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Tredway v. Exxizz Foods, Inc.

United States District Court, S.D. Texas, Corpus Christi Division

April 9, 2019

SOPHY TREADWAY, Plaintiff,
v.
EXXIZZ FOODS, INC. Defendants.

          ORDER DENYING CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION

          Jason B. Libby United States Magistrate Judge

         Plaintiff Sophy Treadway brings this action pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq. Plaintiff alleges Defendant violated the FLSA by failing to pay her the federally mandated minimum wage and also by failing to pay her time and a half overtime for hours worked in excess of 40 in a single work week.

         Pending is Plaintiff's Opposed Motion For Conditional Certification. (D.E. 26). In connection with this motion the parties have filed considerable briefing, including:

1. Defendant's response and objections (D.E. 35);
2. Plaintiff's opposed motion to strike and reply to Defendant's response (D.E. 40);
3. Defendant's response to Plaintiff's motion to strike and Defendant's reply (D.E. 46);
4. Defendant's objections to Plaintiff's evidence submitted in Plaintiff's reply and Defendant's motion to strike (D.E. 49); and
5. Plaintiff's response to Defendant's motion to strike (D.E. 50);

         A hearing on Plaintiff's motion for conditional certification was held on April 2, 2019, before the undersigned at which counsel appeared in person. Having considered the parties' briefing, arguments, the applicable legal authorities, and all matters of record, Plaintiff's motion is DENIED as set forth below.

         I. JURISDICTION

         The Court has federal question jurisdiction over this FLSA action pursuant to 28 U.S.C. § 1331. This case has been referred to the undersigned United States Magistrate Judge for case management pursuant to 28 U.S.C. § 636. (D.E. 32). The undersigned has authority to rule on this matter as it is non-dispositive. See Patton v. Thompson Corp., 364 F.Supp.2d 263, 265-66 (E.D.N.Y. 2005); Ruggles v. WellPoint, Inc., 591 F.Supp.2d 150, 156 (N.D.N.Y. 2008); Headrick v. Tucker Energy Serv., Inc., No. SA-16-CA-749-OLG, 2017 WL 2999976, at *1-4 (W.D. Tex. Mar. 20, 2017).

         II. FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff Sophy Treadway is a former employee of Exxizz Foods, Inc. d/b/a Rockport Donuts. Ms. Treadway filed this action on August 30, 2018, alleging Defendants Exxizz Foods and Sopheak Otero violated the FLSA by paying her a flat rate twice a month regardless of the number of hours she worked. (D.E. 1). Plaintiff alleges she was paid less than the federally mandated minimum wage and was not properly compensated for overtime hours. On October 17, 2018, Plaintiff filed an amended complaint adding William Morgan Richardson as a Plaintiff and Matthew Otero as a Defendant. (D.E. 9). Defendants filed an Answer on November 14, 2018. (D.E. 16).

         Defendants Sopheak Otero and Matthew Otero filed a motion to dismiss on November 14, 2018. (D.E. 17). United States District Judge Nelva Gonzales Ramos granted the Otero's motion to dismiss on December 27, 2018, noting Plaintiff's counsel did not file a response. (D.E. 21). On January 31, 2019, Plaintiff filed a motion for conditional certification, approximately a month and a half past the deadline. (D.E. 26). On February 21, 2019, Judge Ramos cautioned Plaintiff's counsel for “a pattern of failing to prosecute this case in a timely manner.” (D.E. 31).

         On March 28, 2019, a hearing was scheduled on Plaintiff's motion for conditional certification. Neither of Plaintiff's named counsel appeared. Mr. Gordon Wittick, who is an associate of the same law firm, appeared on behalf of Plaintiff. However, Mr. Wittick is not admitted to practice before the Southern District of Texas and, at the time of the hearing, had not filed a notice of appearance or a motion to appear pro hac vice in this case. Based on a pattern of neglect exhibited by Plaintiff's counsel, the undersigned ordered Plaintiff's counsel to show cause why they should not be sanctioned. (D.E. 51). The parties filed responses, a reply and briefs. (D.E. 56, 57, 58, 59. 60, 61).

         Plaintiff William Morgan Richardson mailed a letter dated November 16, 2018, to Plaintiff's counsel requesting to be dismissed from this action and terminating his employment of Plaintiff's counsel. (D.E. 35-2). Plaintiff's counsel acknowledged receipt of the letter but maintain they did not become aware of the letter until recently due to the letter being misfiled by their staff when it was received. (D.E. 59, p. 3). The undersigned became aware of the letter through the parties' briefing and ordered Plaintiff's counsel to file an affidavit with the Court, signed by William Morgan Richardson, regarding whether he is represented by Siegel Yuen Honore PLLC and whether wants to be a Plaintiff in this case. (D.E. 51, p. 3). Plaintiff's counsel filed a motion to stay the order because they were unable to reach Mr. Richardson for a number of months. (D.E. 53). The ...


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