United States District Court, D. South Carolina, Florence Division
H.A. MORRIS, and JAMES LENHART individually and on behalf of a class of similarly situated individuals, Plaintiffs,
BAREFOOT COMMUNICATIONS, INC. and CHRISTOPHER PACKER, Defendants.
Harwell, United States District Judge
matter is before the Court to consider Plaintiffs' Motion
for Conditional Certification of a Collective Action and to
Provide Notice Under the Fair Labor Standards Act, 29 U.S.C.
§ 21');">16(b) [ECF #30]. Both parties have had the
opportunity to extensively brief the issues raised in the
motions, and this Court has thoroughly considered all
pleadings filed in this case.[1');">1" name=
Background and Procedural History
March 9, 201');">15, Plaintiffs filed their Complaint against
Defendants Barefoot Communications, Inc.
(“Barefoot”) and Christopher Packer, alleging
violations of the Fair Labor Standards Act, 29 U.S.C. §
201');">1 et seq. (the “FLSA”). [ECF #1');">1]. Plaintiffs
worked for Defendants as satellite television installation
technicians. [ECF #1');">1, p. 2');">p. 2]. Plaintiffs allege that
Defendants mischaracterized Plaintiffs, as well as other
similarly situated employees, as independent contractors,
rather than employees. [ECF #1');">1, p. 1');">1]. In so doing,
Defendants allegedly deprived Plaintiffs of overtime, minimum
wage, and other wages in violation of the FLSA. [ECF #1');">1, p.
1');">1]. Thus, Plaintiffs brought a cause of action under the FLSA
for failure to pay overtime wages and failure to pay minimum
wages. [ECF #1');">1]. Plaintiffs brought the action as a
collective action on behalf of individuals similarly situated
under 29 U.S.C. § 21');">16(b). Plaintiffs now request this
Court grant their motion for conditional certification and to
order notices be sent to potential opt-in individuals who
performed similar satellite installation services for
Barefoot and who were classified as independent contractors.
On August 1');">16, 201');">16, Plaintiffs filed their Motion requesting
conditional certification and notice be sent pursuant to 29
U.S.C. § 21');">16(b). [ECF #30-1');">1]. Defendants responded on
September 3, 201');">16, indicating that while they do not oppose
conditionally certifying the class in this matter, they
oppose the content of the proposed notice and consent forms.
[ECF #31');">1, p. 2');">p. 2]. Moreover, Defendants argue that this Motion
should be denied because Plaintiffs failed to consult with
Defendants prior to filing their Motion in accordance with
Local Civil Rule 7.02. [ECF #31');">1, p. 2');">p. 2]. Therefore, Defendants
argue that should they be held liable in this case,
Defendants should not be required to pay the costs and fees
related to Plaintiffs' Motions for Conditional
Certification. [ECF #31');">1, p. 2');">p. 2]. Plaintiffs respond that they
have provided the requisite notice under Local Civil Rule
7.02. [ECF #33]. Plaintiffs also indicate that they consent
to using Defendants' proposed notice form, attached as
Exhibit “A” to Defendants' response brief.
Plaintiffs have also provided an opt-in form as Exhibit
“2” to their reply brief, which reflects the
requested changes of Defendants. [ECF #33-2, Exhibit 2].
filed their Motion pursuant to Section 21');">16(b) of the FLSA.
This Section provides:
An action . . . may be maintained against any employer
(including a public agency) in any Federal or State court of
competent jurisdiction by any one or more employees for and
in behalf of himself or themselves 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 court in
which such action is brought.
29 U.S.C. § 21');">16(b). Several district courts employ a
two-step process in analyzing the certification of a
collective action under the FLSA. At the first step, the
court generally considers “whether other similarly
situated employees should be notified.” Curtis v.
Time Warner Enter.-Advance Newhouse Partnership, No.
3:1');">12-CV-2370-JFA, 201');">13 WL 1');">1874848, at *2 (D.S.C. May 3,
201');">13). The second step is triggered by an employer's
motion for decertification and typically occurs after
substantial discovery has taken place. Id.
step one, Court's often require a plaintiff show a
“reasonable basis” for his or her claim that
there are other similarly situated employees. Id.
(citing Morgan v. Family Dollar Stores, Inc., 551');">1
F.3d 1');">1233, 1');">1258-62 (1');">11');">1th Cir. 2008). Alternatively, courts
have required plaintiffs to “make a ‘modest
factual showing' that they and potential opt-in
plaintiffs ‘together were victims of a common policy or
plan that violated the law.'” Id. (citing
Myers v. Hertz Corp., 624 F.3d 537, 554-55 (2d Cir.
201');">10)). Under this step, the plaintiff's burden has been
described as “fairly lenient” because the court
is trying to determine whether “similarly
situated” plaintiffs exist. Id. Still, the
plaintiff bears the burden of demonstrating that notice is
appropriate. MacGregor, 201');">11');">1 WL 2981');">1466, at *2
(citing D'Anna v. M/A-COM, Inc., 903 F.Supp.
