Lima v. International Catastrophe Solutions, Inc.

• Decision Date: 27 June 2007
• Docket Number: No. CIV.A. 06-6607.,CIV.A. 06-6607.
• Citation: 493 F.Supp.2d 793
• Court: U.S. District Court — Eastern District of Louisiana
• Parties: Ederclei Lorussa LIMA, Sebastiao Texeira, Altair Rableo, Isaias Gonzales Santos, Sdonge Mendez, Leonardo Ceieira De Souza, Jose Tomas De Aquino Filho v. INTERNATIONAL CATASTROPHE SOLUTIONS, INC., a Georgia Corporation, PJ Services Catastrophe Solutions, Inc., a Georgia Corporation, Corey Pitts, an Individual, C.L.S. Construction & Labor Services, Inc., a Florida Corporation, and Flavio Burgos, an Individual.

Page 793

493 F.Supp.2d 793

Ederclei Lorussa LIMA, Sebastiao Texeira, Altair Rableo, Isaias Gonzales Santos, Sdonge Mendez, Leonardo Ceieira De Souza, Jose Tomas De Aquino Filho v. INTERNATIONAL CATASTROPHE SOLUTIONS, INC., a Georgia Corporation, PJ Services Catastrophe Solutions, Inc., a Georgia Corporation, Corey Pitts, an Individual, C.L.S. Construction & Labor Services, Inc., a Florida Corporation, and Flavio Burgos, an Individual.

No. CIV.A. 06-6607.

United States District Court, E.D. Louisiana.

June 27, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

William Lurye, Robein, Urann & Lurye, Metairie, LA, Gregory J. McCoy, Ronald J. Vander Veen, Cunningham Dalman, P.C., Holland, MI, Jose A. Sandoval, Robert Anthony Alvarez, Law Office of Jose A. Sandoval, P.C., Wyoming, MI, for Ederclei Lorussa Lima, Sebastiao Texeira, Altair Rableo, Isaias Gonzales Santos, Sdonge Mendez, Leonardo Ceieira De Souza, Jose Tomas De Aquino Filho.

Craig L. Kaster, Craig L. Kaster & Associates, LLC, Zachary, LA, Ainsworth G. Dudley, Attorney at Law, Atlanta, GA, for International Catastrophe Solutions, Inc., a Georgia Corporation, PJ Services " Catastrophe Solutions, Inc., a Georgia Corporation, Corey Pitts, an Individual, C.L.S. Construction & Labor Services, Inc., a Florida Corporation, and Flavio Burgos, an Individual.

CLS Construction & Labor Services, Inc., Orlando, FL, pro se.

Flavio Burgos, Orlando, FL, pro se.

ORDER AND REASONS

FALLON, District Judge.

Before the Court is the Plaintiffs' Motion to Proceed as a Collective Action, for Tolling of the Statute of Limitations, for Court Authorized Notice, and for Disclosure of the Names and Addresses of the Potential Opt-in Plaintiffs (Rec.Doc. 60). For the following reasons, the motion is GRANTED in part and DENIED in part.

I. Background

The Plaintiffs bring this complaint on behalf of themselves and all others "similarly situated" against Defendants International Catastrophe Solutions, Inc. ("ICS"); PJ Services Catastrophe Solutions, Inc. ("PJ Services"); the president of ICS and PJ Services, Corey Pitts ("Pitts"); ICS subcontractor C.L.S. Construction & Labor Services, Inc. ("C.L.S."); and C.L.S.'s president Flavio Burgos ("Burgos") for alleged violations of the overtime wage provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. ("FLSA"). In their complaint, filed September 27, 2006, the Plaintiffs, predominantly immigrants, state that they were recruited by the Defendants to work as manual laborers in the clean-up and restoration of various businesses along the Gulf Coast following Hurricane Katrina. Specifically, the Plaintiffs state that Defendants PJ Services and ICS contracted with businesses to provide remediation and cleaning services. The Plaintiffs allege that they were recruited and hired by subcontractors utilized by PJ Services and ICS to perform the contract work. However, the Plaintiffs state that they remained joint employees at all relevant times of ICS and/or PJ Services and the subcontractor.

The Plaintiffs allege that they and others "similarly situated" were not paid proper overtime wage for their work in excess of forty hours per week. The Plaintiffs now seek to maintain their case as a collective action as they believe the Defendants' practice was uniform throughout their operation due to a centralized payroll and management system and similar experiences shared by other laborers with whom the Plaintiffs worked. They also seek approval of notice, disclosure of information by the Defendants, tolling of the statute of limitations, and extension of the opt-in period.

