Teed v. JT Packard & Associates, Inc.

Filing 55

ORDER that plaintiff may proceed as a class representative on behalf of those individuals who opted-in to the FLSA class action by 12/6/2008. Plaintiff may proceed only on his own behalf on state law claim. Signed by Chief Judge Barbara B Crabb on 3/9/09. (vob) Modified text on 3/18/2009 (llj).

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------B RIA N TEED, an d all others similarly situated,, MEMORANDUM Plaintiff, 0 8 - cv -3 0 3 - b b c v. JT PACKARD & ASSOCIATES, INC., an d S.R. BRAY CORP., d/b/a POWER PLUS! a foreign corporation, D efendan ts. --------------------------------------------This civil action was brought by plaintiff Brian Teed against defendants JT Packard & Associates, Inc. and Power Plus! for alleged violations of federal and state overtime com pen sation laws. Plaintiff brought this lawsuit as a class action on behalf of two separate c la s ses: (1) a nationwide class for violations of the Fair Labor Standards Act and (2) a W iscon sin class for violations of Wisconsin law. Under the Fair Labor Standards Act, a district court may conditionally certify a class to allow a representative plaintiff the opportunity to send out opt-in notices for violations o f the Act. 28 U.S.C. § 216; Woods v. New York Life Insurance Company, 686 F.2d 578,

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58 0 (7th Cir. 1982). This court has adopted a two-step process for class certification under the FLSA. Sjoblom v. Charter Communications, LLC, No. 07-cv-451-bbc, 2007 WL 45 60 54 1, *7-8 (W.D. Wis. Dec. 19. 2007). The first step requires plaintiff to demonstrate that he is similarly situated to potential class members. Id. This step was completed on O ctober 3, 2008 when I issued an order approving the parties' joint stipulation to con dition al certification and for notice to be sent out to all potential class members. Dkt. # # 37-38. After the deadline for class members to opt-in has passed and all potential class m em bers are identified, defendant may file a motion to oppose certification of the class. Id. O n December 15, 2008, the parties submitted a request to extend the deadline for ce r t ificatio n and decertification because the parties sought to engage in settlement negotiations to avoid costly and unneeded discovery. Dkt. #50 at 2. On the same day, M agistrate Judge Stephen Crocker granted the parties' request and extended the deadlines to February 15, 2009. Dkt. #51. The deadline has come and passed and neither party has submitted motions to certify or decertify. The failure to do so operates as a waiver of the parties' rights regarding the state and federal class actions. In other words, plaintiff has waived his right to certify a state law class for violations of Wisconsin's overtime laws and defendants have waived their right to decertify the FLSA class. Austin v. Cuna Mutual Insurance Society, 232 F.R.D. 601, 605

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(W .D . Wis. 2005) (second step of FLSA conditional certification requires defendant to file m otio n to decertify). Therefore, in accordance with the parties' joint stipulation to certify a nationwide class under the FLSA, plaintiff may proceed as a class representative on behalf of those individu als who opted-in to the FLSA class action by December 6, 2008. However, because plaintiff did not move to certify a state law class action by the court's extended deadline, plaintiff may proceed only on his own behalf on this claim. E n tered this 9 t h day of March, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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