United States District Court, W.D. Arkansas, Fayetteville Division
MARIAH MURRAY and AMBER EVANS, each individually and on behalf of all others similarly situated PLAINTIFFS
SILVER DOLLAR CABARET, INC.; PLATINUM CABARET, LLC; ANTHONY F. CATROPPA; and ANTHONY K. CATROPPA, each individually and as officers and/or directors of Silver Dollar Cabaret, Inc. and/or Platinum Cabaret, LLC DEFENDANTS
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE.
the Court is Plaintiffs Mariah Murray and Amber Evans's
second motion for conditional certification of a collective
action, disclosure of contact information for potential
opt-in plaintiffs, and to send court-approved notice (Doc.
40); Defendants' response (Doc. 44); Plaintiffs'
reply (Doc. 46-1); and the parties' supporting documents.
Plaintiffs have also filed a second motion for Rule 23 class
certification (Doc. 47), to which Defendants responded (Doc.
52), and Plaintiffs replied (Doc. 53-1). The Court will
address each motion in turn.
are former exotic dancers at Silver Dollar Cabaret, Inc. and
Platinum Cabaret, LLC, both located in Fayetteville,
Arkansas. They claim while they were dancers at the two adult
entertainment clubs, Defendants violated the Fair Labor
Standards Act, 29 U.S.C. §§ 201 et seq. (the
“FLSA”) and the Arkansas Minimum Wage Act, A.C.A.
§§ 11-4-201 et seq. (the “AMWA”).
Specifically, Plaintiffs allege that they and others
performed on Defendants' premises during a period which
extends three years prior to the filing of the complaint, and
that they were not paid a minimum wage or overtime
compensation for hours worked in excess of 40 in a given
week. They claim that at all relevant times, Defendants knew
or should have known that the FLSA and AMWA applied to the
seek conditional certification of their FLSA claims as a
collective action pursuant to 29 U.S.C. § 216(b), along
with an authorization to issue notice to putative class
members, and approval of the proposed notice (Doc. 40-3),
proposed consent to join form (Doc. 40-4), and proposed
follow-up postcard (Doc. 40-5). In addition, Plaintiffs seek
Rule 23 class certification for their AMWA claims, which
involve practically identical allegations. Defendants oppose
the motions and raise a number of objections to each of
Plaintiffs' requests and proposals.
Motion for Conditional Certification of a Collective
FLSA allows named plaintiffs to sue [their employer]
‘for and in behalf of… themselves and other
employees similarly situated.'” Bouaphakeo v.
Tyson Foods, Inc., 765 F.3d 791, 796 (8th Cir. 2014)
(quoting 29 U.S.C. § 216(b)). This type of suit-a
collective action-is distinguishable from a class action
pursuant to Federal Rule of Civil Procedure 23, as it
requires that plaintiffs use the opt-in mechanism under 29
U.S.C. § 216(b) for joining a putative class of
plaintiffs rather than the opt-out procedures in Rule 23.
Schmidt v. Fuller Brush Co., 527 F.2d 532, 536 (8th
Cir. 1975). The FLSA gives the Court “the requisite
procedural authority to manage the process of joining
multiple parties in a manner that is orderly, sensible, and
not otherwise contrary to statutory commands or the
provisions of the Federal Rules of Civil Procedure.”
Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170
(1989). “The court has a responsibility to avoid the
stirring up of litigation through unwarranted solicitation of
potential opt-in plaintiffs, but the district court should,
in appropriate cases, exercise its discretion to facilitate
notice to potential plaintiffs.” Bouaphakeo v.
Tyson Foods, Inc., 564 F.Supp.2d 870, 890 (N.D. Iowa
2008) (citing Severtson v. Phillips Beverage Co.,
137 F.R.D. 264, 267 (D. Minn. 1991); Hoffman-La
Roche, 493 U.S. at 169) (internal quotations omitted).
certification of a collective action will depend on whether
the named plaintiffs are similarly situated to the putative
class. Neither § 216(b) nor the Eighth Circuit Court of
Appeals has defined when “other employees [are]
similarly situated” so that collective action
certification and authorization of notice is appropriate.
Davenport v. Charter Comms., LLC, 2015 WL 164001, at
*4 (E.D. Mo. Jan. 13, 2015). However, most district courts
within the Eighth Circuit have utilized a two-stage approach
for collective action certification under § 216(b).
