United States District Court, M.D. Florida, Tampa Division
DAVID ROBERSON, Individually and on behalf of all other similarly situated individuals, Plaintiff,
RESTAURANT DELIVERY DEVELOPERS, LLC d/b/a DOORSTEP DELIVERY, ANDREW BROWN, THOMAS COLANGELO, WILLIAM MOORE, and DANIEL SINOR, Defendants.
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE
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.
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
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.
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.
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).
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)).
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).
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.
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).
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).
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).
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
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.
Disparate Factual and ...