McCurdy v. FreshOne Distribution Services LLC

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION RANDY MCCURDY, JR., § § Plaintiff, § § v. § Civil Action No. 3:19-cv-02787-M § FRESHONE DISTRIBUTION § SERVICES, LLC, § § Defendant. § § MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION AND NOTICE TO POTENTIAL PLAINTIFFS Before the Court is Plaintiff’s Motion for Conditional Certification and Notice to Potential Plaintiffs. (ECF No. 10). For the reasons stated below, the Motion is GRANTED. I. Factual and Procedural Background Plaintiff, Randy McCurdy, Jr., is a former employee of Defendant, FreshOne Distribution Services, LLC, a food services distribution company. (ECF No. 1 ¶¶ 5.1, 5.2). Plaintiff alleges the following in his Complaint. (ECF No. 1). Plaintiff delivered food to Defendant’s customers in Texas. Plaintiff and other employees who were similarly situated (the “Potential Plaintiffs”) were paid on a “per route” basis or an hourly basis, depending on the task they were performing. Defendant did not accurately track hours and did not pay the Potential Plaintiffs statutory overtime for any hours over forty that they worked in a week, treating such employees as exempt. On November 22, 2019, Plaintiff filed this putative collective action, on behalf of himself and the Potential Plaintiffs, to recover unpaid overtime wages under the Fair Labor Standards Act (FLSA). On April 22, 2020, Plaintiff moved for conditional certification and notice to the Potential Plaintiffs, which he defines as follows: All Drivers who worked for FreshOne Distribution Services, LLC in Texas within the three years preceding the filing of this lawsuit who were paid hourly or paid route pay, worked in excess of forty hours in one or more workweeks and were not compensated at one and one-half times their regular rate of pay for all hours worked in excess of forty hours in one or more workweeks. (See ECF Nos. 1 ¶ 6.5, 10). II. Legal Standard The FLSA authorizes a person to bring a collective action on behalf of similarly situated employees. 29 U.S.C. § 216 (b). A two-stage test is used to determine whether a collective action is appropriate. Frazier v. Dallas/Fort Worth Int’l Airport Bd., 285 F. Supp. 3d 969, 972 (N.D. Tex. 2018) (Lynn, J., presiding); see also Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995) (finding no abuse of discretion where district court applied two-stage test). At the notice stage, the Court need only be satisfied that there is a “reasonable basis” to believe a class of “similarly situated” persons exists, who do similar work for similar compensation. Black v. Settlepou, P.C., No. 3:10-CV-1418-K, 2011 WL 609884 , at *3 (N.D. Tex. Feb. 14, 2011); see also Frazier, 285 F. Supp. 3d at 972 . This is a fairly lenient burden, one that a plaintiff can typically meet. Id; see also Mooney, 54 F.3d at 1214 . Plaintiff need not demonstrate uniformity in every aspect of employment among potential class members. Frazier, 285 F. Supp. 3d at 972 . A court will foreclose a plaintiff’s right to proceed collectively if the action relates to circumstances personal to plaintiff, rather than to any generally applicable policy or practice. Id. at 973 ; see also Mooney, 54 F.3d at 1214 n.8 (requiring “nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan”). The Court does not assess merits of the case at this stage. Frazier, 285 F. Supp. 3d at 973 ; Lee v. Metrocare Servs., 980 F. Supp. 2d 754, 767 (N.D. Tex. 2013). If a plaintiff makes the requisite showing, a court will conditionally certify the class and allow the plaintiff to notify potential class members so that they may opt-in to the suit. Frazier, 285 F. Supp. 3d at 973 . The Court must exercise its discretion regarding the form and content of the notice so as to ensure that the notice is accurate and that it includes information that would be needed to make an informed decision about whether a person will join the lawsuit. Id; Behnken v. Luminant Min. Co., LLC, 997 F. Supp. 2d 511, 523 (N.D. Tex. 2014). Absent reasonable objections, a plaintiff should be allowed to use the language of his choice in the notice. Frazier, 285 F. Supp. 3d at 973 . After notice and time for opting-in, the case proceeds as a collective action throughout discovery. After discovery is largely complete, the court reaches the second stage, determining whether the case should remain as a collective action through trial. The class will be decertified at the second stage if the class is not in fact comprised of similarly situated employees. III. Analysis Plaintiff has provided sufficient evidence that similarly situated employees exist. Declarations from the Plaintiff and another former employee of the Defendant, who has opted in to the case, describe duties of other drivers, loading and delivering food and food supplies by truck to Defendant’s