United States District Court, S.D. Georgia, Statesboro Division
LEROY BRANTLEY, JR; HAROLD H. RICKS; ROGER SMITH; and SHON BUTLER, on behalf of themselves and all others similarly situated,
HANDI-HOUSE MFG. CO.; and DONALD FLANDERS, Defendants.
RANDAL HALL CHIEF UNITED STATES DISTRICT JUDGE
the Court is Plaintiffs' Motion to Conditionally Certify
a Collective Action Class and to Certify a Rule 23
Class. (Doc. 40.) For the following reasons,
Plaintiffs' motion is DENIED.
are former employees of Defendant Handi-House Mfg. Co.
("Handi-House"), which is owned by Defendant Donald
Flanders. Plaintiffs allege that Handi-House's General
Manager, James Akridge, and Director of Sales, John
Wilkerson, operated an illegal payday lending enterprise with
Mr. Flanders's permission. (Ricks Dep., Doc. 86, at 96, 97,
Akridge and Wilkerson would lend money to Defendants'
employees with an interest rate that was generally around six
dollars for every twenty dollars borrowed. (Id. at
135.) If an employee borrowed money, Messrs. Akridge and
Wilkerson would endorse and cash the employee's paycheck,
deduct the amount the employee had borrowed plus interest,
and return the remainder to the employee. (Smith Dep., Doc.
40-13, at 52-53; Johnson Dep., Doc. 78-1, at 67.) Plaintiffs
claim that the interest payments charged resulted in
employees receiving less than minimum wage, in violation of
the Fair Labor Standards Act ("FLSA"), 29 U.S.C.
§ 206. Plaintiffs initiated this case on June 27,
2017, and now move for certification pursuant to the FLSA and
Federal Rule of Civil Procedure 23.
Certification of a Collective Action Under the FLSA
FLSA provides that a plaintiff may bring a "collective
action" on behalf of himself and other similarly
situated employees. 29 U.S.C. § 216(b). "A
collective action allows . . plaintiffs the advantage of
lower individual costs to vindicate rights by the pooling of
resources. The judicial system benefits by efficient
resolution in one proceeding of common issues of law and fact
arising from the same alleged [unlawful] activity."
Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165,
170 (1989). Unlike a class certified under Federal Rule of
Civil Procedure 23, the FLSA requires that putative class
members affirmatively opt-in to the class by providing the
court with written consent, communicating their intent to be
a class member who will be bound by the court's judgment.
Id.; Hipp v. Liberty Nat' 1 Life Ins.
Co., 252 F.3d 1208, 1216 (11th Cir. 2001).
Eleventh Circuit has recommended a two-phase approach to
certification under 29 U.S.C. § 216(b). Hipp,
252 F.3d at 1217. In the notice stage, the court decides
whether notice should be given to potential class members.
Id. The notice stage imposes a "fairly
lenient" burden. Morgan v. Family Dollar Stores,
Inc., 551 F.3d 1233, 1260-61 (11th Cir. 2008)
Conditional certification will be granted if the plaintiff
shows two elements: (1) that there are other employees who
wish to opt-in; and (2) that those employees are similarly
situated with respect to their job duties and pay.
Id. at 1258-59; Dybach v. Fla. Dep't of
Corrs., 942 F.2d 1562, 1567-68 (11th Cir. 1991). The
presence of employees who wish to opt-in is usually
demonstrated by affidavits or consent to sue forms. Davis
v. Charoen Pokphand (USA), Inc., 303 F.Supp.2d 1272,
1277 (M.D. Ala. 2004) . Such evidence must consist of
something more than the plaintiff's bare belief that
other employees exist. Morgan, 551 F.3d at 1261;
Home v. United Servs. Auto Ass'n, 279 F.Supp.2d
1231, 1236 (M.D. Ala. 2003). If the court grants conditional
certification, putative class members are given notice of the
action and the chance to opt-in and the case proceeds
throughout discovery as a collective action. Hipp,
252 F.3d at 1218. The defendant may subsequently trigger the
second phase by filing a motion to decertify after discovery
has been largely completed. Id.
