Bunker v. PCP for Life, PA et al
OPINION AND ORDER 13 MOTION to Certify Class is DENIED. (Signed by Judge Melinda Harmon) Parties notified.(jdav, 4)
Case 4:16-cv-02573 Document 23 Filed in TXSD on 07/26/17 Page 1 of 5
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
PCP FOR LIFE, PA, et al,
July 27, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 4:16-CV-2573
OPINION AND ORDER
Pending before the Court is Plaintiff’s Motion for Conditional Certification and Notice to
Potential Plaintiffs. (Document No. 13). Having considered the Motion, Defendants’ Response
(Document No. 19), Plaintiff’s Reply (Document No. 20), the facts in the record, and the
applicable law, the Court concludes the motion should be denied.
Plaintiff Christy Bunker (Bunker) filed this case pursuant to 29 U.S.C. §§ 201–206 of the
Fair Labor Standards Act (the “FLSA”). (Document No. 1 at 2). Bunker filed the complaint on
behalf of herself and similarly situated employees of the Defendants (collectively “PCP”). Id.
Bunker alleges that PCP violated the FLSA by failing to pay overtime for hours worked over
forty per week. Id. In accordance with 29 U.S.C. §216(b), Plaintiff alleges that these actions
were part of a generally applicable practice of failing to pay nurse practitioners and physician
assistants, and that class certification is appropriate for PCP employees who: (1) were employed
as nurse practitioners or physician assistants at any time since August 23, 2013, (2) worked in
excess of forty hours per week, and (3) were not paid at the premium rate for overtime hours
worked and/or not paid for all hours worked during their lunch break. (Document No. 13 at 5).
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II. Legal Standard
Section 216(b) of the FLSA allows an employee to bring an action “for and [on] behalf of
himself … and other employees similarly situated.” 29 U.S.C. § 216(b). To determine whether or
not employees are similarly situated this court, along with most district courts in the Fifth
Circuit, traditionally applies the two part test established in Lusardi v. Xerox Corp., 118 F.R.D.
351 (D.N.J. 1987). See Blake v. Hewlett-Packard Co., No. 4:11-CV-592, 2013 WL 3753965, at
*4 (S.D. Tex. July 11, 2013) (explaining rationale). The court in Lusardi divided their analysis
into two phases, the notice phase and a decertification phase. Id. This case is in the notice phase.
“At this stage, a plaintiff must make a minimal showing that 1) there is a reasonable basis for
crediting the assertion that other aggrieved individuals exist; (2) those aggrieved individuals are
similarly situated to the plaintiff in relevant respects given the claims and defenses asserted; and
(3) those individuals want to opt in to the lawsuit.” McKnight v. D. Houston, Inc., 756 F. Supp.
2d 794, 801 (S.D. Tex. 2010) (citations omitted).
When determining if a class should be conditionally certified courts should apply a
lenient standard. Id. (quoting Mooney v. Aramco Services Co., 54 F.3d 1207, 1214 n.8 (5th Cir.
1995)). Typically, discovery has not happened at this phase so courts traditionally do not review
the underlying merits of the action. Id. at 802 (citing Bouaphakeo v. Tyson Foods, Inc., 564 F.
Supp. 2d 870, 893 (N.D. Iowa 2008)). Courts have denied conditional certification where “the
action arises from circumstances purely personal to the plaintiff, and not from any generally
applicable rule, policy, or practice.” England v. New Century Fin. Corp., 370 F. Supp. 2d 504,
507 (M.D. La. 2005). Further courts tend to balance concerns about judicial economy with the
desire to avoid authorizing a “frivolous fishing expedition.” Rahman v. Fiesta Mart L.L.C., No.
CV H-15-2295, 2016 WL 2346944, at *4 (S.D. Tex. May 4, 2016) (quoting Lang v. DirecTV,
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Inc., No. 10-CV-1085, 2011 WL 6934607, at *6 (E.D. La. Dec. 30, 2011)).
As described below, Plaintiff has failed to demonstrate that other individuals wish to opt
in to the lawsuit (the third prong of the test), and thus class certification is inappropriate. Bunker
argues that the third prong is not necessary at this phase. (Document No. 20 at 7). However,
while some courts have held that plaintiffs do not need to satisfy the third prong, those cases are
not binding authority on this court and are distinguishable from the present case. Villarreal v. St.
Lukes Episcopal, 751 F. Supp. 2d 902, 906 (S.D. Tex. 2010) (noting existence of other
plaintiffs); Villegas v. Grace Disposal Sys., No. CV-H-13-320, 2014 WL 793977, at *5 (S.D.
