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Moresi v. Resource Energy Ventures and Construction Co. LLC

United States District Court, W.D. Louisiana, Lafayette Division

June 18, 2019

Moresi
v.
Resource Energy Ventures And Construction Co LLC

          Michael J. Juneau, Judge

          ORDER ON MOTION TO DECERTIFY CONDITIONAL CERTIFICATION

          CAROL B. WHITEHURST, MAGISTRATE JUDGE

         Before 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.

         BACKGROUND

         The 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.

         LAW AND ANALYSIS

         I. Standards on Decertification

         The 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 certification.”).

         Thus, 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).

         The 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 certification stage.”).

         With 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).

         Despite 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 and irreconcilable”).

         The 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.

         II. ...


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