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Holmes v. Swissport Fueling, Inc.

United States District Court, M.D. Florida, Fort Myers Division

January 10, 2018

ETHAN A. HOLMES, for himself and on behalf of those similarly situated, Plaintiff,
v.
SWISSPORT FUELING, INC. and SWISSPORT SA FUEL SERVICES, LLC, Defendants.

          REPORT AND RECOMMENDATION [1]

          MAC R. McCOY, UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is the Notice of Filing Revised Proposed Notice (Doc. 74) filed on October 2, 2017; the Motion Relating to the Distribution of the Court-Approved Notice of Collective Action (Doc. 75) filed on October 2, 2017; the Objections to Plaintiff's Proposed Notice and Proposed Consent to Joint (Doc. 76) filed on October 9, 2017; and the Response to Plaintiff's Motion Relating to the Distribution of the Court-Approved Notice of Collective Action (Doc. 77) filed on October 16, 2017. These filings involve the issue of the appropriate language to be used in the Notice of Collective Action Lawsuit (“Notice”) and the Consent to Become Opt-In Plaintiff Pursuant to 29 U.S.C. § 216(b) (“Consent”), as well as the appropriate method of distribution of the Notice and Consent. (Docs. 74-77; Doc. 74-1; Doc. 74-2). For the reasons set out herein, the Court respectfully recommends that the Notice of Filing Revised Proposed Notice (Doc. 74) and the Motion Relating to the Distribution of the Court-Approved Notice of Collective Action (Doc. 75) be granted in part.

         I. Background

         Plaintiff Ethan A. Holmes, on behalf of himself and others similarly situated, filed this action against Swissport Fueling, Inc. and Swissport SA Fuel Services, LLC for unpaid regular and/or overtime wage compensation relief under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b). (Doc. 60 at 1, 3-8). In addition to Holmes, six (6) Opt-In Plaintiffs - Alderson, Buchanon, Diaz, Grant, Rodriguez, and Lady - consented to join this action. (Docs. 28, 29, 30, 31, 39, 48). On May 8, 2017, Holmes filed a Motion for Conditional Certification and Permission to Send Court-Supervised Notification Pursuant to 29 U.S.C. § 216(b) (Doc. 50). In a September 19, 2017 Opinion and Order (Doc. 73), the presiding District Judge accepted and adopted the findings in the Report and Recommendation (Doc. 72), and granted in part and denied in part Plaintiff's Motion for Conditional Certification and Permission to Send Court-Supervised Notification. (Doc. 73 at 2). The Order provided the modified class definition as follows:

All current and former aircraft fuelers employed by Swissport Fueling, Inc. or Swissport SA Fuel Services, LLC at the Southwest Florida International Airport in the past three (3) years, who were not paid for all hours actually worked as a result of either of the following two auto-deduction policies: (1) an auto-deduction that deducted thirty (30) minutes from every workday for meal breaks, but required the employee to work during this time period; and/or (2) an auto-deduction for rounding start and end times.

(Id.). The Order also directed Plaintiff to file an amended proposed Notice and Consent consistent with the Order and the Report and Recommendation and allowed Defendants the opportunity to file objections to the proposed Notice and Consent. Holmes complied by filing the Notice of Filing Revised Proposed Notice (Doc. 74) and Defendants complied by filing their Objections (Doc. 76).

         Plaintiff seeks to have the Court approve the revised proposed Notice and Consent form as well as approve the methods of distribution of the Notice. (See generally Docs. 74 and 75). Defendants oppose much of the language in Plaintiff's proposed Notice and the Consent. (Doc. 76). Further, the parties disagree as to the appropriate method of distribution of the Notice. To resolve these issues, the Court turns first to the language of the Notice and Consent and then considers the methods of distribution for the Notice.

         II. Language of Notice and Consent

         When permitting a party to send a notice concerning a collective action, a trial court “has a substantial interest in communications that are mailed for single actions involving multiple parties.” Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 171 (1989). By monitoring the preparation and distribution of a notice, “a court can ensure that it is timely, accurate, and informative.” Id. at 172. Thus, the Court carefully considers the wording of Plaintiff's proposed Notice and Consent and addresses each of Defendants' objections in the order presented.[2]

         A. Case Style

         Defendants assert that Plaintiff should drop the case style caption from the proposed Notice and Consent, arguing that the lack of case style appears more neutral, citing Wajcman v. Hartman & Tyner, Inc., No. 07-61472-CIV, 2008 WL 203579, at *2 (S.D. Fla. Jan. 23, 2008) for this proposition. (Doc. 76 at 2). In Wajcman, plaintiffs brought a single claim for failure to pay minimum wages under the FLSA. Id. at *1. During the pendency of the case, the plaintiffs filed a motion to allow notice to be sent to prospective opt-in class members similarly situated to the plaintiffs. Id. The court held that the plaintiffs' motion was granted in part and allowed the notice to be sent as modified by the Court. Id. at *2. One such modification was the “dropping [of] the case style caption.” Id. The court's only justification for removal of the case caption from the notice was that by dropping the case caption, the notice appeared more neutral on its face. Id.

