Nieddu ex rel. Himself v. Lifetime Fitness, Inc.

• Decision Date: 30 September 2013
• Docket Number: Civil Action No. H–12–2726.
• Citation: 977 F.Supp.2d 686
• Parties: Pier NIEDDU, on Behalf of Himself and Others Similarly Situated, Plaintiff, v. LIFETIME FITNESS, INC., LTF Club Management Company, LLC, LT CMBS Managing Member, Inc., and LTF Club Operations Company, Defendants.
• Court: U.S. District Court — Southern District of Texas

977 F.Supp.2d 686

Pier NIEDDU, on Behalf of Himself and Others Similarly Situated, Plaintiff,

v.LIFETIME FITNESS, INC., LTF Club Management Company, LLC, LT CMBS Managing Member, Inc., and LTF Club Operations Company, Defendants.

Civil Action No. H–12–2726.

United States District Court,

S.D. Texas,

Houston Division.

Sept. 30, 2013.

Ricardo J. Prieto, Martin A. Shellist, Shellist Lazarz Slobin LLP, Houston, TX, for Plaintiff.

Douglas R. Christensen, Marilyn Clark, Dorsey & Whitney LLP, Minneapolis, MN, Scott Michael Nelson, Baker & McKenzie LLP, Houston, TX, for Defendants.

OPINION AND ORDER

MELINDA HARMON, District Judge.

Pending before the Court in the above referenced, putative collective action, grounded in the Fair Labor Standards Act of 1938 (the “FLSA”), 29 U.S.C. §§ 201–219, and comprised of Defendants' current and former commission-paid hair stylists employed at the Houston, Texas CityCentre location from September 11, 2009 to the present seeking to recover unpaid minimum wage for all hours worked and overtime for hours worked in excess of 40 hours per week, are (1) Plaintiff Pier Nieddu's (“Nieddu's”) motion to conditionally certify collective action and authorize notice pursuant to 29 U.S.C. § 216(b), and request for expedited ruling (instrument # 33) and (2) motion for emergency ruling (# 37).

In his motion Plaintiff initially sought an expedited ruling on his request for conditional class certification and issuance of the class notice, and then subsequently filed the motion for an emergency ruling, primarily on limitations grounds. A two-year statute of limitations applies to FLSA wages claims, or, in the case of a “willful violation,” ¹ a three-year statute applies. 29 U.S.C. § 255(a) (“Any Action ... to enforce any cause of action for unpaid minimum wages, unpaid overtime compensations, or liquidated damages, under the Fair Labor Standards Act ... if the cause of action accrues on or after May 14, 1947—may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.”). In a FLSA collective action generally the statute is not tolled for any individual class member who is not named in the complaint until that individual has filed an opt-in notice, i.e., a written consent to join the lawsuit as a party plaintiff. 29 U.S.C. § 256 (“[A]n action is commenced ... in the case of any individual claimant ... [when] written consent is filed in the court in which the action was commenced.”).²

Defendants object to the requests for expedited ruling on the grounds that Nieddu waited for over seven months after filing his suit to file his motion for conditional certification, instead electing to engage in more than three months of discovery. They contend that any delay in this case is the result of Nieddu's “own misguided litigation strategy.” # 38 at p. 2. Because the Court addresses the motion for conditional certification now, the motion for emergency ruling (# 37) is mooted by this Opinion and Order.

Applicable Law

Section 216(b) of the FLSA allows a collective action to be filed by employees against their employer for unpaid minimum wages or unpaid overtime compensation:

An action ... may be maintained against any employer ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

Putative class members must “opt-in,” i.e., affirmatively notify the court of their intention to become parties to the collective action. 29 U.S.C. § 216(b); Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1212 (5th Cir.1995),overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 91–92, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). Before notice may issue to potential class members, the court must conditionally certify the class as a collective action. Conditional certification “is not tantamount to class certification under Rule 23.” ³Genesis Healthcare Corp. v. Symczyk, ––– U.S. ––––, 133 S.Ct. 1523, 1532, 185 L.Ed.2d 636 (2013). The only effect of a conditional certification is that a court-approved written notice may then be sent to similarly situated putative class members, who then may choose to become parties to a collective action by filing a written consent with the court. Id. at 1530,citing29 U.S.C. § 216(b). Courts have discretion in determining whether to certify a collective action under the FLSA and to authorize notice to similarly situated employees advising them of their right to join such a collective action. Mooney, 54 F.3d at 1213.

