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Roberson v. Restaurant Delivery Developers, LLC

United States District Court, M.D. Florida, Tampa Division

June 20, 2018

DAVID ROBERSON, Individually and on behalf of all other similarly situated individuals, Plaintiff,
v.
RESTAURANT DELIVERY DEVELOPERS, LLC d/b/a DOORSTEP DELIVERY, ANDREW BROWN, THOMAS COLANGELO, WILLIAM MOORE, and DANIEL SINOR, Defendants.

          ORDER

          VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE

         This matter comes before the Court upon consideration of Defendants Restaurant Delivery Developers, Andrew Brown, Thomas Colangelo, William Moore, and Daniel Sinor's Motion to Decertify Collective Action (Doc. # 80), filed on May 1, 2018. Plaintiff David Roberson filed his response in opposition on May 22, 2018. (Doc. # 85). For the reasons that follow, the Motion is granted.

         I. Background

         A detailed history of this case is not necessary at this time. Roberson initiated this Fair Labor Standards Act action on March 31, 2017. (Doc. # 1). On July 11, 2017, Roberson filed a motion for conditional certification, seeking to conditionally certify a nationwide FLSA collective action of Doorstep Delivery drivers. (Doc. # 25). Restaurant Delivery Developers opposed Roberson's motion for conditional certification, arguing that it is not the correct defendant for this action because it never held itself out as Doorstep Delivery and never hired Roberson or any other delivery driver. (Doc. # 43). The Court granted the motion and conditionally certified the collective action on September 18, 2017. (Doc. # 46). Because the question before the Court at the conditional certification stage was only whether a class of similarly situated Doorstep Delivery drivers exists and whether those drivers would be interested in opting in, the Court did not address whether Restaurant Delivery Developers really was Doorstep Delivery. (Id. at 7-8).

         With the Court's leave, Roberson filed a Second Amended Complaint on April 23, 2018, asserting an FLSA overtime claim (Count I) and an FLSA minimum wage claim (Count II) on behalf of the collective action class members, as well as an individual Florida state law minimum wage claim brought by Roberson only. (Doc. # 77). The Second Amended Complaint added the four individual founders of Restaurant Delivery Developers - Andrew Brown, Thomas Colangelo, William Moore, and Daniel Sinor - as Defendants.

         Now, after the close of class discovery, Defendants seek to decertify the collective action. They argue again that Defendants never hired or contracted with any delivery drivers and that, regardless, the opt-in Plaintiffs are not similarly situated. (Doc. # 80). Roberson has responded, (Doc. # 85), and the Motion is ripe for review.

         II. Legal Standard

         The FLSA expressly permits collective actions against employers accused of violating the FLSA's mandatory overtime provisions. See 29 U.S.C. § 216(b) (“An action . . . may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.”). Certification of an FLSA collective action is typically a two-stage process. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008)(“[W]e have sanctioned a two-stage procedure for district courts to effectively manage FLSA collective actions in the pretrial phase.”); see also Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001).

         “The focus at each stage is on whether the proposed group of plaintiffs contains individuals who are ‘similarly situated.'” Schumann on behalf of Tidwell v. Collier Anesthesia, P.A., No. 2:12-cv-347-FtM-29CM, 2017 WL 1361524, at *1 (M.D. Fla. Apr. 14, 2017). While the Eleventh Circuit has “refused to draw bright lines in defining similarly, ” it has observed that “as more legally significant differences appear amongst the opt-ins, the less likely it is that the group of employees is similarly situated.” Morgan, 551 F.3d at 1261 (citing Anderson v. Cagle's, 488 F.3d 945, 953 (11th Cir. 2007)).

         “The first step of whether a collective action should be certified is the notice stage, ” also known as the “conditional certification” stage. Morgan, 551 F.3d at 1260-61. “The purpose of this stage is to determine whether there exists a group of other similarly situated employees who should be notified of the action and provided the opportunity to join.” Schumann on behalf of Tidwell, 2017 WL 1361524, at *2. The required showing of “similarity” at this stage is “not particularly stringent, ” Morgan, 551 F.3d at 1261, and “is based primarily on pleadings and affidavits.” Anderson, 488 F.3d at 953. Once the case is conditionally certified, notice is provided to the proposed group of employees, who must affirmatively opt-in to join the suit. Schumann on behalf of Tidwell, 2017 WL 1361524, at *2 (citing Morgan, 551 F.3d at 1259; Anderson, 488 F.3d at 950).

