HELEN G. BERRIGAN, District Judge.
This matter comes to the Court on the plaintiff's motion for conditional class certification and judicial notice. Rec. Doc. 18. The defendant opposes. Rec. Doc. 25. The Court, having considered the record, the applicable law, and the memoranda of counsel, hereby GRANTS the plaintiff's motion for the following reasons and modifies his proposed notice as stated further below.
Plaintiff brought this complaint in June 2013, seeking damages for the defendants' alleged failure to pay him, or any other SukhoThai server, minimum wage under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. Rec. Doc. 1. Plaintiff
The plaintiff seeks to maintain this action "on behalf of himself . . . and other employees similarly situated" pursuant to 29 U.S.C. § 216(b). The Fifth Circuit has embraced two different approaches for determining whether such a complaint should be certified as a collective action under § 216(b). See Roussell v. Brinker Int'l, Inc., 441 Fed.Appx. 222, 226 (5th Cir.2011); Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-16 (5th Cir.1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). The first or Lusardi approach,
Id. at 1213-14. The plaintiff's motion concerns this "notice stage" determination.
At the notice stage, the plaintiff need only produce "substantial allegations that the putative class members were together the victims of a single decision, policy, or plan. . . ." Id. at 1213 n. 8 (quoting Sperling v. Hoffmann-La Roche, Inc., 118 F.R.D. 392, 407 (D.N.J.1988)). Despite defendants' arguments to the contrary, the Court finds this burden easily satisfied on the showing made by the plaintiff. His affidavit provides, in pertinent part: that both Marigny and Uptown SukhoThai locations are commonly owned and operated; that they share service employees; that servers at each location are compensated according to the same policy; and that under this policy servers are systematically divested of tip income and compensated at $2.13 an hour, a rate below the minimum wage. Rec. Doc. 18-2.
The defendants' argument that the putative class members are not similarly situated because they are not in fact commonly employed amounts to an argument the defendants' would be claiming disparate defenses against the various class members. Such an argument is better reserved for a motion to decertify after notice and discovery. Whether any one defendant qualifies as an employer to all class members for FLSA purposes is a fact-sensitive inquiry that would benefit from discovery. See Aguilar v. Complete Landsculpture, Inc., 04-0776, 2004 WL 2293842 at *3 (N.D.Tex. Oct. 7, 2004). More importantly, if the only issue tending to undermine similarity between class members is the identity of the employer, the Court can create subclasses to accommodate the distinction. See id. (citing Rodolico v. Unisys Corp., 199 F.R.D. 468, 484 (E.D.N.Y.2001)).
Defendants argue that the class notification should be limited to servers directly employed by defendant Royal Trading, LLC and employed by them within the past 2 years. Rec. Doc. 25 at 8. For the reasons explained above, the Court declines any such narrowing of the class.
The Court finds that the 60 days requested for notice is neither excessive nor unreasonable for this type of case. Therefore, no change to that number will be ordered.
Because the plaintiff does not object to defendants' paragraph regarding contingency fees, liability for costs, and the powers of the class representative,
The defendants' request for any notice in this case to advise putative class members that they "may be required to respond to written questions, sit for depositions and/or testify in court" is appropriate. This language shall be added to the proposed notice.
Finally, the Court finds that plaintiff's request to define the conditional class to include anyone who worked as a server in SukhoThai "within the past three years" is temporally indefinite, in that it could be interpreted to mean three years from the date that the notice is received or perhaps within the last three calendar years. The three year clock described in the notice should run expressly from a date certain; courts have used the date upon which the plaintiff's complaint was filed, Fasanelli v. Heartland Brewery, Inc., 516 F.Supp.2d 317, 323 n. 3 (S.D.N.Y.2007), the date upon which a court issued approved conditional class certification, Camp v. Progressive Corp., 01-2680, 2002 WL 31496661 at *6 (E.D.La. Nov. 8, 2002), and the date upon which notice of conditional certification was issued, Gjurovich v. Emmanuel's Marketplace, Inc., 282 F.Supp.2d 91, 98 (S.D.N.Y.2003). Each approach is bolstered by a different rationale. In this case, the plaintiff has tried to cast a
Accordingly, IT IS ORDERED that the plaintiff's Motion for Conditional Class Certification and Judicial Notice is hereby GRANTED. Rec. Doc. 18.
IT IS FURTHER ORDERED that plaintiff shall, at his expense, notify potential class members of this action using the proposed notice to putative class members (Rec. Doc. 18-5) after modification in accordance with this Order and Reasons.