Ross v. Jack Rabbit Servs., LLC, CIVIL ACTION NO. 3:14-CV-00044-TBR
| Decision Date | 13 March 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.) Neither Defendant Jack Rabbit Services, LLC, nor Defendant Jack Rabbit USA, LLC, has responded in opposition, and the time to do so now has passed. Accordingly, this matter 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. Defendants appear to serve some 50 locations across more than a dozen states. 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.
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). 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. However, 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." Id. 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).
Upon reviewing Plaintiff's Motion and attached Declaration and exhibits, (see Docket Nos. 7; 7-2; 7-3; 7-4), and considering the absence of any response in opposition by either Defendant, the Court is satisfied that Plaintiff has met his burdenand made the requisite factual showing for conditional certification of a collective action. The Court is further satisfied that the definition of Plaintiff's proposed collective action group is proper. As such, the Court will GRANT Plaintiff's request for conditional certification.
As for the issuance of notice, the FLSA is notably silent on how notification should be given to other similarly situated persons in § 216(b) collective actions. The Supreme Court has acknowledged that judicial notice to a putative class in FLSA collective actions is proper in appropriate cases. See Hoffman-La Roche v. Sperling, 493 U.S. 165, 169 (1989). Having determined that Plaintiff has shown that the current and former employees to be notified are similarly situated with him, the Court has discretion to authorize notification of those individuals to allow them to opt in to the lawsuit. Comer, 454 F.3d at 546. The Court is satisfied that judicial notice is appropriate here for several reasons. For one, the conditional certification of a collective action under § 216(b), unlike class actions under Rule 23, does not toll the statute of limitations of potential plaintiffs. Id. Thus, judicial notice protects these claims by informing similarly situated employees of the facts needed to make an informed decision whether to opt in to the collective action. See Hoffman-La Roche, 493 U.S. at 170. For another, judicial notice promotes judicial economy by helping to avoid duplicative litigation. See id. at 172. Furthermore, Plaintiff's proposed notice is substantially similar to FLSA collective claim notices approved by other courts, including other district courts in this circuit, in FLSA collective actions. See, e.g., Shipes v. Amurcon Corp., No. 2:10-CV-14943 (E.D. Mich. May 17, 2012), Docket No. 91-2; Aguilera v. Mich. Turkey Producers Coop., No. 1:09-CV-00420 (W.D. Mich.February 10, 2010), Docket No. 49-2. Therefore, the Court will GRANT Plaintiff's request for approval of the proposed class notice.
Next, Plaintiff seeks an order directing Defendants to identify all potential opt-in plaintiffs. Specifically, Plaintiff requests that the following information be produced:
A list in electronic format and importable format, of all individuals who worked for Defendants as [a] roadside assistance technician during the past three years, including each roadside assistance technician's name, job title, address, telephone number, email address, dates of employment, location of employment, date of birth, and last four digits of his Social Security number.
(Docket No. 7, at 25.) The Supreme Court has approved the discovery of potential class members' names and addresses in order to facilitate effective notice. Hoffman-La Roche, 493 U.S. at 170. More recently, other district courts, both within and without this circuit, additionally have approved the discovery of potential class members' telephone numbers, dates of employment, locations of employment, and dates of birth. See, e.g., Fisher v. Mich. Bell Tele. Co., 665 F. Supp. 2d 819, 830 (E.D. Mich. 2009); Russell v. Ill. Bell Tele. Co., 575 F. Supp. 2d 930, 939-40 (N.D. Ill. 2008); Lynch v. United Servs. Auto. Ass'n, 491 F. Supp. 2d 357, 371-72 (S.D.N.Y. 2007). While at least one court has approved the discovery of partial Social Security numbers, see Lynch, 491 F. Supp. 2d at 371-72, others, including at least one court in this circuit, have not, see Fisher, 665 F. Supp. 2d at 830; Russell, 575 F. Supp. 2d at 939-40. Like the courts in Fisher and Russell, this Court is not persuaded that the discovery of partial Social Security numbers is necessary. As the Court has approved the sending of notice to the putative class members, and given that Defendants have not responded in opposition to this request, the Court will GRANT Plaintiff's request and order Defendants to producethe requested information, with the exception of the putative plaintiffs' Social Security numbers. The information to be provided under this Order may only be used for the purpose of notifying potential plaintiffs in this action and may only be disseminated among Plaintiffs' counsel.
Finally, Plaintiff requests that the Court appoint the law firms of Sommers Schwartz, P.C., and Johnson Becker, PLLC, as interim class counsel. The appointment of interim class counsel is governed by Federal Rule of Civil Procedure 23(g)(3). Courts routinely use the factors in Rule 23(g)(1) when appointing interim class counsel prior to class certification. "When one applicant seeks appointment as class counsel," as is the case here, "the court may appoint the applicant only if the applicant is adequate under Rule 23(g)(1) and (4)." Fed. R. Civ. P. 23(g)(2). Rule 23(g)(4) simply requires that class counsel fairly adequate and adequately represent the interests of the class. Upon reviewing Plaintiff's Motion and the pertinent exhibits thereto, the Court is satisfied that these firms satisfy the requirements of Rule 23(g) and, so, will GRANT Plaintiff's request and appoint Jason J. Thompson of Sommers Schwartz, P.C., and Timothy J. Becker of Johnson Becker, PLLC, as interim class counsel.
Having considered Plaintiff's Motion for Conditional Class Certification, (Docket No. 7), and being otherwise sufficiently advised;
IT IS HEREBY ORDERED as follows:
(1) Plaintiff's...
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