Mahrous et al v. LKM Enterprises, LLC et al, No. 2:2016cv10141 - Document 20 (E.D. La. 2017)
Court Description: ORDER AND REASONS granting 15 Motion to Certify Class as stated herein. IT IS FURTHER ORDERED that the parties meet and confer in good faith regarding the notice and consent forms that will be distributed to class members within 15 days of the ent ry of this order. IT IS FURTHER ORDERED that defendants shall have 30 days from the date of this order to provide plaintiffs with a computer-readable database containing all potential opt-in plaintiffs' names, last known mailing addresses, telep hone numbers, and email addresses. IT IS FURTHER ORDERED that potential class members may opt in to this collective action if they provide their consent forms to plaintiffs' counsel no later than 90 days from the date the Court approves notice. Signed by Judge Sarah S. Vance on 6/26/2017. (cg)
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Mahrous et al v. LKM Enterprises, LLC et al Doc. 20 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA HASSAN MAHROUS, HAMED YOUSEF, AND MURAD MUBARAK, on behalf of them selves and all others sim ilarly situated, ET AL VERSUS CIVIL ACTION NO. 16-10 141 LKM ENTERPRISES, LLC, LKM CONVENIENCE, LLC AND LENNY MOTWANI SECTION “R” (4) ORD ER AN D REASON S Before the Court is plaintiffs Hassan Mahrous, Hamed Yousef, and Murad Mubarak’s m otion to proceed as a collective action and facilitate notice under 29 U.S.C. § 216(b). For the following reasons, the Court grants the m otion. I. BACKGROU N D Plaintiffs bring this action on behalf of them selves and a putative class of sim ilarly situated current and form er em ployees against LKM Enterprises, LLC; LKM Convenience, LLC; and Lenny Motwani (“LKM Dockets.Justia.com Defendants”). 1 Plaintiffs allege defendants willfully violated the Fair Labor Standards Act (FLSA). 2 A. Pro ce d u ral Backgro u n d Plaintiffs raised the sam e FLSA claim s in an earlier civil action, Mejia v. Brothers Petroleum , LLC, No. 12-2842 (E.D. La. filed Nov. 28, 20 12). 3 The Mejia action was initially brought in November 20 12 against a group of convenience stores operating under the name Brothers Food Mart, owned and operated by Im ad Ham dan (“Ham dan Defendants”). 4 In J uly 20 14, J udge Helen Berrigan granted the plaintiffs’ m otion to proceed as a collective action in that case. Mejia, 20 14 WL 3530 362. On J une 30 , 20 15, the plaintiffs filed a third am ended com plaint adding the LKM Defendants to the Mejia case. 5 Im ad Ham dan asked the court to stay the Mejia proceedings because of a crim inal investigation into his alleged employment of undocum ented workers at Brothers Food Mart. 6 1 2 3 4 5 6 In September 20 14, J udge Berrigan R. Doc. 1 at 1-2 ¶ 1. Id. at 9 ¶ 43. R. Doc. 15-1 at 4. Com plaint at 1-2, No. 12-2842, ECF No. 1. Third Am ended Com plaint at 2-4, No. 12-2842, ECF No. 20 5. Motion to Stay, No. 12-2842, ECF No. 88. 2 granted a partial stay of discovery as to undocum ented workers in order to safeguard Ham dan’s Fifth Am endm ent right against self-incrim ination. 7 J udge Berrigan later recused herself and the case was transferred to this section of the court. 8 In Septem ber 20 15, the Court converted the partial stay into a com plete stay of the proceedings. 9 The parties held a status conference with the Court on March 17, 20 16. 10 At the status conference, the Court provided plaintiffs with the opportunity to m ove to sever their claim s against the LKM Defendants from their claim s against the Ham dan Defendants and file an am ended com plaint. 11 The Court directed the Clerk, if an am ended com plaint was filed, to assign a new case number to the amended complaint with a notation that the case is related to the Mejia litigation. 12 The Court granted the plaintiffs’ m otion to sever their claim s against the LKM Defendants. 13 On J une 14, 20 16, the plaintiffs filed a collective action com plaint against the LKM Defendants. 14 7 8 9 10 11 12 13 14 Order on Motion to Stay, Mejia, No. 12-2842, ECF No. 10 7. Order Re-Allotting Case, Mejia, No. 12-2842, ECF No. 114. Order on Motion to Continue, Mejia, No. 12-2842, ECF No. 211. R. Doc. 1-1 at 1. Id. at 2. Id. Order on Motion to Sever, Mejia, No. 12-2842, ECF No. 236. R. Doc. 1. 3 B. Factu al Backgro u n d Defendants operate convenience stores in the greater New Orleans area. 15 Plaintiffs and other mem bers of the putative class are current and form er non-exem pt, hourly employees em ployed by the defendants as cooks, cashiers, or general store operators in their convenience stores. 16 The named plaintiffs were em ployed by the defendants for various periods between 20 10 and 20 15. 