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Maldonado v. New Orleans Millworks, LLC

United States District Court, E.D. Louisiana

March 13, 2018

OSMAN MALDONADO
v.
NEW ORLEANS MILLWORKS, LLC, ET AL.

         SECTION: “J” (5)

          ORDER & REASONS

          CARL J. BARBIER, UNITED STATE BI S DISTRICT JUDGE.

         Before the Court is a Motion for Conditional Class Certification, Judicial Notice, and for Disclosure of the Names and Addresses of Potential Opt-In Plaintiffs (Rec. Doc. 39) filed by Plaintiffs, Osman Maldonado, Josue Nunez, Mauricio Hernandez, and Marvel Guerrero; an opposition thereto (Rec. Doc. 41) filed by Defendants, O&G Construction, LLC and Olan David Del Arca Sabat; another opposition (Rec. Doc. 42) filed by Defendants, New Orleans Metalworks, Inc. and David Waldheim; and Plaintiffs' reply (Rec. Doc. 53). Having considered the motion and legal memoranda, the record, and the applicable law, the Court finds that the motion should be GRANTED.

         FACTS AND PROCEDURAL BACKGROUND

         This is a collective action filed by Plaintiffs, Osman Maldonado, Josue Nunez, Mauricio Hernandez, and Marvel Guerrero, under the Fair Labor Standards Act of 1938 (“FLSA”).[1] Plaintiffs brought this suit on behalf of themselves and all others similarly situated to recover allegedly unpaid overtime wages for manual work they performed for Defendants, O&G Construction, LLC, Olan David Del Arca Sabat, New Orleans Metalworks, Inc, and David Waldheim. O&G Construction, LLC (“O&G”) is a commercial construction company that is owned and managed by Olan David Del Arca Sabat and specializes in providing manual labor for general contractors, including New Orleans Metalworks, Inc. (“NOMW”). NOMW, owned by David Waldheim, is a general contractor that provides construction services in the greater New Orleans area.[2]NOMW allegedly engaged O&G to provide labor for its jobsites. Plaintiffs allege that they were hired by O&G as laborers prior to March 2015 to perform work such as painting, sheet-rocking, and finishing.

         Initially, this lawsuit was brought by Plaintiff Osman Maldonado against New Orleans Millworks (“Millworks”) and its owner Scott Taranto. (Rec. Doc. 1.) By two subsequent amendments to his complaint, Plaintiff Maldonado added O&G and Olan David Del Arca Sabat and replaced Millworks and Scott Taranto with NOMW and David Waldheim as Defendants. (Rec. Docs. 4, 9.) On June 8, 2017, the Court granted in part and denied in part NOMW's Motion to Dismiss, holding that Plaintiff Maldonado had adequately alleged an individual FLSA overtime claim but had not sufficiently pleaded a FLSA collective action. (Rec. Doc. 32 at 7, 9.) The Court granted Plaintiff an additional twenty-one (21) days to file an amended complaint alleging a FLSA collective action. Id.at 10. On June 16, 2017, a third amended collective action complaint was filed by Osman Maldonado, Josue Nunez, Mauricio Hernandez, and Marvel Guerrero (collectively, “Plaintiffs”) on behalf of themselves and others similarly situated. (Rec. Doc 35.) On August 22, 2017, Plaintiffs filed the instant Motion for Conditional Class Certification, Judicial Notice, and for Disclosure of the Names and Addresses of Potential Opt-In Plaintiffs (Rec. Doc. 39.) Defendants opposed the motion (Rec. Docs. 41, 42), and Plaintiffs filed a reply (Rec. Doc. 53). The motion is now before the Court on the briefs and without oral argument.

         PARTIES' ARGUMENTS

         Plaintiffs seek to maintain their FLSA claim as a collective action pursuant to 29 U.S.C. § 216(b). As such, Plaintiffs move the Court to conditionally certify a collective action of employees limited to the following:

All individuals who worked or are working performing manual labor for O&G Construction, LLC, during the previous three years, and who are eligible for overtime pay pursuant to the FLSA, 29 U.S.C. § 207, and who did not receive full overtime compensation.

         (Rec. Doc. 39-1 at 5.)

         Plaintiffs argue that the allegations in their complaint as well as their attached sworn declarations and timesheets demonstrate clear violations of the FLSA that are not personal to Plaintiffs, but rather are part of Defendants' general policy not to pay their employees overtime. O&G foremen allegedly supervised Plaintiffs and would send the employees' timesheets to a NOMW supervisor. Plaintiffs allege that they and their co-workers were paid by check bearing the name O&G Construction, LLC, and would be paid an hourly rate regardless of the number of hours that they worked per week and that they often worked in excess of 40 hours per week. Plaintiffs argue that this information establishes that there is likely a group of similarly situated individuals entitled to receive notice of this lawsuit. Id. at 13-14.

         Defendants argue that Plaintiffs cannot demonstrate the existence of a class of similarly situated individuals. First, O&G opposes conditional class certification, arguing that Plaintiffs have failed to establish that they were the victims of a single decision, policy, or plan. Defendants also assert that the Plaintiffs' proposed class definition violates Federal Rule Civil Procedure 20(a)(2) regarding the joinder of defendants. Because NOMW and O&G are both named Defendants in the litigation, Defendants argue that the potential class must be comprised of employees who have worked for both NOMW and O&G, rather than limiting the class to current and former employees of O&G exclusively. (Rec. Doc. 41 at 2.) NOMW also filed an opposition to the motion, adopting and incorporating by reference O&G's arguments and further contending that conditional class certification is improper because Plaintiffs have not established their status as employees. (Rec. Doc. 42 at 1.)

         LEGAL STANDARD

         The FLSA “establishes the general rule that employees must receive overtime compensation at one and one-half times the regular rate for hours worked in excess of 40 hours during a seven-day workweek.” McGavock v. City of Water Valley, Miss., 452 F.3d 423, 424-25 (5th Cir. 2006) (citing 29 U.S.C. § 207). The FLSA affords workers a right of action for violations of this rule. 29 U.S.C. § 216(b). Such workers may sue individually or collectively on behalf of “themselves and other employees similarly situated.” Id. “District courts are provided with discretionary power to implement the collective action procedure through the sending of notice to potential plaintiffs.” Lima v. Int'l Catastrophe Sols., Inc., 493 F.Supp. 2d. 793, 797 (E.D. La. 2007). The notice must be “timely, accurate, and informative.” Id. ...


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