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holding that "a live controversy remain[ed] pending" because "there [was] no basis for [the court] to conclude that the offer of judgment [was] definitively for more than the Plaintiff could recover at trial"
Summary of this case from Moreira v. Sherwood Landscaping Inc.Opinion
Case No. 04-21861-CIV-GOLD/TURNOFF.
May 25, 2005
ORDER ON DEFENDANT'S MOTION TO DISMISS AND PLAINTIFF'S OMNIBUS MOTION FOR CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION
THIS CAUSE is before the Court upon Defendant's Motion to Dismiss for flack of Subject Matter Jurisdiction [DE 15], filed January 7, 2005, and Plaintiff's Omnibus Motion for Conditional Certification of Collective Action [DE 14], filed December 22, 2004. Both parties filed opposition briefs [DE 16, 22] and reply briefs [DE 20, 23]. Oral argument was held on March 4, 2005. Upon a review of the parties' arguments and relevant case law and statutes, I conclude that Defendant's Motion should be denied and Plaintiff's Motion should be granted in part and denied in part.
Facts
Plaintiff Richard Reyes ("Reyes" or "Plaintiff") was employed by Defendant Carnival Corporation ("Carnival" or "Defendant") for approximately eighteen weeks, from April 8, 2002 to August 16, 2002, as a Personal Vacation Planner ("PVP"). PVPs promote cruises and obtain bookings from consumers. Reyes alleges that he did not receive any overtime pay while employed as a PVP, nor did any of his fellow PVPs, despite the fact that they frequently worked over sixty hours a week. Accordingly, Plaintiff's complaint seeks unpaid overtime compensation under the Fair Labor Standards Act of 1938, 29 U.S.C. § 201, et seq. ("FLSA"). Plaintiff seeks relief on behalf of himself and on behalf of a class of similarly situated PVPs.
Defendant has filed a motion to dismiss for lack of subject-matter jurisdiction. Plaintiff has filed an omnibus motion seeking to conditionally certify this case as a collective action, to compel production by Defendant of a complete list of employees of a defined class and their contact information, and to authorize Plaintiff's counsel to mail a court-approved notice to all such persons about their right to opt into this collective action. I will address Defendant's motion first and Plaintiff's motion second.
I. SUBJECT-MATTER JURISDICTION Standard of Review
Under Federal Rule of Civil Procedure 12(b)(1), the "plaintiff bears the burden of establishing that the court has jurisdiction." Rosner v. United States, 231 F. Supp. 2d 1202, 1205 (S.D. Fla. 2002) (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507 (5th Cir. 1980)). The Eleventh Circuit has stated that "because a federal court is powerless to act beyond its statutory grant of subject matter jurisdiction, a court must zealously insure that jurisdiction exists over a case." Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001) (citations omitted).
All Fifth Circuit decisions prior to October 1, 1981 are binding precedent on the Eleventh Circuit. See Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).
Motions to dismiss under Rule 12(b)(1) fall into two categories: "facial" or "factual attacks." Morrison v. Amway Corp., 323 F.3d 920, 925 n. 5 (11th Cir. 2003) (citation omitted). Facial attacks are based on the allegations in the complaint, and the court takes these allegations as true in deciding whether to grant the motion. Id. Factual attacks rely on evidence outside the pleadings. Id. In the case before the Court, Defendant has asserted a lack of subject matter jurisdiction on the basis of facts outside of pleadings, making this jurisdictional attack a factual one. Id.
Analysis
Carnival has moved to dismiss the complaint for lack of subject matter jurisdiction on the basis that an offer of judgment has been made to the Plaintiff for more than complete relief which renders the case moot. On January 4, 2005, Carnival served on Plaintiff an offer of judgment under Federal Rule of Civil Procedure 68, offering Plaintiff $4,275.00, plus interest, costs, and reasonable attorneys' fees to be determined by the Court. Carnival contends that this offer of judgment offers Plaintiff more than he could recover if her were to prevail at trial, based upon Plaintiff's own Rule 26 damages computation of $2,700. See Plaintiff's Initial Disclosures Pursuant to Federal Rule of Civil Procedure 26(a). Carnival argues that even though Plaintiff has not accepted its offer of judgment, the offer nevertheless renders moot any case or controversy, depriving the Court of subject matter jurisdiction.Plaintiff argues in opposition that Plaintiff has not accepted the offer of judgment, that the offer of judgment does not provide full relief to him, and that because other plaintiffs have opted in to this suit since the offer of the judgment was made, the offer of judgment does not address their claims which remain live and pending. Plaintiff argues that the offer of judgment does not offer complete relief because it is based on the estimates in Plaintiff's initial Rule 26(a) disclosures, which are made only based upon the information then reasonably available, prior to the completion of discovery and without access to Carnival's complete wage and hour records concerning the Plaintiff that would allow for a more accurate estimation of his damages. Plaintiff also argues in opposition that, as a matter of policy, Carnival should not be allowed to frustrate the purpose of the FLSA's collective action provision by making a hasty offer of judgment to the named plaintiff before damages can be determined with any degree of certainty.
