Opinion
Case No. 3:07-cv-1018-WKW.
August 14, 2008
MEMORANDUM OPINION AND ORDER
This cause is before the court on the plaintiffs' Motion to Facilitate Notice Pursuant to § 216(b) of the Fair Labor Standards Act (Doc. # 24). The defendants have responded (Doc. # 26) in opposition, the plaintiffs have replied (Doc. # 27), and the court allowed the defendants to file a sur-reply (Doc. # 30). Additionally, the defendants recently filed a notice (Doc. # 31) correcting a factual misstatement contained in their opposition brief. For the reasons set forth below, the plaintiffs' motion for conditional class certification and facilitation of notice is due to be denied.
I. LEGAL STANDARD
District courts should use the following two-tiered procedure when a plaintiff seeks to bring a collective action on behalf of similarly situated persons under 29 U.S.C. § 216(b):
The first determination is made at the so-called "notice stage." At the notice stage, the district court makes a decision — usually based only on the pleadings and any affidavits which have been submitted — whether notice of the action should be given to potential class members.
Because the court has minimal evidence, this determination is made using a fairly lenient standard, and typically results in "conditional certification" of a representative class. If the district court "conditionally certifies" the class, putative class members are given notice and the opportunity to "opt-in." The action proceeds as a representative action throughout discovery.
The second determination is typically precipitated by a motion for "decertification" by the defendant usually filed after discovery is largely complete and the matter is ready for trial. 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. If the claimants are similarly situated, the district court allows the representative action to proceed to trial. If the claimants are not similarly situated, the district court decertifies the class, and the opt-in plaintiffs are dismissed without prejudice. The class representatives — i.e. the original plaintiffs — proceed to trial on their individual claims.Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001) (quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995)).
II. DISCUSSION
A. Introduction
On November 19, 2007, Plaintiffs Mitchell Mooney ("Mooney"), Harrison Gilmore ("Gilmore"), Donnie L. Tharp ("Tharp"), and Samuel King ("King") filed their complaint (Doc. # 1) against Defendants Advanced Disposal Services ("ADS") and Urrutia, Inc. ("Urrutia"), seeking to recover unpaid overtime compensation under the Fair Labor Standards Act ("FLSA"). All four plaintiffs were formerly employed by the defendants as truck drivers in Alexander City, Alabama. (Doc. # 26, at 4-5.)
The plaintiffs allege that the defendants "had a uniform policy and practice of consistently requiring hourly employees to work overtime without paying them overtime compensation for this work." (Compl. ¶ 8.) To support this, each plaintiff states in his affidavit that he consistently worked more than forty hours per week, yet was not paid one and a half times his hourly rate for all hours worked over forty per week. (Mooney Aff. ¶ 3; Gilmore Aff. ¶ 3; Tharp Aff. ¶ 3; King ¶ 3.) While no one else has filed a consent form seeking to opt-in to this putative collective action, each plaintiff states that he is "personally aware of other hourly employees who may be interested in joining in this case if given the opportunity." (Mooney Aff. ¶ 5; Gilmore Aff. ¶ 5; Tharp Aff. ¶ 5; King Aff. ¶ 5.)
The defendants dispute the allegations and provide affidavits from three current truck drivers in Alexander City and one site manager who claim they have always been paid for any overtime worked. (Cannon Aff. ¶ 1; Burkhalter Aff. ¶ 1; Tumlin Aff. ¶ 1; Gibson Aff. ¶¶ 1-2.) Also, according to the defendants, there are typically only seven truck drivers working out of Alexander City at any one time. (Gibson Aff. ¶ 5.)
B. Notice Stage Requirements
During the notice stage, when the court must make a determination of conditional class certification, "the district court should satisfy itself that there are other employees of the [employer (1)] who desire to `opt-in' and [(2)] who are `similarly situated' with respect to their job requirements and with regard to their pay provisions." Dybach v. State of Fla. Dep't of Corrections, 942 F.2d 1562, 1567-68 (11th Cir. 1991). As stated above, this determination is usually made "based only on the pleadings and any affidavits which have been submitted." Hipp, 252 F.3d at 1218. Plaintiffs in other cases have successfully satisfied the first element through the use of affidavits of other employees, consent forms to join the litigation from other employees, and expert evidence indicating there are other employees who wish to opt-in. See Davis v. Charoen Pokphand (USA), Inc., 303 F. Supp. 2d 1272, 1277 (M.D. Ala. 2004) (collecting cases). Additionally, in at least one other court in this circuit, the plaintiff established there were other employees desiring to opt-in on the basis of their being subjected to a common payroll policy or scheme. Tucker v. Labor Leasing, Inc., 872 F. Supp. 941, 948 (M.D. Fla. 1994) (finding it probable that other clerical personnel working in the same office may desire to opt-in because they were "likely paid in the same manner" as the plaintiffs). However, it is insufficient for a plaintiff to rely on a "mere stated belief in the existence of other employees who desire to opt-in," Davis, 303 F. Supp. 2d at 1277, or "`unsupported expectations that additional plaintiffs will subsequently come forward.'" Id. (quoting Mackenzie v. Kindred Hosps. E., LLC, 276 F. Supp. 2d 1211, 1220 (M.D. Fla. 2003)).
