Arceo v. Orta
Opinion of the Court
In this putative collective action seeking unpaid overtime pay under the Fair Labor *821Standards Act ("FLSA"), plaintiffs move for conditional certification and court-facilitated notice to potential class members, and they seek limited discovery of the names, last known addresses, and email addresses of potential class members. For the reasons that follow, the court grants the motion for conditional certification and court-facilitated notice, and it grants in part and denies in part plaintiffs' request for limited discovery.
I
Alejandro Arceo and several other plaintiffs bring this putative collective action against defendants Alfredo Moises Orta, individually and d/b/a Four Diamond Staffing and Five Star Services ("Orta"), and Omni Hotels Management Corporation ("Omni"). Plaintiffs seek unpaid overtime pay under
Plaintiffs move the court to conditionally certify this collective action and approve court-facilitated notice to a class defined as follows: "All current and former housekeepers employed by Orta at hotels located in the Dallas / Fort Worth area, including those assigned to work for Omni." Ps. Mot. at 15. In their reply to Omni's response, plaintiffs ask the court to limit the proposed class to "the period of three years prior to the granting of Plaintiffs' Motion." Ps. Reply at 10. They ask the court to approve the proposed notice and consent forms and to allow plaintiffs to send the forms by "mail...email, Facebook message, and a webpage solely dedicated to disseminating the notice[.]" Ps. Mot. at 14. Plaintiffs also ask that the court require defendants to post the notice and consent forms at each of their "locations that employ housekeepers."
II
The court must first decide whether plaintiffs have provided sufficient evidence of the existence of similarly-situated potential plaintiffs and whether a class should be conditionally certified.
*822A
Section 216(b) of the FLSA authorizes a plaintiff to bring a collective action on behalf of similarly-situated persons, provided that any person who desires to become a part of the collective action files a written consent in court. See
Under this test, the court first determines whether plaintiffs have provided sufficient evidence of similarly-situated potential plaintiffs to warrant court-facilitated notice. Aguilar ,
The court is generally more "lenient" with regard to substantial similarity during the "notice" stage of the analysis, id. at *2, but "notice is by no means mandatory." Harris v. Fee Transp. Servs., Inc. ,
B
In this case, it is undisputed that plaintiffs perform similar job duties for similar pay. But Omni argues that plaintiffs are not similarly situated because they worked at different hotels, so they were subject to different policies and practices that are too individualized for conditional certification to be appropriate.
The court is unpersuaded by Omni's argument. To succeed at this stage of certification, plaintiffs are not necessarily required to provide a substantial allegation that the potential class members were subject to a common decision, policy, or plan. See Behnken ,
Plaintiffs each aver that defendants did not pay them overtime for work in excess of 40 hours per week. In their declarations plaintiffs do not describe the exact scenarios under which Orta and Omni failed to pay overtime compensation to housekeepers. But no matter what method defendants allegedly used to deny overtime compensation to housekeepers, each was allegedly part of a single policy or plan, applied to all potential class members, not to pay for overtime work. See Ryan v. Staff Care, Inc. ,
"Although the need for individual testimony may become apparent at a later stage of this lawsuit, it does not negate that plaintiffs have presented a 'factual nexus' that binds the named plaintiffs and the potential class members." Behnken ,
At the conditional certification stage, the fact that certain plaintiffs worked for Dallas hotels other than Omni does not preclude conditional certification. There is precedent in this district for conditionally certifying an FLSA class that consists of employees of related employers. In Alba v. Loncar ,
*824("If, at a later point in the litigation, the Court finds that a collective action cannot accommodate the proposed individual defenses, the Court has the discretion to create subclasses or to dismantle the collective action.") (addressing collective action under Age Discrimination in Employment Act of 1967,
C
Omni also contends that notice to the proposed class does not serve any purpose because no potential plaintiff could assert a timely FLSA claim. Omni posits that, because it did not rely on Orta to provide services after November 2013, any potential claims of housekeepers would not fall within the FLSA's statute of limitations, which, at a maximum, runs back three years from when a plaintiff files an opt-in consent form.
First, plaintiffs concede in their reply that the proposed class should be "limited to the period of three years prior to the granting of Plaintiffs' Motion." Ps. Reply 10. In light of this modification, any concerns about judicial resources wasted in notifying potential plaintiffs with invalid claims fail to apply. The court follows the approach of other district courts and limits the proposed class to a three-year notice period, as plaintiffs request. See , e.g. , Ramos v. Platt ,
Second, the conditional certification stage is not the appropriate time to determine whether all potential plaintiffs' claims would be time-barred under the FLSA. At present, there is conflicting evidence-primarily in the form of unsupported declarations-regarding the timing of the contractual relationship between Orta and Omni.
III
Having conditionally certified the proposed class, the court now turns to the form of notice and notice procedure required.
A
The court first considers plaintiffs' proposed form of notice and consent to join form.
1
The benefits of a collective action "depend on employees receiving accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate." Hoffmann-La Roche Inc. ,
Omni objects to plaintiffs' proposed notice form on the following grounds: (1) it implies judicial endorsement through inclusion of the court caption and lack of a specific statement that the court has taken no position on the merits
2
Omni's primary objection is that the proposed notice is not neutral because it includes the caption of the court and does not explicitly state that the court has not taken a position on the merits case. The court disagrees.
