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McCurley v. Flowers Foods, Inc.

United States District Court, D. South Carolina, Orangeburg Division

October 24, 2016

Paul McCurley, III, individually and on behalf of all similarly situated individuals, Plaintiff,
v.
Flowers Foods, Inc. and Derst Baking Company, LLC, Defendants.

          ORDER AND OPINION

         Plaintiff Paul McCurley, III (“Plaintiff”), individually and on behalf of all similarly situated individuals, filed this class and collective action against Defendants Flowers Foods, Inc. (“FFI”), and Derst Baking Company, LLC” (“DBC”), (together “Defendants”) alleging violation of the Fair Labor Standards Act (“FLSA”) 29 U.S.C. §§ 201-219, the South Carolina Payment of Wages Act (“SCPWA”), SC Code Ann. §§ 41-10-10 to -110 (Supp. 2011), and the South Carolina Unfair Trade Practices Act (“SCUTPA”), SC Code Ann. § 39-5-10 to -560 (2014). (ECF No. 1 at 11 ¶ 56-15 ¶ 81.) Plaintiff alleges that he and other distributors of Defendants' products have been “misclassified as independent contractors” thereby resulting in the denial of “the rights and benefits of employment, including, but not limited to overtime pay.” (Id. at 7 ¶ 37.)

         This matter is before the court by way of Plaintiff's Motion for Conditional Certification and Judicial Notice pursuant to 29 U.S.C. § 216(b). (ECF No. 45.) In response, Defendants assert that “Plaintiff's Motion should be denied in its entirety and he should not be allowed to proceed with his FLSA claim on a collective action basis.” (ECF No. 56 at 2.) For the reasons set forth below, the court GRANTS Plaintiff's Motion for Conditional Certification and Judicial Notice.

         I. RELEVANT BACKGROUND TO THE PENDING MOTION

         Headquartered in Thomasville, Georgia, FFI is “one of the largest producers of packaged bakery foods [i.e., fresh breads, buns, rolls, snack cakes, and tortillas] in the United States.” Flowers Foods, http://www.flowersfoods.com/FFCCompanyInfo/AboutFlowersFoods/index. cfm (last visited Oct. 21, 2016). DBC is a Savannah, Georgia-based bakery subsidiary of FFI. Flowers Foods, http://www.flowersfoods.com/FFCBrands/BrandDetail.cfm?BrandID=13 (last visited Oct. 21, 2016). As part of FFI's “direct-story delivery (“DSD”) network, ” DBC facilitates the sale and distribution of fresh baked goods to customers through agreements with independent distributing partners or distributors, who “are responsible for merchandising the products and engaging in other promotional, marketing, and sales activities, including but limited to stocking and merchandising the products on store shelves and using displays to increase their own sales.”[1] (ECF Nos. 16 at 2 ¶ 2, 45-5 & 56 at 4.)

         Plaintiff was a bakery distributor who delivered Defendants' products to retailers in the Orangeburg, South Carolina area from April 2013 to May 2016. (ECF No. 45-4 at 2 ¶ 2.) Plaintiff had a distributor agreement with DBC “that outlined . . . compensation and job performance expectations.” (Id. at 6 ¶ 3.) Plaintiff's “main responsibility as a distributor was to deliver defendants' products to their customers.” (Id. at 3 ¶ 5.) Plaintiff asserts that he was “paid on a ‘piece rate' [wage] which was tied to the amount of products that defendants' retail customers would sell.” (Id. at 2 ¶ 3.) Plaintiff's distributor agreement further contained a provision that expressly stated that distributors were considered to be independent contractors. (ECF No. 45-5 at 9 ¶ 15.1.)

         On January 20, 2016, Plaintiff, individually and on behalf of all similarly situated individuals, filed this class and collective action against FFI and DBC alleging violation of the FLSA, the SCPWA, and the SCUTPA. (ECF No. 1 at 11 ¶ 56-15 ¶ 81.) Plaintiff challenges Defendants' alleged “misclassification of him and defendants' other distributors as independent contractors rather than employees.” (ECF No. 45-1 at 6.) On July 18, 2016, Plaintiff filed the instant Motion for Conditional Certification and Judicial Notice pursuant to 29 U.S.C. § 216(b). (ECF No. 45.) Plaintiff proposes conditional certification of an FLSA class which he defines as follows:

[A]ll individuals who, through a contract with Defendants or otherwise, performed or perform as Distributors for Defendants under an agreement with Derst Baking Company, LLC and who were classified by Defendants as “independent contractors” (collectively “Covered Positions”) anywhere in the United States at any time from the date that is three years preceding the commencement of this action through the close of the Court-determined opt-in period and who file a consent to join this action pursuant to 29 U.S.C. § 216(b).

(ECF No. 45 at 1.) Additionally, Plaintiff seeks (1) “a sixty-day period for responding to the Notice, ” (2) production by Defendants of “a list of putative class members including information necessary to send the notice, ” and (3) permission “to send reminder postcards regarding the deadlines to the persons designated to receive notices on or about the thirtieth day of the sixty-day notice period.” (Id.) Defendants filed a Memorandum in Opposition to Plaintiff's Motion for Conditional Certification and Judicial Notice on September 1, 2016, to which Plaintiff filed a Reply in Support of Motion for Conditional Certification and Judicial Notice on September 16, 2016. (ECF Nos. 56 & 61.)

         On October 12, 2016, the court held a hearing on the pending Motion. (ECF No. 68.)

         II. JURISDICTION

         This court has jurisdiction over Plaintiff's FLSA claim via 28 U.S.C. § 1331, as it arises under a law of the United States, and also via 29 U.S.C. § 216(b), which empowers a court as a court “of competent jurisdiction” to hear claims brought under the FLSA. The court may properly hear Plaintiff's state law claims based on supplemental jurisdiction since they are “so related to claims in the action within such original jurisdiction that . . . it form[s] part of the same case or controversy . . . .” 28 U.S.C. § 1367(a).

         III. LEGAL STANDARD AND ANALYSIS

         A. Applicable Standard

         Under the FLSA, employers must pay employees covered by the law a designated minimum wage, as well as overtime compensation when a covered employee works more than forty hours in one work week. 29 U.S.C. §§ 206-207. Under the FLSA, a plaintiff may institute a collective action against their employer on their own behalf and on behalf of other employees. Certification ...


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