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Escobar v. Ramelli Group, L.L.C.

United States District Court, E.D. Louisiana

July 17, 2017

DARWIN ESCOBAR, et al., individually and on behalf of all others similarly situated
v.
RAMELLI GROUP, L.L.C.

         SECTION: “H” (2)

          ORDER AND REASONS

          JANE TRICHE MILAZZO UNITED STATES DISTRICT JUDGE.

         Before 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 GRANTED.

         BACKGROUND

         Plaintiffs 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.

         Plaintiffs ask the Court to conditionally certify a class to proceed as a collective action. Plaintiffs seek certification of a class including:

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.

         In 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.

         LEGAL STANDARD

         The 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.”[1] A collective action affords plaintiffs “the advantage of lower individual costs to vindicate rights by the pooling of resources.”[2] Efficient resolution in one proceeding of common issues of law and fact benefits the judicial system.[3] The FLSA does not define what it means for employees to be “similarly situated.”

         Courts have utilized two methods for determining whether plaintiffs are similarly situated, commonly referred to as the Lusardi approach and the Shushan approach.[4] 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).[5] 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.”[6] 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 representative class.”[7]

         The 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 certified.

         Under 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.”[8] “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.'”[9] If the Court grants conditional certification, the case proceeds as a collective action through discovery.[10]

         After discovery, the defendant may move for decertification.[11] At that point, the court decides, with the benefit of considerably more information, whether the employees are similarly situated.[12] At this time, the court makes a factual inquiry into whether plaintiffs are similarly situated.[13] 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 procedural considerations.”[14]

         LAW AND ANALYSIS

         In 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.

         I. Conditional Certification for Purposes of ...


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