Rule 68 governs offers of judgment. That Rule states:
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.
Fed.R.Civ.Proc. 68. Because a case becomes moot when the parties lack a legally cognizable interest in the outcome of the litigation, see City of Erie v. Pap's A.M., 529 U.S. 277 (2000), at least one court has dismissed a complaint as moot as the result of an offer of judgment made under Rule 68 for the full damage amount. See Mackenzie v. Kindred Hospitals East, L.L.C., 276 F. Supp. 2d 1211 (M.D. Fla. 2003) (dismissing plaintiff's FLSA claims as moot after the employer made an offer of judgment). In Mackenzie, the plaintiff did not dispute that the defendant's offer was for more than the maximum amount of damages he could possibly recover under the FLSA, and the plaintiff did not argue that he could obtain any additional relief. Id. at 1218. Furthermore, in Mackenzie, no other individual asserted a claim or interest in the case. Id. Accordingly, the court held that the controversy was no longer live and dismissed the case for lack of subject matter jurisdiction.
I conclude that the instant case is distinguishable from Mackenzie for several reasons. First, the plaintiff in this case disputes that Carnival's offer is for more than the maximum amount of damages he could recover under the FLSA. Carnival based its offer on the Plaintiff's estimate as provided in his initial disclosure under Rule 26. The parties dispute whether Plaintiff has been provided all the documents in Carnival's possession regarding the number of hours Plaintiff actually worked. Indeed, the Plaintiff's Rule 26 disclosure states that it is merely a preliminary estimate due to incomplete records in the possession of the Plaintiff. Since the Plaintiff has rejected Carnival's offer and there is no basis for me to conclude that the offer of judgment is definitively for more than the Plaintiff could recover at trial, I conclude that a live controversy remains pending. Second, two other persons, Natasha Brooks and Guillermo Perez, have opted in to this suit, and Carnival has not made offers of judgment to them. Carnival argues that the Court had already lost subject matter jurisdiction before those persons opted in because the offer of judgment had already been made. While Brooks and Perez did indeed opt in after the offer of judgment was made, the Court did not "lose" subject matter jurisdiction in the interim; the initial Plaintiff, Reyes, had not accepted the offer and it is unclear whether sufficient time had passed for Reyes to ascertain whether the offer of judgment was fair or complete. There is no Eleventh Circuit precedent regarding the exact moment a case becomes moot after the making of a qualified offer of judgment, but at the very least, a court cannot lose jurisdiction before the parties themselves can ascertain whether they retain a legally cognizable interest in the outcome of the litigation. See City of Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S. Ct. 1382, 1390 (2000) (explaining that a case becomes moot when it is "impossible for the court to grant any effectual relief whatever to the prevailing party"); see also Taylor v. CompUSA, Inc., 2004 WL 1660939, at *3 (N.D. Ga. June 29, 2004) ("As the parties are still in the process of determining the correct amount of damages, the Court finds that the matter is still in dispute and dismissal of Plaintiffs' claims would be inappropriate at this time."). Accordingly, two other persons opted in to this suit and no offer of judgment has been made to them, thus a live controversy remains.
