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Burrell v. Gustech Communications, LLC

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

January 9, 2019

GARY BURRELL and ANTOINE LEE, on behalf of themselves and others similarly situated, Plaintiffs,
v.
GUSTECH COMMUNICATIONS, LLC, Defendant. ROBERT WESTBERRY and JARED STUBBLEFIELD, on behalf of themselves and others similarly situated under 29 U.S.C. § 216b, Plaintiffs,
v.
GUSTECH COMMUNICATIONS, LLC, and GUSTAVO SANTAMARIA, Defendants.

          OPINION AND ORDER CONDITIONALLY CERTIFYING COLLECTIVE ACTION

          CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE

         By order entered October 4, 2018, the court granted Plaintiffs' Motion to Consolidate the above captioned matters. See Burrell et al. v. Gustech Communications, LLC, C.A. No. 0:18-cv-00508-CMC (“Burrell”), ECF No. 47 (“Consolidation Order”); and Westberry et al. v. Gustech Communications, LLC, et al., C.A. No. 0:18-cv-02043-CMC (“Westberry”), ECF No. 46 (same).[1] The Consolidation Order discussed but left open motions for conditional certification of a collective action under the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (“FLSA”), pending in both cases (collectively “Certification Motions”). Burrell, ECF No. 7 (“Burrell Certification Motion”); Westberry, ECF No. 23 (“Westberry Certification Motion”); Burrell, ECF No. 47 at 12-15 (Consolidation Order).

         As explained in the Consolidation Order, consultation and further briefing was required to address the impact of consolidation on the Certification Motions. Id. at 12, 13. Having now received and considered supplemental briefing and related agreements resolving some disputed issues, the court grants the Certification Motions and approves notice substantially in the form attached to this order. See Burrell, ECF Nos. 58, 60, 67, 68.

         BACKGROUND

         Westberry Complaint and Certification Motion.

         Westberry was filed in the Northern District of Texas on November 17, 2017. Westberry, ECF No. 1. The two named Plaintiffs pursue recovery under the FLSA against both Gustech Communications, LLC (“Gustech Communications”) and its owner, Gustavo Santamaria (“Santamaria”). Id. ¶¶ 2, 15, 16. They seek this recovery on behalf of themselves and other similarly situated satellite installation technicians (“Technicians”). Id. ¶¶ 1, 11, 63-70. While the collective described in the Complaint lacks a geographic limit, the later-filed Westberry Certification Motion limits the proposed collective to Technicians who work or worked in Texas. Compare Id. ¶ 63, with ECF No. 23 at 1 (filed April 10, 2018).

         In their response to the Westberry Certification Motion, Defendants agree conditional certification of a single-state collective action is proper, though they object to some of Plaintiffs' proposed procedures for notice and limitations on communications. Westberry, ECF No. 30 (filed May 8, 2018). Despite the parties' agreement as to the core issue, the Westberry Certification Motion was stayed by consent on May 15, 2018, in light of a then-pending motion to transfer Westberry to this court. Westberry, ECF Nos. 28 (motion to transfer filed May 7, 2018), 32 (motion to stay), 33 (order granting stay). Westberry was transferred to this court on July 24, 2018. Westberry, ECF No. 36.[2]

         Burrell Complaint and Certification Motion.

         Burrell was filed in this district on February 21, 2018. Burrell, ECF No. 1. The two named Plaintiffs pursue recovery from Gustech Communications under the FLSA and state law. Id. Plaintiffs seek recovery on behalf of themselves and similarly situated Technicians who work or worked for Gustech Communications anywhere in the United States (for the FLSA claim). Id. ¶ 9.[3] The Complaint identifies the following four states as locations in which Gustech Communications employed Technicians: North Carolina, South Carolina, Texas and Florida. Id. ¶ 14 (listing these states but not excluding others).

         The Burrell Certification Motion was filed a few weeks after the action was filed and prior to Defendant filing an answer. Burrell, ECF No. 7 (filed March 16, 2018). This motion seeks conditional certification of a collective action covering Technicians who work or worked for Gustech Communications in North Carolina, South Carolina, Texas and Florida. Burrell, ECF No. 7 at 1, 2. Gustech Communications opposes certification based on possible overlap with claims addressed and settled in two actions against another entity for which Gustech Communications was a subcontractor. Burrell, ECF No. 26 at 5-8 (filed April 30, 2018).[4]

