Long v. Wehner Multifamily, LLC

303 F. Supp. 3d 509
CourtDistrict Court, N.D. Texas
DecidedSeptember 28, 2017
DocketCivil Action No. 3:17–CV–01258–N
StatusPublished
Cited by2 cases

This text of 303 F. Supp. 3d 509 (Long v. Wehner Multifamily, LLC) 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
Long v. Wehner Multifamily, LLC, 303 F. Supp. 3d 509 (N.D. Tex. 2017).

Opinion

David C. Godbey, United States District Judge

This Order addresses Plaintiff Lisa Long's ("Long") motion for conditional class certification and notice to potential plaintiffs [4] and motion to strike [11] and Defendant Wehner Multifamily, LLC's ("Wehner") motion to extend its response deadline [7]. Because Long has satisfied the lenient first step of the two-step Lusardi conditional certification process,1 the Court grants Long's motion and conditionally certifies the class as defined below. The Court denies as moot Long's motion to strike and Wehner's motion to extend its response deadline.

I. ORIGINS OF THE PLAINTIFF'S OPT-IN CLASS ACTION

This case arises from Long's employment at Wehner. Wehner is a property management company specializing in multifamily apartment communities. Def.'s *511Resp. to Pl.'s Mot. for Cond. Class Cert. and Notice to Potential Pls. ("Def.'s Resp.") ¶ 7 [9]. Long and the potential class members are current and former Wehner employees. Pl.'s Mot. for Cond. Class Cert. and Notice to Potential Pls. ("Mot. for Cond. Cert.") 1 [4]. Long claims she and other similarly situated employees were routinely underpaid for overtime as a result of Wehner's pay policies or practices. Compl. ¶¶ 12-28 [1]. Specifically, Long alleges that Wehner violated the Fair Labor Standards Act ("FLSA") by misclassifying hourly employees as salaried employees, paying all new hires on a salaried basis to "avoid the overtime issue," and failing to pay employees timely for the overtime they worked. Id. ¶¶ 12, 15-17, 21-22. Long now moves for conditional certification and notice to a potential class of "opt-in" plaintiffs under the FLSA. Mot. for Cond. Cert. 1 [4].

Because the Court reserves the more rigorous "similarly situated" analysis for the second step of the FLSA certification process under Lusardi , as discussed below, the Court grants Long's motion for conditional certification and notice to potential plaintiffs. The Court denies as moot Long's motion to strike and Wehner's motion for extension of time to respond.

II. STANDARD FOR OPT-IN CLASS ACTIONS UNDER THE FLSA

Section 16(b) of the FLSA allows an individual employee or group of employees to sue "any employer ... for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). Only those employees who have provided express written consent to join the suit may join a class under the FLSA.2 This "opt-in" approach distinguishes FLSA class actions from those governed by Federal Rule of Civil Procedure 23's "opt-out" method. See FED. R. CIV. P. 23 ; LaChapelle v. Owens-Illinois, Inc. , 513 F.2d 286, 289 (5th Cir. 1975).

Courts use one of two procedures to certify classes under the FLSA. Courts following the dominant approach employ the two-step process exemplified in the Lusardi v. Xerox Corporation litigation. 99 F.R.D. 89 (D.N.J. 1983) (conditional certification); 118 F.R.D. 351 (D.N.J. 1987) (decertification).3 In the first step, "the district court makes a decision-usually based only on the pleadings and any affidavits [that] have been submitted-whether notice of the action should be given to potential class members." Mooney v. Aramco Servs. Co. , 54 F.3d 1207, 1213-14 (5th Cir. 1995). "Because the court has minimal evidence, this determination is made using a fairly lenient standard, and typically results in 'conditional certification' of a representative class." Id. at 1214. "[A]t the notice stage, 'courts appear to require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan' " as evidence sufficient to move beyond the first step. Id. at 1214 n.8 (quoting Sperling v. Hoffmann-La Roche, Inc. , 118 F.R.D. 392, 407 (D.N.J. 1988) ). "If the district court 'conditionally certifies' the class, putative class members are given notice and the opportunity to 'opt-in.' " Id. at 1214 ; see also *512Hoffmann-La Roche, Inc. v. Sperling , 493 U.S. 165, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989) (holding that district courts may facilitate notice to potential plaintiffs).

The second step consists of a "decertification" analysis conducted after the close of discovery4 and upon motion by the defendant. "At this stage, the court has much more information on which to base its decision, and makes a factual determination on the similarly situated question."5 Mooney , 54 F.3d at 1214. The action then proceeds as follows:

If the claimants are similarly situated, the district court allows the representative action to proceed to trial. If the claimants are not similarly situated, the district court decertifies the class, and the opt-in plaintiffs are dismissed without prejudice. The class representatives-i.e. the original plaintiffs-proceed to trial on their individual claims.

Id. "[B]y its nature," the Lusardi approach "does not give a recognizable form to an [FLSA] representative class, but lends itself to ad hoc analysis on a case-by-case basis."

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303 F. Supp. 3d 509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-v-wehner-multifamily-llc-txnd-2017.