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Gibbs v. MLK Express Services, LLC

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

June 26, 2019

GREGORY GIBBS and TATONYA HUGGINS, on behalf of himself and those similarly situated Plaintiffs,

          OPINION AND ORDER[1]


         Before the Court is United States Magistrate Judge Mac R. McCoy's Report and Recommendation (“R&R”) (Doc. 129). This is a Fair Labor Standards Act (“FLSA”) putative collective action. (Doc. 35). Plaintiffs Gregory Gibbs and Tatonya Huggins move to conditionally certify two classes of delivery driver employees.[2] (Doc. 40). Defendants MLK Express Services, LLC, Amazon, Manihong Phanouvong, Lila Phanouvong, and AG Plus Express, LLC oppose certification.[3] Judge McCoy recommends granting conditional certification to a class of local delivery driver employees (the “Local Sub-Class”) on a limited basis. (Doc. 129 at 8-10). And Judge McCoy recommends denying conditional certification to a nationwide class of driver employees (the “Nationwide Class”). (Doc. 129 at 10-27). For these reasons, the Court agrees.


         Alongside its talking robot cylinders, which answer timeless questions like who sang “Come on Eileen, ” Amazon sells products online.[4] (Doc. 40 at 3). After a sale comes shipping. (Doc. 40 at 3). But the Court is not concerned with one- or two-day shipping; rather, this case pertains to the companies that Amazon contracts with to deliver its products. (Doc. 40 at 4). At issue are “final mile” carriers that deliver Amazon packages locally across the country. (Doc. 40 at 4). Those companies are called delivery service providers (“DSPs”). (Doc. 40 at 6 & n.8). Two DSPs, MLK and AG Plus, are in Florida. (Doc. 40 at 4). MLK and AG Plus hire individuals called delivery associates (“DAs”) to deliver the packages. (Doc. 40 at 5). MLK operates in Fort Myers, Sarasota, Orlando, Cape Coral, and the surrounding areas. (Docs. 40 at 4; 85 at 2).

         Gibbs and Huggins were DAs for MLK in Fort Myers. (Docs. 40 at 5; 40-9 at 2-3; 40-13 at 2-3). Allegedly, Gibbs-along with thousands of current and former DAs around the country-were “directly and jointly employed” by Amazon and local DSPs. (Doc. 40 at 5). According to the four-count complaint, the Defendants jointly failed to pay minimum and overtime wages in violation of the FLSA. (Doc. 35 at 22-25). As a result, DAs worked over forty hours each week without time-and-a-half wages to account for the extra hours. (Doc. 35 at 17). Absent consideration of the hours worked, these DAs earned a day rate per workday, along with pay for delivered packages after completing a route. (Doc. 35 at 17). Depending on the day, MLK paid Gibbs $100 to $150 per day. (Doc. 35 at 17). MLK offered “rescue pay” of $1 on each package delivered for another DA after completing a daily route. (Doc. 35 at 17).

         Every day before beginning deliveries, MLK DAs had to unload Amazon trucks. (Doc. 35 at 17). This typically took two hours, but DAs were not paid for the work. (Doc. 35 at 17). Gibbs usually worked between forty-two and sixty-five hours a week; Huggins worked similar hours. (Doc. 35 at 17-18). But during the holidays, Huggins worked up to 100 hours per week. (Doc. 35 at 18). Seventeen other DAs who worked for DSPs in five states worked similar hours and opted into this case. (Docs. 7; 8; 15; 16; 22; 25; 56; 58; 75; 77; 81; 98; 100; 103; 109; 126; 130). Of the named and opt-in plaintiffs, eleven have submitted declarations describing their experience. (Docs. 40-7; 40-8; 40-9; 40-10; 40-11; 40-12; 40-13; 40-14; 83-3; 83-4; 83-5).

         Gibbs seeks to conditionally certify and send a notice to two classes of similarly situated individuals. (Doc. 40 at 1-2). The Nationwide Class definition follows:

All Amazon local delivery drivers or driver associates who were solely paid a purported “day rate” and who worked for any company that contracted with to provide local delivery services at any location within the United States, within the three year period . . . .

(Doc. 40 at 1). The Local Sub-Class is defined below:

All local delivery drivers or driver associates, paid by [MLK, AG Plus, and the Phanouvongs], who were solely paid a purported “day rate” within the three year period . . . .

