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Contreras v. Land Restoration LLC

United States District Court, W.D. Texas, Austin Division

February 17, 2017

SERGIO CONTRERAS and ALBERTO SANCHEZ, on Behalf of Themselves and Others Similarly Situated, Plaintiffs,



         Before the court are Plaintiffs' Motion for Conditional Certification of Collective Action and Notice to Class (Dkt. 14) and the responsive briefings thereto. Having considered the parties' submissions, the record in this case, and the applicable law, the court issues the following order.

         I. BACKGROUND

         Plaintiffs Sergio Contreras and Alberto Sanchez (“Plaintiffs”) bring this action both individually and on behalf of all others similarly situated against defendants Land Restoration LLC and Land Restoration Holdings LLC (“Defendants”) asserting violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq.

         Plaintiffs allege Defendants run a business that provides residential and commercial landscaping design, construction, and maintenance services, and that they were employed by Defendants as manual laborers from approximately 2012 through 2014. (Pl. Compl., Dkt. 1, ¶¶ 9, 11). Defendants purportedly had Plaintiffs work for 10 to 12 hours a day and 50 to 60 hours a week, without paying overtime compensation, in violation of the FLSA. (Id., ¶ 12). According to Plaintiffs, Defendants ignored their complaints regarding compensation and knowingly, willfully, or with reckless disregard carried out an illegal pattern or practice of failing to pay all overtime and other compensation as required by the FLSA. (Id., ¶ 13). Plaintiffs allege that their experience is typical of the experience of similarly situated laborers employed by Defendants. (Id., ¶¶ 15-19).

         Accordingly, Plaintiffs have filed a motion seeking conditional certification of this lawsuit as a collective action under the FLSA. Plaintiffs assert that similarly situated individuals whose rights under the FLSA have been violated by Defendants should be permitted to opt-in to this action. Defendants have responded in opposition to Plaintiffs' motion (Dkt. 16), Plaintiffs have replied (Dkt. 17), and the motion is now ripe for review.


         The FLSA permits a court to order an action to proceed as a collective action on behalf of others similarly situated. The statute provides:

An action . . . may be maintained . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. § 216(b).

         Thus, unlike a class action filed under Federal Rule of Civil Procedure 23(c), a collective action under § 216(b) provides for a procedure to “opt-in, ” rather than “opt-out.” Roussell v. Brinker Int'l, Inc., 441 F. App'x 222, 225 (5th Cir. 2011) (citing Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 916 (5th Cir. 2008)).

         The threshold issue to certifying a collective action under the FLSA is whether the plaintiff can show the existence of a class whose members are “similarly situated.” The Fifth Circuit recognizes two approaches to making this determination. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213 (5th Cir. 1995). The first is a two-step conditional certification process known as the Lusardi approach, after Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987). The second is a Rule 23Bstyle analysis known as the Shushan approach, after Shushan v. Univ. of Colo. at Boulder, 132 F.R.D. 263 (D. Colo. 1990). Although the Fifth Circuit has declined to specifically adopt either test, both the Fifth Circuit and the Supreme Court have made statements implying that a Rule 23-type analysis is incompatible with FLSA collective actions. See Genesis Healthcare Corp., v. Symczyk, 133 S.Ct. 1523, 1529 (2013) (“Rule 23 actions are fundamentally different from collective actions under the FLSA.”); Donovan v. Univ. of Tex. at El Paso, 643 F.2d 1201, 1206 (5th Cir. 1981) (“The FLSA procedure, in effect, constitutes a congressionally developed alternative to the F. R. Civ. P. 23 procedures.”). Moreover, the majority of courts within this circuit have adopted the Lusardi two-stage approach. See, e.g., Vanzzini v. Action Meat Distribs., Inc., 995 F.Supp.2d 703, 719 (S.D. Tex. 2014); Mateos v. Select Energy Servs., LLC, 997 F.Supp.2d 640, 643 (W.D. Tex. 2013); Tice v. AOC Senior Home Health Corp., 826 F.Supp.2d 990, 994 (E.D. Tex. 2011); Marshall v. Eyemasters of Tex., Ltd., 272 F.R.D. 447, 449 (N.D. Tex. 2011). This court has previously assessed conditional certification under Lusardi, and will do so again here. See Dyson v. Stuart Petroleum Testers, Inc., 308 F.R.D. 510, 512-13 (W.D. Tex. 2015).

         Under Lusardi, the court approaches the ‘similarly situated' inquiry via a two-step analysis, consisting of a “notice” and a “decertification” stage:

First, the court determines whether the putative class members' claims are sufficiently similar to merit sending notice of the action to possible members of the class. If they are, notice is sent and new plaintiffs are permitted to “opt in” to the lawsuit. Second, after discovery is largely complete and more information on the case is available, the court makes a final determination of whether all plaintiffs are sufficiently similarly situated to proceed together in a single action.

Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 519 (5th Cir. 2010) (internal citations omitted)

         The determination at the notice stage is “usually based only on the pleadings and any affidavits which have been submitted.” Mooney, 54 F.3d at 1214. “Because the court has minimal evidence, this determination is made using a fairly lenient standard, and typically results in ‘conditional certification' of a representative class.” Id. District courts in Texas frequently apply a three element test, requiring a plaintiff to show that: “(1) there is a reasonable basis for crediting the assertion that aggrieved individuals exist; (2) those aggrieved individuals are similarly situated to the plaintiff in relevant respects given the claims and defenses asserted; and (3) those individuals want to opt in to the lawsuit.” See, e.g., Abeldano v. HMG Park Manor of Westchase, LLC, 2016 WL 5848890 at *6 (S.D. Tex. Oct. 6, 2016) (collecting cases). “‘The remedial nature of the FLSA and § 216 militate strongly in favor of allowing cases to proceed collectively.'” Tolentino v. C & J Spec-Rent Servs. Inc., 716 F.Supp.2d 642, 647 (S.D. Tex. 2010) (quoting Albanil v. Coast 2 Coast, Inc., 2008 WL 4937565 at *3 (S.D. Tex. Nov. 17, 2008)). The decision of whether to conditionally certify the class and facilitate notice of potential class members based on the plaintiff's pleadings and evidence is “soundly within the discretion of the district court.” Mateos, 977 F.Supp.2d at 644 (citing Hoffman-LaRoche, Inc. v. Sperling, 493 U.S. 165, 169 (1989)).

         “The second determination is typically precipitated by a motion for ‘decertification' by the defendant usually filed after discovery is largely complete and the matter is ready for trial.” Mooney, 54 F.3d at 1214. “At this stage, courts are much less likely to allow the collective action to continue to trial.” Portillo v. Permanent Workers, LLC, --- F. App'x ----, 2016 WL 6436839 at *3 (5th Cir. 2016) (citing Mooney, 54 F.3d at 1214). If the court finds the opt-in plaintiffs are not similarly situated, those plaintiffs are dismissed without prejudice and only the named plaintiffs proceed to trial. Mooney, 54 F.3d at 1214.


         Plaintiffs seek conditional certification on behalf of a class of similarly situated persons, and the record consists only of pleadings, briefings on the issue of conditional certification, and declarations submitted by Plaintiffs. Accordingly, the court need only address the first stage of the Lusardi inquiry.

         Plaintiffs seek certification with respect to:

Defendants' current and former employees who worked as manual laborers and were paid an hourly or daily rate at any time during the three year period ...

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