Ross v. Jack Rabbit Servs., LLC
| Decision Date | 29 May 2014 |
| Docket Number | CIVIL ACTION NO. 3:14-CV-00044-TBR |
| Parties | RICHARD ROSS, individually and on behalf of all other similarly situated Plaintiff v. JACK RABBIT SERVICES, LLC, and JACK RABBIT USA, LLC Defendants |
| Court | U.S. District Court — Western District of Kentucky |
This matter is before the Court upon Plaintiff Richard Ross's Motion for Conditional Class Certification. (Docket No. 7.) On March 14, 2014, the Court entered a Memorandum Opinion and Order granting Plaintiff's Motion. (Docket No. 20.) Thereafter, Defendants Jack Rabbit Services, LLC, and Defendant Jack Rabbit USA, LLC, filed a motion to vacate that Order, arguing they were not served with proper notice of Plaintiff's Motion for Conditional Class Certification. (Docket No. 21.) The Court held a telephonic conference on March 19, 2014, and, by Order of March 25, 2014, granted Defendants' motion to vacate and allowed them an opportunity to respond. (Docket No. 23.) Defendants now have responded to Plaintiff's Motion, (Docket No. 24), and Plaintiff has replied, (Docket No. 25). Accordingly, this matter now is ripe for adjudication.
Plaintiff brings this action for unpaid wages pursuant to the Fair Labor Standards Act (FLSA), challenging the Defendants' policy and practice of classifying workers as independent contractors. Defendants are in the business of providing roadside assistance services, such as changing tires, providing jump starts, and delivering fuel. According to Plaintiff, Defendants employ or have employed over 1,000 roadside assistance technicians during the past three years. Plaintiff was employed as such a technician.
Plaintiff alleges that he and the putative class members were employees-in-fact but were intentionally misclassified by Defendants as independent contractors in an effort to circumvent the minimum-wage and overtime provisions of the FLSA. Plaintiff asserts that he and the putative class members are similarly situated in terms of job duties and classification status, as well as because they all are (or were) subject to the same or similar pay structure and because they all worked similar hours. Plaintiff presently seeks conditional certification of this action as an FLSA collective action with the proposed FLSA class to be defined as:
All roadside assistance technicians who worked for Defendants and were misclassified by Defendants as independent contractors at any time in the past three years.
Plaintiff further requests that the Court approve a court-supervised notice to the putative class members, that the Court require Defendants to identify potential opt-in plaintiffs by promptly providing an updated computer-readable data file containing contact information for those individuals, and that the Court appoint Sommers Schwartz, P.C., and Johnson Becker, PLLC, as interim class counsel.
In support of his Motion, Plaintiff has submitted his Declaration, (Docket No. 7-3), as well as several exhibits, which show that Jack Rabbit USA provides services "in over 50 locations across the United States," (Docket No. 7-2), including the Louisville, Kentucky, area, (Docket No. 7-4). Plaintiff states in his Declaration that he "was required to be on call twenty-four hours per day, seven days per week," and "[i]n addition to 'on call' time, . . . was required to routinely work in excess of 70 hours per week." (Docket No. 7-3, at 2.) He states that throughout his employment: each customer he serviced was assigned to him by Defendants; Defendants directed the type of service he was to provide; Defendants required him to undergo roadside assistance training and continuing education; Defendants required him to wear Defendants' uniform; Defendants required him to maintain signage on his vehicle bearing Defendants' name and logo; Defendants determined the tools and equipment he would use; Defendants required him to use forms and invoices they provided to him, and to deliver to Defendants all invoices and customer service reports within seven days of each service job; and Defendants required him to maintain and distribute Defendants' business cards. (Docket No. 7-3, at 2-3.) Plaintiff also states that he was prohibited from performing work or service for any other roadside assistance provider during the time he was working for Defendants. (Docket No. 7-3, at 3.)
In his Declaration, Plaintiff further claims that he had no control over Defendants' customers; that he did not participate in efforts to increase Defendants' customer base or profit; that he was not allowed to hire or subcontract to provide additional roadside assistance to customers; that he made no financial investment in Defendants' facilities, advertising, maintenance, staffing, or contractual relationships; and that Defendants managed all aspects of the business operation. (Docket No. 703, at 4.) He avers thatduring his employment he met and interacted with other technicians working for Defendants and that "it was clear that other roadside assistance technicians performed the same job duties as I did and were subjected to the same practices and procedures." (Docket No. 7-3, at 4.)
