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McSwiggin v. Limousine

United States District Court, D. Nevada

July 16, 2015

CHRISTY McSWIGGIN and KEVIN McSWIGGIN, Plaintiff(s),
v.
OMNI LIMOUSINE, Defendant(s).

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is plaintiffs Christy and Kevin McSwiggin's motion for circulation of notice pursuant to 29 U.S.C. § 216(b). (Doc. # 12). Defendant Omni Limousine ("Omni") filed a response, (doc. # 15), and plaintiffs filed a reply, (doc. # 18).

I. Background

On December 19, 2014, plaintiffs filed a collective and class action complaint against Omni. (Doc. # 1). In their complaint, plaintiffs allege various causes of action for unpaid wages under the Fair Labor Standards Act ("FLSA"), Nevada Revised Statutes, and Nevada Constitution on behalf of themselves and all similarly situated individuals. (Doc. # 1).

On April 9, 2015, plaintiffs filed the present motion for circulation of notice directing that other persons similarly situated to plaintiffs be given notice of the pendency of this action and an opportunity to file written consents to join this action. (Doc. # 12).

II. Legal Standard

Congress created the FLSA to provide a uniform national policy of guaranteeing compensation for all work or employment covered by the Act. Barrentine v. Ark.-Best Freight Sys., 450 U.S. 728, 741 (1981). The FLSA grants individual employees broad access to the courts and permits an action to recover minimum wages, overtime compensation, liquidated damages, or to gain injunctive relief. Id. at 740.

Under the FLSA, an employee may initiate a collective action on behalf of himself and other similarly situated people. 29 U.S.C. § 216(b). Court-supervised notice of pendency of § 216(b) actions "serves the legitimate goal of avoiding a multiplicity of duplicative suits and setting cutoff dates to expedite disposition of the action." Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 172 (1989).

There is a two-tiered approach to certifying a collective action under the FLSA. The first tier is the "notice stage" which requires only a "modest factual showing." Small v. Univ. Med. Ctr. of S. Nev., no. 2:13-cv-00298-APG-PAL, 2013 WL 3043454, at *1 (D. Nev. June 14, 2013). "The bar is quite low... typically result[ing] in conditional class certification." Id. In the notice stage, the essential question is whether employees are sufficiently similarly situated, so that notice should be sent to prospective plaintiff[s]." Id.

Although the standard is low, the motion must "provide substantial allegations, supported by declarations or discovery, that the putative class members were together the victims of a single decision, policy, or plan." Small, 2013 WL 3043454, at *1. The plaintiffs must show "a factual nexus which binds the named plaintiffs and the potential class members together as victims of a particular alleged policy or practice, " and "plaintiffs cannot proceed... if the action relates to other specific circumstances personal to the plaintiff rather than any generally applicable policy or practice." Bonilla v. Las Vegas Cigar Co., 61 F.Supp.2d 1129, 1138 n.6 (D. Nev. 1999).

III. Discussion

Pursuant to local rule 7-2(d), "[t]he failure of an opposing party to file points and authorities in response to any motion shall constitute a consent to the granting of the motion." Defendant Omni "consents to the distribution of the notice." (Doc. # 15). Accordingly, the court will grant plaintiffs' motion for circulation of notice and address only the parties proposed changes.

Plaintiffs provide a proposed notice of circulation, consent to join the lawsuit, and order. (Doc. # 12). Defendant's response suggests changes to plaintiffs' proposed notice, consent to join the lawsuit, and order. (Doc. # 15). Defendant submitted these modifications for the court's consideration, which are marked in "red line" and attached as exhibits. (Doc. # 15).

Defendant proposes changes including creating a sixty-day cutoff period for opting-in to the class action; requiring that opt-in plaintiffs mail the signed consent to the clerk of the court; modifying the notice so that social security numbers are not obtained from every plaintiff; removal of "non-exempt" employee references; changing the statute of limitations period from three years to two years; changing the language so it is more neutral; and informing potential plaintiffs of their rights and potential obligations. (Doc. # 15). Plaintiffs' reply addresses defendant's proposed changes.

a. Opt-in time period

Plaintiffs' original proposal did not include an end date for the opt-in period. Defendant requests 60 days for putative class members to opt-in to the present suit. Plaintiffs' reply that 120 days is an appropriate opt-in period. The court concludes that 90 days will suffice to give potential ...


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