Russell v. Nationwide Eviction, LLC
MEMORANDUM OPINION AND ORDER DENYING 14 Renewed MOTION to Certify Class. (Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)
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United States District Court
Southern District of Texas
October 19, 2017
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
DAN RUSSELL, Individually and on Behalf
of All Others Similarly Situated,
NATIONWIDE EVICTION, LLC,
David J. Bradley, Clerk
CIVIL ACTION H-17-0008
MEMORANDUM OPINION AND ORDER
Pending before the court is a renewed motion for conditional certification of a collective
action filed by plaintiff Dan Russell. Dkt. 14. Defendant Nationwide Eviction, LLC (“Nationwide”)
responded objecting to conditional certification, the scope of the proposed class, and the proposed
notice. Dkt. 16. After considering the motion, the response, the relevant documents in the record,
and the applicable law, the court is of the opinion that the motion for conditional certification should
Nationwide provides assistance to landlords in eviction proceedings.
Dkt. 14 at 4.
Specifically, Nationwide utilizes “Court Representatives” to make court appearances on behalf of
its clients. Id. Russell worked for Nationwide as a Court Representative from October 2013 to
October 2016. Dkt. 3 at 2. Russell filed this suit under the Fair Labor Standards Act (“FLSA”)
claiming that Nationwide wrongfully failed to pay Russell, and others similarly situated, legallyowed overtime wages. Id. at 1.
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According to Russell, he worked in excess of forty hours a week but was not paid overtime
wages. Dkt. 14 at 4–5. Russell alleges that Nationwide paid him a flat fee for each court
appearance, even though some court appearances required him to work upwards of twelve hours per
day. Id. at 5. Russell alleges that Nationwide violated the FLSA by failing to pay him, and others
similarly situated, at one-and-one-half times their regular pay rates for the hours worked in excess
of forty in a week. Dkt. 3 at 4.
On January 4, 2017, Russell filed a motion for conditional certification under the FLSA.
Dkt. 5. The court denied Russell’s motion without prejudice because Russell failed to provide any
evidence that “other similarly situated individuals who want to opt in to this lawsuit exist.” Dkt. 13
at 2. The court denied the motion without prejudice to allow Russell the opportunity to file a
renewed motion with supporting affidavits or other evidence. Id. Russell’s renewed motion for
conditional certification is now before the court. Dkt. 14.
Russell asks the court to conditionally certify the class and for permission to send notice of
the lawsuit “to all individuals who, at any point, during the past three (3) years prior to the filing of
this lawsuit, worked for Defendant as Court Representatives.” Id. at 8. Nationwide responds that
Russell has not met his burden to justify conditional certification, and in the alternative, that the
proposed class and notice should be limited. Dkt. 16.
Section 207(a) of the FLSA requires covered employers to compensate nonexempt employees
at overtime rates for time worked in excess of forty hours per week. 29 U.S.C. § 207(a). Section
216(b) creates a cause of action against employers who violate the overtime compensation
requirements. Id. § 216(b). Section 216(b) also permits an employee to bring a collective action
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lawsuit against an employer on “behalf of himself . . . and other employees similarly situated.” Id.
Employees who wish to participate in a § 216(b) collective action must affirmatively “opt-in” to the
action by filing a written consent with the court. Id. The “opt-in” procedure of § 216(b) illustrates
its “fundamental, irreconcilable difference” from a class action under Federal Rule of Civil
Procedure 23(c): in a Rule 23 proceeding, persons within the class description are automatically
considered class members and must “opt-out” of the suit if they do not wish to participate.
LaChapelle v. Owens-Ill., Inc., 513 F.2d 286, 288 (5th Cir. 1975).
The Fifth Circuit has declined to adopt a specific test to determine when a court should
certify a collective action or grant notice in a § 216(b) action, but most federal courts (including this
court) have adopted the Lusardi test. Badgett v. Tex. Taco Cabana, L.P., No. H–05–3624, 2006 WL
2934265, at *1–2 (S.D. Tex. Oct. 12, 2006) (Miller, J.). Under the Lusardi test, a district court
engages in a two-step analysis to determine whether the potential plaintiffs are “similarly situated.”
Id. at *1.
The two stages of the Lusardi test are the “notice stage” and the “decertification stage.” Id.
At the notice stage, the court makes a decision, usually solely based on the pleadings and any
submitted affidavits, whether to conditionally certify a collective action and give notice to potential
class members. See Mooney v. Aramco Servs, 54 F.3d 1207, 1213–14 (5th Cir. 1995). At this stage,
the court applies a “fairly lenient standard” because there is often minimal evidence available. Id.
at 1214. Courts, in fact, “appear to require nothing more than substantial allegations that putative
class members were together the victims of a single decision, policy or plan.” Id. at 1214 n.8
(quoting Sperling v. Hoffmann-La Roche, Inc., 118 F.R.D. 392, 407 (D.N.J. 1988)). Thus, the notice
stage analysis typically results in conditional certification of a representative class. Badgett, 2006
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WL 2934265, at *1. After conditional certification, the “putative class members are given notice
and the opportunity to ‘opt-in.’” Mooney, 54 F.3d at 1214.
After conditional certification is granted, the action proceeds as a representative action. See
id. The second stage—the “decertification stage”—is typically precipitated by the defendant filing
a motion to decertify after the opt-in period has concluded and discovery is largely complete. Id.
“At this stage, the court has much more information on which to base its decision, and makes a
factual determination on the similarly situated question.” Id. If the court finds the claimants are no
longer made up of similarly situated persons, it decertifies the class and dismisses the opt-in
plaintiffs without prejudice. Id. If the class is still similarly situated, the court allows the collective
action to proceed. Id.