The Defendants deny liability for violations of FLSA's overtime provisions. Additionally, in an opposition memorandum to the pending motion, Defendants ICS, PJ Services and Pitts (together, the "ICS Defendants") object to the Plaintiffs' proposed class definition as too broad. They also make objections to the notice form, dispute the method of notice distribution, and oppose a tolling of the statute of limitations and an extended opt-in period.

II. Certification of Collective Action

The FLSA affords workers the right to sue collectively on behalf of themselves and others "similarly situated" for violations of the Act's minimum wage provisions and overtime protections. 29 U.S.C. § 216(b). "Unlike class actions governed by Rule 23 of the Federal Rules of Civil Procedure, in which potential class members may choose to opt out of the action, FLSA collective actions require potential class members to notify the court of their desire to opt-in to the action." Anderson v. Cagle's Inc., 488 F.3d 945, 950 n. 3 (11th Cir.2007) (citing 29 U.S.C. § 216(b)); Badgett v. Texas Taco Cabana, L.P., 2006 WL 2934265, at *1 (S.D.Tex. Oct.12, 2006). District courts are provided with discretionary power to implement the collective action procedure through the sending of notice to potential plaintiffs. Lentz v. Spanky's Restaurant II, Inc., 491 F.Supp.2d 663, ___, 2007 WL 1628853, at *2 (5th Cir.2007) (citing Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989)). Notice must be "timely, accurate and informative." Hoffmann-La Roche, 493 U.S. at 172, 110 S.Ct. 482.

When making the "similarly situated" inquiry and determining whether notice should be given, district courts commonly follow the "two stage" Lusardi approach, described in detail in Mooney v. Aramco Services, Co., 54 F.3d 1207, 1213-14 (5th Cir.1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003).¹ Badgett, 2006 WL 2934265, at *1; see also Basco v. Wal-Mart Stores, 2004 WL 1497709, at *4 (E.D.La. July 2, 2004); Kaluom v. Stolt Offshore, Inc., 474 F.Supp.2d 866, 871 (S.D.Tex.2007) (citing "two stage" approach as favored procedure).

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 pleading 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 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. ...

Mooney, 54 F.3d at 1213-14 (emphasis added) (internal citations and quotations omitted).

As this case is presently at the "notice stage," the Court must make a decision whether conditional certification should be granted and whether notice of the action and right to opt-in should be given to potential class members.

At the notice stage, the plaintiff bears the burden of making a preliminary factual showing that at least a few similarly situated individuals exist. Badgett, 2006 WL 2934265, at *2; Lentz, 2007 WL 1628853, at *3 (citing Simmons v. T-Mobile USA, Inc., 2007 WL 210008, at *9 (S.D.Tex. Jan.24, 2007)). The plaintiff may satisfy his or her burden through submission of evidence in the form of pleadings, affidavits and other supporting documentation. See Badgett, 2006 WL 2934265, at *2 (quoting H & R Block, Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D.Tex. 1999) ("Courts who have faced the question whether movants established substantial allegations have considered factors such as whether potential plaintiffs were identified ... whether affidavits of potential plaintiffs were submitted ... and whether evidence of a widespread discriminatory plan was submitted. ...")). While the standard at this stage is "not particularly stringent," Hipp v. Liberty National Life Ins. Co., 252 F.3d 1208, 1213 (11th Cir. 2001), it is by no means automatic. Badgett, 2006 WL 2934265, at *2 (stating that of 115 FLSA actions filed in district in 2005 purporting to be collective actions, only 17 were certified as such).

Whether employees are `similarly situated' for purposes of the FLSA is determined in reference to their `job requirements and with regard to their pay provisions.' Dybach v. Florida Dep't of Corr., 942 F.2d 1562, 1567-68 (11th Cir. 1991). A plaintiff need only demonstrate a reasonable basis for the allegation that a class of similarly situated persons may exist. Grayson v. K Mart Corp., 79 F.3d 1086, 1097 (11th Cir. 1996). However, at least some evidence beyond unsupported factual assertions of a single decision, policy, or plan. should be presented. Housden, 186 F.R.D. at 400.

Badgett, 2006 WL 2934265, at *2.

In this case, the Plaintiffs rely on the allegations contained in their First Amended Complaint (Rec.Doc. 3), as well as the affidavits of all named Plaintiffs and three other individuals who have opted-in to the case, to establish that there is a group of similarly situated individuals entitled to receive notice. (Rec.Doc. 60-5, Ex. 3). In their affidavits, which are identical in language, the Plaintiffs and opt-ins state that they all worked for the Defendants in September of 2005 and were not paid proper overtime wages due to a companywide policy of mis-classifying them as independent contractors. The affidavits further state that the named Plaintiffs and opt-ins were housed in a hotel along with 350 to...