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Felder v. QED International, LLC

United States District Court, S.D. Texas, Houston Division

July 10, 2019

Larry Felder, Individually and on Behalf of Those Similarly Situated, Plaintiff,
QED International, LLC, Defendant.


          Gray H. Miller Senior United States District Judge

          Pending before the court are (1) a motion for conditional certification filed by plaintiff Larry Felder (Dkt. 17); and (2) an unopposed motion for leave to file a supplemental reply filed by Felder (Dkt. 27). The unopposed motion to file a supplemental reply (Dkt. 27) is GRANTED. After considering the motion, response, reply, supplemental reply filed at docket entry 27-1, and the applicable law, the court is of the opinion that the motion for conditional certification should be DENIED.

         I. Background

         This is a Fair Labor Standards Act (“FLSA”) case. Plaintiff Larry Felder worked for defendant QED International, LLC (“QEDI”) as a Commissioning Manager. Dkt. 17. He contends that he and other similarly situated employees of QEDI regularly worked more the forty hours a week but were not guaranteed a salary. Id. He asserts that he and these other employees were misclassified as exempt. Id. He seeks preliminary certification of a class consisting of “[a]ll hourly employees of QEDI who were at any point in the past 3 years paid ‘straight time for overtime.'” Id. He requests to send court-approved notice of this lawsuit to the putative class members. Id.

         QEDI argues that Felder has not met his burden of showing that there are other individuals who are eligible to join this action who want to opt in. Dkt. 23. It asserts that Felder provides no declarations for other potential opt-in plaintiffs and instead merely provides his own declaration stating that he has spoken with former co-workers who were also paid straight time for overtime and that he knows there is a general interest from these employees in recovering back wages. Id. (citing Dkt. 17-3 (Felder's Declaration)). QEDI additionally argues that Felder fails to show that there is a factual nexus between himself and the putative class members to show they are similarly situated. Id. QEDI contends that Felder's declaration provides no details about his experiences, observations, and conversations that purportedly establish that he and other class members are similarly situated. Id.

         While the motion for conditional certification was pending, Felder advised the court that the parties had a discovery dispute pursuant to the court's discovery dispute procedure. See Judge Gray H. Miller, Court Procedures, Procedure 6.C (Discovery and Scheduling Disputes/Pre-Motion Conferences). The court referred the dispute to the Magistrate Judge, who set a hearing for May 3, 2019. Dkt. 21. The dispute related to Felder's request that QEDI provide Felder with contact information for its employees for the past three years. See Dkt. 27-1. Felder sought this information so that he could find other employees who wanted to opt into the lawsuit. Id. QEDI did not want to provide information about employees who had not filed consents to join Felder's lawsuit. Id.

         At the hearing, the Magistrate Judge ordered QEDI to turn over the last known contact information for three individuals who Felder identified at the hearing. Dkt. 25. Felder contends that the Magistrate Judge “appeared to believe that additional class discovery was unnecessary.” Dkt. 27-1. After the hearing, QEDI was only able to provide contact information for two of the three people Felder identified during the hearing, as there was no employee by the third name. See Id. The two employees did not opt in, and Felder argues that he has been unable, “through no fault but time and memory, to find additional class members willing to join his action.” Id. He requests that the court either not require a showing that there are other similarly situated employees who want to opt in or require QEDI to provide his requested discovery. Id.

         This motion for conditional certification is now ripe for disposition.

         II. Legal Standard

         Section 207(a) of the FLSA requires covered employers to compensate nonexempt employees at overtime rates for time worked in excess of forty hours per week. 29 U.S.C. § 207 (a) (2012). Section 216(b) creates a cause of action against employers who violate the overtime compensation requirements. Id. § 216 (b). Section 216(b) also permits an employee to bring a collective action lawsuit against an employer on “behalf of himself . . . and other employees similarly situated.” Id. Employees who wish to participate in a § 216(b) collective action must affirmatively “opt-in” to the action by filing a written consent with the court. Id. The “opt-in” procedure of § 216(b) illustrates its “fundamental, irreconcilable difference” from a class action under Federal Rule of Civil Procedure 23©); in a Rule 23 proceeding, persons within the class description are automatically considered class members and must “opt-out” of the suit if they do not wish to participate. LaChapelle v. Owens-Ill., Inc., 513 F.2d 286, 288 (5th Cir. 1975).

         The Fifth Circuit has declined to adopt a specific test to determine when a court should certify a collective action or grant notice in an FLSA collective action, but most federal courts (including this court) have adopted the Lusardi test. Badgett v. Tex. Taco Cabana, L.P., No. H-05-3624, 2006 WL 2934265, at *1-2 (S.D. Tex. Oct. 12, 2006) (Miller, J.). Under the Lusardi test, a district court engages in a two-step analysis to determine whether the potential plaintiffs are “similarly situated.” Id. at *1.

         The two stages of the Lusardi test are the “notice stage” and the “decertification stage.” Id. At the notice stage, the court makes a decision, usually solely based on the pleadings and any submitted affidavits, whether to conditionally certify a collective action and give notice to potential class members. See Mooney v. Aramco Servs, 54 F.3d 1207, 1213 (5th Cir. 1995). At this stage, the court applies a “fairly lenient standard” because there is often minimal evidence available. Id. at 1214. Courts, in fact, “appear to require nothing more than substantial allegations that putative class members were together the victims of a single decision, policy or plan.” Id. (quoting Sperling v. Hoffmann-La Roche, Inc., 118 F.R.D. 392, 407 (D.N.J. 1988)). Thus, the notice stage analysis typically results in conditional certification of a representative class. Badgett, 2006 WL 2934265, at *1. After conditional certification, the “putative class members are given notice and the opportunity to ‘opt-in.'” Mooney, 54 F.3d at 1214.

         The second stage-the “decertification stage”-is typically precipitated by the defendant filing a motion to decertify after the opt-in period has concluded and discovery is largely complete. Id. “At this stage, the court has much more information on which to base its decision, and makes a factual determination on the similarly situated question.” Id. If the court finds the claimants are no longer made up of similarly situated persons, it decertifies the class and dismisses the opt-in plaintiffs without prejudice. Id. If the class is still similarly situated, the court allows the collective action to proceed. Id.

         A “decision to certify, even if subject to correction at the decertification stage, is not without consequences” as “[t]oo much leniency at the notice stage can lead to a ‘frivolous fishing expedition conducted by the plaintiff at the employer's expense'” and “extreme leniency at the notice stage can result in conditional certification that must later be revoked at the eve of trial . . . when it becomes obvious that manageability concerns make collective action impossible.” Lang v. DirecTV, Inc., No. 10-1085, 2011 WL 6934607, at *6 (E.D. La. Dec. 30, 2011) (citations omitted). Therefore, while the notice stage standard is lenient, it is not automatic. Badgett, 2006 WL 2934265, at *2. The plaintiff bears the burden of making a preliminary factual showing that a similarly situated group of potential plaintiffs exists. Id. To establish this, the plaintiff must make a minimal showing 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.” Maynor v. ...

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