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Swales v. KLLM Transport Services, LLC

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

September 24, 2019

HARRY SWALES, ET AL. PLAINTIFFS
v.
KLLM TRANSPORT SERVICES, LLC DEFENDANT MARCUS BRENT JOWERS PLAINTIFF
v.
KLLM TRANSPORT SERVICES, LLC DEFENDANT

          ORDER

          DANIEL P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE.

         These consolidated cases arising under the Fair Labor Standards Act (“FLSA”) are before the Court on Plaintiffs’ Amended Motion for Conditional Certification [195]. 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.

         I. Facts and Procedural History

         Defendant 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. [210] at 8.[1] 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.[2] 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.

         Plaintiffs 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.

         II. Analysis

         Section 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).

         Few 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. 1987):

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 claims.

Sandoz, 553 F.3d at 915 n.2 (citations omitted).

         At the 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)).

         But the 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 ...


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