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Adkinson v. Tiger Eye Pizza, LLC

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

October 16, 2019

DONALD ADKINSON and KERRY WIMLEY, Individually And on Behalf of All Others Similarly Situated PLAINTIFFS


          Susan O. Hickey Chief United States District Judge

         Before the Court is Plaintiffs Donald Adkinson and Kerry Wimley's Motion for Conditional Certification, for Approval and Distribution of Notice and for Disclosure of Contact Information. (ECF No. 17). Defendants Tiger Eye Pizza, LLC and Ken Schroepfer have responded. (ECF No. 35). Plaintiffs have replied. (ECF No. 43). The Court finds the matter ripe for consideration.

         I. BACKGROUND

         On April 23, 2019, Plaintiffs filed this action, seeking relief pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq., and the Arkansas Minimum Wage Act (“AMWA”), Ark. Code Ann § 11-4-201, et seq. Plaintiffs allege that they were formerly employed by Defendants as hourly paid delivery drivers at Defendants' pizza stores in Texarkana, Arkansas and Texarkana, Texas. Plaintiffs claim that Defendants failed to pay them, and others similarly situated, proper minimum wage and overtime compensation. Plaintiffs' complaint indicates that they bring their FLSA claims for collective-action treatment on behalf of all others similarly situated. Plaintiffs likewise indicate that they bring their AMWA claims for Federal Rule of Civil Procedure 23 class-action treatment on behalf of all others similarly situated.[1]

         In the instant motion, Plaintiffs ask the Court to certify, pursuant to the FLSA, the following collective: “All Delivery Drivers employed by Defendants since January 23, 2016.” (ECF No. 17, p. 2). Plaintiffs also ask for a ninety-day period to distribute notice and consent forms and for potential plaintiffs to opt into this case. Plaintiffs further ask the Court to order Defendants to provide the names, current and/or last known mailing addresses, and cell phone numbers, or alternatively email addresses, of potential opt-in plaintiffs. Plaintiffs ask the Court to authorize a distribution plan involving notice being delivered to potential opt-ins via U.S. mail, text message, and alternatively, email for potential plaintiffs who have no known cell phone number, with a follow-up email being sent three weeks after the delivery of initial notice. Defendants oppose the motion.


         The Court is faced with two tasks. First, the Court must determine whether conditional certification of the proposed collective is proper under the FLSA. Second, if the Court finds that conditional certification is appropriate, the Court must outline the correct means of providing notice to potential opt-in plaintiffs and set procedures by which a potential collective member may opt in.

         A. Whether Conditional Certification is Proper

         Because Plaintiffs bring a collective action pursuant to the FLSA, they must use the opt-in mechanism under 29 U.S.C. § 216(b) for joining members of the proposed collective as opposed to the opt-out procedures set forth in Federal Rule of Civil Procedure 23. Resendiz-Ramirez v. P & H Forestry, LLC, 515 F.Supp.2d 937, 939 (W.D. Ark. 2007). Under the FLSA, an action may be brought “by any one or more employees for and on behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Collective actions brought under section 216(b) are “intended to serve the interests of judicial economy and to aid in the vindication of plaintiffs' rights.” Resendiz-Ramirez, 515 F.Supp.2d at 940 (citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989)).

         “Ultimately, certification of a collective action will depend on whether the named plaintiffs are similarly situated to the [collective members].” Murray v. Silver Dollar Cabaret, Inc., No. 5:15-cv-5177-PKH, 2017 WL 514323, at *2 (W.D. Ark. Feb. 8, 2017). Section 216(b) does not provide a standard for courts to utilize when determining whether the plaintiff and the collective members are “similarly situated, ” and the Eighth Circuit has not yet enunciated a standard. Id. However, the prevailing approach within this circuit for collective action certification under section 216(b) is the two-step process set forth in Mooney v. Aramco Services Co., 54 F.3d 1207, 1214 (5th Cir. 1995). Id. (citing Resendiz-Ramirez, 515 F.Supp.2d at 940).

         The two-stage process for collective-action certification is divided into: (1) the notice stage; and (2) the opt-in, or merits stage. Resendiz-Ramirez, 515 F.Supp.2d at 941. During the notice stage, the Court decides-usually based only on the pleadings and affidavits that have been submitted-whether notice should be given to potential plaintiffs. Mooney, 54 F.3d at 1213. If the Court allows for notification, the Court typically creates a conditional certification of a representative class and allows notice to be sent to the potential opt-in plaintiffs. Id. at 1214.

