Villatoro v. Kim Son Restaurant, L.P.

• Decision Date: 18 March 2003
• Docket Number: No. CIV.A.H-03-0081.,CIV.A.H-03-0081.
• Parties: Sara VILLATORO, et al., Plaintiffs, v. KIM SON RESTAURANT, L.P., Defendant.
• Court: U.S. District Court — Southern District of Texas

286 F.Supp.2d 807 Sara VILLATORO, et al., Plaintiffs,
v.
KIM SON RESTAURANT, L.P., Defendant. No. CIV.A.H-03-0081. United States District Court, S.D. Texas, Houston Division. March 18, 2003.

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Richard J. (Rex) Burch, Bruckner Burch PLLC, Houston, TX, for the plaintiffs.

John Zavitsanos, Demetrious Anaipakos, Ahmad, Zavitsanos & Anaipakos, LLP, Houston, TX, Sean Gorman, Esq., Nathan, Sommers Jacobs + Gorman, P.C., Houston, TX, for the defendant.

MEMORANDUM AND ORDER

ATLAS, District Judge.

Pending before the Court in this Fair Labor Standards Act ("FLSA") case is Plaintiff Sara Villatoro's Emergency Motion for Notice to Potential Class Members ("Motion") [Doc. # 7]. Defendant has responded¹, and Plaintiff has replied.² The Court concludes that facilitated notice should be issued.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Sara Villatoro ("Villatoro") brings this action on behalf of herself and others similarly situated to recover unpaid wages and overtime compensation under § 16(b) of the FLSA. 29 U.S.C. § 216(b). According to her sworn declaration, Villatoro bussed tables at Kim Son Restaurant ("Kim Son") from August 2001 to July 2002.³ She testifies that she worked ten hours a day, six days a week and was paid a flat rate of $260 per week.⁴ Calculating out her pay per hour, she testifies that this pay amounted to $4.33 per hour, below minimum wage.⁵ She also testifies that she was never paid overtime for the hours that she worked in excess of forty.⁶ Villatoro now asks the Court to issue a court-approved notice to other potential class members, which Villatoro argues are cooks, dishwashers, busboys, and janitors at Kim Son Restaurant.

II. STANDARDS GOVERNING WHETHER NOTICE IS PROPER

Section 16(b) of the FLSA provides that a person may maintain an action on "behalf of himself ... and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the

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court in which such action is brought." 29 U.S.C. § 216(b). A representative action brought pursuant to this provision follows an "opt-in" rather than an "opt-out" procedure. See Mooney v. Aramco Services Co., 54 F.3d 1207, 1212 (5th Cir.1995).⁷ District courts have the discretion to implement the collective action procedure by facilitating notice to potential plaintiffs. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). Such a notice should be "timely, accurate, and informative." Id. at 172, 110 S.Ct. 482.

The Fifth Circuit has not specifically addressed the meaning of "similarly situated" in this context. However, in Mooney, the Fifth Circuit reviewed two methodologies courts have used in deciding this question. The first methodology is a "two-stage class certification," originally set out in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J.1987). Under this methodology, "the trial court approaches the `similarly situated' inquiry via a two-step analysis." Mooney, 54 F.3d at 1213. The first determination is made at the "notice stage." At the notice stage, "the district court makes a decision-usually based only on the pleadings and any affidavits which have been submitted-whether notice of the action should be given to potential class members." Id. at 1213-14. "Because the court has minimal evidence, this determination is usually made using a fairly lenient standard, and typically results in `conditional certification' of a representative class." Id. at 1214. "If the district court `conditionally certifies' the class, potential class members are given notice and the opportunity to `opt-in.'" Id. The second stage is typically precipitated by a motion for "decertification" by the defendant after discovery is largely complete. Id. If the additional claimants are similarly situated, the district court allows the representative action to proceed. If the claimants are not similarly situated, the district court decertifies the class, and the opt-in plaintiffs are dismissed without prejudice.

The second methodology is typified by Shushan v. University of Colorado, 132 F.R.D. 263 (D.Colo.1990). This approach adopts the view that the "similarly situated" inquiry is coextensive with Rule 23 class certification. Therefore, using this methodology, the court looks at numerosity, commonality, typicality and adequacy of representation to determine whether a class should be certified. See Mooney, 54 F.3d at 1214.

The Fifth Circuit in Mooney found it unnecessary to decide which of the two methods was appropriate. However, in LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286 (5th Cir.1975), the Fifth Circuit found a "fundamental, irreconcilable difference between the class action described by Rule 23 and that provided for by FLSA § 16(b)" because Rule 23 provides for "opt-out" class actions and § 16(b) provides for "opt-in" class actions. Id. at 288. The Circuit stated that "it is crystal clear that § 16(b) precludes pure Rule 23 class actions in FLSA suits." Id.

In addition, other courts of appeals have indicated that the Rule 23 requirements do not apply to the § 16(b) collective action procedure. See Thiessen v. GE Capital Corp., 267 F.3d 1095, 1105 (10th Cir.2001) (finding that the district court did not err in applying the "ad hoc" two-step approach); Grayson v. K Mart Corp., 79 F.3d 1086, 1096 n. 12 (11th Cir.1996) ("it is clear that...