United States District Court, S.D. Mississippi, Northern Division
HARRY SWALES, ET AL. PLAINTIFFS
KLLM TRANSPORT SERVICES, LLC DEFENDANT MARCUS BRENT JOWERS PLAINTIFF
KLLM TRANSPORT SERVICES, LLC DEFENDANT
P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE.
consolidated cases arising under the Fair Labor Standards Act
(“FLSA”) are before the Court on
Plaintiffs’ Amended Motion for Conditional
Certification . For the following reasons, the motion is
granted, but the scope of the proposed collective action is
narrowed. This ruling is certified for interlocutory appeal.
Facts and Procedural History
KLLM Transport Services, LLC, is “a motor carrier that
is authorized by the Federal Motor Carrier Safety
Administration . . . to provide transportation of property
for hire to the public.” Def.’s Mem.  at
Plaintiffs Corey Lilly, Kyle Shettles, John McGee, and Marcus
Brent Jowers all worked as truck drivers for KLLM under
Independent Contractor Agreements (“ICAs”)
between October 2015 and January 2017. Plaintiffs say
KLLM misclassified them and similarly situated truck drivers
as independent contractors when, under Mississippi law and
the FLSA, they were employees entitled to payment of the
federal minimum wage.
Lilly, Shettles, and McGee filed the lead case against KLLM
on June 21, 2017; Jowers filed the member case on June 28,
2017. Plaintiffs seek relief for themselves and on behalf of
similarly situated KLLM drivers under 29 U.S.C. §
216(b). The cases were consolidated for purposes of discovery
on March 29, 2018, and the parties engaged in discovery
limited to the issue of § 216(b) certification. Now that
the initial phase of discovery is closed, Plaintiffs seek
conditional certification of a class of “all individual
persons and/or entities who entered into [ICAs] and Tractor
Lease/Purchase Agreements with KLLM.” Pls.’ Mem.
[195-1] at 4.
216(b) of the FLSA provides:
Any employer who violates the provisions of [the FLSA] shall
be liable to the employee or employees affected in the amount
of their unpaid minimum wages . . . . Any action to recover
the liability prescribed in [this section] may be maintained
against any employer . . . in any Federal or State court of
competent jurisdiction by any one or more employees for and
in behalf of himself or themselves and other employees
similarly situated. No. employee shall be a party plaintiff
to any such action unless he gives his consent in writing to
become such a party and such consent is filed in the court in
which such action is brought.
29 U.S.C. § 216(b). “Thus, the FLSA allows an
employee to bring a claim on behalf of other similarly[
]situated employees, but the other employees do not become
plaintiffs in the action unless and until they consent in
writing.” Sandoz v. Cingular Wireless LLC, 553
F.3d 913, 915 (5th Cir. 2008).
areas of the law are less settled than the test for
determining whether a collective action should be certified
under § 216(b). Within the Fifth Circuit, district
courts routinely follow the two-step approach adopted in
Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J.
First, the plaintiff moves for conditional certification of
his or her collective action. The district court then
decides, usually based on the pleadings and affidavits of the
parties, whether to provide notice to fellow employees who
may be similarly situated to the named plaintiff, thereby
conditionally certifying a collective action. Second, once
discovery is complete and the employer moves to decertify the
collective action, the court must make a factual
determination as to whether there are similarly[ ]situated
employees who have opted in. If so, the collective action may
proceed, and if not, the court must dismiss the opt-in
employees, leaving only the named plaintiff’s original
Sandoz, 553 F.3d at 915 n.2 (citations omitted).
first step of this test, courts typically apply a
“fairly lenient standard” for deciding whether to
conditionally certify a collective action. Mooney v.
Aramco Servs. Co., 54 F.3d 1207, 1214 (5th Cir. 1995),
overruled on other grounds by Desert Palace, Inc. v.
Costa, 539 U.S. 90 (2003). Certification is proper when
the plaintiff raises “substantial allegations that the
putative class members were together the victims of a single
decision, policy, or plan.” Id. at 1214 n.8.
And when that is so, “[d]istrict courts have discretion
in determining whether to order court-supervised notice to
prospective plaintiffs.” Harris v. Hinds Cty.,
No. 3:12-CV-542-CWR-LRA, 2014 WL 457913, at *1 (S.D.Miss.
Feb. 4, 2014) (citing Hoffman-La Roche Inc. v.
Sperling, 493 U.S. 165, 169 (1989)).
Fifth Circuit Court of Appeals “has carefully avoided
adopting” the Lusardi method. In re
JPMorgan Chase & Co., 916 F.3d 494, 500 n.9 (5th
Cir. 2019). As it noted in one case, the test “by its
nature, does not give a recognizable form to an [FLSA]
representative class, but lends itself to ad hoc
analysis on a case-by-case basis.” Mooney, 54
F.3d at 1213. Yet ...