See e.g., Resendiz-Ramirez v. P & H
Forestry, L.L.C., 515 F.Supp.2d 937, 940 (W.D. Ark.
2007) (“The Court is convinced that the more prudent
approach is to use the two-stage certification analysis that
is used by a majority of courts, including a majority of
district courts in the Eighth Circuit.”). Nonetheless,
the Court finds it appropriate to emphasize that nothing in
Eighth Circuit or United States Supreme Court precedent
requires district courts to utilize this approach; rather,
“[t]he decision to create an opt-in class under §
216(b), like the decision on class certification under Rule
23, remains soundly within the discretion of the district
court.” Bouaphakeo, 564 F.Supp.2d at 891
(citing Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d
1208, 1219 (11th Cir. 2001)).
two-stage approach to certifying a collective action is
divided into (1) the notice stage and (2) the opt-in or
merits stage. Resendiz-Ramirez, 515 F.Supp.2d at
941. First, when named plaintiffs move for certification of a
collective action-typically early in the discovery process- a
court considers whether the putative class should be given
court-authorized notice of the opportunity to opt in to the
action. Id. This requires an initial determination
of whether Plaintiffs and putative class members are
similarly situated, but because this inquiry is made at such
an early stage of the litigation, the Court applies a fairly
lenient standard. Kautsch v. Premier Commc'ns,
504 F.Supp.2d 685, 688 (W.D. Mo. 2007). Specifically,
Plaintiffs bear the burden to make a modest factual showing
that they and the putative class members were victims of a
common decision, policy, or plan of the employer that
affected all class members in a similar manner.
Resendiz-Ramirez v. P & H Forestry, LLC, 515
F.Supp.2d 937, 940-41 (W.D. Ark. 2007). While the burden of
proof is relatively low, “some identifiable facts or
legal nexus must bind the claims so that hearing the cases
together promotes judicial efficiency.” Jost v.
Commonwealth Land Title Ins. Co., 2009 WL 211943, at *2
(E.D. Mo. Jan. 27, 2009) (quotations omitted). Some factors
that may be considered by district courts making this
determination include: (1) whether everyone worked in the
same location; (2) whether they held the same job title; (3)
whether the alleged violations occurred during the same time
period; (4) whether all workers were subjected to the same
policies and practices, and whether those policies and
practices were established in the same manner by the same
decision maker; and (5) the extent to which the acts
constituting the alleged violations are similar. See
Watson v. Surf-Frac Wellhead Equip. Co., 2012 WL
5185869, at *1 (E.D. Ark. Oct. 18, 2012). If notification is
deemed appropriate, the class is conditionally certified for
notice purposes and the action proceeds as a representative
action throughout discovery. Croft v. Protomotive,
Inc., 2013 WL 1976115, at *1 (W.D. Ark. May 13, 2013)
(citing Resendiz-Ramirez, 515 F.Supp.2d at 940).
“Second, when discovery is largely complete, the
defendant may move for decertification, and the court will
consider other factors to determine whether the conditionally
certified class should be permitted to proceed as a
request that the Court conditionally certify and approve
notice for all potential class members for a class defined as
all exotic dancers who worked for Defendants at the two clubs
in question within a three year period. Considering the
relevant standards and applicable factors listed above, the
Court finds under the fairly lenient standard applicable to
this notice stage of certification that Plaintiffs have met
their burden to demonstrate that that they are similarly
situated with putative members to the extent necessary to
justify court-authorized notice to the proposed class.
Throughout the pleadings and sworn affidavits, Plaintiffs
have established that they and all other potential plaintiffs
were exotic dancers at the two adult entertainment clubs in
question at all relevant times, and they were all subject to
the same alleged FLSA violation by not being paid a minimum
wage or compensated for overtime. Plaintiffs set forth
substantial allegations that management exerted a significant
amount of control over the dancers via the same policies and
procedures, and that this led to the alleged FLSA violations.
defense raises minimal arguments against certification at
this stage, simply arguing that two out of the 16 individuals
who have consented to being potential opt-in plaintiffs were
hourly employees of Defendants. Class members need not be
identically situated to be considered similarly situated.
