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Harrison v. Hog Taxi, LLC

United States District Court, W.D. Arkansas, Fayetteville Division

September 10, 2019

SEAN HARRISON, Individually and on Behalf of Others Similarly Situated PLAINTIFF



         Before the Court are Plaintiffs Motion for Conditional Certification of Collective Action, for Disclosure of Contact Information, and to Send Notices (Doc. 35) and Brief in Support (Doc. 36); Defendants' Response in Opposition (Doc. 37); and Plaintiffs Reply (Doc. 40). As explained in this Order, Plaintiffs Motion (Doc. 35) is GRANTED.

         I. BACKGROUND

         Plaintiff Sean Harrison, on behalf of himself and others similarly situated, moves the Court for conditional certification of a collective action pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b). The FLSA is a federal statute governing minimum wages, maximum hours worked, and overtime compensation. The statute allows an action to be brought "by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). This type of lawsuit requires that each potential plaintiff "opt in," or "give his consent in writing to become such a party" to a collective claim for unpaid wages. Id.

         Mr. Harrison is a former driver for Hog Taxi, LLC, a taxi company in northwest Arkansas. Mr. Harrison alleges that Defendants violated the FLSA by failing to pay the drivers minimum wage for up to forty hours of work per week. Mr. Harrison asks the Court to conditionally certify an FLSA class of "all taxi drivers who were employed by Defendants at any time since February 7, 2016." (Doc. 35-1).[1]

         In the Motion, Mr. Harrison argues that Defendants' practice of paying a commission per ride without regard to the number of hours worked and taking deductions for phone, dispatch, and leasing fees resulted in a failure to pay the minimum wage. Mr. Harrison submits that all the taxi drivers working for Defendants are paid according to the same policy.

         Defendants do not dispute Mr. Harrison's description of the compensation policy but assert that Mr. Harrison has not established that practice to be unlawful. Defendants also raise the objection that Mr. Harrison fails to show that other plaintiffs desire to opt in to the litigation should conditional certification be granted. Finally, in raising various objections to the proposed form of notice, Defendants object to the inclusion in the conditional class of drivers who own their own cars. They also object to Plaintiffs characterization of the class as drivers who were "employed by" Defendants. Id. Defendants note that the employment status of the taxi drivers is disputed and argue that the definition of the class should therefore be revised to use more neutral language.

         If conditional certification is granted, Mr. Harrison wishes to send out notice to potential opt-in plaintiffs by U.S. Mail, followed by a reminder postcard after 30 days. Mr. Harrison also wishes to send notification by email and allow opt-in plaintiffs to submit their consent online via

         Defendants make several objections to Mr. Harrison's proposed notice. A few of these are accepted by Mr. Harrison in Plaintiffs Reply in Support of Plaintiff's Motion for Conditional Certification (Doc. 40). Mr. Harrison accepts the proposal that the scheduled trial date be included in the description of the lawsuit. If email notification is granted by the Court, Mr. Harrison also accepts Defendants' proposed changes to the electronic notice and consent emails.

         A few objections remain unresolved. Defendants object to language in paragraph 3 of the proposed Notice (Doc. 35-1) referring to the potential for the case to be settled. Defendants further object to language in paragraph 6 of the proposed Notice informing potential opt-in plaintiffs that they "will not be required to pay attorney's fees directly." Id. Defendants argue that this language is misleading because the Court has the discretion under Federal Rule of Civil Procedure 54(d)(1) to award costs to Defendants if they are the prevailing party and because Plaintiff's counsel can seek a percentage of the fund following a settlement, which could result in opt-in plaintiffs not being made completely whole.


         A. Legal Standard

         The Eighth Circuit has not yet announced standards that district courts must use in evaluating collective actions pursuant to the FLSA. Resendiz-Ramirez v. P&H Forestry, LLC, 515 F.Supp.2d 937, 940 (W.D. Ark. 2007). In the absence of such guidance, numerous district courts in this Circuit, including this Court, have approved of the procedures announced in the Fifth Circuit case of Mooney v. Aramco Services Co., which establishes a two-step process for certifying a collective action. 4 F.3d 1207, 1212 (5th Cir. 1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003); Aaron v. Summit Health and Rehab., LLC, 2014 WL 1095829, at *2 (W.D. Ark. Mar. 19, 2014) (citing Mooney for the prevailing approach used by federal courts in certifying collective actions); Garrison v. ConAgra Packaged Foods, LLC, 2013 WL 1247649, at *1 (E.D. Ark. Mar. 27, 2013) (same); Shackleford v. Cargill Meat Solutions Corp., 2013 WL 209052, at *1 (W.D. Mo. Jan. 17, 2013) (same); Burch v. Qwest Commc'ns Int'l, Inc., 677 F.Supp.2d 1101, 1114 (D. Minn. 2009) (same).

         The two-step process described in Mooney involves a progressively more rigorous analysis as to whether a putative class of plaintiffs is "similarly situated," as described in § 216(b) of the FLSA, and is thus suited for the collective action model as a means of efficiently litigating their claims. Mooney labels the first step in the inquiry as the "notice ...

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