United States District Court, S.D. Florida
JOSE GARCIA, LEDVIN ALARCON, and all others similarly situated under 219 U.S.C. § 216b, Plaintiffs,
J&J, INC., d/b/a EAGLE PAINTING, JANET S. FIELD and JOHN H. FIELD, Defendants.
ORDER ON MOTION FOR CONDITIONAL
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court on Plaintiffs Jose Garcia
and Ledvin Alarcon's (together, “Plaintiffs”)
Motion for Conditional Certification and Facilitation of
Court-Authorized Notice, ECF No.  (“Motion”),
filed on May 7, 2019. Defendants J&J, Inc., Janet S.
Field and John H. Field (collectively,
“Defendants”) filed a response, ECF No. 
(“Response”), to which Plaintiffs filed a reply,
ECF No.  (“Reply”). The Court has carefully
reviewed the Motion, all supporting and opposing filings, the
record in this case and the applicable law, and is otherwise
fully advised. For the reasons that follow, the Court grants
in part Plaintiffs' Motion.
filed this action, on behalf of themselves and all others
similarly situated, alleging that Defendants failed to
provide overtime compensation in violation of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 216(b).
Plaintiffs were employed by the Defendants as painters -
Plaintiff Garcia from 2012 until November 2018 and Plaintiff
Alarcon from 2005 until November 2018 -- and were deprived of
overtime compensation in accordance with the FLSA on more
than one occasion. Ultimately, Plaintiffs seek compensation
for unpaid wages and overtime, liquidated damages,
attorneys' fees and costs, and all recoverable interest.
See generally, ECF No. . In the Motion,
Plaintiffs request conditional certification of a collective
action and facilitation of notice to members of the putative
FLSA permits a plaintiff to bring a collective action on
behalf of similarly-situated persons subject to the
requirement that prospective plaintiffs file a written
consent in the court where the action is brought.
See 29 U.S.C. § 216(b); Hipp v. Liberty
Nat'l Life Ins. Co., 252 F.3d 1208, 1216 (11th Cir.
2001). In the interest of judicial economy, district courts
have discretionary power to authorize the sending of notice
to potential class members. Hoffmann-La Roche Inc. v.
Sperling, 493 U.S. 165, 171, 110 S.Ct. 482, 107 L.Ed.2d
480 (1989). But notice should only be authorized in
appropriate cases. Haynes v. Singer Co., 696 F.2d
884, 886 (11th Cir. 1983).
order to grant conditional certification of a collective
action, the Court must, at a minimum, satisfy itself that
there are other employees who (1) are similarly situated with
regard to their job requirements and pay provisions, and who
(2) desire to opt-in to the case. Dybach v. Fla.
Dep't of Corrs., 942 F.2d 1562, 1567-68 (11th Cir.
1991). With respect to the first requirement, the plaintiff
bears the burden of proving that he and the class he seeks to
represent are similarly situated. Grayson v. K Mart
Corp., 79 F.3d 1086, 1096 (11th Cir. 1996). To evaluate
whether a plaintiff has demonstrated the existence of a
similarly-situated class, courts in the Eleventh Circuit
utilize a two-tiered procedure that recognizes distinct
burdens at different stages of the litigation process.
Cameron-Grant v. Maxim Healthcare Servs., 347 F.3d
1240, 1243 (11th Cir. 2003) (citing Hipp, 252 F.3d
at 1218 and collecting cases). The first tier is referred to
as the notice stage. Id. at 1243 n.2 (quoting
Hipp, 252 F.3d at 1218). In pertinent part,
[a]t the notice stage, the district court makes a
decision-usually based only on the pleadings and any
affidavits which have been submitted-whether notice of the
action should be given to potential class members.
Because the court has minimal evidence, this determination is
made using a fairly lenient standard and typically results in
conditional certification of a representative class. If the
district court conditionally certifies the class, putative
class members are given notice and the opportunity to opt-in.
The action proceeds as a representative action throughout
respect to the second requirement, a plaintiff must show that
there are employees who would opt-in if given notice.
Mackenzie v. Kindred Hosps. E., L.L.C., 276
F.Supp.2d 1211, 1220 (M.D. Fla. 2003) (“[A] showing
that others desire to opt-in must be made before notice is
authorized.”) (citations omitted). Based on this
showing, a “district court should satisfy itself that
there are other employees of the department-employer who
desire to ‘opt-in' . . . .” Dybach,
942 F.2d at 1567. The plaintiff also bears the burden of
producing evidence demonstrating aggrieved individuals exist
within the proposed class. Haynes, 696 F.2d at 888
(holding that the district court properly declined to
authorize notice to a prospective class, where the only
evidence presented was counsel's assertions that FLSA
violations were widespread and that additional plaintiffs
would come from other stores). If the plaintiff does not
satisfy his burden, the Court should decline to certify a
collective action to “avoid the ‘stirring up'
of litigation through unwarranted solicitation.”
White v. Osmose, Inc., 204 F.Supp.2d 1309, 1318
(M.D. Ala. 2002) (quoting Brooks v. BellSouth
Telecomms., Inc., 164 F.R.D. 561, 567 (N.D. Ala.
Evidence Employees Desire to Opt-In
must first show a reasonable basis for the existence of other
potential opt-in plaintiffs. “The existence of just one
other co-worker who desires to join in is sufficient to raise
the plaintiff's contention beyond one of pure speculation
. . . . Courts in this district have conditionally certified
classes with as few as two affidavits from potential
plaintiffs.” Rojas v. Garda CL Se., Inc., 297
F.R.D. 669, 677 (S.D. Fla. 2013). Defendants argue that
Plaintiffs fail to make such a showing because no other
individual has filed a notice of consent to opt-in or an