17 Plaintiffs allege that the defendants engaged in a deliberate and willful policy and practice of failing to pay non-exem pt, hourly em ployees overtim e pay as required under FLSA. 18 According to the com plaint, the nam ed plaintiffs worked about 70 -80 hours per week for the defendants but were not paid legally required overtim e for hours worked in excess of 40 hours per week. 19 Plaintiffs further assert that defendants unlawfully deducted required business expenses from their pay, failed to m aintain proper tim e records as required by law, and failed to com pensate plaintiffs for all hours worked. 20 Plaintiffs seek payment of unpaid wages, liquidated dam ages, 15 16 17 18 19 20 Id. at 7 ¶ 30 . Id. at 2 ¶ 2. Id. at 8 ¶ 34-36. Id. at 1-2 ¶ 1. Id. at 8 ¶ 38-39. R. Doc. 1 at 10 -11 ¶ 51-53. 4 statutory penalties, interest, costs, and attorney’s fees. 21 They also ask that defendants be enjoined from continuing their alleged unlawful policies. 22 Plaintiffs now m ove to proceed as a collective action, asking the Court to conditionally certify the collective under 29 U.S.C. § 216(b) and to authorize notice to potential class m embers. 23 The plaintiffs seek to represent a class consisting of: All current and form er non-exem pt, hourly em ployees who have been em ployed by LKM Enterprises, LLC; LKM Convenience, LLC and Lenny Motwani d/ b/ a “Brothers Food Mart” and/ or “Magnolia Express,” or which were subsequently known as “Magnolia Express,” in the State of Louisiana during the tim e period of November 28, 20 0 9 through the present. 24 Plaintiffs allege that m embers of this proposed class are sim ilarly situated because they all have sim ilar job positions and requirements, are subject to sim ilar terms and conditions of em ployment, and are subject to com m on policies and practices that deny them overtim e pay and result in unlawful deductions of the cost of required uniform s and nam etags from their wages. 25 Defendants do not oppose conditional certification but object 21 22 23 24 25 Id at 12. Id. R. Doc. 15 at 1-2. Id. at 1. R. Doc. 15-1 at 2-3. 5 to the plaintiffs’ proposed definition of the class, the form and content of the proposed notice, and aspects of the plaintiffs’ request for inform ation. 26 II. D ISCU SSION A. Co n d itio n al Clas s Ce rtificatio n Plaintiffs seek to bring this FLSA action on behalf of “them selves and other em ployees sim ilarly situated.” 29 U.S.C. § 216(b). Potential class m embers m ust affirm atively opt-in to participate in a § 216(b) collective action. Id. The Fifth Circuit has not adopted a specific approach to determ ine when em ployees are “sim ilarly situated,” but federal district courts com m only apply the two-step Lusardi approach described in Mooney v. Aram co Services Co., 54 F.3d 120 7, 1213-14 (5th Cir. 1995), overruled on other grounds, 539 U.S. 90 (20 0 3). See Esparza v. Kostm ay er Construction, LLC, No. 15-4644, 20 16 WL 35670 60 , at *2-3 (E.D. La. J uly 1, 20 16); Case v. Danos & Curole Marine Contractors, LLC, Nos. 14-2775, 14-2976, 20 15 WL 1978653, at *4 (E.D. La. May 4, 20 15); W hite v. Integrated Elec. Technologies, Inc., No. 11-2186, 20 13 WL 290 30 70 , at *3 (E.D. La. J une 13, 26 R. Doc. 16 at 2. 6 20 13); W illiam s v. Bally ’s Louisiana, Inc., No. 5-50 20 , 20 0 6 WL 123590 4, at *2 (E.D. La. May 5, 20 0 6). The first step of the Lusardi analysis is the “notice stage.” Mooney , 54 F.3d at 1213. At this stage, the Court m ust determ ine whether to conditionally certify a class and allow notice to potential class members. Id. at 1213-14. Courts apply a “fairly lenient standard” that appears “to require nothing m ore than substantial allegations that the putative class members were together the victim s of a single decision, policy, or plan.” Id. at 1214, 1214 n.8 (citing Sperling v. Hoffm an-La Roche, Inc., 118 F.R.D. 392, 40 7 (D.N.J . 1988)). Plaintiffs m eet the standard for conditional certification. They have subm itted affidavits alleging that the nam ed plaintiffs and other potential class members were subject to com mon unlawful practices and policies. 27 Defendants’ practices allegedly included a refusal to pay overtim e wages, a requirement that em ployees pay for uniform s and nametags out of their wages, a failure to pay the federal m inim um wage as a result of unlawful deductions, and a failure to m aintain proper tim ekeeping records. 28 J udge Berrigan applied the Lusardi standard to conditionally certify a class based 27 28 R. Doc. 15-1 at 12. Id. at 12-13. 7 on the same allegations. 29 Mejia, 20 14 WL 3530 362, at *2-3. Defendants acknowledge that plaintiffs’ burden at this stage is “lenient” and do not oppose conditional certification, although they reserve the right to m ove for decertification at a later point. 30 The parties dispute the appropriate tim e period for the class. Plaintiffs propose that the conditionally certified class include all current and form er non-exem pt, hourly employees em ployed by the defendants in Louisiana since November 28, 20 0 9. 