Finally, it is important to note that the defense strategy of providing an offer of judgment to the initial plaintiff in a FLSA collective action in order to bar the case from proceeding as to all similarly situated plaintiffs violates the very policies behind the FLSA. See, e.g., Reed v. TJX Companies, Inc., 2004 WL 2415055 (N.D. III. Oct 27, 2004) (denying motion to dismiss for lack of subject matter jurisdiction). The FLSA was enacted to ensure that every employee receives "a fair day's pay for a fair day's work." A.H. Phillips v. Walling, 324 U.S. 490, 493, 65 S. Ct. 807 (1945). The FLSA requires that employees be paid a minimum wage for their work, and that employees working more than forty hours per week receive overtime compensation for all hours over forty at a rate of 1.5 times their regular pay. See 29 U.S.C. § 207(a)(1), (e); 29 C.F.R. § 778.108. Given the relatively small amounts of money at issue in an individual case seeking overtime compensation, Congress included provisions in the FLSA to encourage litigation, including 29 U.S.C. § 216(b), the "collective action" provision, which allows an action to be brought "by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." Id.
Permitting a defendant to evade a collective action by making an offer of judgment at the earliest possible time defeats the purpose of the collective action mechanism. In Reed, the plaintiff brought suit against his employer under the FLSA for deprivation of overtime compensation. Reed v. TJX Companies, Inc., 2004 WL 2415055 (N.D. III. Oct 27, 2004). The plaintiff argued that the employer made its offer in bad faith, simply to pay off the named representative of a potential class action and thereby to defeat the formation of the class. The court concluded that the plaintiff was correct:
Reed asserts that TJX Co.'s defense strategy creates a virtually unwinnable situation for plaintiffs in collective or class action lawsuits. Defendant makes an offer of "judgment" to Plaintiff, then alleges that the action is moot. Plaintiff therefore must either pursue discovery very early in the case, when a court likely will deem it premature, or seek class certification and/or notice before discovery, which runs the risk of harming the interests of those as-yet undiscovered class members. In cases where there are statutory ceilings on recoverable damages, such a strategy may be effective and yet still protect the interests of a plaintiff. In a situation such as the instant case, where there are no statutory caps on damages and where substantial discovery may be necessary before damages can be determined with any degree of certainty, such a strategy allows defendants to bar the courtroom door. This court finds such a result inappropriate at this early stage in litigation.Id. at *3 (internal citations omitted).
For the reasons described herein, I conclude that Defendant's motion to dismiss for lack of subject matter jurisdiction should be DENIED.
II. CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION Standard of Review
Opt-in class actions on behalf of similarly situated plaintiffs are provided by the opt-in class mechanism under 29 U.S.C. § 216(b). Section 216(b) states in relevant part that "[a]n action . . . may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." Id. Moreover, "[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." Id.Section 216(b) collective actions differ from class actions provided by Federal Rule of Civil Procedure 23. "In a Rule 23 class action, each person who falls within the class definition is considered to be a class member and is bound by the judgment, favorable or unfavorable, unless he has opted out. By contrast, a putative plaintiff must affirmatively opt into a § 216(b) action by filing his written consent with the court in order to be considered a class member and be bound by the outcome of the action." Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1216 (11th Cir. 2001) (citations omitted).
The Eleventh Circuit Court of Appeals has stated that "[t]o maintain an opt-in class action under § 216(b), plaintiffs must demonstrate that they are `similarly situated.'" Id. at 1217 (citations omitted). "[P]laintiffs need show only that their positions are similar, not identical, to the positions held by the putative class members.'" Id. (quoting Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996)) (citations omitted). The "`similarly situated requirement' [of § 216(b)] is more elastic and less stringent than the requirements found in Rule 20 (joinder) and Rule 42 (severance)." Id. at 1219 (quoting Grayson, 79 F.3d at 1095).
