Arceo v. Orta

296 F. Supp. 3d 818
CourtDistrict Court, N.D. Texas
DecidedNovember 1, 2017
DocketCivil Action No. 3:16–CV–3197–D
StatusPublished
Cited by3 cases

This text of 296 F. Supp. 3d 818 (Arceo v. Orta) is published on Counsel Stack Legal Research, covering District Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arceo v. Orta, 296 F. Supp. 3d 818 (N.D. Tex. 2017).

Opinion

SIDNEY A. FITZWATER, UNITED STATES DISTRICT JUDGE

In this putative collective action seeking unpaid overtime pay under the Fair Labor *821Standards Act ("FLSA"), plaintiffs move for conditional certification and court-facilitated notice to potential class members, and they seek limited discovery of the names, last known addresses, and email addresses of potential class members. For the reasons that follow, the court grants the motion for conditional certification and court-facilitated notice, and it grants in part and denies in part plaintiffs' request for limited discovery.

I

Alejandro Arceo and several other plaintiffs bring this putative collective action against defendants Alfredo Moises Orta, individually and d/b/a Four Diamond Staffing and Five Star Services ("Orta"), and Omni Hotels Management Corporation ("Omni"). Plaintiffs seek unpaid overtime pay under 29 U.S.C. § 216(b), a provision of the FLSA.1 The 15 named plaintiffs are housekeepers employed by Orta, 12 of whom were assigned to work at Omni's downtown Dallas hotel. The other three plaintiffs worked for Orta at other local hotels, including Homewood Suites. Ten of the named plaintiffs stated in declarations that "Orta did not pay me at all for some of the hours I worked," and "[w]hen I worked more than 40 hours in a week, I was not paid 1.5 times my regular rate of pay." Decl. of George, Martinez, Mancia, Gonzales, Merino-Cruz, Mexicano, Palacios, Perez, Torres, Valentino. Ten of the named plaintiffs also observed "Omni's Housekeeping Supervisor would review my work and was therefore aware of the hours I was working." Id. Although Omni paid Orta directly for the services of the plaintiff class, plaintiffs allege in their complaint that Omni and Orta acted as joint employers.

Plaintiffs move the court to conditionally certify this collective action and approve court-facilitated notice to a class defined as follows: "All current and former housekeepers employed by Orta at hotels located in the Dallas / Fort Worth area, including those assigned to work for Omni." Ps. Mot. at 15. In their reply to Omni's response, plaintiffs ask the court to limit the proposed class to "the period of three years prior to the granting of Plaintiffs' Motion." Ps. Reply at 10. They ask the court to approve the proposed notice and consent forms and to allow plaintiffs to send the forms by "mail...email, Facebook message, and a webpage solely dedicated to disseminating the notice[.]" Ps. Mot. at 14. Plaintiffs also ask that the court require defendants to post the notice and consent forms at each of their "locations that employ housekeepers." Id. at 15. To facilitate notice, plaintiffs further request that the court order defendants to produce "a computer-readable data file containing the names, all known addresses (including any addresses in home countries for any guest workers who are potential opt-in plaintiffs), all email addresses, all telephone numbers (home, mobile, etc.) of all the potential opt-in Plaintiffs" within ten days from the entry of the court's order. Id. at 14. Omni opposes the motion.

II

The court must first decide whether plaintiffs have provided sufficient evidence of the existence of similarly-situated potential plaintiffs and whether a class should be conditionally certified.

*822A

Section 216(b) of the FLSA authorizes a plaintiff to bring a collective action on behalf of similarly-situated persons, provided that any person who desires to become a part of the collective action files a written consent in court. See 29 U.S.C. § 216(b). When a plaintiff seeks to bring a collective action, a district court can in its discretion facilitate notice to potential plaintiffs of their right to opt in to the suit. Behnken v. Luminant Mining Co. , 997 F.Supp.2d 511, 515 (N.D. Tex. 2014) (Fitzwater, C.J.) (citing Hoffmann-La Roche, Inc. v. Sperling , 493 U.S. 165, 169, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989) ; Barnett v. Countrywide Credit Indus., Inc. , 2002 WL 1023161, at *1 (N.D. Tex. May 21, 2002) (Lynn, J.) (applying Hoffmann-La Roche to FLSA context)). "Although the Fifth Circuit has declined to adopt a specific test to determine when courts should exercise their discretion to facilitate notice or certify a collective action, this court has adopted the prevailing two-stage test." Behnken , 997 F.Supp.2d at 515 (citing Aguilar v. Complete Landsculpture, Inc. , 2004 WL 2293842, at *1 (N.D. Tex. Oct. 7, 2004) (Fitzwater, J.) (adopting prevailing standard)); see also Sandoz v. Cingular Wireless LLC , 553 F.3d 913, 915 n.2 (5th Cir. 2008) (noting that collective actions are "typically" analyzed this way); Mooney v. Aramco Servs. Co. , 54 F.3d 1207, 1216 (5th Cir. 1995) (declining to adopt specific standard, but finding no abuse of discretion where district court applied prevailing standard), overruled on other grounds by Desert Palace, Inc. v. Costa , 539 U.S. 90

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Bluebook (online)
296 F. Supp. 3d 818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arceo-v-orta-txnd-2017.