Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cook v. Mississippi Farm Bureau Casualty Insurance Company

United States District Court, N.D. Mississippi, Aberdeen Division

March 21, 2019

DONALD COOK PLAINTIFF
v.
MISSISSIPPI FARM BUREAU CASUALTY INSURANCE COMPANY, et al DEFENDANTS

          MEMORANDUM OPINION

         This matter is before the Court on Plaintiff Donald Cook's motion for conditional certification [42] and Defendants Mississippi Farm Bureau Casualty Insurance Company, Southern Farm Bureau Life Insurance Company, and Southern Farm Bureau Casualty Insurance Company's objections [55] to Cook's proposed notice and notice plan. Having considered the matter, the Court finds the motion to certify the class should be denied.

         Background

          Cook is a former insurance agency manager for the Farm Bureau Defendants, and in this role, he managed agents who sold insurance for them. Cook alleges that the Farm Bureau Defendants, acting as joint employers, classified him as an independent contractor, but treated him in such a way that he was, in reality, an employee. Cook further alleges that he regularly worked more than 40 hours a week and that the Farm Bureau Defendants did not pay him overtime as required by the Fair Labor Standards Act.

         Cook seeks to certify a collective action on behalf of other agency managers under 29 U.S.C. § 216(b), and asks this Court to order Defendants to provide him with the contact information of potential class members. Further, he asks the Court to authorize him to send the proposed notice and reminder notice attached to his motion to potential class members.

         The Farm Bureau Defendants oppose conditional certification of the class and object to provisions of the proposed notice and notice plan.

         Section 216(b) Certification Standard

          The Fair Labor Standards Act (FLSA) requires that employers pay employees who work more than 40 hours a week with overtime pay on those excess hours unless the statute exempts those employees. 29 U.S.C § 207(a). Section 216(b) of the Act provides that an employee not paid such wages may bring an action for himself and any "other employees similarly situated" who join the case by providing written consent. Id. § 216(b).

         As in a companion case, Britt v. Farm Bureau, No. 1:18-cv-00038-GHD-DAS, the Farm Bureau Defendants urge this Court to apply a Rule 23 standard to the conditional certification question.[1] However, as the Court stated in Britt, the approach set out in Lu-sardi v. Xerox Corp., 118 F.R.D. 351, 359 (D.N.J. 1987) is the correct way to determine condtiional certification in an FLSA action. 2019 WL 943404, at *1 (N.D. Miss. Feb. 26, 2019).

         The Lusardi approach proceeds in two stages: the "notice stage" and the "decertification stage." Dyson v. Stuart Petroleum Testers, Inc., 308 F.R.D. 510, 512 (W.D. Tex. 2015) (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995) overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003)). In the notice stage, 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." Acevedo v. Alsup 's Convenience Stores, Inc., 600 F.3d 516, 519 (5th Cir. 2010). Because this stage "typically occurs early in the litigation[, ] the Court's review is usually based on the pleadings and any attached affidavits[J and 'the determination is made using [a] fairly lenient standard." Brown v. United Furniture Indus., Inc., No. 1:13-CV-00246-SA-DAS, 2015 WL 1457265, at *4 (N.D. Miss. Mar. 30, 2015) (quoting Mooney, 54 F.3d at 1214). "If the court finds that the putative class members are similarly situated, then conditional certification is warranted and the plaintiff will be given the opportunity to send notice to potential class members," and the parties conduct discovery. Dyson, 308 F.R.D. at 512. After discovery, the defendant may move for decertification, "at which time the Court conducts a more factually intensive inquiry into the similarly situated question to determine whether the suit may proceed as an FLSA collective action. Brown, 2015 WL 1457265, at *4 (citing White v. NTC Trnasp., Inc., 2013 WL 5874566, at * 1-2 (N.D. Miss. Oct. 31, 2013)). No. discovery had occurred when this motion was filed, and so the Court conducts the notice stage inquiry.

         Conditional certification is appropriate where there are "substantial allegations that the putative class members were together victims of a single decision, policy, or plan . . . ." Mooney, 54 F.3d at 1214 n.8 (internal quotations omitted). "[T]his determination is made using a fairly lenient standard, and typically results in 'conditional certification' of a representative class." Id. The question is whether "based on the pleadings and attached affidavits, Plaintiffs have made an preliminary showing that the proposed class members are similarly situated" Brown, 2015 WL 1457264, at *6 (citing Mooney, 54 F.3d at 1214). "Relevant factors to guide the Court are 'whether potential plaintiffs were identified, whether affidavits of potential plaintiffs were submitted, and whether evidence of a widespread plan was submitted.'" White, 2013 WL 5874566, at *1 (N.D. Miss. Oct. 31, 2013) (quoting Songer v. Dillon Resources, Inc., 569 F.Supp.2d 703, 707 (N.D. Tex. 2008)).

         Analysis

         Cook defines the putative class as

All individuals who, through a contract or agreement with Mississippi Farm Bureau Casualty Insurance Company, Southern Farm Bureau Life Insurance Company and/or Southern Farm Bureau Casualty Insurance Company, perform or performed as insurance agency managers for and who were classified on paper by Mississippi Farm Bureau Casualty Insurance Company, Southern Farm Bureau Life Insurance Company and/or Southern Farm Bureau Casualty Insurance Company as "independent contractors" anywhere in the State of Mississippi at any time from the date that is three years preceding the commencement of this action through the close of the Court-determined opt-in period and who file a consent to join in this action pursuant to 29 U.S.C. § 216(b).

         Cook provided with his motion his own affidavit wherein he states that there are "approximately 80 to 100 other Mississippi Farm Bureau Managers" that "had the same or substantially similar working and pay conditions," that "Defendants had a policy or plan of classifying Mississippi Farm Bureau agency managers as independent contractors on paper to avoid paying them overtime pay," and that despite doing so, "Defendants required or allowed Mississippi Farm Bureau agency managers to work in excess of 40-hours a week." Affidavit of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.