United States District Court, E.D. Louisiana
DARWIN ESCOBAR, et al., individually and on behalf of all others similarly situated
RAMELLI GROUP, L.L.C.
ORDER AND REASONS
TRICHE MILAZZO UNITED STATES DISTRICT JUDGE.
the Court is a Motion to Certify a Collective Action Pursuant
to Section 216(b) of the FLSA filed by Plaintiffs Darwin
Escobar, Rigoberto Garcia, Selvin A. Portillo, Gustavo A.
Reyes Ramirez, and Selvin Vasquez on behalf of themselves and
others similarly situated as well as a request to approve a
proposed notice to all FLSA collective class members (Doc.
31). For the following reasons, the Motion is
allege that they are former employees of Defendant Ramelli
Group, L.L.C. Plaintiffs filed this lawsuit in October of
2016 on their behalf and on the behalf of those similarly
situated. Plaintiffs seek collective action under the Fair
Labor Standards Act, alleging that Ramelli Group, L.L.C.
wrongfully failed to pay appropriate overtime wages.
ask the Court to conditionally certify a class to proceed as
a collective action. Plaintiffs seek certification of a class
All individuals who were employed by Ramelli Group, L.L.C.,
Ramelli Janitorial, Inc., Robert C. Ramelli, K.C. Staffing
L.L.C. and/or K.C. Staffing Solutions, L.L.C. as landscape
laborers paid by the hour during any workweek from October
26, 2013 through the time notice of this action is provided.
addition to certification, Plaintiffs request: (1) that the
Court order Defendants to provide Plaintiffs' counsel
within 14 days the names, last known mailing addresses, and
last known e-mail addresses of all potential collective
action plaintiffs; (2) approve the proposed and consent form;
(3) and authorize notice of this collective action to
potential members of the FLSA collective class.
Fair Labor Standards Act (FLSA) allows for a plaintiff to
bring a claim on his own behalf and on the behalf of others
who are “similarly situated.” A collective
action affords plaintiffs “the advantage of lower
individual costs to vindicate rights by the pooling of
resources.” Efficient resolution in one proceeding of
common issues of law and fact benefits the judicial
system. The FLSA does not define what it means for
employees to be “similarly situated.”
have utilized two methods for determining whether plaintiffs
are similarly situated, commonly referred to as the
Lusardi approach and the Shushan
approach. The Fifth Circuit has not determined
whether either approach is required; however, the Eastern
District of Louisiana has consistently applied the approach
first articulated in Lusardi v. Werox Corp., 118
F.R.D. 351 (D.N.J. 1987). This approach uses a two-step analysis.
First at the “notice stage, ” the court
determines whether notice should be given to potential
members of the collective action, “usually based only
on the pleadings and any affidavits.” Because the court
has little evidence at this stage, “this determination
is made using a fairly lenient standard, and typically
results in ‘conditional certification' of a
second approach is articulated in Shushan v. University
of Colorado, 132 F.R.D. 263 (D. Colo. 1990). Under this
approach, a court applies the same “similarly
situated” inquiry as applied in Rule 23 class
certification. Accordingly, a court looks to
“numerosity, ” “commonality, ”
“typicality, ” and “adequacy of
representation” to determine whether a class should be
Lusardi, although the standard for certification at
the notice stage is lenient, courts generally require
“at least substantial allegations that the FLSA
Collective Class Members were together the victims of a
single decision, policy, or plan infected by
discrimination.” “Courts determining whether
plaintiffs have submitted substantial allegations of a single
plan have looked to ‘whether potential plaintiffs were
identified . . . whether affidavits of potential plaintiffs
were submitted . . . and whether evidence of a widespread
discriminatory plan was submitted.'” If the Court
grants conditional certification, the case proceeds as a
collective action through discovery.
discovery, the defendant may move for
decertification. At that point, the court decides, with
the benefit of considerably more information, whether the
employees are similarly situated. At this time, the court
makes a factual inquiry into whether plaintiffs are similarly
situated. Lusardi applies a three-factor
test to determine whether plaintiffs and potential members of
the collective action are similarly situated. Courts
consider: “(1) the extent to which the employment
settings of employees are similar or disparate, (2) the
extent to which any defenses that an employer might have are
common or individuated; and (3) general fairness and
their Motion to Certify a Collective Action pursuant to
Section 216(b) of the FLSA and to Approve a Proposed Notice
to All FLSA collective class members, Plaintiffs request that
this Court (1) conditionally certify this collective action
to potential members of the Collective Class; (2) order
Defendants to provide Plaintiffs' counsel, within 14 days
of such order, contact information for each FLSA collective
class member, and dates of employment of each FLSA Collective
Class Member; (3) approve the proposed judicial notice and
consent form; and (4) allow for a 90 day opt-in period.
Defendant has not opposed this motion. The Court will
consider each of these arguments in turn.
Conditional Certification for Purposes of ...