customers in Texas, and who are similarly compensated. The Court finds that there is a reasonable basis to suggest that “similarly situated” persons exist. Black v. Settlepou, P.C., No. 3:10-CV-1418-K, 2011 WL 609884 , at *3 (N.D. Tex. Feb. 14, 2011). Defendant argues that Plaintiff and a person who has opted in to this case do not claim to have any personal knowledge other than their observations and conversations with other employees. Employees may acquire personal knowledge in this manner. Lee v. Metrocare Servs., 980 F. Supp. 2d 754 , 763–64 (N.D. Tex. 2013) (granting certification at the notice stage where the plaintiff, as an employee, had personal knowledge of the employment conditions of other putative plaintiffs based “upon [his] own observations and experiences during [his] employment”). Plaintiff has provided sufficient evidence at this stage to establish that similarly situated employees exist. The Court finds that the proposed notice and consent forms are accurate, except to the extent marked on the attachments hereto, and include information needed for Potential Plaintiffs to make an informed decision about whether to join the lawsuit. IV. Conclusion The Court conditionally certifies a class of Defendant’s current and former employees (the “Drivers”): All Drivers who worked for Defendant at one of their Locations within the last three years who were paid hourly or route pay, worked in excess of forty hours in one or more workweeks and were not compensated at one and one-half times their regular rate of pay for all hours worked in excess of forty hours in one or more workweeks. The Notice, Consent to Join Form and Reminder Notice attached to this Order are approved, subject to Plaintiff’s insertion of the appropriate dates, and the handwritten edits made by the Court. Defendant shall produce to Plaintiff’s counsel the names, last known addresses, and work email address and personal email addresses, if known, of current and former Drivers (“Driver Information”) in an Excel or similar electronic format, within seven days of the entry of this Order. Plaintiff’s counsel shall send the Notice and Consent Form to the Drivers within fourteen days after Defendant provides the Driver Information to Plaintiff's counsel. Plaintiff shall send the Notice and Consent forms if an email address is available, by email or regular mail. For the Notice and Consent forms sent by U.S. Mail, Plaintiff shall provide a self-addressed, postage paid return envelope. Plaintiffs counsel is authorized to provide the Drivers with the Notice and Consent Form to sign electronically through DocuSign. Plaintiff shall bear the cost of issuing the Notice and Consent forms and reminder notices. The Drivers shall have forty-five days after the date the Notice and Consent forms are first emailed/mailed to submit a Consent to Join form opting in to this litigation (the “Opt-In Period”). Any re-mailing of the original notice and any reminder notices shall not extend this deadline. Plaintiff shall inform opposing counsel as to the date on which the Notice forms are sent to the Drivers. Plaintiff's counsel may send a reminder notice no later than fifteen days before the expiration of the Opt-In Period. Plaintiffs counsel shall file any signed opt-in consent forms with the Court. Within seven days after the close of the Opt-In period, the Parties are directed to confer pursuant to Rule 16(b) to present the Court with a Proposed Scheduling Order covering the items set forth in the Court’s previous Order governing proceedings. (ECF No. 7). Ifthe Parties cannot agree on elements of the Proposed Scheduling Order, they may present their separate views in the joint submission. The Parties must file the Proposed Scheduling Order within seven days of the date when the Parties confer. SO ORDERED. July 16, 2020. [Gre UJ Ly TIEF JUDGE NOTICE of COLLECTIVE ACTION OVERTIME LAWSUIT anc OPPORTUNITY TO JOIN Why Did | Get This Notice? Can | be Retaliated Against? You have been identified as an individual that || No. It is unlawful for FreshOne or your current worked for FreshOne Distribution Services, LLC employer to terminate your employment or take (“FreshOne") a: a Driver between any adverse action, a5 defined by the law, against and the present. if you Mave received this YOu as a result of your participation in this suit. Notice, you may be eligible to join this lavesuit. How Col Make a Claim? What's This About? Pr ee. lf YOu Want to join the lawsuit as a plaintiff, you can A former FreshOne filed a lawsuit that seeks to || sign and join by DocuSign or fill qut the attached recover overtime pay for working morethan 40 Consent te Join form and mail, email or fax it to Mir. hours in a workweek. The lawsuit claims that || Miltenberger at the address below. ft must be Drivers worked more than 40 hours inmost, if || received