(Doc. 40 at 1-2). In the R&R, Judge McCoy considers the Motion to Conditionally Certify (Doc. 40), along with various responses, replies, sur-replies, and even a sur-sur-reply. (Docs. 62; 65; 84; 85; 91; 93; 99). (Doc. 129 at 1-2). All parties objected or responded in some form, and this matter is ripe for review.


         After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify the magistrate judge's report and recommendation. See28 U.S.C. § 636(b)(1); see also Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982). Absent specific objections, there is no requirement that a district judge review factual findings de novo, Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993), and the court may accept, reject, or modify, in whole or in part, the findings and recommendations, 28 U.S.C. § 636(b)(1). If there are timely objections, however, the district court must review those specific objections de novo. See28 U.S.C. § 636(b)(1); see also Ekokotu v. Fed. Express Corp., 523 Fed.Appx. 629, 631 (11th Cir. 2013). Either way, the district judge reviews legal conclusions de novo, even without objection. See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994).


         After careful consideration and an independent review of the file, the Court accepts and adopts in part the R&R (Doc. 129) as explained. The Court does not adopt Section III.C.3. (Doc. 129 at 28-32). As Judge McCoy notes, that section is contingent on whether the Court disagrees with the recommendation to deny conditional certification of the Nationwide Class. (Doc. 129 at 28). But it does not. And a ruling on the personal jurisdiction issue discussed in Section III.C.3. is unnecessary.

         Turning to the parties' objections, Amazon's requires little discussion. Amazon only objects to the contingent question, so there is no need to reach the issue-as Amazon concedes. (Doc. 136 at 5). Gibbs makes more consequential objections. The Court takes each in turn.

         Employees may bring collective actions against employers for FLSA violations. 29 U.S.C. § 216(b). A key feature of FLSA collective actions is that employees wishing to join the suit must affirmatively opt-in. Hipp v. Liberty Nat'l Life Ins., 252 F.3d 1208, 1216-17 (11th Cir. 2001). To maintain a collective action, the plaintiffs must also show they are “similarly situated” to other employees. Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996). The decision to conditionally certify a class “remains soundly within the discretion of the district court.” Hipp, 252 F.3d at 1219. Of course, a court's discretion is not unbridled. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008). Rather, the court “should satisfy itself” that other employees (1) “desire to opt-in” and (2) “are similarly situated with respect to their job requirements and with regard to their pay provisions.” Dybach v. State of Fla. Dep't of Corr., 942 F.2d 1562, 1567-68 (11th Cir. 1991) (internal quotation marks omitted).

         A. The Two-Step Procedure for Collective Actions

         Preliminarily, it is necessary to address Gibbs' general objection to the R&R for failing to follow the two-step process generally applied in FLSA collective actions. (Doc. 144 at 4). As Amazon argues, this objection lacks merit because the R&R applied the approach. (Doc. 158 at 4-8).

         “Within the Eleventh Circuit, district courts are encouraged, but not required, to adopt a two-tiered approach to certification of classes in an FLSA case.” Thomas v. Waste Pro USA, Inc., 360 F.Supp.3d 1313, 1319 (M.D. Fla. 2019). At the first step, sometimes called the notice stage, courts decide conditional certification based mainly on the pleadings, along with any affidavits and declarations offered by the parties. Id.A motion for decertification begins the second stage, which typically occurs after discovery. Anderson v. Cagle's, Inc., 488 F.3d 945, 953 (11th Cir. 2007). But courts within the Eleventh Circuit are not bound by a rigid application of the two-stage certification process. E.g., Mickles v. Country Club Inc., 887 F.3d 1270, 1276-77 (11th Cir. 2018) (“[N]othing in our circuit precedent requires district courts to use this [two-tier] approach.” (emphasis in original)); Morgan, 551 F.3d at 1260 (“While not requiring a rigid process for determining similarity, we have sanctioned a two-stage procedure for district courts to effectively manage FLSA collective actions.”).

         The case is at the notice stage. And the R&R followed the Eleventh Circuit's recommended procedure. (Doc. 129 at 6-8 (describing the two-stage standard)). As Gibbs argues, however, the R&R relied on several factors usually left for the decertification stage. (Doc. 144 at 25-32). But that does not signify the R&R abandoned the certification two-step. And as described below, consideration of those factors is proper at the notice stage in this case. Thus, the Court overrules Gibbs' objection for failing to follow the two-stage procedure and adopts Section II.A.