The majority of courts, including those in the Southern District of Texas,⁴ apply a two-stage certification process established in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J.1987), under 29 U.S.C. § 216(b): (1) the “notice stage,” when the Court determines, based on the pleadings and any accompanying affidavits and before the parties have conducted substantive discovery, whether to conditionally certify the class and issue notice to potential class members; followed by (2) the “decertification stage,” after the discovery has been largely completed and the defendant has filed a motion to decertify, when the court conducts a fact-intensive review to determine if the claimants are similarly situated. Mooney, 54 F.3d at 1213–14;Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 916 n. 2 (5th Cir.2008); Blake v. Hewlett–Packard Co., No. 4:11–CV–592, 2013 WL 3753965, at *4 (S.D.Tex. July 11, 2012). If the Court does not conditionally certify the class or if it later grants decertification, it must dismiss the opt-in employees and leave the named plaintiff to pursue his individual claims. Sandoz, 553 F.3d at 916 n. 2.

At the notice stage the plaintiff “bears the burden of making a preliminary factual showing that other similarly situated individuals exist such that the court should provide notice of the action to putative class members.” White v. Integrated Electronic Technologies, Inc., Civ. A. Nos. 11–2186 and 12–359, 2013 WL 2903070, at *3 (E.D.La. June 13, 2012). Usually at the notice stage, because discovery has not yet occurred, courts do not review the underlying merits of the action in deciding whether to conditionally certify the class. Walker v. Honghua America, LLC, 870 F.Supp.2d 462, 465 (S.D.Tex.2012). Generally courts require only a minimal showing that (1) there is a reasonable basis for the plaintiff's allegations, (2) that the aggrieved putative class members are similarly situated with regard to the claims and defenses asserted, and (3) that these individuals desire to opt-in to the suit. Id. at 465–66,citing Aguirre v. SBC Communications, Inc. (“Aguirre I”), No. Civ. A. H–05–3198, 2006 WL 964554, *5 (S.D.Tex. Apr. 11, 2006). Some courts do not require the third element, which is not mentioned in § 216(b).⁵

The FLSA allows a plaintiff to bring a collective action on behalf of “similarly situated” employees, but the statute does not define the phrase, “similarly situated.” Barnes v. Abandonment Consulting Services, LLC, Civ. A. No. 4:12–CV–01399, 2013 WL 3884198, at *2 (S.D.Tex. July 26, 2013). Courts in the Southern District of Texas interpret that phrase to mean workers who are affected by the same “policy, plan, pattern or practice” as the plaintiff. Id., citing McKnight v. D. Houston, Inc., 756 F.Supp.2d 794, 803 (S.D.Tex.2010) (and cases cited therein) (Although “similarly situated” is not defined under the FLSA, a number of courts have found that for conditional certification “putative class members need only show that they were affected by a common policy, plan, pattern or practice.”). “Even this lenient standard” applied during the initial notice stage under Lusardi “appears to require substantial allegations that potential members ‘were together the victims of a single decision, policy, or plan ...’ ” Aguirre I, 2006 WL 964554 at *5,citing Sperling v. Hoffmann–LaRoche, Inc., 118 F.R.D. 392, 407 (D.N.J.1988). Moreover the class representative and the putative class members must also be “ ‘similarly situated with respect to their job requirements and with regard to their pay provisions' ”; their “ ‘positions need not be identical but similar.’ ” Yaklin v. W–H Energy Servs., Inc., No. C07–422, 2008 WL 1989795, at *2 (S.D.Tex. May 2, 2008), citing Dybach v. State of Florida Department of Corrections, 942 F.2d 1562, 1567–68 (11th Cir.1991); and Ryan v. Staff Care, Inc., 497 F.Supp.2d 820, 824–25 (N.D.Tex.2007). “A court may deny a plaintiff's right to proceed collectively only if the action arises from circumstances purely personal to the plaintiff and not from any generally applicable rule, policy, or practice.” Id.;Tolentino, 716 F.Supp.2d at 647;McKnight, 756 F.Supp.2d at 801.

“ ‘Collective actions under the FLSA are generally favored because such allegations reduce litigation costs for individual plaintiffs and create judicial efficiency by resolving in one proceeding [all] ‘common issues of law and fact arising from the same activity.’ ' ” Walker, 870 F.Supp.2d at 466,quoting Ryan v. Staff Care, Inc., 497 F.Supp.2d 820, 823 (N.D.Tex.) ( quoting Hoffmann–La Roche, Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989)).

If the court conditionally certifies the class and authorizes notice, the action proceeds as a collective action and the parties conduct discovery. Mooney, 54 F.3d at 1214. At the second stage, usually following completion or near completion of discovery when the defendant files a motion to decertify the collective action, the court makes a factual determination whether the class members are similarly situated. Lusardi, ...