rso n s will actually seek to join the lawsuit. And, if those other, similarly s itu a te d persons were to decline to opt in to the case, no purpose would have b e e n served by "certifying" a collective-action "class" ­ the case ultimately w o u ld involve no one other than the plaintiff. Furthermore, if an FLSA p la in tif f were required to show only that other potential plaintiffs exist (rather th a n showing that those potential plaintiffs would actually seek to join the la w s u it), it would render preliminary class certification automatic, as long as th e Complaint contains the magic words: "Other employees similarly s itu a te d ." Under this rationale, any plaintiff who is denied overtime pay may f ile suit under [the] FLSA and, as long as her complaint is well-pled, receive p relim in ary class certification and send court-approved notice forms to every . . . employee[ ]. This is, at best, an inefficient and overbroad application of th e opt-in system, and at worst it places a substantial and expensive burden on a defendant. . . . More importantly, automatic preliminary class certification is at odds with the Supreme Court's recommendation to "ascertain the contours o f the [§ 216] action at the outset." P a r k e r, 92 F. Supp.2d at 1165 (internal quotations omitted) (quoting Smith v. Sovereign B a n c o rp , Inc., No. Civ. A. 03-2420, 2003 WL 22701017, at *2 (E.D. Pa. Nov.13, 2003). T h is is not a rigid or inflexible analysis. "If, for example, eight employees together w e re to commence an FLSA action, it might be unnecessary to show that others desire to opt in to the litigation, since the sheer number of plaintiffs, standing alone, could render the case `a p p ro p ria te ' for collective-action status." Parker, 492 F. Supp.2d at 1165 n.4. In the 4

p re se n t case, however, there is, as noted, a single plaintiff unable to identify any other e m p lo ye e who wants to join the suit. T h e re is a potential for a "chicken and egg" problem in applying this factor, which this c o u rt recognized and took steps to avoid. Requiring an FLSA plaintiff who does not know th e identities of the members of the proposed class to provide information about class m e m b e r s ' desire to opt in could require the plaintiff to produce the very information that she s o u g h t to obtain through conditional certification and notice. See Severtson v. Phillips B e v e r a g e Co., 137 F.R.D. 264, 267 (D. Minn. 1991) (discussing the "chicken and egg" p r o b l e m in the context of showing that a proposed class is similarly situated); Sperling v. H o ffm a n n -L a Roche, Inc., 118 F.R.D. 392, 406 (D.N.J. 1988) (same). In this case, however, th e court ordered the defendants to provide Detho with information as to the identities of its f o rm e r and current employees over the last three years. Despite having this information, D e th o has still not provided any information that any specific putative class member is in ter e ste d in joining this litigation. In the absence of any evidence indicating that others will o p t in to this lawsuit, there is no basis to conclude that it is an "appropriate case" for c o lle c tiv e -a c tio n status, as opposed to a lawsuit involving a single plaintiff. Accordingly, c o n d itio n a l certification must be denied. See Simmons, 2007 WL 210008, at *9 ("Simmons h a s not presented any admissible evidence that [similarly situated individuals] seek to p a rtic ip a te as plaintiffs in this case. Simmons' reliance on merely his own allegations that th e putative class members exist and together were the victims of a single decision, policy,

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o r plan is insufficient to meet his burden on this third criterion for conditional certification a n d notice."); Parker, 492 F. Supp. 2d at 1165 (finding that the plaintiffs' statements that o th e r potential plaintiffs may exist was insufficient to show that other members of the p u ta tiv e class wanted to opt-in to the lawsuit). Detho's amended motion for notice to potential plaintiffs and expedited discovery is d en ied. The case may, of course, proceed as an individual action on behalf Detho and others w h o are or become named plaintiffs. SIGNED on July 29, 2008, at Houston, Texas.

______________________________________ L e e H. Rosenthal United States District Judge

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