         The court in Wajcman failed to support its reasoning with citation to authority. Id. at 1-2. The Court finds that the non-binding decision in Wajcman to be unpersuasive, especially in light of the fact that the caption of the case notifies potential opt-in plaintiffs as to this specific lawsuit. With this information in hand, the potential opt-in plaintiffs have accurate information that allows them the opportunity to investigate this specific lawsuit prior to deciding whether to opt-in or not. Further, although not dispositive, the Court has reviewed many similar cases in this Division, and all of the court-approved notices contained the caption of the case. See, e.g., Rosales v. El Michoacano, Case No. 2:15-cv-711-38CM, Doc. 30 (M.D. Fla. Apr. 5, 2017); Campbell v. Pinchers Beach Bar Grill, Inc., Case No. 2:15-cv-695-FtM-99MRM, Doc. 36 (M.D. Fla. Aug. 3, 2016); Trentman v. RWL Commc'n, Inc., Case No. 2:15-cv-89-FtM-38CM, Doc. 24 (M.D. Fla. May 29, 2015); Smith v. Cable Wiring Specialist, Inc., Case No. 2:14-cv-277-FtM- 29DNF, Doc. 24 (M.D. Fla. Oct. 31, 2014). Thus, the Court recommends that the case caption remain in the Notice.

         B. The “To” and “Re” Portions of the Notice

         Defendants argue that the “TO” and “RE” portions of the Proposed Notice are prejudicial to Defendants for the following reasons: (1) they describe Plaintiff's claims without reference to Defendants' position; (2) they encompass the entire first page; (3) they are in all capital letters and bolded; (4) they assume that breaks must be meal breaks; and (5) they repeat the same language that is used repeatedly throughout the notice. (Doc. 76 at 2). Defendants request that the entire “TO” and “RE” portions be stricken. (Id.). The Court logically groups these issues and addresses them in turn.

         1. Formatting Issues

         Defendants assert that the “TO” and “RE” portions of the Notice should not encompass the whole first page, should not be in bold, and should not be in capital letters. (Id.). Again, although not dispositive, it is telling that other cases have utilized this same type of formatting as is proposed in this case. Trentman v. RWL Commc'n, Inc., Case No. 2:15-cv-89-FtM-38CM, Doc. 24 (M.D. Fla. May 29, 2015); Smith v. Cable Wiring Specialist, Inc., Case No. 2:14-cv-277-FtM-29DNF, Doc. 24 (M.D. Fla. Oct. 31, 2014). The Court finds that Plaintiff's proposed formatting is acceptable and recommends that it be approved with no change.

         2. Defendants' Statement of Their Position

         Defendants' assert that the “TO” and “RE” portions of the Notice fail to contain any reference to Defendants' positions. (Doc. 76 at 2). The Court notes that in much smaller type, Plaintiff has included the following statement: “The Court has Made No Findings as to the Merits of the Case at this Time.” (Doc. 74-1 at 1). To equalize the font size, emphasis, and typeface, the Court finds that the “RE” portion should contain the following language (using all capitalized letters and bold typeface) as the last sentence of that section: “THE COURT HAS TAKEN NO POSITION IN THIS CASE REGARDING THE MERITS OF THE CLAIMS OR DEFENSES OF THE PARTIES.” Consequently, the Court recommends that the following language be stricken: “The Court has Made No Findings as to the Merits of the Case at this Time.” (Doc. 74-1 at 1).

         The Court also takes issue with the title of the Notice. Specifically, the title reads, “NOTICE OF COLLECTIVE ACTION LAWSUIT.” (Doc. 74-1 at 1). The Court finds that “NOTICE OF LAWSUIT” would be more accurate and appropriate because the class is only conditionally certified at this time. Thus, the Court recommends that the title of the Notice be changed to “NOTICE OF LAWSUIT.”

         3.Assumes Breaks Are Meal Breaks and Assumes Auto-Deduction Policies in Place for Both Rounding and Meal Breaks

         Defendants claim that the “TO” portion assumes that the breaks must be “meal” breaks and that there were auto-deduction policies in place for both rounding and breaks. (Doc. 76 at 2). The language in the “TO” portion is the class definition. Again, although not dispositive, similar language was used in notices in other cases. See Trentman v. RWL Commc'n, Inc., Case No. 2:15-cv-89-FtM-38CM, Doc. 24 (M.D. Fla. May 29, 2015; Smith v. Cable Wiring Specialist, Inc., Case No. 2:14-cv-277-FtM-29DNF, Doc. 24 (M.D. Fla. Oct. 31, 2014). This language accurately informs the potential opt-in plaintiffs of the conditions for joining the potential class. Further, with the recommendation to add the language mentioned above, the Court neutralizes any bias towards Plaintiff's position. Thus, the Court recommends no further changes to this section.

         4. Repeated Language

         Defendants argue that the language in the “TO” and “RE” sections of the Notice is repetitive of the language in other sections of the Notice. (Doc. 76 at 2). The ...


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