In Hipp, the Eleventh Circuit provided district courts within the Circuit with valuable guidance in adjudicating motions such as Plaintiffs, stating that "we will clarify the meaning of § 216(b)'s `similarly situated' requirement in this circuit." Id. at 1217. In that case, the Eleventh Circuit suggested that district courts use what was described as a "two-tiered approach in making the similarly situated determination. Under this approach, during the early stages of litigation, the district court would have evaluated the case under a lenient standard and likely would have granted preliminary certification of an opt-in class. The court would then have re-evaluated the similarly situated question at a later stage, once discovery produced more information regarding the nature of Plaintiffs' claims." Id. at 1217-18. In discussing the specifics of this two-tiered approach, the Hipp court quoted language from Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995), in which the Fifth Circuit stated that "[t]he first determination is made at the so-called `notice stage.' At the notice stage, the plaintiff has the burden of demonstrating a reasonable basis for the claim of classwide discrimination. See Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996). The plaintiffs burden is "not heavy," and is met by "making substantial allegations of class-wide discrimination, that is, detailed allegations supported by affidavits which successfully engage defendants' affidavits to the contrary." See id. at 1096-97. The affidavits must indicate that there are other employees who are "similarly situated" with respect to their job requirements and to their pay provisions, and that these employees desire to opt in. See Dybach, 942 F.2d at 1567-68; see also Harper v. Lovett's Buffet, 185 F.R.D. 358, 362-64 (M.D. Ala. 1999) (court conditionally certified a class of all hourly employees at the defendant's restaurant where plaintiff provided affidavits stating that the amount the servers were paid, that they were required to do additional jobs for which they received no additional compensation, that these servers received W-2s and check stubs that falsely stated tips not received, and that management would clock out employees without their knowledge). "If the district court `conditionally certifies' the class, putative class members are given notice and the opportunity to `opt-in.' The action proceeds as a representative action throughout discovery." Hipp, 252 F.3d at 1218. At the second stage, 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," "the court has much more information on which to base its decision, and makes a factual determination on the similarly situated question." Id.
The Eleventh Circuit concluded that "[t]he two-tiered approach to certification of § 216(b) opt-in classes described above appears to be an effective tool for district courts to use in managing these often complex cases, and we suggest that district courts in this circuit adopt it in future cases." Id. at 1219. The Eleventh Circuit stressed that it was not mandating that the two-tiered approach be adopted, given that "[t]he decision to create an opt-in class under § 216(b), like the decision on class certification under Rule 23, remains soundly within the discretion of the district court." Id. It did, however, endorse the two-tiered approach as an "effective tool" for district courts to use in making their § 216(b) determinations. Id.; see also Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240, 1242 n. 2 (11th Cir. 2003) ("Since Hipp, the district courts in our circuit have utilized the two-tiered approach."); see, e.g., Stone v. First Union Corp., 203 F.R.D. 532, 537 (S.D. Fla. 2001).
Analysis
Plaintiff has submitted the affidavit of named plaintiff Reyes [DE 14, Exh. D] in support of the motion for conditional certification. Plaintiff's affidavit sets forth the time period during which he worked at Carnival, the hours he worked each week, and his hourly pay. He also claims to be familiar with other similarly-situated Personal Vacation Planners ("PVP"), and claims that Carnival did not pay any overtime to any of these PVPs. He claims that during the four months that he worked for Carnival, first in the Miami location and then in Miramar, there were approximately one hundred and fifty (150) PVPs, many of whom worked over sixty hours per week without receiving overtime pay and would be interested in joining this litigation. Plaintiff also states that the PVP position had a high turnover rate, thus the actual number of PVPs may be significantly higher.
At least two PVPs — Natasha Brooks and Guilleramo W. Perez — have filed notices of consent to opt-in. [DE 17, 19]. Attached as exhibits to Plaintiff's reply brief are affidavits by Brooks and Perez in which both individuals state that they were employed by Carnival as PVPs, worked over forty hours per work on a regular basis, and received no overtime pay. Both individuals state that Carnival told them that it was Carnival's policy not to provide overtime pay to PVPs.
I conclude that Plaintiff's affidavit, in combination with the opt-in notices and affidavits of Brooks and Perez which confirm the allegations in Plaintiff's affidavit, contains sufficiently detailed allegations to demonstrate a reasonable basis for the Plaintiffs claim of classwide discrimination and demonstrate interest of other PVPs to opt-in. The affidavits appear to be based upon personal knowledge, observation, and experience, thus they are not "conclusory" as alleged by Carnival. The allegations that other PVPs did not receive overtime pay appears to be based upon the affiants' knowledge of the position of PVP and of Carnival's employment policies with respect to that position. At this stage in the proceedings, it is reasonable to infer that this knowledge forms a sufficient basis for the affiants' allegations that other PVPs were treated similarly.
