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Garcia v. J&J, Inc.

United States District Court, S.D. Florida

July 30, 2019

JOSE GARCIA, LEDVIN ALARCON, and all others similarly situated under 219 U.S.C. § 216b, Plaintiffs,



         THIS 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. [21] (“Motion”), filed on May 7, 2019. Defendants J&J, Inc., Janet S. Field and John H. Field (collectively, “Defendants”) filed a response, ECF No. [27] (“Response”), to which Plaintiffs filed a reply, ECF No. [29] (“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.

         I. BACKGROUND

         Plaintiffs 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. [1]. In the Motion, Plaintiffs request conditional certification of a collective action and facilitation of notice to members of the putative class.


         The 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).

         In 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 discovery.


         With 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. 1995)).


         A. Evidence Employees Desire to Opt-In

         Plaintiffs 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 ...

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