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De La Rosa v. J&Gk Properties, LLC

United States District Court, E.D. Texas, Sherman Division

December 23, 2019

OSCAR DE LA ROSA, and all others similarly situated Plaintiffs,
v.
J&GK PROPERTIES, LLC, D/B/A CKJ TRANSPORT OF SOUTH TEXAS, LLC and JONATHAN KENNEMER, Defendant.

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE

         Pending before the Court is Plaintiff's Motion for Conditional Certification of Collective Action and for Notice to Putative Class Members (Dkt. #41). After consideration, the Court finds that the Motion should be GRANTED in part.

         BACKGROUND

         I.Factual Summary

         Plaintiff Oscar De La Rosa is a former employee of Defendant J&GK Properties, LLC, D/B/A CKJ Transport of South Texas, LLC. Defendant is a Texas-based trucking company that has employed an estimated 200 drivers in the past three (3) years. Plaintiff and the putative collective action members he represents are former truck drivers for Defendant who allege that they: (1) hauled sand, gravel, and cement solely within the state of Texas; (2) occupied positions dedicated to work solely within the state of Texas; (3) did not hold positions that are considered exempt under the Fair Labor Standards Act (“FLSA”); (4) were paid by commission; and (5) were not paid overtime for the hours they worked in excess of forty (40) in any given workweek. Thus, the claim in this case is that Plaintiff and putative collective action members have not received all the overtime compensation owed them under the FLSA.

         Plaintiff asks the Court to certify the following class:

All current and former truck drivers employed by Defendant who exclusively hauled sand, gravel and cement in the state of Texas, and worked in excess of forty (40) hours in any workweek at any time during the last three (3) years.

         II. Procedural History

         On July 25, 2019, Plaintiff filed an Amended Complaint (Dkt. #33). On October 28, 2019, Plaintiff moved for Conditional Certification of Collective Action and for Notice to Putative Class Members (Dkt. #41). On November 21, 2019, Defendant filed a response (Dkt. #44).

         LEGAL STANDARD

         The FLSA gives employees the right to bring an action on behalf of themselves, as well as “other employees similarly situated.” 29 U.S.C. § 216(b). “Under § 216(b), district courts have the discretionary power to conditionally certify collective actions and authorize notice to potential class members.” Tice v. AOC Senior Home Health Corp., 826 F.Supp.2d 990, 994 (E.D. Tex. 2011). While the Fifth Circuit has not specifically addressed the meaning of “similarly situated” in this context, “[t]wo approaches are used by courts to determine whether collective treatment under § 216(b) is appropriate: (1) the two-stage class certification set forth in Lusardi v. Xerox, Corp., 118 F.R.D. 351 (D.N.J. 1987); and (2) the ‘Spurious Class Action' method outlined in Shushan v. Univ. of Colorado, 132 F.R.D. 263 (D. Colo. 1990).” Cripe v. Denison Glass Mirror, Inc., No. 4:11-cv-224, 2012 WL 947455, at *3 (E.D. Tex. Jan 27, 2012) report and recommendation adopted, 2012 WL 947362 (E.D. Tex. Mar. 20, 2012); Villatoro v. Kim Son Rest, L.P., 286 F.Supp.2d 807, 809 (S.D. Tex. 2003). “The Lusardi two-stage approach is the prevailing standard among federal courts and is the standard most frequently used by this court.” Tice, 826 F.Supp.2d at 994 (citations omitted). As such, the Court will apply the Lusardi approach in this case.

         Under Lusardi, “certification for a collective action under § 216(b) is divided into two stages: (1) the notice stage; and (2) the merits stage.” Id. “At the notice stage, the district court makes a decision-usually based only on the pleadings and any affidavits which have been submitted-whether notice of the action should be given to potential class members.” Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Because the Court has minimal evidence before it at this stage, “the determination is made using a fairly lenient standard requiring nothing more than substantial allegations that the putative class members were victims of a single decision, policy or plan.” Tice, 826 F.Supp.2d at 995. “Notice is appropriate if the court concludes that there is ‘some factual nexus which binds the named plaintiffs and potential class members together as victims of a particular alleged [policy or practice].'” Allen v. McWane, Inc., No. 2:06-cv-158 (TJW), 2006 WL 3246531, at *2 (E.D. Tex. Nov. 7, 2006). “If the first step [of the Lusardi approach] is satisfied, the court conditionally certifies a class; and the action proceeds as a collective action during discovery.” Sedtal v. Genuine Parts Co., No. 1:08-cv-413-TH, 2009 WL 2216593, at *3 (E.D. Tex. July 23, 2009).

         ANALYSIS

         I. ...


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