         “The second stage is the ‘decertification' stage, so named because it is triggered by a defendant's motion to decertify the representative class ‘after discovery is largely complete and the matter is ready for trial.'” Allen v. Hartford Fire Ins. Co., No. 6:16-cv-1603-Orl-37KRS, 2017 WL 3701139, at *4-5 (M.D. Fla. Aug. 25, 2017)(quoting Hipp, 252 F.3d at 1218). At the decertification stage,

the court has much more information on which to base its decision, and [it] makes a factual determination on the similarly situated question. If the claimants are similarly situated, the district court allows the representative action to proceed to trial. If the claimants are not similarly situated, the district court decertifies the class, and the opt-in plaintiffs are dismissed without prejudice. The class representatives - i.e.[, ] the original plaintiffs - proceed to trial on their individual claims.

Hipp, 252 F.3d at 1218. The decertification stage is “less lenient” than the notice stage, and named plaintiffs “bear a heavier burden.” Morgan, 551 F.3d at 1261.

         At this stage, courts consider the following factors: “(1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendants that appear to be individual to each plaintiff; and (3) fairness and procedural considerations.” Id. Although the class members need not “‘hold identical positions, the similarities necessary to maintain a collective action under § 216(b) must extend beyond the mere facts of job duties and pay provisions' and encompass the defenses to some extent.” Morgan, 551 F.3d at 1261-62 (quoting Anderson, 488 F.3d at 953). Ultimately whether to decertify a collective action “rests largely within the district court's discretion.” Morgan, 551 F.3d at 1261 (quoting Anderson, 488 F.3d at 953).

         III. Analysis

         In their Motion, Defendants argue that Restaurant Delivery Developers was not the employer of any delivery drivers. (Doc. # 80 at 2). They present the affidavits of the four individual Defendants, all averring that Restaurant Delivery Developers was not a delivery company and never recruited, hired, or contracted with any delivery drivers. (Doc. # 80-1). Instead, Defendants describe Restaurant Delivery Developers as a consulting company, which was founded by the four individual Defendants. According to Defendants, Restaurant Delivery Developers merely helped establish local restaurant delivery companies that would use the Doorstep Delivery name - essentially franchises - in different geographic areas. (Id.). The restaurant delivery companies were located in ten different states: Florida, Tennessee, Texas, Maryland, North Carolina, New York, Indiana, Georgia, Colorado, and Massachusetts. (Doc. # 85 at 5; Doc. ## 24, 47-54, 57-60, 63).

         These restaurant delivery companies, of which there were a total of nineteen at one point, used delivery drivers who had signed independent contractor agreements with a third-party company. (Id.; Doc. # 80 at 4-5). If the delivery drivers were actually employees under the FLSA, Defendants assert that the delivery drivers were employees of that third-party company, Delivery Drivers Inc. (DDI), or the local restaurant delivery companies. (Doc. # 80 at 2-3). Defendants attach a copy of the independent contractor agreement between DDI and Roberson. (Doc. # 80-3).

         The Court need not address the issue of whether Defendants were truly employers under the FLSA at this juncture. Whether Defendants were the delivery drivers' employers is not the issue before the Court. The only question before the Court is whether the opt-in Plaintiffs are similarly situated to one another such that this action may proceed as a collective action.

         Perhaps realizing this, Defendants also argue that Roberson and the opt-in Plaintiffs are not similarly situated enough to maintain this collective action. (Doc. # 80 at 11- 18). There are 848 opt-in Plaintiffs, making for a total of 849 Plaintiffs. (Doc. # 85 at 2, 21). In determining whether plaintiffs are similarly situated, courts consider the following factors: “(1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendants that appear to be individual to each plaintiff; and (3) fairness and procedural considerations.” Morgan, 551 F.3d at 1261.

         A. Disparate Factual and ...


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