While Plaintiff has met his initial burden, the parties also dispute whether Plaintiff is "similarly situated" to the class of PVPs as defined by the Plaintiff. The Plaintiff bears the burden of establishing that he and the class he wishes to represent are similarly situated. See Grayson, 79 F.3d at 1096. Ordinarily, this burden is not heavy and may be met by detailed allegations supported by affidavits. Id. at 1097. The Eleventh Circuit has stated that the "similarly situated" requirement is "more elastic and less stringent than the requirements found in Rule 20 (joinder) and Rule 42 (severance) . . . [and] that a unified policy, plan, or scheme of discrimination may not be required to satisfy the more liberal `similarly situated' requirement of § 216(b). . . ." Grayson, 29 F.3d at 1095. I explained the implications of this standard in Stone:
Carnival proposes that the motion either be denied on this basis, or that the Court redefine the proposed class so that it bears a more rational relationship to Plaintiff's claims. [DE 16 at 14-15, n. 10].
Accordingly, that the plaintiffs are "similarly situated" may be established even if the transactions or occurrences are not identical. Grayson so holds when it quotes Sperling v. Hoffmann-La Roche for the proposition that, "[P]laintiffs need show only `that their positions are similar, not identical,' to the positions held by the putative class members." Grayson, 79 F.3d at 1096 (quoting Sperling v. Hoffman-La Roche, 118 F.R.D. 392, 407 (D.N.J. 1988), aff'd in part and appeal dismissed in part, 862 F.2d 439 (3rd Cir. 1988), aff'd, Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 110 S. Ct. 482 (1989)). Moreover, by implication, not all questions of law or fact must be common; rather, it is enough if some questions of law or fact are common to all parties, even if such questions do not predominate. See Grayson, 79 F.3d at 1096 (quoting Flavel v. Svedala Indus. Inc., 875 F. Supp. 550, 553, which states, "The `similarly situated' requirement, in turn, is considerably less stringent than the requirement of [Rule 23(b)(3)] that common questions `predominate,' or presumably, the Rule 20(a) requirement that claims `arise out of the same action or occurrence.'").Stone, 203 F.R.D. at 541.
No one factor is dispositive in the assessment of whether Plaintiff is similarly situated to the sought-after class. In Stone, a collective action for age discrimination brought pursuant to the Age Discrimination in Employment Act, I stated:
The factors enunciated in Grayson and Hipp to assist in this analysis include: (1) whether the plaintiffs all held the same job titles (applicable in both Grayson, 79 F.3d at 1090, and Hipp, 252 F.3d at 1219); (2) whether the plaintiffs worked in different geographical locations (a factor held to be "nonconclusive" in Hipp, 252 F.3d at 1219); (3) the extent to which the claimed discrimination occurred during different time periods and by different decision makers ( cf., Alexander, 207 F.3d at 1324); (4) whether plaintiffs have provided "statistically significant" evidence of [unlawful conduct] ( Grayson, 79 F.3d at 1097); (5) whether the Plaintiffs all alleged similar, though not identical [unlawful] treatment ( Hipp, 252 F.3d at 1219); (6) whether the plaintiffs have sufficiently pled and supported by affidavits, depositions, and the like that Defendant's decision makers have articulated and manifested a clear intent to [engage in unlawful conduct] ( Grayson, 79 F.3d at 1097-99); and (7) whether the Defendant took steps to implement its plan . . . ( Id.). Obviously, each case must be reviewed on its pertinent facts to determine whether these, or other factors, are relevant to measure the nature and degree of "similarity."Id. at 542-43.
In this case, Plaintiff seeks to represent a class of PVPs employed at any time from January 1, 2002 to the present; precisely, Plaintiff seeks to represent "each and every person . . . who was employed by Defendant, performed any services on Defendant's behalf, and/or performed any services which benefitted Defendant in any way, at any time from January 1, 2002 through the present, and who was classified and/or described by Defendant as a `vacation planner' and/or `personal vacation planner,' or the like." [DE 14 at 1-2]. Considering the factors as I enunciated them in Stone, I conclude that Plaintiff has met the standard for demonstrating that he is "similarly situated" to his class. Reyes seeks to represent a class of persons with the same title. Reyes seeks to represent PVPs in his group, headquartered in Miami, Florida. Reyes states in his affidavit that he worked alongside other PVPs, that many of them worked overtime, including over sixty (60) hours per week, that working overtime was inevitable because of sales quotas that PVPs were required to meet, and that Carnival did not pay overtime pay to any PVPs. [DE 14, Exh. D]. Reyes's affidavit is corroborated by the affidavits of Brooks and Perez, both of whom stated that it was Carnival's stated policy to pay PVPs base pay plus incentive award payments for bookings, but not to pay overtime pay to PVPs. [DE 20, Exh. C, D]. All three individuals have submitted pay statements which corroborate their affidavits. Thus it appears from the affidavits and pay statements submitted that it was Carnival's stated, official policy to deny overtime pay to PVPs. This is precisely the type of "similar, though not identical" treatment for which opt-in collective actions were intended. Hipp, 252 F.3d at 1219.
