United States District Court, D. South Carolina, Columbia Division
GARY BURRELL and ANTOINE LEE, on behalf of themselves and others similarly situated, Plaintiffs,
GUSTECH COMMUNICATIONS, LLC, Defendant. ROBERT WESTBERRY and JARED STUBBLEFIELD, on behalf of themselves and others similarly situated under 29 U.S.C. § 216b, Plaintiffs,
GUSTECH COMMUNICATIONS, LLC, and GUSTAVO SANTAMARIA, Defendants.
OPINION AND ORDER CONDITIONALLY CERTIFYING COLLECTIVE
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE
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). 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
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.
Complaint and Certification Motion.
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).
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.
Complaint and Certification Motion.
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. 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).
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).
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.
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.
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.
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.
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.
Conferences and Briefing on Certification Motions.
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 ...