A “decision to certify, even if subject to correction at the decertification stage, is not without
consequences” as “[t]oo much leniency at the notice stage can lead to a ‘frivolous fishing expedition
conducted by the plaintiff at the employer’s expense.’” Lang v. DirecTV, Inc., No. 10–1085, 2011
WL 6934607, at *6 (E.D. La. Dec. 30, 2011) (footnotes omitted). Further, “extreme leniency at the
notice stage can result in conditional certification that must later be revoked on the eve of
trial . . . when it becomes obvious that manageability concerns make collective action impossible.”
Id. (footnote omitted). Therefore, while the notice stage standard is lenient, it is not automatic.
Badgett, 2006 WL 2934265, at *2.
The plaintiff bears the burden of making a preliminary factual showing that a similarly
situated group of potential plaintiffs exists. Id. To establish this, the plaintiff must make a minimal
showing that: “(1) there is a reasonable basis for crediting the assertion that 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.” Maynor
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v. Dow Chem. Co., No. G–07–0504, 2008 WL 2220394, at *6 (S.D. Tex. May 28, 2008) (citing
Prater v. Commerce Equities Mgmt. Co., No. H–07–2349, 2007 WL 4146714, at *4 (S.D. Tex. Nov.
19, 2007); Simmons v. T–Mobile USA, Inc., No. H–06–1820, 2007 WL 210008, at *5 (S.D. Tex.
Jan. 24, 2007)).
Russell alleges that he regularly worked more than forty hours each week and was not paid
overtime for his work. Dkt. 14 at 7. Further, Russell argues that the court should grant conditional
certification because other employees who worked as Court Representatives performed the same or
similar work as Russell and were also not compensated for overtime. Id. In support of this claim,
Russell relies on a single statement he made in the declaration attached as an exhibit to his motion,
I know other Court Representatives, who, like me, worked a similar number
of hours and who received a flat rate for each court appearance and were not
paid one and one half times their regular rates of pay for each hour they
worked over 40 in a workweek. Specifically, I know that Travis Prior and
Toni Damian, usually worked around the same number of hours as me and
received a flat rate for each appearance.
Id., Ex. 1 ¶ 8.
Nationwide responds that conditional certification is inappropriate in this case. Dkt. 16. In
the alternative, Nationwide argues that if conditional certification is granted, the proposed class
should be limited and the scope of the notice should be limited as well. Id. at 14–18. Because
conditional certification is not warranted in this case, the court need not consider Nationwide’s
Assuming, without deciding, that Russell satisfies the first two elements of the Lusardi test,
conditional certification is still not warranted because Russell fails to make a minimal showing that
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other similarly situated individuals want to opt in to the lawsuit, which is required under the third
element. Maynor, 2008 WL 2220394, at *6. In cases in which the plaintiff failed to satisfy that
other individuals actually want to opt in to the lawsuit, courts in this district, including this one, have
denied conditional certification. See, e.g., Herron v. Peveto Cos., Ltd., No. H-15-766, 2016 WL
3166850, at *2 (S.D. Tex. June 7, 2016) (Miller, J.). “This requirement is necessary to ensure that
the collective action mechanism is being used appropriately to promote judicial efficiency rather than
as a tool to burden a defendant and create settlement pressure.” Id.
The statement relied on by Russell provides no evidence that any other individual has interest
in joining the lawsuit. See Dkt. 14, Ex. 1 ¶ 8. Further, in the ten months that this case has been on
file, only one individual (Travis Pryor) other than Russell has opted into the lawsuit. Dkt. 17. Thus,
the only indication that others might be interested in joining the lawsuit is Pryor’s consent to join.
This court has previously declined to conditionally certify collective actions when plaintiffs have
presented more evidence than what Russell has here. See Shaffer v. M-I, LLC, No. H-14-2966, 2015
WL 7313415, at *4 (S.D. Tex. Nov. 19, 2015) (Miller, J.) (declining to conditionally certify when
one valid consent was filed along with an affidavit stating “[plaintiff] know[s] that others would be
interested to learn that they too may recover unpaid back wages from [defendant]”); Morales v.
Thang Hung Corp., No. 4:08-2795, 2009 WL 2524601, at *3 (S.D. Tex. Aug. 14, 2009) (Miller, J.)
(declining to conditionally certify when one consent was filed along with an affidavit stating that
plaintiff believes there are three other employees who would be interested in joining the suit).
In both Shaffer and Morales, the respective plaintiffs included at least some indication that
others would be interested in joining the lawsuit in their affidavits, in addition to the consents filed.
Here, Russell provides no indication at all that others would be interested in joining the suit. The
instant case is more like Herron. In Herron, the plaintiff’s affidavit stated that he remembers
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“talking to some [other employees] about overtime not being paid to us.” 2016 WL 3166850, at *3.
While a consent was not filed in Herron, another employee did file an affidavit indicating that he
would like to opt in if the class was certified. Id. Thus, Herron involved a plaintiff’s affidavit with
no indication that others actually wanted to join the suit, and the expressed interest of one other
individual. See id. Here, Russell’s declaration provides no indication that others actually want to
join, leaving the Pryor consent as the only indication of any interest by other individuals. Like the
plaintiff in Herron, Russell has failed to make a minimal showing that other similarly situated
individuals want to opt in to the lawsuit.
Because Russell failed to satisfy the third element of the Lusardi test, Russell has failed to
meet his burden to justify conditional certification. Thus, Russell’s renewed motion for conditional
certification of a collective action (Dkt. 14) is DENIED.
Signed at Houston, Texas on October 19, 2017.
Gray H. Miller
United States District Judge
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