The phrase "or the like" is unnecessary and potentially expands the class beyond persons of the same title as Reyes; accordingly, I will strike that phrase from the definition of the opt-in class. Furthermore, I note that the class is limited to persons of the same title, paid in the same manner as the Plaintiff. The class does not include reservation sales agents who are paid under a different incentive structure.
This geographic limitation is not evident from the description of the class provided in the first two pages of Plaintiff's motion, but is evident from his affidavit, which speaks only to the policies and employees that were part of his group. It appears from Plaintiff's affidavit that he seeks only to represent PVPs that were part of his group. Accordingly, I will limit Plaintiff's opt-in class to PVPs employed out of the Miami headquarters. In any event, this geographic factor was not held to be "nonconclusive" in Hipp. 252 F.3d at 1219.
Defendant argues that this class is defined too broadly since Plaintiff was employed for only nineteen weeks, from April 8, 2002 through August 16, 2002. Defendant argues that "whether the alleged violations occurred during the same time period" is a dispositive factor to be considered in the "similarly situated" analysis. [DE 16] (citing Smith v. Tradesmen Int'l, Inc., 289 F. Supp. 2d 1369, 1372 (S.D. Fla. 2003); Mackenzie v. Kindred Hosps. East, LLC, 276 F. Supp. 2d 1211, 1221 (M.D. Fla. 2003)). With respect to the time period in question, Reyes was in fact employed as a PVP from April 2002 through August 2002, Brooks was employed as a PVP from November 2001 until July or August 2002, and Perez was employed as a PVP for approximately a year and a half, in 2001 and 2002. Plaintiff seeks to represent a class of PVPs employed at any time from January 1, 2002 to the present. I conclude that based upon the affidavit testimony of Brooks and Perez, which corroborates Reyes's affidavit, that there is no reason to believe that PVPs employed starting January 1, 2002 are not "similarly situated" to Reyes in any significant way. See, e.g., Heagney v. European American Bank, 122 F.R.D. 125, 128 (E.D.N.Y. 1988) ("The workers may have left their jobs at different times via different procedural mechanisms, but the alleged unity of the discriminatory scheme they faces overwhelms those differences.") (citation omitted). Because Reyes alleges that his denial of overtime pay was a matter of official company policy, and because Reyes has submitted evidence that this policy has existed since before January 1, 2002, in the interest of judicial economy (which motivated the enactment of § 216(b) in the first instance), I conclude that the class proposed by Reyes meets the requisite standard. In so concluding, I bear in mind that the certification of this collective action is conditional at this stage in the proceedings, and consideration will be given once more to Defendant's arguments upon Defendant's motion for decertification, at which time I will have a more complete record on which to base a decision. Hipp, 252 F.3d at 1218. But given that Plaintiff's burden is "not heavy," Grayson, 79 F.3d at 1096, it has been met in this case.
III. COMPELLED PRODUCTION OF A CLASS LIST
In Plaintiff's Omnibus Motion, Plaintiff moves to compel expedited production by Defendant, within fifteen (15) days of this order, of a complete list of "each and every person — and their last-known home addresses, telephone numbers, e-mail addresses, and social security numbers — who was employed by Defendant, performed any services on Defendant's behalf, and/or performed any services which benefitted Defendant in any way, at any time from January 1, 2002 through the present, and who was classified and/or described by Defendant as a "vacation planner" and/or "personal vacation planner" or the like." (hereinafter "the Proposed Class"). As I stated earlier in this order, I will require that the Proposed Class be amended so as to reflect a geographic limitation to persons employed out of Miami and/or Miramar, and will strike the phrase "or the like" from the definition of the Proposed Class. The only basis for Defendant's opposition to this motion was Defendant's belief that Plaintiff failed to meet the "similarly situated" requirement of § 216(b). Because I conclude that the Proposed Class should be conditionally certified, Plaintiff's motion to compel production of contact information is GRANTED.
