United States District Court, W.D. Louisiana, Lafayette Division
Michael J. Juneau, Judge
ORDER ON MOTION TO DECERTIFY CONDITIONAL
B. WHITEHURST, MAGISTRATE JUDGE
the Court is a Motion To Decertify Conditional Class
Certification, filed by Defendant Gulf Coast Services, Inc.
(“GSSI”) [Rec. Doc. 78] and Plaintiffs'
Opposition thereto [Rec. Doc. 92]. For the following reasons,
GSSI's Motion To Decertify will be denied.
Court has summarized the factual background of this matter in
a previous Order, R. 54, and a Report and
Recommendation, R. 66, and will not repeat the full
summary herein. On January 3, 2017, the Court granted
Plaintiffs' motion to conditionally certify their claims
of misclassification under § 216(b) of the Fair Labor
Standards Act (“FLSA”) against Resource Energy
Ventures and Construction Company LLC (“REVCO”)
and Gulf South Services Inc. (“GSSI”). The Court
conditionally certified the class and directed that notice be
sent to “welders, fitters and welder helpers” who
“worked for REVCO or were contracted to GSSI”
“at the BAE facility in Mobile, Alabama to build a
vessel” “from July 20, 2015 to December 31,
2015.” R. 55-1. The parties agree that eight
individuals have opted-in as members of the class. Defendants
now move to decertify the conditionally certified class.
Standards on Decertification
FLSA provides that an action to recover “unpaid
overtime compensation...may be maintained against any
employer... by any one or more employees for and [on] behalf
of himself or themselves and other employees similarly
situated.” 29 U.S.C. § 216(b). However, the FLSA
does not define “similarly situated” or otherwise
explain how the certification of such collective actions
should proceed. Likewise, the U.S. Court of Appeals for the
Fifth Circuit has not established a standard procedure for
district courts to follow. E.g., Roussell v. Brinker
Int'l, Inc., 441 Fed.Appx. 222, 226 (5th Cir. 2011)
(“Like several other circuits, this court has never set
a legal standard for collective-action
with respect to the applicable procedure, for reasons set
forth in the order conditionally certifying this matter as a
collective action, the Court will continue to apply the
“two-stage class certification, ” which was
developed in a line of cases starting with Lusardi v.
Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987).
Defendant's motion implicates the second stage of the
Lusardi procedure, which “is typically
precipitated by a motion for ‘decertification' by
the defendant usually filed after discovery is largely
complete and the matter is ready for trial.” Mooney
v. Aramco Servs., 54 F.3d 1207, 1214 (5th Cir. 1995),
overruled on other grounds by Desert Palace, Inc. v.
Costa, 539 U.S. 90 (2003).
Fifth Circuit has observed that “the
Lusardi...line of cases, by its nature, ...lends
itself to ad hoc analysis on a case-by-case
basis.” Id. at 1213. “At this second
stage, the burden is on [plaintiffs] to prove that the
individual class members are similarly situated.”
Proctor v. Allsups Convenience Stores, Inc., 250
F.R.D. 278, 280 (N.D. Tex. 2008). Furthermore, the second
stage is “more stringent” with respect to the
showing required of plaintiffs. Chapman v. LHC Grp.,
Inc., 126 F.Supp.3d 711, 721 (E.D. La. 2015); accord
Maynor v. Dow Chem. Co., 671 F.Supp.2d 902, 931 (S.D.
Tex. 2009) (“[T]he ‘similarly situated'
inquiry is more searching than it was at the conditional
respect to the substantive standard, as noted above, the
“FLSA does not define what it means for employees to be
‘similarly situated' such that collective
adjudication” of overtime claims is appropriate.
See Johnson v. Big Lots Stores, Inc., 561 F.Supp.2d
567, 573 (E.D. La. 2008). The Lusardi test for
whether employees are similarly situated such that a matter
can be collectively adjudicated considers: “(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 to overtime...claims are common
or individuated; and (3) general fairness and procedural
considerations.” See id. “These three
factors are not mutually exclusive, and there is considerable
overlap among them.” Id. at 574. “[T]he
more dissimilar plaintiffs are and the more individuated
[defendants'] defenses are, the greater doubts there are
about the fairness of a ruling on the merits-for either
side-that is reached on the basis of purportedly
representative evidence.” Id. Generally,
“FLSA class determination is appropriate when there is
‘a demonstrated similarity among the individual
situations...[and] some factual nexus which binds the named
plaintiffs and the potential class members together as
victims of a particular alleged [policy or practice].'
” Xavier v. Belfor USA Grp., Inc., 585
F.Supp.2d 873, 877-78 (E.D. La. 2008).
the aforesaid jurisprudence, GSSI contends that “[a]t
this [motion for decertification] stage, the court makes a
factual determination on numerosity, commonality, and
typicality under Rule 23.” R. 78-1, p. 3. A
few trial courts have employed the evidentiary requirement of
Shushan v. University of Colorado, 132 R.F.D. 263
(D. Colo. 1990), in which the issue of whether the plaintiffs
are “similarly situated” is determined by courts
looking at factors similar to those considered in a Federal
Rule of Civil Procedure 23(c) case. The vast majority of
courts, however, have concluded that Congress did not intend
the FLSA to incorporate all the requirements of Rule 23.
Defendant provides no support for its contention that a
Shushan Rule 23 analysis should apply in this motion
for decertification nor is the Court aware of any such
jurisprudence. GSSI is incorrect that the Rule 23
class-action type analysis applies in the decertification
step of a Lusardi procedure, which the Court has
followed in this case. Both the United States Supreme Court
and the Fifth Circuit have made statements implying that a
Rule 23- type analysis is incompatible with FLSA collective
actions. See Genesis Healthcare Corp. v. Symczyk,
569 U.S. 66, 74 (2013) (“Rule 23 actions are
fundamentally different from collective actions under the
FLSA”); Donovan v. Univ. of Tex. at El Paso,
643 F.2d 1201, 1206 (5th Cir. 1981) (“The FLSA
procedure, in effect, constitutes a congressionally developed
alternative to the [Rule 23] procedures”); Smith v.
Service Master Holding Corp., 2011 WL 4591088 (M.D. La.
Sept. 30, 2011) (noting the important difference between
opt-in and opt-out class actions) (citing Sandoz v.
Cingular Wireless LLC, 553 F.3d 913, 916 (5th Cir. 2008)
(same)). See also LaChapelle v. Owens-Illinois,
Inc., 513 F.2d 286, 288 (5th Cir. 1975) (stating that
Rule 23 and FLSA “class actions are mutually exclusive
Court rejects GSSI's position that the Court should apply
the factors under Rule 23 in this FLSA decertification
analysis. Accordingly, the Court's analysis under the
second stage of Lusardi follows.