A stated belief in the existence of other employees wishing to join this litigation is all the plaintiffs have to offer. The only affidavits and consent forms that have been filed by the plaintiffs are their own. Even these affidavits merely state that they are "personally aware of other hourly employees who may be interested in joining in this case if given the opportunity." ( See, e.g., King Aff. ¶ 5.) As the defendants correctly point out, the "[n]amed Plaintiffs have failed to identify even one additional plaintiff interested in joining this litigation," (Defs.' Resp. Br. 8), and have apparently been unable to convince any of these "other hourly employees" of whom they are aware to join this litigation. The plaintiffs' explanation for their failure to identify other employees and file additional consent forms is that they did do these things, except it all happened before the complaint was filed. The plaintiffs claim Mr. Mooney was the first to contact the attorneys and initiate the case, and that he subsequently located three additional individuals who wished to join the suit prior to filing the complaint. (Pls.' Reply Br. 6.) In other words, the plaintiffs claim they should not be punished for joining other employees in the complaint instead of through the subsequent filing of consent forms.
This still does not explain why these other employees — of whom the named plaintiffs claim they are personally aware — have not filed consent forms to join this litigation in the meantime if they truly did desire to opt-in to this litigation.
At least one district court has found the number of named plaintiffs to be irrelevant to the question of whether there exist other employees who desire to opt-in to the litigation, instead focusing on the number of people other than the named plaintiffs who have declared an intent to opt-in. Saxton v. Title Max of Ala., Inc., 431 F. Supp. 2d 1185, 1187 (N.D. Ala. 2006) (finding the number of named plaintiffs "unpersuasive on the issue of opt-in interest" despite there being thirty-eight of them). While the court views additional evidence of employees who wish to join beyond the named plaintiffs to be an important factor because it indicates momentum of increasing numbers, it surely cannot be dispositive. If it were dispositive, plaintiffs could easily leap this hurdle by naming one plaintiff in the complaint and adding others at a later date to give the appearance of momentum. See, e.g., Ohsann v. L.V. Stabler Hosp., No. 07-675, 2008 WL 2468559, at *2 (M.D. Ala. June 17, 2008) (naming one plaintiff in the complaint and filing four additional consent forms when moving for conditional class certification).
This court declines to elevate form over substance and will not view the lack of any notices of consent other than the named plaintiffs as dispositive. However, without more, the court views the identification of only four plaintiffs — be they all named as such or potential opt-in plaintiffs — as a weak indicator that other employees desire to opt-in under the circumstances. See, e.g., Wombles v. Title Max of Ala., Inc., No. 03-1158, 2005 WL 3312670, at *3 (M.D. Ala. Dec. 7, 2005) (finding first prong not satisfied with five named plaintiffs and two opt-in plaintiffs). The argument that other employees exist who desire to join the litigation is further weakened by the affidavits of one former and three current truck drivers who claim they were always paid overtime, (Cannon Aff. ¶ 1; Burkhalter Aff. ¶ 1; Tumlin Aff. ¶ 1; Gibson Aff. ¶¶ 1-2), especially in light of the relatively small numbers of truck drivers (seven) who are employed at the Alexander City facility at any one time. Wombles, 2005 WL 3312670, at *3 (weighing employer's submission of affidavits from current employees against the plaintiffs' evidence); Saxton, 431 F. Supp. 2d at 1187 (same).
While an employer's policy or practice has been used to determine if more opt-in plaintiffs were likely to exist, Tucker, 872 F. Supp. at 948, here the plaintiffs have not identified what kind of policy or practice is causing the alleged FLSA violations, such as an automatic lunch break deduction or being required to work off the clock. Without any idea of what policy or practice may be the culprit of the alleged FLSA violations, the court cannot extrapolate a theory that all other truck drivers were also subject to the unknown policy. From aught that appears in the record, the overtime violations, if any, could have been the result of some policy that is confined to these four named plaintiffs and, as a result, there would be no one else who would wish or qualify to opt-in.
A policy that operates to deny overtime to all truck drivers would weigh in favor of a finding that there may be other truck drivers who wish to opt-in. But a policy that applied only to these four truck drivers would indicate there are likely no other truck drivers who would wish to opt-in. Without any information on what kind of policy allegedly denied overtime pay, the court cannot rely on it as a factor in determining whether other potential opt-in plaintiffs exist and desire to join in the lawsuit.
Therefore, in the absence of an identified payroll policy or practice that violates the FLSA and in the absence of any additional consent forms from other employees wishing to join the litigation since it began in November 2007, the fact that four named plaintiffs who merely claim they know of others who wish to join the litigation is insufficient to establish the first prong of the notice stage requirements. Because the plaintiffs have not met their burden of establishing there exist other employees who desire to join the litigation, there is no reason to determine if the proposed class would have been similarly situated to the named plaintiffs.
III. CONCLUSION
Therefore, for the reasons set forth above, it is ORDERED that the plaintiffs' Motion to Facilitate Notice Pursuant to § 216(b) of the Fair Labor Standards Act (Doc. # 24) is DENIED.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST 1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4 Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). 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