United States District Court, D. Nevada
ALFRED DARNELL GREENE and CHRISTOPHER SUASAENG, individually, and on behalf of others similarly situated, Plaintiffs,
OMNI LIMOUSINE, INC., Defendant.
M. NAVARRO, CHIEF JUDGE
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.
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).
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
instant Motion, Plaintiffs move for conditional certification
of this case as a collective action pursuant to § 216(b)
of the FLSA. Plaintiffs propose a collective defined
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
(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).
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).
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.
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.
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