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Piazza v. Associated Wholesale Grocers Inc.

United States District Court, E.D. Louisiana

April 25, 2019

MICHAEL PIAZZA ET AL.
v.
ASSOCIATED WHOLESALE GROCERS INC.

         SECTION: “H”

          ORDER AND REASONS

          JANE TRICHE MILAZZO UNITED STATES DISTRICT JUDGE

         Before the Court are Plaintiff's Second Motion for Conditional Certification (Doc. 76) and Plaintiff's Motion for Reconsideration (Doc. 75) of the Court's January 8, 2019 Order and Reasons granting Defendant's unopposed Motion to Dismiss Opt-in Plaintiffs. For the following reasons, the Motions are DENIED.

         BACKGROUND

         This is a lawsuit seeking allegedly unpaid wages under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. Plaintiff Michael Piazza worked for Defendant Associated Wholesale Grocers, Inc. (“AWG”) as a forklift operator and a loader at the company's distribution warehouse in Pearl River, Louisiana. The thrust of Piazza's claim is that AWG violated the FLSA by automatically deducting a 30-minute lunch break from employee time sheets even though AWG allegedly knew that the employees regularly chose to work through lunch breaks. Piazza alleges that this practice amounted to an unlawful policy that resulted in him and other AWG employees not being paid the overtime wages that they had earned.

         On March 28, 2018, Piazza moved to conditionally certify a class consisting of all laborers who worked for AWG beginning on October 7, 2014. On August 3, 2018, this Court denied Piazza's request on the ground that Piazza “fail[ed] to present any evidence that potential class members were the victims of a common, unlawful policy or practice” by Defendant AWG.[1] The Court noted that an “employer's use of an automatic deduction for lunch does not, by itself, violate the FLSA, ”[2] and that “[i]n light of Defendant's evidence of an existing policy for correcting the automatic deduction when employees work through lunch and examples of that policy being used in practice, Plaintiff must present some evidence that the potential class members are similarly situated with respect to why their time was not corrected.”[3]

         At the time the Court denied Plaintiff's first request for conditional class certification, more than two dozen people had joined the suit as opt-in plaintiffs. On August 17, 2018, Defendant moved to dismiss the opt-in plaintiffs from the suit in light of the Court's denial of Plaintiff's request for conditional class certification. Plaintiff never responded to Defendant's motion to dismiss the opt-ins. Accordingly, the Court granted Defendant's request as unopposed on January 2, 2019.

         On January 8, 2019, Plaintiff filed a Motion for Reconsideration of the Court's January 2, 2019 Order and Reasons that dismissed the opt-in plaintiffs from this suit. On the same day, Plaintiff filed a Second Motion for Conditional Certification. Defendant opposes both Motions. The Court will first address Plaintiff's Second Motion for Conditional Certification before turning to the Motion for Reconsideration.

         LEGAL STANDARD

         I. Second Motion for Conditional Certification

         The FLSA allows a plaintiff to bring a claim on his own behalf and on the behalf of others who are “similarly situated.”[4] To determine whether plaintiffs are similarly situated for conditional certification purposes, courts typically apply either the Lusardi approach or the Shushan approach.[5] The Fifth Circuit has not determined whether either approach is required.[6] The Eastern District of Louisiana, however, has consistently applied the approach first articulated in Lusardi v. Werox Corp.[7] Under the Lusardi approach, courts generally require “at least substantial allegations that the [potential class members] were together the victims of a single decision, policy, or plan” that is unlawful.”[8]

         II. Motion for Reconsideration

         A Motion for Reconsideration of an interlocutory order is governed by Federal Rule of Civil Procedure 54(b).[9] “Under Rule 54(b), ‘the trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law.'”[10]

         LAW ...


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