United States District Court, S.D. Mississippi, Eastern Division
MICHAEL DUGGAN, on behalf of himself and others similarly situated PLAINTIFF
HIGH IMPACT MARKETING, LLC d/b/a FURNITURE DIRECT and CARL MILETELLO, individually DEFENDANTS
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE
cause came before the Court on Plaintiff's Motion for
Conditional Class Certification and Authorized Notice .
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
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.
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.
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.  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.
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.
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
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. 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).
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);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).
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 ...