in Mr. Miltenberger’s office by not all, weeks; but, because they were paid by : the route, they did not receive overtime pay. What Are My Choices? You are eligible to join this lawsuit if you worked more than 40 hours in any week lf you choose to join in thie case, you will be bound without receiving overtime pay. by the result in this case, whether it is favorable or unfavorable. lf youjoin the case, you will not have FreshOne contends that it properly paid to pay the lawyers anything out of pocket, win or Drivers and contends that it does mot owe any lose. Mir. Miltenberger is representing the kerr overtime wages. Fos ona contingency fee basis. yp eae This Court has not decided whether FreshOne || You may have to respond to written discovery failed to pay overtime wages. Plaintiff in this requests, provide documents and/or provide lawsuit must prove his claim at trial unless the || testimony. case is settled. lf you do not wish to join the lawsuit as a plaintiff, What Can | Get? you are free to take action on your own or do nothing. lf you join this lawsuit and the Drivers settle the case or win, you and the other plaintiffs may Can | Get More Information? fet an amount up to two times the unpaid oko CAA overtime wages you and they should have You can call the Orivers’ attorneys at 1-817-416-5060. The cal received as well □□ attorneys’ fees and costs. is confidential Or write or email Mr. Miltenberger et: Law Office of chris R_ bailtenberger, PLLC Chris R. Miltenberger, Esq. 1350 N. White Chapel, suite 200 Southlake, Texas 7o092 Phone: 817-416-5050; ax: 317-216-5062 chre@crmlawpractica.com The United States District Court for the Northern District of Texas approved this Notice but Takes no position onthe merits of the case. UNITED STATES DISTRICT COURT Northern District of Texas DallasDivision Randy McCurdy Jr., individually and § on behalf of all those similarly § situated § Plaintiff, § § § CANo: 3:19-cv-2787-M v. § § FreshOne Distribution Services, LLC § Collective Action Defendant § Jury Demanded § CONSENT TO JOIN  I consent to become a party plaintiff and join a lawsuit against FreshOne Distribution Services, LLC(“Defendant”) seeking damages for unpaid wages under the Fair Labor Standards Act. I was employed by Defendant as a driverin the last three years, worked more than 40 hours a week and was not paid overtime.  By joining this lawsuit, I authorize and designate Randy McCurdy Jr., and other persons he may designate as necessary, and his attorneys as my representatives to make all decisions on my behalf, to the extent permitted by law, concerning the method and manner of conducting the case including settlement, the entering of an agreement with Plaintiff’s counsel regarding payment of attorneys' fees and court costs, releasing of claims, and all other matters pertaining to this lawsuit.  I further acknowledge that this Consent Form is intended to be filed to recover wages I believe I am owed, whether in the case in which this consent is initially filed or in any subsequent action that may be filed on my behalf seeking recovery from Defendant.  I understand I have the right to choose my own counsel. I agree to be represented bythe Law Office of Chris R. Miltenberger, PLLC. __________________ ___________________________ Date Signature ___________________________ Printed Name PLEASE PRINT OR TYPE THE FOLLOWING INFORMATION: This information will NOT be made part of any public record and is necessary for your attorney’s files for litigation and possible settlement purposes. Name: _____________________________________________ Mailing Address: _____________________________________________ City, State & Zip Code: _________________________________________ Social Security No. (or last 4 digits): _____________________ Cellular Telephone: ________________________________ E-Mail Address: __________________________________ Beginning Date of Employment: ________________________ Ending Date of Employment: ___________________________ Reminder RegardingMcCurdy v FreshOne Notice Materials were recently mailed and/oremailed to you in regard to the Randy McCurdy Jr.v. FreshOne Distribution Services, LLClawsuit alleging unpaid overtime violations of the Fair Labor Standards Act. In order to participate in this lawsuit, you must complete, sign, and mail, fax or email the Consent Form contained in the Notice Materials so that it is received by the Driver’s attorneys (at the address below) on or before _________, 2020. Chris R. Miltenberger, Esq. chris@crmlawpractice.com; 1360 N. White Chapel Blvd., Suite 200 www.miltenbergerovertimelaw.com Southlake, Texas 76092 817-416-5060 (phone); 817-416-5062 (fax) If you did not receive your Notice Materials, please contact Chris Miltenberger, Esq. at 817-416-5060or at chris@crmlawpractice.comto request another copy be mailed/emailedto you.