889, 894 (D. Md. 1');">1995)). The Court's discretion to
facilitate notice in these cases is not without bounds.
MacGregor, 201');">11');">1 WL 2981');">1466, at *2. Courts should not
exercise this discretion unless the plaintiff has shown that
the facts and circumstances of the case present a class of
“similarly situated” aggrieved employees.
Id. (citing Purdham v. Fairfax Cnty. Pub.
Schs., 629 F.Supp.2d 544, 547-48 (E.D. Va. 2009).
court were to grant a motion for conditional certification,
the defendant may file a motion for decertification, at which
time a more stringent standard under the second step must be
met. Id. at *3. The second step usually occurs near
the end of discovery, and the courts have considered a number
of factors, including (1');">1) disparate factual and employment
settings of individual plaintiffs; (2) the various defenses
available to defendants that appear to be individual to each
plaintiff; and (3) fairness and procedural considerations.
argue as their only ground for denial of this Motion that
Plaintiffs failed to satisfy the District Court of South
Carolina's Local Civil Rule 7.02. This rule requires the
party filing a motion to affirm that he or she has conferred
or attempted to confer with opposing counsel and attempted in
good faith to resolve the matter contained in the motion.
There are a few limited exceptions to this requirement
specifically outlined in the Rule.
Plaintiffs argue that they have satisfied their obligations
under this Rule. To that end, Plaintiffs have attached as
Exhibit 1');">1, the Affidavit of Plaintiffs' counsel, Thomas
P. Fowler, to their reply brief. [ECF #33-1');">1]. On February 1');">12,
201');">16, Plaintiffs first filed a Motion for Conditional
Certification. [ECF #1');">18]. On March 24, 201');">16, the Parties
filed a joint stipulation to the withdraw this motion to
allow time for Defendants to conduct pre-certification
discovery, and the Parties set out a proposed amended
scheduling order. [ECF #23]. Under this agreed-to amended
scheduling order, Plaintiffs would have until June 3, 201');">16 to
re-file their Motion. [ECF #23]. This re-filing date was
extended until August 2, 201');">16 to allow Defendants sufficient
time to conduct depositions. [ECF #33-1');">1, p. 2');">p. 2]. Thereafter,
while the Parties discussed submitting a new proposed consent
amended scheduling order, Plaintiffs' counsel inquired
whether Defendants would consent to conditional
certification. [ECF #33-1');">1, p. 2');">p. 2]. Mr. Fowler avers that
defense counsel indicated that consent was possible, but that
Defendants wanted to complete depositions. [ECF #33-1');">1, p. 2');">p. 2].
After this conversation, Plaintiffs' counsel testifies
that he did not receive any deposition notices from
Defendants. Accordingly, on August 1');">16, 201');">16, Plaintiffs filed
this Motion, under the belief that the previous discussion
constituted the requisite conferral to satisfy Local Rule
Civil Rule 7.02.
Court finds that Plaintiffs have, in good faith, complied
with the Local Civil Rule 7.02. The Rule requires Parties to
affirm that he or she conferred or attempted to confer with
opposing counsel in resolving the matter, here conditional
certification. Based on the testimony provided in Mr.
Fowler's affidavit, the emails attached to his affidavit,
and Defendants' indication in their response brief that
they do not oppose conditional certification, the Court
declines to deny the Motion on this ground. This Court
further finds that Plaintiffs have met the standard under the
FLSA to show that conditional certification is appropriate in
this case because Plaintiffs have made a “modest
factual showing” that other technicians are
“similarly situated.” See Curtis, 201');">13
WL 1');">1874848, at *2. Accordingly, this Court will grant
Plaintiffs' request to conditionally certify the proposed
class. As it appears to this Court that Plaintiffs consent to
Defendants' proposed notice form, attached as Exhibit
“A” to Defendants' response brief [ECF
#31');">1-1');">1], this Court approves this notice form. However, as
pointed out by Plaintiffs, Defendants did not attach an
amended consent form to their response brief to reflect their
requested changes. However, Plaintiffs attached an amended
consent form to reflect Defendants' changes to their
reply brief as Exhibit “2.” [ECF #33-2]. This
Court approves this consent form, as well. Plaintiffs request
that notice be sent to all current and former technicians who
have worked for Defendants in the United states within the
past three years, and that the potential opt-in plaintiffs
who desire to participate in the lawsuit be provided ninety
(90) days from the date of mailing to file consent forms with
this Court. Defendants have not indicated that they oppose
this classification of potential plaintiffs or the timeline
set forth by Plaintiffs. Accordingly, this Court will allow
notice to be sent to this defined set of proposed class
members and provide the requested ninety (90) days to file
consent forms. Further, as Plaintiffs have indicated,
Defendants do not object to the notice and opt-in form being
issued to proposed class members via e-mail, in addition to