Plaintiff's request for Defendant to provide Plaintiff's counsel with the list both by hard copy and electronically — in an Excel spreadsheet with each person listed alphabetically from "A" to "Z" and with each person's last-known home address, telephone number, e-mail address, and social security number in a separate field corresponding with each name is GRANTED.
IV. AUTHORIZATION TO MAIL NOTICES TO THE PROPOSED CLASS
Plaintiff seeks authorization to mail a Court-approved Notice to members of the Proposed Class about their right to opt into this collective action by filing a Consent to Join Lawsuit. Plaintiff has submitted a proposed Notice and proposed Consent form as exhibits to his Omnibus Motion [DE 14, Exh. A, B]. I prefer that the parties stipulate to the use of a Notice and Consent form, now that I have ruled upon Plaintiff's motion to conditionally certify the opt-in class. Accordingly, the parties are hereby ORDERED to meet and attempt to reach a stipulation as to the Notice and Consent form on or before June 16, 2005. The parties shall file a Status Report regarding the Notice and Consent form on or before June 16, 2005.V. CONCLUSION
For the reasons stated in this Order, it is hereby ORDERED AND ADJUDGED that:
1. Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction [DE 15] is DENIED.
2. Plaintiff's Omnibus Motion for Conditional Certification of Collective Action [DE 14] is GRANTED IN PART and DENIED IN PART.
3. This action is hereby CONDITIONALLY CERTIFIED as a collective action under the Fair Labor Standards Act.
4. Defendant SHALL PRODUCE to Plaintiff, on or before June 16, 2005, a complete list of each and every person — and their last-known home addresses, telephone numbers, e-mail addresses, and social security numbers — who was employed by Defendant out of its Miami or Miramar locations, performed any services on Defendant's behalf, and/or performed any services which benefitted Defendant in any way, at any time from January 1, 2002 through the present, and who was classified and/or described by Defendant as a "vacation planner" and/or "personal vacation planner."
5. Defendant SHALL PRODUCE the aforementioned list both by hard copy and electronically — in an Excel spreadsheet with each person listed alphabetically from "A" to "Z" and with each person's last-known home address, telephone number, e-mail address, and social security number in a separate field corresponding with each name.
6. The parties are hereby ORDERED to meet and attempt to reach a stipulation as to the Notice and Consent form on or before June 16, 2005. The parties SHALL FILE a Status Report regarding the Notice and Consent form on or before June 16, 2005.
7. The parties SHALL FILE a Revised Joint Scheduling Report (Appendix A) on or before June 9, 2005.
DONE AND ORDERED.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORID A CASE NO. 04-21861-CIV-GOLD/TURNOFF
RICHARD REYES, on behalf of himself and similarly situated employees of defendant, Plaintiffs,
vs.
CARNIVAL CORPORATION, Defendant. ________________________________/
JOINT CONFERENCE REPORT
Pursuant to the Court's Order Requiring Compliance with Local Rule 16. 1, the parties have agreed to the following deadlines:
APPENDIX I
DATE ACTION highlighted Any proposed amendment to the order shall first be discussed by the parties. If agreed to, an order to that effect shall be given to the Magistrate Judge for signature. If not agreed to, the parties shall set a conference call with the Magistrate Judge to discuss the disputed matter before filing any motions for protection or enforcement. Such motions shall only be filed after all efforts for resolution by the Magistrate Judge have been exhausted. 14 15 18 22 42 15 15 Prior to filing any non-dispositive motion, counsel for the moving party shall confer, or make reasonable effort to confer, with counsel for the opposing party in a good faith effort to resolve the matter, and shall include in the motion a statement certifying that this has been done. expert th McDonnell Douglas both If any party moves to strike an expert affidavit filed in support of a motion for summary judgment Daubert v. Merrill Dow Pharmaceuticals, Inc, 509 U.S. 579 125 L.Ed. 2d 469 113 S.Ct. 2786 Kumho Tire Company, Ltd. v. Carmichael 526 U.S. 137 119 S.Ct. 1167 143 L.Ed.2d 238 the motion to strike shall be filed with that party's responsive memorandum. In the event that a Daubert motion must be determined before the dispositive motions are ruled on, the court shall establish procedures and dates after conferring with the parties. Pretrial Stipulation and Motions in Limine.