         At the second stage of the certification process, the Court must decide whether the action should be maintained through trial. Resendiz-Ramirez, 515 F.Supp.2d at 940. Typically, the second stage is precipitated by a motion to decertify by the defendant, which is usually filed when discovery is largely complete. Id. If the Court decides to decertify the class, the opt-in plaintiffs are dismissed from the suit without prejudice and the case proceeds only for the class representatives in their individual capacities. Id.

         This case is presently at the first stage of the two-stage certification process. At this initial stage, the Court does not make findings on legal issues or focus on whether there has been an actual violation of the law. See Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1106-07 (10th Cir. 2001). Further, at this stage, the Court does not make credibility determinations or resolve contradictory evidence presented by the parties. See Grayson v. K Mart Corp., 79 F.3d 1086, 1099 n.17 (11th Cir. 1996). Instead, the Court determines whether, under the lenient standard of the notice stage, the named plaintiffs, through pleadings and affidavits, have demonstrated that they are “similarly situated” to the potential collective members. See 29 U.S.C. § 216(b); Thiessen, 267 F.3d at 1106-07.

         Although the FLSA does not define the term “similarly situated, ” it typically requires a showing that the plaintiff and potential collective members were victims of a common decision, policy, or plan of the employer that affected all collective members in a similar fashion. See Thiessen, 267 F.3d at 1106-08; Kautsch v. Premier Commc'ns, 504 F.Supp.2d 685, 689 (W.D. Mo. 2007). Further, the “similarly situated” determination requires only a modest factual showing and does not require the plaintiff and the potential collective members to show that they are identically situated. See Harris v. Express Courier Int'l, Inc., 5:16-CV-05033, 2016 WL 5030371, at *3 (W.D. Ark. Sept. 19, 2016); Kautsch, 504 F.Supp.2d at 689-90. This is not an onerous burden, but Plaintiffs nonetheless must show “some identifiable facts or legal nexus . . . bind[ing] the claims so that hearing the cases together promotes judicial efficiency.” Murray, 2017 WL 514323, at *2 (internal citation omitted). District courts within the Eighth Circuit consider a variety of factors when determining whether plaintiffs and proposed class members are “similarly situated” at the notice stage, including the following:

(1) whether they hold the same job title; (2) whether they work or worked in the same geographic location; (3) whether the alleged violations occurred during the same time period; (4) whether they were subjected to the same policies and practices established in the same manner by the same decision-maker[;] and (5) the extent to which the acts constituting the alleged violations are similar.

Harris v. Express Courier Int'l, Inc., 5:16-cv-5033-TLB, 2016 WL 5030371, at *3 (W.D. Ark. Sept. 19, 2016).

         Defendants mount a two-pronged attack on Plaintiffs' motion for conditional certification. First, they attack the viability of Plaintiffs' unsworn declarations submitted in support of conditional certification.[2] Second, they argue that the facts of this case are such that conditional certification is improper. The Court will address each argument in turn.

         1. Declarations

         As a preliminary matter, the Court must address Defendants' “Objections and Motion to Strike Declarations, ” in which they argue that the Court should strike or otherwise refuse to consider Plaintiffs' unsworn declarations that were submitted in support of conditional certification. (ECF No. 38). Defendants argue that Plaintiffs' declarations are not competent evidence because they contain certain statements that are not based on Plaintiffs' personal knowledge, that are hearsay, that are irrelevant, or that are conclusory and speculative.

         The Court cannot grant the relief Defendants request with respect to Plaintiffs' declarations because the objections/motion to strike was not filed on the docket as a motion and, thus, there is currently no pending, formal request for relief upon which the Court may act. See Fed. R. Civ. P. 6(b)(1) (“A request for a court order must be made by motion.”). However, even if Court construes the objections as a formal motion to strike, the Court would decline to grant the relief sought for the reasons discussed below.

         Defendants ask the Court to strike Plaintiffs' declarations. Defendants do not identify the procedural mechanism under which they move to strike, but the Court assumes that they move under Federal Rule of Civil Procedure 12(f), which authorizes courts to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” (emphasis added). The Federal Rules of Civil Procedure define a “pleading” as: (1) a complaint; (2) an answer; (3) a reply to a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; and (6) a third-party answer. Fed.R.Civ.P. 7(a). “No other paper will be considered a pleading except those specifically named in Rule 7(a).” George v. Davis, No. 3:13-cv-3058-PKH, 2015 WL 463114, at *1 (W.D. Ark. Feb. 4, 2015). Thus, “[m]otions, briefs or memoranda, objections, or affidavits may not be attacked by the [Rule 12(f)] motion to strike.” Id.