         B. The Local Sub-Class

         Gibbs contends that the R&R erred by limiting the Local Sub-Class to the MLK Fort Myers facility. The Court disagrees.

         According to Gibbs, the R&R disregarded evidence that Amazon employed DAs through MLK and AG Plus. (Doc. 144 at 32). Gibbs points to four pieces of evidence: (1) two declarations of MLK DAs who stated their hiring paperwork went through AG Plus (Docs. 40-8 at 3; 40-9 at 3); (2) Manihong hired Gibbs and worked out of MLK's Sarasota location (Doc. 40-9 at 3); (3) a DA complained to Manihong about overtime pay (Doc. 40-14 at 6-7); and (4) the unsupported assertion that MLK pays Fort Myers DAs from Orlando. (Doc. 144 at 32). So, as Gibbs concludes, he met his burden to show MLK and AG Plus DAs at all locations are similarly situated through Manihong's knowledge of FLSA violations and failure to rectify them. (Doc. 144 at 32). Also, Gibbs faults the R&R for finding the Phanouvongs do not own or operate AG Plus as well as MLK and AG Plus are unrelated. (Doc. 144 at 32-33).

         None of the objections cast any doubt on the R&R's findings. Gibbs failed to show similarly situated DAs from other locations desired to join the action. (Doc. 129 at 9). Although some declarations cursorily mention that MLK's other locations “handle” Amazon packages, they do not mention any DA duties outside Fort Myers. (Docs. 40-7; 40-8; 40-9; 40-12; 40-13; 40-14; 109-1). While Gibbs declared Manihong works out of Sarasota, he made no statements about DAs at that location or their duties. (Doc. 40-9 at 3). Likewise, declarations stating that AG Plus processed new hire paperwork for MLK cannot demonstrate its DAs were similarly situated. (Doc. 40-8; 40-9). The R&R cited several Middle District cases when courts limited FLSA collective actions to certain locations. But Gibbs never addresses those cases. This is telling. Consistent with precedent, the R&R properly limited the Local Sub-Class to DAs in Fort Myers because that was the only facility with any evidence offered. See, e.g., Monserrate v. Hartford Fire Ins., No. 6:14-cv-149-Orl-37GJK, 2015 WL 4068388, at *3 (M.D. Fla. July 2, 2015) (“[D]istrict courts have the discretion to conditionally certify an appropriately localized class.”).

         Finally, Gibbs objects for the failure to credit an opt-in form of an AG Plus driver in Orlando (Doc. 109-1). (Doc. 144 at 33). Leaving any overlapping ownership of MLK and AG Plus aside, the R&R considered the opt-in form. (Doc. 129 at 4, 12). Yet one opt-in form, with a conclusory, cut-and-paste statement-“I am similarly situated”-does not show DAs in Orlando are similarly situated and desire to opt-in. See, e.g., Benitez-Fajardo v. Seafood on the Table, Inc., No. 13-22237-CIV-KING, 2013 WL 12124621, at *2, *5 & n.7 (S.D. Fla. Nov. 19, 2013); Parrilla v. Allcom Constr. & Installation Servs., LLC, No. 6:08-cv-1967-Orl-31GJK, 2009 WL 1456442, at *2 & n.2 (M.D. Fla. May 22, 2009). Moreover-standing alone-it is insufficient to conditionally certify a class against AG Plus. See, e.g., Rappaport v. Embarq Mgmt. Co., No. 6:07-cv-468-Orl-19DAB, 2007 WL 4482581, at *4 (M.D. Fla. Dec. 18, 2007) (“Indeed, federal courts across the Middle and Southern Districts of Florida have routinely denied requests for conditional certification where, as here, the plaintiffs attempt to certify a broad class based only [on] the conclusory allegations of few employees.”). So the R&R appropriately limited the Local Sub-Class to DAs for MLK. (Doc. 129 at 9, 41 (limiting the class to “MLK drivers that work in Fort Myers”)).

         Thus, the Court overrules Gibbs' objections, approves Section II.B., and incorporates it into this Order. The Local Class is conditionally certified as limited in the R&R to MLK's Fort Myers location.

         B. The Nationwide ...

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