By Opt-in cut off date, assuming preliminary certification is granted and notice is approved. By Counsel for both parties shall prepare and serve detailed discovery plans. Each plan shall include a detailed time line for the submission of, and response to, written interrogatories, admissions, production of documents, and the like in accordance with the Federal Rules of Civil Procedure and the Local Rules of this District. Each plan shall include a proposed time schedule for the taking of depositions of non-expert witnesses and tentative dates for further expert witness discovery. By Counsel for the parties shall confer in an effort to resolve any disputes relative to the discovery plans. Any such resolution shall be in writing and signed by each party and shall constitute an amendment to the each discovery plan. If both plans are agreed to, an order to that effect shall be submitted for signature by the Judge. Any subsequent disagreements shall be resolved in accordance with the procedures below. By Each party shall file any objection to the other party's discovery plan specifying the grounds for the objection and the remedy requested. By The objections shall be referred to the Magistrate Judge and a hearing held to resolve any pending objections. The Magistrate Judge's order shall adopt the final discovery plan. By All non-dispositive pretrial motions (including motions pursuant to Fed.R.Civ.P. , , through , and motions) shall be filed. Any motion to amend or supplement the pleadings filed pursuant to Fed.R.Civ.P. (a) or (d) shall comport with S.D.Fla.L.R. 15.1 and shall be accompanied by the proposed amended or supplemental pleading and a proposed order as required. By Plaintiff shall furnish opposing counsel with a written list containing the names and addresses of all witnesses intended to be called at trial and only those expert witnesses listed shall be permitted to testify. By Defendant shall furnish opposing counsel with a written list containing the names and addresses of all expert witnesses intended to be called at trial and only those expert witnesses listed shall be permitted to testify. By All expert reports and summaries are to be exchanged per S.D.Fla.L.R. 16.1 K. This date shall supercede any other date in Local Rule 16.1 K. By All expert discovery shall be completed. By All non-expert discovery shall be completed. By Defendant shall file any motion to decertify the members of the opt-in class. Any such motion shall be accompanied by a memorandum of law which addresses, at a minimum, the following issues: (i) whether an evidentiary hearing is required on the motion or may the motion be decided based on affidavits and discovery of record? (ii) what is the legal standard to be applied on the "similarly situated" issue under 11 Circuit case law, or if no case is on point, what is the applicable law in other circuits? (iii) who bears the burden of proof on class certification, or decertification, at this stage of the proceedings? (iv) If class decertification is granted what goes forward to trial relative to the opt-in plaintiffs? (v) If decertification is denied, should the case be bifurcated in two stages, namely, a liability and a remedial phase? (vi) In the liability phase, what defense(s) is the Defendant permitted to raise? (vii) If the jury determines against the Plaintiffs in the liability phase based on the "pattern and practice" theory, what additional rights, if any, does the named Plaintiff, and/or the opt-in plaintiffs, have to go forward with alternative individual theories under the test or otherwise? (viii) In the remedial stage, what relief is permitted to the named Plaintiff and individual plaintiffs? In other words, will each plaintiff have a "mini-trial" as to their requested relief, and, if so, what defenses may the Defendant raise at this stage [given any already raised and decided against at the liability stage] ? If no motion is filed by the Defendants, then the Defendant's shall nonetheless file their legal memorandum addressing the matters raised by items (iv) through (vii) above, by the date indicated. By Plaintiffs shall file their response to the motion for decertification, if any, and/or to the legal matters raised by the court in this order and by the Defendant in its memorandum. By Defendants shall file their reply. By The court will hold an evidentiary hearing and/or oral argument on any motion to decertify the class. This date may need to be adjusted depending on whether an evidentiary hearing is held. In the event no motion for decertification is filed, the court shall hold oral argument on the pending legal matters addressed by the parties. By The court shall rule on the decertification motion, if any, and set forth the procedures to be followed for the trial of the cause. Dispositive motions then may be filed based on those procedures. By All dispositive pretrial motions and memoranda of law must be filed, including as to the liability and remedial stage. [for reasons stated in , , (1993) and , , (1999)], By Mediation shall be completed. By The joint pretrial stipulation shall be filed pursuant to S.D.Fla.L.R. 16.1(E). In conjunction with the Joint Pretrial Stipulation, the parties shall file their motions in limine. On Pretrial Conference will be held. On Trial.