Case 2:12-cv EEF-SS Document 47 Filed 02/28/13 Page 1 of 7 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

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1 Case 2:12-cv EEF-SS Document 47 Filed 02/28/13 Page 1 of 7 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ERIC NDITA * CIVIL ACTION * versus * No * AMERICAN CARGO ASSURANCE, LLC, ET AL. * SECTION L (1) ORDER & REASONS Before the Court are two Motions: a Motion to Certify Class a FLSA Collective Action (R. Doc. 19) filed on behalf of Plaintiff Eric Ndita; and a Motion to remove a webpage and for other relief (R. Doc. 33) filed on behalf of Defendants. At a hearing on December 12, 2013, the Court heard oral arguments from counsel regarding both Motions. The Court, having considered those arguments, and having reviewed the submitted memoranda and the applicable law, now issues this Order and Reasons. I. BACKGROUND This unpaid overtime case arises under the Fair Labor Standards Act, Title 29, United States Code, Section 201 and following (the FLSA ). According to Plaintiff Eric Ndita, who filed suit on his own behalf and on behalf of a class of all similarly situated employees, Defendants American Cargo Assurance, LLC; VIP Chemical, Inc.; Accutrans, Inc.; and Gary Osorno have for several years employed inspection staff in various locations in Louisiana and Texas to perform field inspections and to certify petroleum products. Defendants employed Ndita as an inspector from February 21, 2011 through August 12, Ndita alleges that Defendants failed to pay overtime wages pursuant to a written policy, one which applied to all inspection staff and which states: As the inspection staff works varying hours per week, ACA does not pay overtime. Instead, Defendants paid a per job incentive, a vehicle allowance, and 1

2 Case 2:12-cv EEF-SS Document 47 Filed 02/28/13 Page 2 of 7 lump sum payments for working on scheduled days off. Ndita contends that these incentive and lump sum payments do not satisfy Defendants obligations under the FLSA. Defendants filed an answer denying liability and asserting various affirmative defenses. (R. Doc. 17). The instant Motions followed. II. SUMMARY OF MOTIONS AND OPPOSITIONS A. Motion to Conditionally Certify FLSA Collective Action On October 11, 2012, Ndita filed a Motion seeking: (1) to conditionally certify a FLSA collective action on behalf of all persons who worked as inspection staff employees of Defendants at any time after August 31, 2009 and who were not paid time and one-half for all hours worked over forty in a workweek; (2) an order authorizing Ndita to distribute his proposed Notice to collective action members by first-class mail and and requiring Defendants to post the Notice in a conspicuous location in the offices where Defendants employ inspection staff; and (3) an order requiring Defendant to provide Plaintiff with the last known addresses, addresses, telephone numbers, and social security numbers of the potential collective action members so that Plaintiff s counsel may issue the Notice. (R. Doc. 19). Ndita attaches to his motion a declaration from a potential opt-in plaintiff, Michael Travers, who was employed by Defendants in Alabama from 2009 to Defendants oppose Ndita s Motion. (R. Doc. 37). Defendants argue that Ndita has not shown that he and the putative class are similarly situated. Defendants also object to Ndita s proposed Notice and ask for an opportunity to submit their own proposal. Finally, Defendants object to Ndita s request for information beyond names and addresses, arguing that first-class mail is all that is required for notice. B. Defendants Motion to Remove Webpage 2

3 Case 2:12-cv EEF-SS Document 47 Filed 02/28/13 Page 3 of 7 On November 20, 2012, Defendants filed a Motion to Remove Webpage, to Cease and Desist Unauthorized Communications to Potential Class Members, to Strike Certain Consents to Sue, and for Costs and Fees. (R. Doc. 33). Defendants seek an Order: (1) directing the removal from Plaintiff s counsel s website a page describing the instant case; (2) directing the removal from Plaintiff s counsel s website of any mention of the Defendants by name or reference; (3) directing Plaintiff s counsel to turn over all information collected through the website; (4) striking any putative opt-in Plaintiffs who signed up through the website; (5) directing Plaintiff s counsel to disseminate a written notice correcting the alleged misleading statements to everyone believed to have visited the website; and (6) granting fees and costs associated with filing the Motion to Defendants. Ndita opposes Defendants Motion. (R. Doc. 36). Ndita notes that Plaintiff s counsel responded to Defendants counsel s objections to the website within hours, and before the instant Motion was filed. Ndita also argues that the website is protected by the First Amendment, and that the remedies Defendants seek are inappropriate. III. LAW AND ANALYSIS 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 (11th Cir. 2007). 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 Rest. II, Inc., 491 F. Supp. 2d 663, 667 (N.D. Tex. 2007) (citing Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989)). 3