Tex. Feb. 27, 2014) (eight named plaintiffs); White v. Integrated Elec. Tech., Nos. CV-11-2186,
12-259, 2013 WL 2903070, at *7 (E.D. La. June 13, 2013) (suit with multiple named plaintiffs
and opt-in plaintiffs).1 Other courts have noted the disagreement on the third requirement, but
proceeded to certify a class based on a showing that the third requirement has been met. Hendrix
v. Shipcon Wireless, Inc., No. 4:16-CV-2714, 2017 WL 1449780, at *6 (S.D. Tex. Apr. 21,
2017); Walker v. Honghua Am., LLC, 870 F. Supp. 2d 462, 471–72 (S.D. Tex. 2012).
It is necessary for plaintiffs to demonstrate that other potential plaintiffs desire to join the
suit so that the court can balance concerns regarding judicial economy with the desire to “avoid
the ‘stirring up’ of litigation through unwarranted solicitation.” Jones. v. JGC Dallas LLC, 2012
WL 6928101 at *2 (N.D. Tex. Nov. 29, 2012) (quoting Severtson v. Phillips Beverage Co., 137
If Bunker had even one declaration other than her own the circumstances would be different.
Wedel v. Vaughn Energy Servs., LLC, No. 2:15-CV-93, 2015 WL 5920034, at *1 (S.D. Tex. Oct.
9, 2015) (“The Court finds that two individuals [named as putative opt-in plaintiffs] satisfy the
third Lusardi factor.”) (citing Pacheco v. Aldeeb, No. 5:14–CV–121–DAE, 2015 WL 1509570 at
*8 (W.D. Tex. Mar. 31, 2015); Tolentino v. C & J Spec–Rent Servs., Inc., 716 F. Supp. 2d 642,
653 (S.D. Tex. 2010); Lee v. Metrocare Servs., 980 F. Supp. 2d 754, 768 (N.D. Tex. 2013);
Jones v. SuperMedia, Inc., 281 F.R.D. 282, 291 (N.D. Tex. 2012)).
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F.R.D. 264, 266 –67 (D. Minn. 1991)); see also Pacheco v. Aldeeb, No. 5:14-CV-121-DAE,
2015 WL 1509570, at *8 (W.D. Tex. Mar. 31, 2015) (“In addition to requiring the existence of
similarly situated individuals, most courts require that a plaintiff present some evidence that
those individuals are likely to opt-in to the lawsuit.”); Behnken v. Luminant Min. Co., LLC, 997
F. Supp. 2d 511, 522 (N.D. Tex. 2014) (“[B]efore granting court-facilitated notice, the court
should satisfy itself that there are other similarly situated employees ... who would desire to optin to this lawsuit.”) (quoting Valcho v. Dallas Cty. Hosp. Dist., 574 F. Supp. 2d 618, 622 (N.D.
Tex. 2008)); Simmons v. T-Mobile USA, Inc., No. CIV A H-06-1820, 2007 WL 210008, at *9
(S.D. Tex. Jan. 24, 2007) (denying certification where plaintiff did not present any admissible
evidence that other aggrieved employees were interested in participating in plaintiff’s suit);
Dybach v. State of Fla. Dep’t of Corr., 942 F.2d 1562, 1567 (11th Cir. 1991) (“[T]he district
court should satisfy itself that there are other employees of the department-employer who desire
Courts consider several things when determining if other individuals desire to opt-in to
the lawsuit, including affidavits from other individuals stating their desire to opt-in, the amount
of currently named plaintiffs in the suit, whether the plaintiff has submitted additional evidence
of a widespread plan of discrimination, and any factors that may be preventing individuals from
expressing their desire to opt in. H & R Block, Ltd. V. Housden, 186 F.R.D. 399, 400 (E.D. Tex.
None of those factors are present here. Bunker is the only named plaintiff, and in nearly a
year since filing no other plaintiffs have joined. Bunker offers no affidavits from other
employees stating their interest to join the lawsuit and provides no reason why such individuals
have not come forward. In her affidavit Bunker claims that she had conversations with other
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employees about the fact that they were not receiving overtime pay. (Document No. 13-3 at 3).
This is not enough to meet the third prong of the Lusardi test, because it merely alleges that other
class members exist, not that they would want to opt in to the suit. McKnight, 756 F. Supp.2d
794, 805 (quoting Parker v. Rowland Express, Inc., 492 F. Supp. 2d 1159, 1165 (D. Minn.
2007) (“[A] plaintiff must do more than show the mere existence of other similarly situated
persons, because there is no guarantee that those persons will seek to join the lawsuit.”)
Therefore, the Plaintiff has failed to meet her burden on this criterion, and class certification is
Plaintiff’s Motion for Class Certification will be denied, because Plaintiff has failed to
demonstrate that any other aggrieved employees have an interest in joining her lawsuit.
For the foregoing reasons, it is hereby
ORDERED that Plaintiff’s Motion for Conditional Certification (Document No. 13) is
SIGNED at Houston, Texas, this 26th day of July, 2017.
UNITED STATES DISTRICT JUDGE
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