Opinion
Civil Action File No. 1:04-CV-718-WBH.
July 14, 2004
ORDER
Before the Court are Plaintiffs' Motion for Conditional Certification, for Defendant to Disclose Names and Addresses of Similarly Situated Employees, and for Approval of Notice to Potential "Opt-In" Plaintiffs [6]; Plaintiffs' Motion to Compel Responses to Interrogatories and Requests for Production of Documents [50]; and Defendant's Emergency Motion to Stay and for Reconsideration of Motion to Dismiss [55]. On July 7, 2004, the Court held a status hearing at which counsel for Plaintiffs and Defendant presented arguments regarding the pending motions.
The Court has also considered the unsolicited letter brief filed by Plaintiffs after the hearing, as well as CompUSA's response.
BACKGROUND
On March 12, 2004, four Named Plaintiffs, on behalf of themselves and others similarly situated, filed this Fair Labor Standards Act ("ELBA") case against Defendant CompUSA, Inc. CompUSA owns and operates approximately 225 retail computer supply stores throughout the United States. Plaintiffs, former commercial sales representatives ("CSRs") for CompUSA, claim that they were regularly required to work more than 40 hours per weekk without being paid overtime. Plaintiffs allege that prior to February 1, 2004, CompUSA intentionally mischaracterized CSRs as exempt from overtime pay under the FLSA. According to Plaintiffs, this mischaracterizatianoccurred as part of a company-wide policy that affected CSRs at all CompUSA locations. On February 1, 2004, CompUSA changed its policy and now defines CSRs as non-exempt employees subject to overtime pay. As of the date of the hearing, nine current or former CompUSA commercial sales employees had filed notices of consent to participate as plaintiffs ("Opt-In Plaintiffs") in this action.On April 13, 2004, Plaintiffs moved for conditional certification of this action as a collective action under the FLSA, disclosure of the names and addresses of all persons employed by CompUSA as CSRs between March 12, 2001 and the present, and approval of their proposed notice to potential opt-in employees. Approximately one month later, CompUSA filed a motion to dismiss the action as moot in light of an offer of full relief to the Named and Opt-In Plaintiffs. In its Order of June 29, 2004, the Court, inter alia, denied CompUSA's motion to dismiss and scheduled ahearing regarding the motion for conditional certification, the status of CompUSA's offers of judgment, and the potential for expedited discovery to determine Plaintiffs' damages.
DISCUSSION
In moving to dismiss Plaintiffs' claims, CompUSA contends that its offers of full relief render the case moot and deprive the Court of subject matter jurisdiction. Qn ar around April 2, 2004, CompUSA submitted a written offer to Plaintiffs, through their counsel, to provide full relief to each Plaintiff for the amount of overtime pay claimed "based on an affidavit from each [Plaintiff] stating the number of hours worked each week during their employment up until the contested pay practice stopped in February 2004." CompUSA also offered to pay liquidated damages in an amount equal to any backpay, as well as reasonable attorneys' fees as agreed by the parties or determined by the Court. Since that time, CompUSA has extended Rule 68 offers of judgment to the Named Plaintiffs and represents that it will extend such offers to the Opt-In Plaintiffs once they provide their initial damages calculations.In its June 29 Order, the Court denied the motion to dismiss because the parties had not yet reached a consensus on the amount of overtime pay owed to each Plaintiff. CompUSA now asserts that it has produced time and payroll records and awaits identification by Plaintiffs' counsel of any additional records that are required to calculate Plaintiffs' damages. At the hearing, CompUSA advised the Court that it is amenable to an expedited discovery period and will not dispute the claims made by Plaintiffs in their affidavits. Because CompUSA has offered Plaintiffs all they could hope to recover at trial, CompUSA asks the Court to either dismiss the case or stay consideration of the motion for conditional certification so that the parties may conduct expedited discovery.
The Court agrees with CompUSA that the offers of judgnent represent offers of full relief that will, upon submission of Plaintiffs' affidavits establishing a sum certain, extinguish Plaintiffs' interests and moot this case. See Mackenzie v. Kindred Hospitals East, L.L.C., 276 F. Supp. 2d 1211, 1219 (M.D. Fla. 2003) (citing cases for the proposition that an offer of judgment of full relief, even if rejected, renders the action moot). The fact that Plaintiffs have filed a motion for conditional certification does not bar consideration of the motion to dismiss. Plaintiffs refer to a footnote in a district court case, Mackenzie v. Kindred Hospitals East, L.L.C., 2003 U.S. Dist. LEXIS 18927, at *3 n. 2 (M.D. Fla. July 24, 2003), which recognizes the potential for misuse of Rule 68 to escape compliance with the FLSA. This case, however, does not present such a situation. CompUSA has extended offers of full relief to each Named and Opt-In Plaintiff and intends to extend formal Rule 68 offers to the Opt-In Plaintiffs upon receipt of their damages estimates. Thus, the Opt-In Plaintiffs will not be denied relief, and resolution of the claims asserted in this case will not compromise the rights of similarly situated individuals who have not filed notices of consent.
Plaintiff also cites an FLSA case from the Southern District of Texas for the proposition that a Rule 68 defense and mootness argument should not be considered where a motion for certification is pending. See Villatoro v. Kim Son Restaurant, L.P., 286 F. Supp. 2d 807, 811 (S.D. Tex. 2003) ("Plaintiff's rejection of a Rule 68 offer is not relevant to the issue presently before the Court, namely, whether there are individuals similarly situated to her in regard to underpayment of wages"). As CompUSA points out, however, it does not appear that the issue was before the court in the context of a motion to dismiss for lack of subject matter jurisdiction.
While the certification of a collective action might make it more convenient for potential plaintiffs, neither dismissal nor entry of judgment in the present case impairs their rights. Unlike Rule 23 class action members who are bound unless they opt out, FLSA claimants may pursue their claims individually or jointly, subject only to the statute of limitations. See LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288 (5th Cir. 1975) ("Under § 16(b) of FLSA . . . no person will be bound by or may benefit from judgment unless he has affirmatively `opted into' the class"). Moreover, the Court notes that CompUSA has already changed the complained of policy regarding the compensation of CSRs. See Plaintiffs' First Amended Complaint [53], ¶ 29.
In order to give the four Named and nine Opt-In Plaintiffs an opportunity to calculate their damages and prepare affidavits, the Court hereby orders the parties to participate in a 60-day expedited discovery period. During this time, Plaintiffs shall complete their initial disclosures, and CompUSA shall assist Plaintiffs in identifying and obtaining documents relevant to the calculation of damages. In particular, Plaintiffs' counsel has indicated the need for a Rule 30(b)(6) deposition and for the production of additional documents to determine base pay rates and verify the accuracy of the Kronos records, all of which should be accomplished within the. 60-day period. Plaintiffs shall provide their affidavits to CompUSA by the close of the discovery period on September 13, 2004. In the absence of an agreement among the parties, attorneys' fees will be fixed thereafter by the Court.
CONCLUSION
For the reasons stated above, Plaintiffs' Motion for Conditional Certification, for Defendant to Disclose Names and Addresses of Similarly Situated Employees, and for Approval of Notice to Potential "Opt-In" Plaintiffs [6] is DENIED; Plaintiffs' Motion to Compel Responses to Interrogatories and Requests for Production of Documents [50] is DENIED AS MOOT; and Defendant's Emergency Motion to Stay and for Reconsideration of Motion to Dismiss [55] is GRANTED as set forth herein.
It is so ORDERED.