4 Case 2:12-cv EEF-SS Document 47 Filed 02/28/13 Page 4 of 7 Notice must be timely, accurate and informative. Hoffman-La Roche, 493 U.S. at 172. 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, (5th Cir. 1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). 1 Basco v. Wal-Mart Stores, 2004 WL , at *4 (E.D. La. July 2, 2004); Kaluom v. Stolt Offshore, Inc., 474 F. Supp. 2d 886, 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 (emphasis added) (internal citations and quotations omitted). 1 Mooney also discussed a second methodology, the Shushan or spurious class action approach, in which the court conducts the inquiry outlined in Federal Rule of Civil Procedure 23. See Mooney, 54 F.3d at 1214 (citing Shushan v. Univ. of Colo., 132 F.R.D. 263 (D. Colo. 1990)). Mooney did not state which of the two procedures is the proper approach, though, as stated above, the two stage approach is more commonly used by district courts. The Shusan approach has been described as more stringent than the two stage approach. Lentz, 491 F. Supp. 2d at

5 Case 2:12-cv EEF-SS Document 47 Filed 02/28/13 Page 5 of 7 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. Lentz, 491 F. Supp. 2d at 669. The plaintiff may satisfy his or her burden through submission of evidence in the form of pleadings, affidavits and other supporting documentation. See 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. )). Although 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 v. Texas Taco Cabana, L.P., 2006 WL , 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, (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 , at *2. In deciding whether the Plaintiff has met the requirements of... the two-step approach, this court is mindful that it, like practicing attorneys, has a responsibility to refrain from stirring up unwarranted litigation. Lentz, 2007 WL , at *3 (internal citations and 5

6 Case 2:12-cv EEF-SS Document 47 Filed 02/28/13 Page 6 of 7 quotations omitted). Further, employers should not be unduly burdened by a frivolous fishing expedition conducted by the plaintiff at the employer s expenses. Id. In this case, Ndita relies on the allegations contained in his Complaint (R. Doc. 1), as well as the affidavits of Ndita and Travers, to establish that there is a group of similarly situated individuals entitled to receive notice. (R. Doc. 60-5, Ex. 3). The Court notes that the Defendants do not dispute the existence of the policy in question or the language as quoted by Ndita. The Court finds it appropriate to certify the collective action at this time and allow notice and discovery to commence. If sufficient evidence is not developed to demonstrate that the other inspection staff were subject to the same policy, the Court may decertify the collective action as to those parties after sufficient discovery is conducted. See Kaluom, 474 F. Supp. 2d at 875 (rejecting contention that notice should be limited to workers of one company and stating that defendant could move for decertification after discovery had been conducted showing results different for employees of other companies). Accordingly, given the lenient standard at the notice stage, the evidence indicates that Ndita and other individuals whom they seek to include within the class, are similarly situated with respect to the Defendants pay provisions so as to justify conditional certification and notice to potential class members. As to the notice form and period disputes, the Court finds it appropriate to direct the parties to meet and confer and, if possible, produce a joint notice. Otherwise, the Court directs that the parties propose separate notices for the Court to consider. As to the dispute as to the provision of information by Defendants to allow Ndita to propound the Notice, the Court finds it appropriate to order provision of addresses and the last four digits of emlpoyees Social Security numbers. The Court finds that this information will facilitate effective notice and will best serve the interests of justice. As to Defendants Motion seeking removal of the webpage, the Court first notes that 6

7 Case 2:12-cv EEF-SS Document 47 Filed 02/28/13 Page 7 of 7 the Motion is largely moot because Plaintiff s counsel took prompt action to address much if not all of the language to which Defendants have objected. To the extent the Motion is not moot, the Court finds that Defendants have not demonstrated prejudice sufficient to make sanctions or other relief appropriate. Therefore, the Court will deny Defendants Motion. IV. CONCLUSION For the foregoing reasons, IT IS ORDERED that Plaintiff s Motion to Conditionally Certify a FLSA Collective Action and Send Notice to the Class (R. Doc. 19) be and is hereby GRANTED IN PART AND TAKEN UNDER ADVISEMENT IN PART; it is GRANTED as to conditional certification; TAKEN UNDER ADVISEMENT as to notice form and period; and GRANTED as to provision of contact information; all as explained above. IT IS FURTHER ORDERED that counsel shall meet and confer and, if possible, file with the Court a joint proposed notice; if a joint notice proves impossible, the parties shall file separate proposed notices for the Court's consideration, on or before April 8, IT IS FURTHER ORDERED that Defendants Motion to Remove Webpage and for other relief (R. Doc. 33) be and is hereby DENIED. New Orleans, Louisiana, this 25th day of February, UNITED STATES DISTRICT JUDGE 7