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Jeffrey Demauro, and Bora Pavlovic v. the Limo

January 3, 2011



This cause is before the Court pursuant to Plaintiffs' Motion to Conditionally Certify Collective Action and Facilitate Notice to Potential Class Members (Doc. # 13), which was filed on April 1, 2010. Defendants filed a response in opposition to the motion on July 7, 2010 (Doc. # 33), and Plaintiffs filed a reply memorandum (Doc. # 41) on July 23, 2010. Various supplements and declarations related to the class certification proceedings are also before the Court. For the reasons that follow, the Court denies Plaintiffs' motion for conditional class certification.

I. Factual Background

Plaintiffs Jeffrey Demauro and Bora Pavlovic are sedan drivers who transported Defendants' clients in the Tampa Bay area. (Doc. # 1 at ¶ 2). Defendants are The Limo, Inc. and Veolia Transportation Services, Inc. (Id. at ¶ 3-4). Plaintiffs allege that Defendants failed to compensate them for overtime and failed to pay at least the minimum wage. (Id. at ¶ 11).

On February 2, 2010, Plaintiffs filed a complaint against Defendants containing the following counts: recovery of overtime compensation pursuant to the Fair Labor Standards Act, 29 U.S.C. § 216(b) (count one), recovery of the Federal minimum wage also pursuant to the FLSA, (count two), and recovery of the Florida minimum wage under the Article X, Section 24 of the Florida Constitution (count three). (Doc. #1). On June 17, 2010, the Court entered an Order in which it declined to exercise jurisdiction over Plaintiffs' Florida Minimum Wage Claim, thus dismissing count three of the complaint. (Doc. # 27 at 12).

At this stage of the proceedings, Plaintiffs seek conditional certification of this case as a collective action consisting of all current and former "owner/operator" drivers employed by Defendants as independent contractors throughout the United States who were paid per trip and who were not paid full minimum wages or overtime compensation over the last three years.*fn1

Defendants oppose class certification at both the local and national level. Defendants argue that a national class is not appropriate because Plaintiffs offer only Tampa, Florida opt-in forms and declarations.*fn2 Defendants also contend that certification of a local class would be inappropriate because: "the determination of whether Plaintiffs are independent contractors or employees requires an individual inquiry into the 'economic realities' of each Plaintiff's working experience and Plaintiffs have not demonstrated that they are 'similarly situated' to their proposed class." (Doc. # 33 at 2). Furthermore, Defendants assert that Plaintiffs have not properly defined the proposed class and have submitted an improper notice and consent form.

As will be discussed below, it will not be necessary for the Court to analyze each of Defendants' contentions because the Court determines that conditional class certification is not warranted.

II. Legal Standard

The FLSA expressly permits collective actions against employers accused of violating the FLSA's mandatory overtime provisions. See 29 U.S.C. § 216(b) ("[a]n 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.") In prospective collective actions brought pursuant to Section 216(b), potential plaintiffs must affirmatively opt into the collective action. Id. ("No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.")

Pursuant to Section 216(b), certification of collective actions in FLSA cases is based on a theory of judicial economy by which "[t]he judicial system benefits by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged" activity. Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989).

In making collective action certification determinations under the FLSA, the Eleventh Circuit has suggested a twotiered approach:

The first determination is made at the so-called notice stage. At 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.

The second determination is typically precipitated by a motion for decertification by the defendant usually filed after discovery is largely complete and the matter is ready for trial. At this stage, the court has much more information on which to base its decision, ...

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