United States District Court, D. South Carolina, Charleston Division
Douglas Higgins, on behalf of himself and others similarly situated, Plaintiffs,
James Doran Company, Inc.; JDC Management LLC; Robert J. Doran, Jr., individually, Defendants.
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
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.
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.)
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.
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
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)).
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.
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.
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).
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, ...