motion was filed one month after discovery began and is
therefore in the notice stage. Even under this fairly lenient
standard, however, Plaintiffs have failed to demonstrate that
conditional certification is warranted. Specifically,
Plaintiffs provided no evidence that there are other
employees who wish to opt-in to this action. The closest
Plaintiffs come to meeting this standard is the Affidavit of
Plaintiffs' Counsel, Jeffrey F. Peil, who states that he
has spoken to one other employee who would be willing to
become a class representative if any representative is
determined to be inadequate. (Peil Aff., Doc. 40-7, ¶
10.) Mr. Peil's statement does not show that other
employees wish to opt-in to this action and is a bare
assertion of his belief. See Davis, 303 F.Supp.2d at
1277 (refusing to conditionally certify a collective action
when plaintiff's only evidence of other members was her
own statement that she had spoken to twelve employees who
wanted to join the lawsuit); Saxton v. Title Max of Ala.,
Inc., 431 F.Supp.2d 1185, 1187 (N.D. Ala. 2006)
(refusing to certify where affidavits only showed intent to
participate in a previous suit). Mr. Peil's statement
also provides no details about the opt-in employees so even
accepting his statement as evidence that there are other
employees who wish to participate in this case, the Court
cannot determine whether those employees are similarly
situated to Plaintiffs. See Saxton, 431 F.Supp.2d at
1188 (courts should compare named plaintiff with opt-in
declarations) (citing Dybach, 942 F.2d at 1567)).
Therefore, because Plaintiffs have not submitted evidence
showing that there are employees who wish to opt-in to this
action that are similarly situated to Plaintiffs,
Plaintiffs' motion to proceed as a collective action is
Certification Under Federal Rule of Civil Procedure
also move for certification under Federal Rule of Civil
Procedure 23. Before considering the requirements under Rule
23, a court must determine whether a class is adequately
defined and its members are reasonably ascertainable.
DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir.
1970); Bennett v. Hayes Robertson Group, 880
F.Supp.2d 1270, 1278 (S.D. Fla. 2012). While a definition
does not need to be overly strict, it must not be vague or
difficult to apply. Hayes Robertson Group, 880
F.Supp.2d at 1278.
satisfy the ascertainability element, the plaintiff must
propose a feasible way to identify class members. Karhu
v. Vital Pharmaceuticals, Inc., 621 Fed.Appx. 945, 948
(11th Cir. 2015); John v. Nat' 1 Sec. Fire & Cas.
Co., 501 F.3d 443, 445 (5th Cir. 2007) ("The
existence of an ascertainable class of persons to be
represented by the proposed class representative is an
implied prerequisite of Federal Rule of Civil Procedure
23."). The merits of individual claims are only
considered to the extent necessary to determine whether Rule
23 is satisfied. Valley Drug Co. v. Geneva Pharm.,
Inc., 350 F.3d 1181, 1188 n.15 (11th Cir. 2003) . Thus,
a class should not be certified if the court must engage in
individualized determinations of disputed fact in order to
ascertain a person's membership. Lea Family
P'ship Ltd. v. City of Temple Terrace, 2017 WL
4155459, at *2 (S.D. Fla. Sept. 19, 2017); Stalley v. ADS
Alliance Data Sys., Inc., 296 F.R.D. 670, 679-80 (M.D.
instant case, Plaintiffs contend that class members can be
identified by Defendants' records. A plaintiff cannot
"establish ascertainability simply by asserting that
class members can be identified using the defendant's
records; the plaintiff must also establish that the records
are in fact useful for identification purposes, and that
identification will be administratively feasible."
Karhu, 921 Fed.Appx. at 946. Plaintiffs first
suggest that class members can be identified by using a list
of the employee names and salaries. Yet the evidence shows
that not every employee received loans from Messrs. Akridge
or Wilkerson. (See, e.g., Fluellen Dep.,
Doc. 78-2, ...