31 This proposed tim e period extends three years before the date of the original com plaint in Mejia. 32 Alternatively, plaintiffs suggest a tim e period beginning three years before the filing of the third am ended com plaint on J une 30 , 20 15. 33 The third am ended com plaint added the LKM Defendants to the Mejia m atter. 34 Defendants assert that Plaintiffs’ class definition is overbroad and ask that the class be lim ited to em ployees who worked for defendants within three years of the date of this order. 35 29 30 31 32 33 34 35 Id. at 7, R. Doc. 16 at 2. R. Doc. 16 at 2. R. Doc. 15 at 1. R. Doc. 19 at 3. Id. at 4. Id. R. Doc. 16 at 4-5. 8 The statute of lim itations to bring wage claims under FLSA is two years, or three years in the case of willful violations. 29 U.S.C. § 255. In FLSA collective actions, the statute of lim itations continues to run as to individual claim s until a putative class member files a written consent to join the action. 29 U.S.C. § 256. Defendants thus argue that plaintiffs’ proposed class would include untim ely claim s. 36 At the conditional class certification stage, “courts have not been consistent in whether the [class] tim e period runs relative to the date of the com plaint or relative to the date of the court’s order conditionally certifying the m atter as a collective action.” W hite, 20 13 WL 290 30 70 , at *10 . Courts in this District have ordered that FLSA collective action notices include all persons em ployed up to three years before the date of the com plaint. See Case, 20 15 WL 1978653, at *7; Mejia, 20 14 WL 3530 362; W hite, 20 13 WL 290 30 70 , at *10 ; but see W ellm an v. Grand Isle Shipy ard, Inc., No. 14-831, 20 14 WL 5810 529 at *5 (E.D. La. Nov. 7, 20 14) (declining to use date of com plaint to determ ine notice period where claim s would be barred by statute of lim itations); Cam p v. The Progressive Corp., No. 0 1-2680 , 20 0 2 WL 31496661 at *6, *6 n.6 (E.D. La. Nov. 8, 20 0 2) (same). 36 R. Doc. 16 at 5. 9 This case differs from m ost FLSA conditional certification cases because of its com plex procedural history. This m atter presents unresolved issues regarding the statute of lim itations and possible tolling that the Court need not address at tim e. Defendants will have the opportunity at the appropriate tim e to challenge the tim eliness of any claim s brought by putative plaintiffs who wish to opt-in to the litigation. The Court defines the class period as beginning on J une 30 , 20 12, three years before the filing of the third am ended com plaint adding the LKM Defendants. Although plaintiffs argue that the third am ended complaint relates back to the date of the original com plaint, they do not explain how this would affect the statute of lim itations for potential opt-in plaintiffs. 37 The Court thus finds that the appropriate reference point to define the class is the date a com plaint was filed against the LKM Defendants, who are the subject of the conditional certification m otion. B. Fo rm o f N o tice an d Co n s e n t Fo rm s Defendants contest several aspects of the plaintiffs’ proposed notice to putative class mem bers, including the notice’s description of defendants’ position and language that defendants claim constitutes im proper 37 R. Doc. 19 at 3-4. 10 solicitation. 38 Defendants also request that the notice be modified to inform potential class members that neither parties nor their counsel m ay com m unicate with potential plaintiffs during the opt-in period unless the potential plaintiff initiates com m unication. 39 Defendants request that counsel be ordered to meet and confer over the draft notice. 40 Plaintiffs do not oppose this request but ask that the Court set a deadline of 15 days from this order for the parties to m eet and confer and subm it their agreed-upon notice. 41 The parties are directed to m eet and confer within 15 days regarding the form of the notice and consent form s. The parties are further directed to subm it a joint proposed notice and consent form within 21 days of this order. If the parties are unable to agree, each party shall subm it their proposed notice and consent forms, along with their objections to the opposing party’s notice and consent form s, to the Court within 21 days of this order. 38 39 40 41 R. Doc. 16 at 3. Id. at 9. Id. at 3. R. Doc. 19 at 8. 11 C. Pro d u ctio n o f Co n tact In fo rm atio n Plaintiffs ask that the Court order defendants to produce, within 14 days, a computer-readable database that includes the names of all potential m embers of the class, along with their last known m ailing address, email address, telephone num ber, and social security number. 42 Defendants oppose the production of social security numbers on privacy and security grounds. 