United States District Court, M.D. Florida, Fort Myers Division
GREGORY GIBBS and TATONYA HUGGINS, on behalf of himself and those similarly situated Plaintiffs,
MLK EXPRESS SERVICES, LLC, AMAZON LOGISTICS, INC., AMAZON.COM SERVICES, INC., MANIHONG M. PHANOUVONG, LILA
PHANOUVONG, AMAZON.COM, INC. and AG PLUS EXPRESS, LLC, Defendants.
OPINION AND ORDER
POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE.
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. (Doc. 40). Defendants MLK Express
Services, LLC, Amazon, Manihong Phanouvong, Lila Phanouvong,
and AG Plus Express, LLC oppose certification. 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
its talking robot cylinders, which answer timeless questions
like who sang “Come on Eileen, ” Amazon sells
products online. (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).
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).
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;
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 Amazon.com 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.
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).
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.
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.
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
The Two-Step Procedure for Collective Actions
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).
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
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.
The Local Sub-Class
contends that the R&R erred by limiting the Local
Sub-Class to the MLK Fort Myers facility. The Court
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
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.”).
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
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.
The Nationwide ...