Rojas v. Garda CL Southeast, Inc.

297 F.R.D. 669, 25 Wage & Hour Cas.2d (BNA) 891, 2013 WL 6834657, 2013 U.S. Dist. LEXIS 179595
CourtDistrict Court, S.D. Florida
DecidedDecember 23, 2013
DocketNo. 13-23173-CIV
StatusPublished
Cited by11 cases

This text of 297 F.R.D. 669 (Rojas v. Garda CL Southeast, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rojas v. Garda CL Southeast, Inc., 297 F.R.D. 669, 25 Wage & Hour Cas.2d (BNA) 891, 2013 WL 6834657, 2013 U.S. Dist. LEXIS 179595 (S.D. Fla. 2013).

Opinion

[673]*673 ORDER GRANTING IN PART MOTION FOR CONDITIONAL CERTIFICATION, AND DENYING MOTION FOR EQUITABLE TOLLING

ROBIN S. ROSENBAUM, District Judge.

This matter is before the Court upon Plaintiffs’ Motion for Conditional Certification and Facilitation of Court-Authorized Notice Pursuant to 28 U.S.C. § 216(b) [ECF No. 17] and Plaintiffs’ Motion for Equitable Tolling [ECF No. 39]. The Court has considered the Motions, all supporting and opposing filings, and the record in the case. For the reasons set forth below, the Court now grants in part Plaintiffs Motion for Conditional Certification and denies Plaintiffs’ Motion for Equitable Tolling.

BACKGROUND

On September 3, 2013, Plaintiff Arturo Rojas filed a Complaint alleging that Defendant Garda CL Southeast, Inc. (“Garda”), failed to pay him and other similarly situated employees at the overtime rate for hours worked over forty hours a week, in violation of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”). ECF No. 1 at 1, ¶¶ 1, 2. Garda is a Georgia company that specializes in the armed transport of bank funds. ECF No. 17 at 2. Garda employed Rojas at its Orlando branch as a driver/messenger from May 9, 2012, to June 11, 2013. ECF No. 4-1 at 1, ¶2. Since the filing of Rojas’s Complaint, nine other Garda employees have joined the action as named Plaintiffs.

Garda notes that “drivers” and “messengers” are not separate positions, but rather, the same employee rotates between the driver and messenger roles depending on the route. ECF No. 40 at 5. Each route is typically assigned a driver and a messenger. Id. While the driver operates the armored vehicle, the messenger is responsible for the organization and paperwork related to the route, loading and unloading the vehicle, and replenishing or withdrawing funds from Automatic Teller Machines when applicable. Id. Messengers must be prepared to operate the vehicle should the driver become incapacitated. Id.

Plaintiffs allege that Garda considers its drivers/messengers exempt from the FLSA’s requirement to pay overtime after forty hours of work per week and, instead, implements an “overtime-over-fifty” policy, under which work is paid at the overtime rate only after fifty hours of work per week. ECF No. 17 at 1. On September 30, 2013, Plaintiffs filed the instant Motion for Conditional Certification, seeking to conditionally certify a class consisting of current and former drivers/messengers who worked for Garda’s Tampa, Orlando, West Palm Beach, and Miami branches in the last three years. ECF No. 17 at 23.

DISCUSSION

The FLSA provides “any one or more employees for and in behalf of himself or themselves and other employees similarly situated” a cause of action against their employers for alleged violations of the Act. 29 U.S.C. § 216(b). The purposes of § 216(b) collective actions include “(1) reducing the burden on plaintiffs through the pooling of resources, and (2) efficiently resolving common issues of law and fact that arise from the same illegal conduct.” Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1264-65 (11th Cir.2008) (citing Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482,107 L.Ed.2d 480 (1989)).

Unlike a class action brought under Rule 23 of the Federal Rules of Civil Procedure, a class action brought under the FLSA can include only those plaintiffs who affirmatively opt into the action by filing their consent in writing in the court in which the action is brought. 29 U.S.C. § 216(b); see also De Leon-Granados v. Eller & Sons Trees, Inc., 497 F.3d 1214, 1218-19 (11th Cir.2007). As a result, the mere decision to certify a § 216(b) action does not, on its own, create a class of plaintiffs as in a Rule 23 class action. Morgan, 551 F.3d at 1259 (quoting Cameron-Grant v. Maxim Healthcare Servs. Inc., 347 F.3d 1240, 1249 (11th Cir.2003)). It follows that “the importance of certification, at the initial stage, is that it authorizes either the parties, or the court itself, to facilitate notice of the action to similarly situated employees” and create the [674]*674class. Morgan, 551 F.3d at 1259 (citing Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir.2001)).

In order to facilitate the early certification of a class, where proper, the Eleventh Circuit has sanctioned a two-stage procedure to effectively manage § 216(b) actions in the pretrial phase. Morgan, 551 F.3d at 1260. The Eleventh Circuit recommends but does not require that district courts follow this two-tiered approach. See Hipp, 252 F.3d at 1219. The first stage occurs during discovery and is called the “notice stage” or “conditional certification.” If the court approves conditional certification in this first stage, putative class members receive notice of the action and the opportunity to opt in. Because of the conditional nature of the putative class, the standard at this first stage is described as “not particularly stringent,” Hipp, 252 F.3d at 1214, “fairly lenient,” id. at 1218, and “flexib[le],” id. at 1219. See Morgan, 551 F.3d at 1260-61.

The second stage occurs if the defendant employer moves for decertification. Morgan, 551 F.3d at 1261. This stage usually happens “just before the end of discovery, or at its close,” when the court has a more extensive and detailed factual record. Id. Because the court has a more complete record and can make a more informed decision, this stage is “less lenient, and the plaintiff bears a heavier burden.” Id. (citing Anderson v. Cagle’s, Inc., 488 F.3d 945, 953 (11th Cir.2007)).

I. FLSA Exemption

As a threshold matter, Garda argues that the purported class is exempt from the overtime-pay requirements of the FLSA, so conditional certification of the class would be inappropriate. ECF No. 40 at 9-12. Garda relies on Baez v. Wells Fargo Armored Service Corp., 938 F.2d 180 (11th Cir.1991), where the court concluded that armored-truck drivers and guards — not unlike the proposed class here — are exempt from the overtime-pay requirements of the FLSA. Id. at 182.

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297 F.R.D. 669, 25 Wage & Hour Cas.2d (BNA) 891, 2013 WL 6834657, 2013 U.S. Dist. LEXIS 179595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rojas-v-garda-cl-southeast-inc-flsd-2013.