First, numerous courts in the Fifth Circuit have held that inclusion of the caption of the court in a notice does not undermine judicial neutrality. See, e.g. , Nabarrette v. Propetro Servs., Inc. ,
And here, the notice specifically states, "If you join this lawsuit...you will be bound by any judgment entered by the Court, whether it is favorable or unfavorable....It also means that if nothing is recovered in the suit, you will recover nothing." Proposed Notice at 2. Omni's request for a specific disclaimer by the court is unnecessary, because the language of the notice clearly conveys that the court has not made any determination regarding the merits of the lawsuit. The court thus concludes that the proposed notice is not defective on the basis that it does not maintain judicial neutrality.
3
The court also disagrees with Omni's contention that the proposed notice is deficient because it fails to describe Omni's position. Although the proposed notice does not explicitly state that Omni denies wrongdoing, the language of the notice is not "one-sided and argumentative." Cf. Gerlach v. Wells Fargo & Co. ,
4
Omni's final objection-that a 90 day opt-in period is too long-also lacks force. District courts commonly approve notice periods of 90 days in FLSA class certification actions. See, e.g. , Lopez v. Hal Collums Constr., LLC ,
B
Plaintiffs ask that the court approve distribution of notice and consent forms by mail, email, Facebook message, and a webpage solely dedicated to disseminating the notice. Ps. Mot. at 13. Plaintiffs also ask that the court order defendants to post the notice and consent forms at each defendant's office and location that employs housekeepers.
The court finds that mailing the forms to potential class members will suffice. Judges in this district have found that mailing notice is an adequate means of alerting potentially interested plaintiffs. See Barnett ,
IV
Plaintiffs also request limited discovery to ensure timely notice. They ask that the court order Orta and Omni to produce in electronic form the names, last known addresses, telephone numbers, and email addresses of potential plaintiffs. Ps. Mot. at 14. Omni responds that the privacy interests of potential plaintiffs outweigh the potential benefits of disclosing email addresses and telephone numbers. D. Resp. at 18.
The court finds no reason to order defendants to provide email addresses or telephone numbers of potential plaintiffs. The court follows in this case the approach it adopted in Humphries v. Stream International, Inc. , No. 3:03-CV-1682-D (N.D. Tex. Feb. 13, 2004) (Fitzwater, J.) (discussed in Aguilar ). In Humphries , in response to the plaintiff's request for discovery, the court required the defendant to provide plaintiff's counsel the names and last known addresses of all potential class members, because notice of the collective action was to be given by mail. See id. at *7. The court declined to require that the defendant disclose, inter alia , the telephone numbers of potential class members. Id. The court reasoned that "highly personal information about persons who may in fact have no interest in this litigation should not be disclosed on the thin basis that [plaintiff's] counsel desires it." Id. The court also concluded, inter alia , that the need for compelled disclosure of such data was outweighed by the privacy interests of potential class members, and that there was no apparent reason to conclude that sending a letter to the person's last known address would be inadequate. Id. Such reasoning also applies to the disclosure of email addresses.
Accordingly, the court directs that, within 30 days of the date this memorandum opinion and order is filed, Orta and Omni provide plaintiffs' counsel, in electronic form, the names and last known addresses of all persons who fall within the conditionally certified class.
* * *
For the reasons explained, the court grants plaintiffs' motion for conditional certification and court-facilitated notice, and it grants in part and denies in part plaintiffs' request for limited discovery.
SO ORDERED .
This action was originally filed in Texas state court against only Orta. After Orta failed to respond, plaintiffs obtained an interlocutory default judgment. Plaintiffs amended their petition and added Omni as a defendant. Omni answered in state court and removed the case to this court.
For example, plaintiff Antonia Perez testifies that she worked at Omni until October 2014, but Omni's Director of Associate Services avers that none of Orta's housekeepers performed work for Omni after November 2013.
Omni requests that plaintiffs provide language at the beginning of the notice stating, "the Court has not taken any position on the merits of this action." D. Resp. at 21.
The court does not address Omni's objection that the notice fails to limit the number of written communications plaintiffs may have with potential plaintiffs. Because plaintiffs have not asked the court to approve any reminder notices, the propriety of such notices is not at issue. The court also does not address Omni's objection that Omni should be excluded from the notice based on the three-year statute of limitations. As the court has discussed above, plaintiffs have limited the proposed class to a notice period of three years.
Omni also maintains that it should not be required to disclose contact information for potential class members because it neither has this information nor has the information as a "computer-readable data file." D. Resp. at 17. These assertions are conclusory and carry little weight.
The court concludes that the 10 day period that plaintiffs propose does not provide defendants adequate time to produce the requested information.
Reference
- Full Case Name
- Alejandro ARCEO v. Alfredo Moises ORTA, Individually and d/b/a Four Diamond Staffing and Five Star Services, and Omni Hotels Management Corporation
- Cited By
- 3 cases
- Status
- Published