         The Burrell Certification Motion was referred to a Magistrate Judge for a Report and Recommendation (“Report”). Burrell, ECF No. 27 (referral entered May 4, 2018). Following a hearing, the Magistrate Judge entered a Report on June 5, 2018. Burrell, ECF No. 36. The Report recommends the Burrell Certification Motion be granted because “Plaintiffs have met the lenient burden of showing that conditional certification is appropriate, as the affidavits of the named Plaintiffs and the allegations contained in the Complaint provide a reasonable basis to claim that the [D]efendant treated all of the technicians in these [four] states similarly pursuant to a common policy.” Id. at 3. The Report does not mention Westberry or its potential transfer and consolidation. Thus, it does not address the impact, if any, consolidation might have on conditional certification.[5]

         Gustech Communications filed objections to the Report on June 19, 2018, arguing “(1) Plaintiffs have not shown they are substantially similar to any proposed collective members in Florida . . .; and (2) Plaintiffs have not met their burden to demonstrate that the existence of other FLSA cases involving DirecTV and Gustech [Communications] as alleged subcontractor do not overlap with, or impact the viability of, claims by the proposed collective members in this case.” Burrell, ECF No. 37 at 1. The first argument acknowledges transfer and consolidation of Westberry would resolve concerns arising from the absence of a named-Plaintiff who worked in Texas. ECF No. 37 at 5 (“Even if that transfer and consolidation occurs, there currently are no plaintiffs in either suit who worked for Gustech [Communications] out of Florida.”). Despite the Report's conclusion Plaintiffs' allegations and affidavits provided a “reasonable basis” for the premise Technicians from all four states were treated “similarly pursuant to a common policy, ” Gustech Communications fails to proffer or point to previously filed support for a contrary conclusion. Burrell, ECF No. 36 at 3.[6]

         Transfer and Consolidation.

         Westberry was transferred to this court on July 24, 2018. Westberry, ECF No. 36. On August 10, 2018, Plaintiffs in Burrell moved to consolidate the two actions. Burrell, ECF No. 40. The court granted the motion over Defendant Gustech Communications' opposition. Burrell, ECF Nos. 43, 47.

         The October 4, 2018 Consolidation Order addresses the impact of consolidation on the Certification Motions as follows:

In light of the granting of the Consolidation Motion . . ., this court is now faced with two overlapping motions for conditional certification in the now-consolidated actions. One motion, filed in Westberry, seeks conditional certification of a one-state FLSA [Collective] and is unopposed by either Defendant other than as to details of the notice and related limitations. The other, filed in Burrell, seeks conditional certification of a four-state FLSA [Collective] and is opposed by the sole Defendant in Burrell, Gustech [Communications]. Gustech [Communications'] opposition is set out in its objection to the Report, which recommended the motion be granted with details as to the form of notice to be resolved by agreement or future ruling.

Burrell, ECF No.47 at 13.

         Addressing Gustech Communications' two specific objections to certification, the Consolidation Order states as follows:

The court has reviewed Gustech [Communications'] two specific objections to the Report applying a de novo standard of review. Those objections point to the possible need to (1) narrow the collective action to exclude Florida Technicians, based on the absence of any named Plaintiff who worked in that state, and (2) include procedures to identify and exclude persons who are parties to other actions that cover and settle the same claims. While the court is inclined to overrule these objections, it defers any final resolution for reasons set out below.

Id. at 13, 14 (notes omitted). The court, therefore, deferred resolution of the Burrell and Westberry Certification Motions “to allow the parties an opportunity to confer to determine whether agreement is possible as to certification in the consolidated actions and the form of notice or, alternatively, to file supplemental memoranda addressing certification in the context of the consolidated actions.” Id. at 14.

         Subsequent Conferences and Briefing on Certification Motions.

         The parties subsequently conferred, resolved some disputed issues as to the form of notice, and briefed other notice-related issues. See Burrell, ECF Nos. 58, 60, 67, 68. Plaintiffs' first post-consolidation brief incorrectly characterizes the Consolidation Order as having granted one or both Certification Motions and, consequently, addresses only disputed issues relating to notice. Burrell, ECF No. 58 at 1. In their responsive brief and without distinguishing between Westberry and Burrell, Defendants state they “still maintain that certification as a collective FLSA action is not appropriate in the first instance.” However, Defendants do not point to any specific reason for opposing conditional certification in the Consolidated Cases. Burrell, ECF No. 60 n. 2; see also Id. n.3 (noting potential overlap between the collectives proposed in Burrell and Westberry, but not explaining if or how the overlap weighs against certification). The remainder of both Plaintiffs' and Defendants' post-consolidation filings address agreements and a few remaining disputes as to (1) content of ...


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