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Case v. Danos and Curole Marine Contractors, L.L.C.

United States District Court, E.D. Louisiana

May 4, 2015



CARL J. BARBIER, District Judge.

Before the Court are Plaintiffs Jason Case (Case) and Lisa Bragg (Bragg)'s Motions for Conditional Certification of an FLSA Collective Action and for an Order Permitting Court-Supervised Notice of this Action to Potential Opt-In Plaintiffs and Incorporated Briefs (Rec. Docs. 35, 36), Defendant Danos and Curole Marine Contractors, LLC (Danos)'s oppositions thereto (Rec. Docs. 37, 38), and Plaintiffs' replies. (Rec. Docs. 43, 45) Based on the motion and memoranda of the parties, the record, and the applicable law, the motions should be GRANTED for the reasons set forth more fully below.


This litigation comprises Plaintiffs' claims against Danos pursuant to the Fair Labor Standards Act (FLSA) regarding unpaid overtime wages. (Rec. Doc. 1, p. 6-7)[1] Plaintiffs allege that, following the B.P. oil spill, Danos contracted with B.P. to provide various employees, including Vessel Inspectors and Safety Technicians, to assist with the clean-up efforts. (Rec. Doc. 35-1, p. 5 & Rec. Doc. 36-1, p. 5) Plaintiffs Case and Bragg assert that they assisted in these efforts as a salaried and non-exempt Vessel Inspector and Safety Technician, respectively. Id. Both plaintiffs allege that Danos failed to pay them and other similarly situated individuals the proper overtime wages, as required by the FLSA. Id. Plaintiffs allege that these groups of workers, the Vessel Inspectors and Safety Technicians, were working far in excess of forty hours per week, and that Danos unlawfully deprived them of proper overtime compensation. Id. As a result, Plaintiffs seek unpaid back wages, an additional equal amount as liquidated damages, declaratory relief, and reasonable attorney's fees and costs. (Rec. Doc. 1, p. 2)

Case filed his Complaint on behalf of himself and other Vessel Inspector employees and former employees similarly situated on December 8, 2014. (Rec. Doc. 1, p.1) Thereafter, Bragg filed her Complaint on behalf of herself and other Safety Technician employees and former employees similarly situated on December 30, 2014. (No. 14-02976, Rec. Doc. 1, p.1) The Court consolidated the matters on January 13, 2015. (Rec. Doc. 9, p. 1) Both Plaintiffs subsequently filed Motions to Certify Class, which this Court denied as premature on February 25, 2015. (Rec. Doc. 26) Plaintiffs then filed the instant motions seeking conditional certification of the collective actions and authorization, under court supervision, for notice to all similarly situated employees who were employed by Danos. (Rec. Doc. 35, p. 1-2; Rec. Doc. 36, p. 1-2) Specifically, Plaintiffs request Court authorization for: (1) Defendant to provide Plaintiffs with a list of all similarly situated hourly paid Vessel Inspectors and Safety Technicians within the last three years; (2) to send the proposed "Notification" letter to all similarly situated employees nationwide; and (3) to send the proposed "Notice of Consent to Join" form, which similarly situated employees can complete, sign, and file with the Court. (Rec. Doc. 35-1, p. 19; Rec. Doc. 36-1, p. 19)


Plaintiffs ask the Court to conditionally certify this collective action and authorize, under court supervision, notice to all similarly situated employees whom Danos employed. (Rec. Docs. 35, 36) Specifically, the putative class, to which plaintiffs seek to facilitate notice, consists of individuals who:

(a) Were day-rate [or salaried] Vessel Inspector [or Safety Technician] employees at any time during the last three years; and
(b) Were subjected to Defendant's illegal pay practice of failing to pay full and proper time and one half overtime compensation for all hours worked in excess of forty in a workweek.[2]

In their motions, Plaintiffs largely make the same arguments with regards to their respective classes. They allege that there are common questions of law and fact that predominate over any questions that affect each employee individually. Plaintiffs therefore seek the Court's authorization to facilitate notice to each of the employees who worked as Safety Technicians or Vessel Inspectors for Danos within the last three years.

Plaintiffs argue that FLSA, 29 U.S.C. ยง 216(b), collective actions operate differently from a typical class action suit under Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs argue that under Section 216(b), an employee belonging to a similarly situated class of plaintiffs must "opt-in" to the class action by filing written consent with the Court in order to be bound by the outcome of the case. Furthermore, they assert that trial courts have discretionary power to manage the process of joining multiple parties in an orderly manner, and the court's involvement in this notice process is inevitable in cases where a statute requires the written consent of a plaintiff to join an action. Plaintiffs further argue that this Court has previously endorsed a two-tiered approach to certification of an opt-in class pursuant to Section 216(b), whereby the court makes an initial determination, based upon the pleadings and any declarations, of whether notice of the action should be given to potential class members. Because of the minimal level of evidence at this stage, the determination typically results in a conditional certification, and putative members are provided notice and opportunity to join the action. Thereafter, the case will then proceed as a collective action through discovery. Here, Plaintiffs assert that the Declarations and allegations within the Complaints have allowed each Plaintiff to exceed their burden to facilitate notice.

Further, Plaintiffs allege that this is not a case of first impression, and many courts have conditionally certified classes where the allegations were nearly identical those of the instant case. In addition, Plaintiffs stress that the merits of the claims are not considered at this stage when determining whether or not to grant notice. Similarly, Plaintiffs argue that courts do not consider discovery during the conditional certification stage, because it is unnecessary for the similarly situated determination.

Next, Plaintiffs argue that their proposed judicial notice is "timely, accurate, and informative" and should be adopted by the Court. Additionally, they request that they be able to email the class notice to all potential members within the defined classes in addition to mailing the same via first-class mail. Furthermore, Plaintiffs assert that a reminder notice is appropriate, which should be sent at the half-way point in the Notice Period. Plaintiffs argue that notice within the three-year statute of limitations is appropriate in this case because the FLSA allows plaintiffs to collect damages within a three-year statute of limitations if they can show that the defendant's violation of the FLSA was "willful." The determination of whether Danos's alleged violations of the FLSA were willful is an issue that deals with the merits of the case, which the Court should not consider until after discovery. Finally, Plaintiffs argue that the Court should order Defendants to provide contact information for the class members in order to carry out notice, including a list of all putative class members' names, addresses, phone numbers, email addresses, and the last four digits of class members' social security numbers.

In opposition, Defendant argues that the Court should deny Plaintiffs' motions for conditional certification, because Plaintiffs have failed to sustain their burden of proving that they are similarly situated to other members of the purported class. (Rec. Docs. 37, 38) Defendant argues that the only similarity Plaintiffs have shown is that each of the proposed classes comprises employees with the same title who did not receive overtime compensation, which is insufficient to support conditional certification. Defendant insists that an employer's decision to classify a group of employees as exempt is insufficient to show that those employees are similarly situated. Rather, determining whether employees are exempt under the FLSA is a fact-intensive inquiry. Here, the differences among those of the purported class predominate over the similarities. Members of the purported ...

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