Since the filing of his Motion, Plaintiff has filed notice of two other individuals' consent to join this lawsuit, Alan Taylor of Biloxi, Mississippi, and Billy Baker of Seattle, Washington. (Docket No. 27, at 3-4.)
The FLSA provides that an employee may bring a claim "for and in behalf of himself . . . and other employees similarly situated." 29 U.S.C. § 216(b). A collective action under the FLSA permits similarly situated employees to opt in to the action, unlike the opt-out approach typically utilized under Federal Rule of Civil Procedure 23. An opt-in action under § 216(b) prohibits any person from becoming a party plaintiff in the collective action unless he or she files a written consent with the Court; therefore, these similarly situated employees must be notified of the lawsuit. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006).
The Sixth Circuit utilizes a two-step approach for the certification of collective actions under the FLSA. Id. The first stage,1 "conditional certification," occurs at the beginning of discovery. At this stage, the Court must determine whether notice of the pending action and the opportunity to opt in should be given to potential class members. See Jones-Turner v. Yellow Enter. Sys., LLC, 2007 WL 3145980, at *1 (W.D. Ky. Oct. 25,2007); Crawford v. Lexington-Fayette Urban Cnty. Gov't, 2007 WL 293865, at *5 (E.D. Ky. Jan. 26, 2007). The certification at this stage "is conditional and by no means final." Comer, 454 F.3d at 546.
A plaintiff seeking to certify a collective action bears the burden of establishing that he and the proposed class he seeks to represent are similarly situated. See Jones-Turner, 2007 WL 3145980, at *1. The FLSA provides no guidance as to the meaning of the term "similarly situated," and, as another Court in this circuit has observed, "the Sixth Circuit has declined 'to create comprehensive criteria for informing the similarly-situated analysis.'" Bernal v. TrueBlue, Inc., 2010 WL 1996922, at *2 (W.D. Mich. May 19, 2010) (quoting O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 585 (6th Cir. 2009)). Regardless, because conditional certification decisions generally are made prior to discovery, a plaintiff's evidentiary burden is not a heavy one. "Generally speaking, at the first stage of conditional certification, courts require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan." Jones-Turner, 2007 WL 3145980, at *2 (citation omitted). Thus, the named plaintiff need merely provide a modest factual showing to demonstrate that he is similarly situated to the putative class members. Id. (citing Comer, 454 F.3d at 547). "[T]he court's review of this modest showing is made using a fairly lenient standard, which 'typically results in conditional certification of a representative class." Crawford, 2007 WL 293865, at *5 (internal quotation marks omitted) (quoting Comer, 454 F.3d at 547).
Defendants argue that Plaintiff has not established that he is similarly situated to other potential plaintiffs. Upon reviewing Plaintiff's Motion and attached Declaration and exhibits, (Docket Nos. 7; 7-2; 7-3; 7-4), and notice of consent of other plaintiffs, (DocketNo. 27), the Court is satisfied that Plaintiff has met his burden and made the modest factual showing required for conditional certification of a collective action. Those materials, read together, sufficiently show some factual nexus that binds Plaintiff and the putative class members together as victims of a particular alleged policy or action. At the second stage, following discovery, the Court will examine more closely the question of whether the particular members of the class are, in fact, similarly situated. See Comer, 454 F.3d at 547.
Defendants present a compelling argument as to whether Plaintiff is Defendants' employee, as he alleges, or instead is an independent contractor. However, a rigorous inquiry into the merits of Plaintiff's claims is not necessary at this early juncture. See, e.g., Shipes v. Amurcon Corp., 2012 WL 995362, at *5 (E.D. Mich. Mar. 23, 2013) (); Fisher v. Mich. Bell Tel. Co., 665 F. Supp. 2d 819, 825 (E.D. Mich. 2009) (same); accord Dominguez v. Don Pedro Rest., 2007 WL 271567, at *2 (N.D. Ind. Jan. 25, 2007) (). The Court therefore is further satisfied that the definition of Plaintiff's proposed collective action group is proper. For these reasons, the Court will GRANT Plaintiff's request for conditional...
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