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Greene v. Omni Limousine, Inc.

United States District Court, D. Nevada

June 15, 2019

ALFRED DARNELL GREENE and CHRISTOPHER SUASAENG, individually, and on behalf of others similarly situated, Plaintiffs,



         Pending before the Court is the Motion for Conditional Collective Certification Pursuant to 29 U.S.C. § 216(b), (ECF No. 23), filed by Plaintiffs Alfred Darnell Greene and Christopher Suasaeng (collectively, “Plaintiffs”). Defendant Omni Limousine, Inc. (“Defendant”) filed a Response, (ECF No. 27), and Plaintiffs filed a Reply, (ECF No. 28). For the reasons discussed below, the Court GRANTS in part and DENIES in part Plaintiffs' Motion.

         I. BACKGROUND

         This matter arises out of allegedly unpaid wages owed to Plaintiffs for their work as limousine drivers employed by Defendant. (See Compl. ¶¶ 1-5, ECF No. 1). Plaintiffs state that their duties, like Defendant's other limousine drivers, included tasks such as retrieving paperwork and trip sheets prior to picking up clients, inspecting vehicles for damage prior to leaving the yard, purchasing and transferring supplies to the vehicles, cleaning the vehicles, driving to pick up locations and waiting for the fare, picking up clients, helping clients unload luggage, and collecting client payments. (Id. ¶¶ 29-30, 32-33). However, according to Plaintiffs, Defendant's limousine drivers “are only paid the hourly wage for time spent driving the client”; “Plaintiffs and other limousine drivers are not paid for any wages at all for the time spent completing required work activities” that occur before, after, or in-between fares. (Id. ¶ 29). As a result, Plaintiffs claim they, and other limousine drivers, were not paid for overtime work and were subject to unlawful deductions in pay. (Id. ¶¶ 34-38).

         Plaintiffs filed their Complaint against Defendant on September 11, 2018, on behalf of themselves and all other similarly situated employees of Defendant. (Id. ¶ 40). The Complaint asserts claims pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., various Nevada Revised Statutes, and the Nevada Constitution. (Id. ¶¶ 46-93). Specifically, Plaintiffs allege that Defendant: (1) failed to pay overtime in violation of 29 U.S.C. § 207; (2) failed to pay wages for all hours worked in violation of NRS 608.140 and 608.016; (3) failed to pay minimum wages in violation of the Nevada Constitution; (4) failed to timely pay all wages due and owing in violation of NRS 608.140 and 608.020-050; (5) made unlawful wage deductions in violation of NRS 608.100 and 608.110; (6) failed to maintain records of wages in violation of NRS 608.115; and (7) breached its contracts with Plaintiffs. (Id.).

         In the instant Motion, Plaintiffs move for conditional certification of this case as a collective action pursuant to § 216(b) of the FLSA.[1] Plaintiffs propose a collective defined as:

All Chauffeurs/Limousine Drivers who worked for Defendant Omni Limousine, Inc. at any time on or after September 11, 2015 through the date of judgment (the “Collective”).

(Mot. Conditional Certification 1:27-28, ECF No. 23). Plaintiffs also seek entry of an order for: (1) Defendant to identify all putative members of the Collective and provide Plaintiffs with certain forms of contact information for those individuals; (2) approval of proposed Notices to the putative members about their ability to opt in as plaintiffs to this case, which would be sent by U.S. mail, email, and text message; and (3) approval of a sixty-day opt-in period for putative members. (Id. 1:26-2:12).


         Section 216(b) of the FLSA provides that one or more employees may bring a collective action “on behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). While a plaintiff may bring an action on behalf of himself and others similarly situated, “no employee shall be a party to any such action unless he gives his consent in writing to become such a party and such consent is filed with the court in which such action is brought.” Id. “Although § 216(b) does not require district courts to approve or authorize notice to potential plaintiffs, the Supreme Court held in Hoffman-La Roche that it is ‘within the discretion of a district court' to authorize such notice.” McElmurry v. U.S. Bank Nat'l Ass'n, 495 F.3d 1136, 1139 (9th Cir. 2007). “[P]laintiffs need show only that their positions are similar, not identical, to the positions held by the putative class members.” Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996) (alteration in original) (internal quotation marks omitted). “[P]laintiffs bear the burden of demonstrating a ‘reasonable basis' for their claim of class-wide discrimination.” Id. at 1097. “The plaintiffs may meet this burden, which is not heavy, by making substantial allegations of class-wide discrimination.” Id. (internal quotation marks omitted).

         The FLSA does not define “similarly situated.” However, the Ninth Circuit states that, in the collective action context of FLSA claims, “what matters is not just any similarity between party plaintiffs, but a legal or factual similarity material to the resolution of the party plaintiffs' claims, in the sense of having the potential to advance these claims, collectively, to some resolution.” Campbell v. City of Los Angeles, 903 F.3d 1090, 1114-15 (9th Cir. 2018). To determine whether a class is “similarly situated, ” a majority of courts have adopted a two-stage approach. Id.; See Padan v. W. Bus. Sols., LLC, No. 2:15-cv-00394-GMN-CWH, 2016 WL 304303, at *2 (D. Nev. Jan. 25, 2016); Misra v. Decision One Mortg. Co., LLC, 673 F.Supp.2d 987, 992-93 (C.D. Cal. 2008); Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004); Pfohl v. Farmers Ins. Grp., No. 2:03-cv-03080-DT-RC, 2004 WL 554834, at *2 (C.D. Cal. Mar. 1, 2004). The first stage determines whether notification to potential collective members of the representative action should occur; and the second stage determines whether the members are, in fact, “similarly situated.” Leuthold, 224 F.R.D. at 467.

         “Since this first determination is generally made before the close of discovery and based on a limited amount of evidence, the court applies a fairly lenient standard and typically grants conditional class certification.” Misra, 673 F.Supp.2d at 993 (citing Leuthold, 224 F.R.D at 467; Pfohl, 2004 WL 554834, at *2). At this initial notice stage, “a plaintiff need only make a ‘modest factual showing sufficient to demonstrate that [the putative class members] were victims of a common policy or plan that violated the law.'” Id. If the court “conditionally certifies” the class, putative class members are given notice and the opportunity to “opt-in” by a certain deadline. Id.

         The second stage determination then occurs after discovery ends, and this stage controls whether the matter is ready for trial. Id. At this second stage, the court determines if the party plaintiffs share “factual or legal similarities [that] are material to the resolution of their case.” See Campbell, 903 F.3d at 1115-16. If claimants do not share factual or legal similarities that are material, “in the sense of having the potential to advance [their] claims, collectively, to some resolution, ” the court decertifies the class and the opt-in plaintiffs are dismissed without prejudice. Id. Similarly, decertification of a collective action of otherwise similarly situated plaintiffs can occur when “the collective mechanism is truly infeasible.” Id.

         III. ...

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