         Defendants do not direct their Rule 12(f) motion toward a pleading. Therefore, it would be procedurally improper to strike Plaintiffs' declarations under Rule 12(f), and the Court declines to do so. However, even assuming arguendo that Defendants move not under Rule 12(f), but under some other unspecified procedural mechanism, the Court would nonetheless decline to strike the declarations because motions to strike propose a drastic remedy and, thus, are viewed with disfavor and are infrequently granted. Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000).

         Alternatively, Defendants ask the Court to refuse to consider Plaintiffs' declarations because they do not constitute admissible evidence as they contain statements that are not based on Plaintiffs' personal knowledge, that are hearsay, or that are conclusory and speculative. Plaintiffs argue that their affidavits are valid and sufficiently demonstrate that conditional certification is proper.

         “The Federal Rules of Civil Procedure do not create a standard for reviewing affidavits submitted in support of motions other than a motion for summary judgment.” Sjoblom v. Charter Commc'ns, LLC, No. 3:07-cv-0451-BBC, 2007 WL 4560541, at *10 (W.D. Wis. Dec. 19, 2007). In an FLSA context, some courts decline to consider any part of a plaintiff's affidavit that does not constitute admissible evidence. See Harrison v. McDonald's Corp., 411 F.Supp.2d 862, 866 (S.D. Ohio 2005) (rejecting portions of an affidavit that constituted inadmissible hearsay). Conversely, other courts' treatment of affidavits resembles the Eighth Circuit's handling of affidavits at the summary judgment stage, in which the proper determination is not whether the evidence itself is admissible, but rather whether it could be presented at trial in an admissible form. See White v. MPW Indus. Servs., Inc., 236 F.R.D. 363, 368 (E.D. Tenn. 2006) (considering hearsay in the plaintiff's affidavit because, “[a]t this preliminary stage and for these preliminary purposes, plaintiffs need not come forward with evidence in a form admissible at trial”); Coan v. Nightingale Home Healthcare, Inc., No. 1:05-cv-0101-DFH-TAB, 2005 WL 1799454, at *1 n.1 (S.D. Ind. June 29, 2005) (same); see also Gannon Int'l, Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012) (stating the standard for admissibility of affidavits at the summary judgment stage is whether the evidence could be presented at trial in an admissible form). Multiple courts within the Eighth Circuit have followed the latter approach, declining to strike or exclude hearsay found in affidavits at the conditional certification stage. See, e.g., Bowman v. Doe Run Res. Corp., No. 4:13-cv-2519-CDP, 2014 WL 3579885, at *4 (E.D. Mo. July 21, 2014); Waters v. Kryger Glass Co., No. 09-1003-CV-W-SOW, 2011 WL 13290713, at *3 (W.D. Mo. Jan. 12, 2011); West v. Border Foods, Inc., No. 05-2525 (DWF/RLE), 2006 WL 1892527, at *6 (D. Minn. July 10, 2006).

         The Court is inclined to agree and finds the latter approach the more prudent of the two, as it seems unreasonable to impose a higher evidentiary standard for affidavits at the lenient conditional certification stage than would later be imposed at the summary judgment stage. As the Eighth Circuit has explained, “a decision to certify a class is far from a conclusive judgment on the merits of the case, [so] it is of necessity . . . not accompanied by the traditional rules and procedure applicable to civil trials.” In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011) (internal quotation marks omitted). “Although Zurn related to a Rule 23 class certification action, these statements are particularly true of a conditional class certification of an FLSA action. A conditional class certification is by its very nature ‘conditional' and subject to revision by a decertification motion that often follows.” Lindsay v. Wells Fargo Advisors, LLC, No. 4:12-cv-0577-JAR, 2013 WL 943736, at *5 (E.D. Mo. Mar. 11, 2013) (applying Zurn's logic in considering affidavits containing hearsay at conditional certification stage). Accordingly, the Court will consider Plaintiffs' provided declarations in support of conditional certification even if, as Defendants argue, some statements in the declarations would not constitute admissible evidence at trial.

         2. Conditional Certification

         In support of their motion for conditional certification, Plaintiffs submitted their own declarations stating they were employed by Defendants at one or more of three Domino's pizza franchise stores in Texarkana, Arkansas, and Texarkana, Texas. (ECF Nos. 17-6, 17-7). Plaintiff Adkinson worked for Defendants from November 2016 until October 2018. Plaintiff Wimley worked for Defendants from December 2015 until December 2018. Plaintiffs state that during those times, they worked dual jobs as “in store” employees and delivery drivers. While working in store, Plaintiffs state that they were paid $8.50 per hour but, when they left the store for a delivery, they would clock out from the “in store” ...

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