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Higgins v. James Doran Co., Inc.

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

July 28, 2017

Douglas Higgins, on behalf of himself and others similarly situated, Plaintiffs,
v.
James Doran Company, Inc.; JDC Management LLC; Robert J. Doran, Jr., individually, Defendants.

          ORDER AND OPINION

          Richard Mark Gergel United States District Court Judge

         This matter is before the Court on Plaintiff Douglas Higgins's motion for conditional collective action certification under 29 U.S.C. § 216(b). For the reasons set forth below, the Court denies the motion as untimely filed.

         I. Background

         Plaintiff Higgins filed this action on June 23, 2016. He alleges that he and other non-exempt maintenance technicians employed by Defendants were not paid the overtime rate for overtime worked. Instead, Defendants provided them with compensatory time. Defendants answered on October 24, 2016, after a jointly requested sixty-day stay for settlement discussions. Defendants admit that some maintenance employees were given compensatory time in lieu of overtime pay "in error." (Dkt. No. 18 at 3.)

         The current amended scheduling order requires motion "to join other parties" or to amend the pleadings to have been filed by March 24, 2017. The discovery deadline is June 23, 2017. Dispositive motions were due on July 7, 2017. On February 3, 2017, Plaintiff Higgins timely joined Plaintiff Wayne Hart. On July 10, 2017, Plaintiff Higgins moved for conditional collective action certification and permission to mail a proposed notice to possible opt-in plaintiffs. Defendants oppose conditional certification, arguing, inter alia, that the motion is untimely.

         II. Legal Standard

         The FLSA permits a plaintiff to bring a collective action on behalf of himself and other employees that are "similarly situated" to the plaintiff. See 29 U.S.C. § 216(b). The collective action provision, 29 U.S.C. § 216(b), provides,

An action to recover [unpaid overtime compensation] 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.

         "The Supreme Court has held that, in order to expedite the manner in which collective actions under the FLSA are assembled, 'district courts have discretion in appropriate cases to implement ... § 216(b)... by facilitating notice to potential plaintiffs.'" Purdham v. Fairfax Cnty. Pub. Schs., 629 F.Supp.2d 544, 547 (E.D. Va. 2009) (quoting Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169(1989)).

         Certification of a collective action is a two-stage process. Pelczynski v. Orange Lake Country Club, Inc., 284 F.R.D. 364, 367 (D.S.C. 2012). "First, a plaintiff seeks conditional certification by the district court in order to provide notice to similarly situated plaintiffs" that they can "opt-in" to the collective action. Id. at 367-68. At this "notice stage, " the court reviews the pleadings and affidavits to determine whether the plaintiff has carried his burden of showing he is similarly situated to the proposed class members. Id. at 368. "Because the court has minimal evidence, this determination is made using a fairly lenient standard, " Steinberg v. TQ Logistics, Inc., No. 0:10-cv-2507-JFA, 2011 WL 1335191, at *1 (D.S.C. Apr. 7, 2011), requiring plaintiffs to make a "a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law, " Purdham, 629 F.Supp.2d at 548. If the court determines that the proposed class members are similarly situated, the court conditionally certifies the class. Steinberg, 2011 WL 1335191, at *1. The putative class members then are given notice and the opportunity to "opt-in, " and the action proceeds as a representative action throughout discovery. Id.

         Second, after the court has conditionally certified the class, the potential class members have been identified and notified, and discovery has been completed, "a defendant may then move to decertify the collective action, pointing to a more developed record to support its contention that the plaintiffs are not similarly situated to the extent that a collective action would be the appropriate vehicle for relief." Pelczynski, 284 F.R.D. at 368. At this "decertification stage, " the court applies a heightened fact-specific standard to the "similarly situated" analysis. Steinberg, 2011 WL 1335191, at *2. "Courts have identified a number of factors to consider at this stage, including (1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendants that appear to be individual to each plaintiff; and (3) fairness and procedural considerations." Curtis v. Time Warner Entm't-Advance/Newhouse P 'ship, No. 3:12-cv-2370-JFA, 2013 WL 1874848, at *3 (D.S.C. May 3, 2013) (internal quotation marks and alterations omitted). If the court determines that the plaintiffs are not, in fact, similarly situated, the court may decertify the class, dismiss without prejudice the opt-in plaintiffs' claims, and permit the named plaintiffs to proceed on their individual claims. Id.

         A collective action under the FLSA differs from a class action under Rule 23 of the Federal Rules of Civil Procedure. See 7B Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1807 (3d ed. 2005)). Unlike Rule 23 class actions, in FLSA collective actions, "plaintiffs must affirmatively 'opt in' to the suit in order to be considered a member of the class"; Rule 23 's requirements of numerosity, typicality, commonality, and adequacy do not apply; and plaintiffs need only show that they and potential class members are "similarly situated" for the Court to certify the collective action. Mancia v. Mayflower Textile Servs. Co., No. CCB-08-273, 2008 WL 4735344 at *2 (D. Md. Oct. 14, 2008).

         III. Discussion

         Plaintiff Higgins moves for conditional certification of this FLSA collective action, for an order directing Defendants to provide names and contact information of all current and former maintenance technicians who were given compensatory time in lieu of overtime pay, and for an order permitting Plaintiffs to mail a proposed notice to potential class members. Defendants argue the motion for conditional certification is untimely. The Court agrees. The deadline for adding additional parties (including new opt-in plaintiffs) expired four months ago on March 24, 2017. The motion for conditional class certification filed July 10, 2017-after the discovery deadline, after the deadline for summary judgment motions, over one year after the filing of this action, and six weeks after the deadline for motions to join other parties-is untimely. It should have been made in time for potential opt-in plaintiffs to respond to notice of the action by March 24, 2017. Plaintiff Higgins effectively asks the Court to (1) reopen discovery for identification of possible opt-in plaintiffs, (2) hold discovery open for a notice period, ...


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