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Duggan v. High Impact Marketing, LLC

United States District Court, S.D. Mississippi, Eastern Division

July 3, 2019

MICHAEL DUGGAN, on behalf of himself and others similarly situated PLAINTIFF



         This cause came before the Court on Plaintiff's Motion for Conditional Class Certification and Authorized Notice [5]. Defendants have responded [21, 22]. Plaintiff has not filed a reply. Having reviewed the parties' submissions, the relevant, and in light of the motion being largely unopposed, the Court finds the motion is well taken and will be granted in part.

         I. BACKGROUND

         Defendants own and operate furniture stores in both Hattiesburg and Columbia, Mississippi. Plaintiff worked as a commission-only salesperson for the Defendants from approximately May 2017 through May 2018. He claims that he was misclassified as an independent contractor, was improperly compensated when his hourly rate for his commissioned sales fell below the federal minimum wage requirement, and was not compensated for the overtime he worked.

         Plaintiff filed this action on December 6, 2018 alleging violations of the Fair Labor Standards Act (“FLSA”). Plaintiff now seeks leave to conditionally certify the following class:

All current and former commission-only salespeople who were classified as “independent contractors” by defendants and were not paid at least the federal minimum wage of $7.25 and/or overtime wages at a rate of at least time-and-one-half their regular rate of pay for all hours worked in excess of forty (40) hours in a given workweek.

         In addition to requesting authorization to send notice to the class, Plaintiff seeks to have the Court compel Defendants to produce a computer readable data file containing the names, last known address, email address, last known telephone number, employee number, last four digits of the social security number, and dates of employment of all potential opt-in Plaintiffs. Also, in addition to mailing the notice, Plaintiff requests that a notice be posted at all Defendants' locations where commission-only salespeople are employed. [6] at p. 14. Defendants have not objected this request, and thus, it will be granted. Finally, Plaintiff seeks to have the Court toll the applicable statute of limitations to protect the rights of those who have yet to receive notice of the lawsuit.

         Defendant responds by conceding that certification is likely to be granted, but seeks to limit the scope of the class to only three locations because it does not own one of the locations. Defendants also contend that one potential plaintiff worked at the store that Defendants do not own and thus, is not similarly situated. Defendants also object to the notice plan insofar as Plaintiff's request the production of phone numbers and partial social security numbers and that the consent forms be returned to Plaintiff's counsel.


         A. Legal Standard

         The FLSA requires covered employers to compensate nonexempt employees at a minimum wage and to pay overtime rates when they work in excess of forty hours per week. See 29 U.S.C. §§ 206(a), 207(a). Under certain circumstances, the FLSA permits an employee to bring suit against an employer “for and on behalf of himself . . . and other employees similarly situated.” 29 U.S.C. § 216(b). “Plaintiffs who desire to join in a ‘collective action' must ‘opt in' to the case and be bound by a judgment, unlike plaintiffs in a [Federal Rule of Civil Procedure 23] class action, who must essentially ‘opt out.'” Harris v. Hinds Cnty., No. 3:12-cv-00542-CWR-LRA, 2014 WL 457913, at *1 (S.D .Miss. Feb. 4, 2014). “If the [c]ourt decides to conditionally certify the class, putative class members are given notice, an opportunity to opt in to the litigation, and adequate time for discovery.” Id. at *2. Conditional certification under the FLSA “does not produce a class with an independent legal status, or join additional parties to the action. The sole consequence of conditional certification is the sending of court-approved written notice to employees, who in turn become parties to a collective action only by filing written consent with the court . . . .” Genesis Healthcare Corp. v. Symczyk, 596 U.S. 66, 75 (2013) (internal citation omitted).

         “District courts have discretion in determining whether to order court-supervised notice to prospective plaintiffs.” Harris, 2014 WL 457913, at *1 (citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989)). In doing so, courts in this Circuit have adopted the Lusardi two-stage approach.[1] See, e.g., Santinac v. Worldwide Labor Support, 107 F.Supp.3d 610, 614 (S.D.Miss. 2015) (using Lusardi approach); Vanzzini v. Action Meat Distribs., Inc., 995 F.Supp.2d 703, 719 (S.D. Tex. 2014) (same); Harris v. Hinds County, No. 3:12-cv-542, 2014 WL 457913, at *2 (S.D.Miss. Feb. 4, 2014) (same).

         The two stages of the Lusardi approach are the “notice stage” and the “decertification stage” or “merits stage.” See Mooney v. Aramaco Svcs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995);[2]Harris, 2014 WL 457913 at *2. At the notice stage, the district 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. Allsup's Convenience Stores, Inc., 600 F.3d 516, 519 (5th Cir. 2010). Such decision is solely within the district court's discretion and is not mandatory. See Strickland v. Hattiesburg Cycles, Inc., No. 2:09-cv-174, 2010 WL 2545423, at *2 (S.D.Miss. June 18, 2010).

         At the notice stage, the Court typically relies on the pleadings and any affidavits submitted. Harris, 2014 WL 457913, at *2. The standard at this at this stage is not particularly stringent, but “it is by no means automatic.” Lima v. Int'l Catastrophe Solutions, Inc., 493 F.Supp.2d 793, 798 (E.D. La. 2007). “The lenient standard requires at least a modest factual showing sufficient to demonstrate that the plaintiff and potential plaintiffs together were ...

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