43 Plaintiffs have agreed to defer their request for social security num bers until it becom es clear such inform ation is necessary to locate putative class members. 44 Therefore, the Court need not consider the production of social security numbers at this tim e. Defendants also oppose the production of telephone numbers. 45 They argue that telephone num bers are unnecessary for notice and could increase the risk of im proper com m unications. 46 In response, plaintiffs contend that text m essages are the best form of notice because putative class members m ay have changed addresses during the pendency of this litigation. 47 Multiple courts in this District have ordered the production of 42 43 44 45 46 47 R. Doc. 15-1 at 15. R. Doc. 16 at 6. R. Doc. 19 at 7. R. Doc. 16 at 7. Id. R. Doc. 19 at 5. 12 telephone num bers in sim ilar cases. See Jones v. Yale Enf’t Servs., Inc., No. 14-2831, 20 15 WL 3936135, at *3 (E.D. La. J une 26, 20 15); Case, 20 15 WL 1978653, at *8; W hite, 20 13 WL 290 30 70 at *11. Access to telephone num bers will facilitate notice, and the Court orders defendants to produce them . Defendants further argue that the proposed time period for production is too short and request 30 days rather than 14 days. 48 Plaintiffs do not oppose this request. 49 The Court orders that the names and contact inform ation of potential opt-in plaintiffs be produced within 30 days of the date of this order. D. Le n gth o f Op t-in Pe rio d The parties disagree on the length of tim e potential class m embers should have to opt-in to the collective action. Plaintiffs propose that putative plaintiffs return signed consent form s to plaintiffs’ counsel no later than 120 days after the notice and consent form s are mailed. 50 Defendants argue that this period is too long and request an opt-in period of 45 days 48 49 50 R. Doc. 16 at 7. R. Doc. 19 at 8. R. Doc. 15-1 at 16. 13 from the date the Court approves the notice. 51 In reply, plaintiffs contend that a 120 day opt-in period is necessary because the contact inform ation in defendants’ possession is likely to be outdated and some putative plaintiffs m ay be difficult to locate. 52 Both parties cite district court opinions in support of their proposed tim e periods, though defendants cite m ultiple cases that provided a 60 day opt-in period. 53 The Court acknowledges that plaintiffs m ay face additional difficulties in contacting potential class m embers as a result of the passage of tim e since the third amended com plaint was filed, but finds that an opt-in period of 90 days from the date the Court approves notice is sufficient. See Baricuatro v. Indus. Pers. & Mgm t Servs., Inc., No. 11-2777, 20 12 WL 5986467, at *2 (E.D. La. Nov. 29, 20 12). III. CON CLU SION For the foregoing reasons, IT IS ORDERED that plaintiffs’ m otion to conditionally certify this m atter as a collective action is GRANTED. The Court conditionally certifies this m atter as a collective action including all 51 52 53 R. Doc. 16 at 9. R. Doc. 19 at 6. R. Doc. 16 at 8; R. Doc. 19 at 7. 14 current and form er non-exem pt, hourly em ployees who have been em ployed by LKM Enterprises, LLC; LKM Convenience, LLC and Lenny Motwani d/ b/ a “Brothers Food Mart” and/ or “Magnolia Express,” or which were subsequently known as “Magnolia Express,” in the State of Louisiana during the tim e period of J une 30 , 20 12 through the present. IT IS FURTHER ORDERED that the parties meet and confer in good faith regarding the notice and consent form s that will be distributed to class m embers within 15 days of the entry of this order. The parties shall subm it a joint proposed notice and consent form to the Court within 21 days of the entry of this order. If the parties are unable to agree, the parties shall each subm it to the Court within 21 days of this order: (1) their proposed notice and consent forms and (2) their objections, with supporting authority, to the opposing party’s notice and consent form s. IT IS FURTHER ORDERED that defendants shall have 30 days from the date of this order to provide plaintiffs with a computer-readable database containing all potential opt-in plaintiffs’ names, last known m ailing addresses, telephone num bers, and email addresses. If there is any dispute or uncertainty regarding whether an individual is a potential opt-in plaintiff, the defendants shall produce the individual’s inform ation. 15 IT IS FURTHER ORDERED that potential class m em bers m ay opt in to this collective action if they provide their consent form s to plaintiffs’ counsel no later than 90 days from the date the Court approves notice. Plaintiff’s counsel shall file consent form s with the Court on an ongoing basis and no later than two weeks after the end of the 90 -day period. New Orleans, Louisiana, this _26th _ day of J une, 20 17. ___ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 16
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