United States District Court, W.D. Arkansas, Texarkana Division
DONALD ADKINSON and KERRY WIMLEY, Individually And on Behalf of All Others Similarly Situated PLAINTIFFS
TIGER EYE PIZZA, LLC and KEN SCHROEPFER DEFENDANTS
O. Hickey Chief United States District Judge
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.
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
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.
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.
Whether Conditional Certification is Proper
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)).
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).
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.
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.
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.
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,
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. Second, they argue that the facts
of this case are such that conditional certification is
improper. The Court will address each argument in turn.
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.
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
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
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).
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.
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).
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.
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