United States District Court, W.D. Texas, Austin Division
SERGIO CONTRERAS and ALBERTO SANCHEZ, on Behalf of Themselves and Others Similarly Situated, Plaintiffs,
LAND RESTORATION LLC and LAND RESTORATION HOLDINGS LLC, Defendants.
PITMAN UNITED STATES DISTRICT JUDGE
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.
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.
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).
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.
FLSA permits a court to order an action to proceed as a
collective action on behalf of others similarly situated. The
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).
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)).
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).
Lusardi, the court approaches the ‘similarly
situated' inquiry via a two-step analysis, consisting of
a “notice” and a “decertification”
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
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
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
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.
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 ...