Kautsch, 504 F.Supp.2d at 690. Moreover, the
“disparate factual and employment settings of the
individual plaintiffs” is a consideration usually
reserved for second stage analysis. Smith v. Heartland
Auto. Servs., Inc., 494 F.Supp.2d 1144, 1150 (D. Minn.
2005); Kautsch v. Premier Comms., 2008 WL 294271, at
*2 (W.D. Mo. Jan. 31, 2008); Bouaphakeo, 564
F.Supp.2d at 892. The Court does not make findings of fact or
credibility determinations with respect to contradictory
evidence submitted by the parties at this stage. Loomis
v. CUSA, LLC, 257 F.R.D. 674, 676 (D. Minn. 2009). At
this stage of the litigation, the Court determines that
Plaintiffs have met their burden of establishing that they
are similarly situated to other dancers at the two adult
entertainment clubs during all relevant times, and that they
have made substantial factual allegations to support their
claim of FLSA violations for minimum wage and overtime
compensation. Accordingly, the Court will conditionally
certify this action for the purpose of giving notice to
putative plaintiffs, subject to a refining of the class
Scope of the Class Definition and Equitable Tolling
request that the Court conditionally certify and approve
notice to all potential class members for a class defined as:
All Exotic Dancers who worked for Defendants Silver Dollar
Cabaret, Inc., Platinum Cabaret, LLC, Anthony F. Catroppa,
and Anthony K. Catroppa (collectively
“Defendants”) in the State of Arkansas at any
time after July 30, 2012.
40). Defendants raise two specific objections to this class
definition. Defendants first oppose the class definition
including the names of individual defendants Anthony F.
Catroppa and Anthony K. Catroppa. However, because both
individuals are named as defendants in the lawsuit, the Court
finds that their inclusion in the class definition along with
the other named defendants is appropriate.
appropriately, Defendants object to the temporal scope of the
class definition. As it stands, the class period extends
three years prior to the filing of the complaint in this
action on July 30, 2015, but Defendants argue that the
correct class period is three years prior to the Court's
entering of an order conditionally certifying the collective
action up through the close of the opt-in period. This
objection invariably invokes whether the Court should
equitably toll the limitations period.
of action under the FLSA “may be commenced within two
years after the cause of action accrued, and every such
action shall be forever barred unless commenced within two
years after the cause of action accrued, except that a cause
of action arising out of a willful violation may be commenced
within three years after the cause of action accrued.”
29 U.S.C. § 255(a). Because Plaintiffs allege willful
violations of the FLSA, a three-year limitations period
applies. Typically, the statute of limitations for each
plaintiff in an FLSA collective action runs when he or she
files written consent with the court effectively joining the
lawsuit rather than when the named plaintiff files the
complaint. 29 U.S.C. § 256(b). However,
“[e]quitable tolling generally may be applied to
‘avoid inequitable circumstances' and may be
applied “as a matter of fairness where a party has been
prevented in some extraordinary way from exercising his
rights.” Lee v. ABC Carpet & Home, 236
F.R.D. 193, 200 (S.D. N.Y. 2006).
though their class definition imposes a class period of three
years from the filing of the complaint and Defendants have
objected to this, Plaintiffs contend that the Court should
“leave the issue of equitable tolling to be decided at
a future date.” (Doc. 40, ¶ 7). Plaintiffs further
argue that “[i]t would be wrong of the Court to
foreclose the possibility of granting the tolling request at
this time, since the issues have not been briefed.”
(Doc. 46-1, p. 3). The Court disagrees. When Defendants
objected to the temporal scope of the class period and
contended that equitable tolling should not apply, that was
the proper occasion for Plaintiffs to brief the Court with
their arguments as to why the Court should toll the
limitations period. Moreover, Plaintiffs have had almost a
year to supplement their motion, yet they have not done so.
bear the burden of demonstrating why they are entitled to
equitable tolling, and the resolution of the issue is
fact-specific.” Cruthis v. Vision's, 2013
WL 4028523, at *5 (E.D. Ark. Aug. 7, 2013). Because
Plaintiffs have not met their burden, the Court will not
equitably toll the limitations period to three years prior to
the filing of the complaint. However, the Court notes that
“[t]he delay caused by the time required for a court to
rule on a motion, such as one for certification of a
collective action in an FLSA case, may be deemed an
extraordinary circumstance justifying application of ...