Cottrell v. Triple J Trucking, Inc.

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JIMMY COTTRELL PLAINTIFF v. TRIPLE J TRUCKING, INC., et al. DEFENDANTS

Civil Action No. 4:23-CV-00013-JHM

United States District Court, W.D. Kentucky, Owensboro Division

May 1, 2023

MEMORANDUM OPINION AND ORDER

Joseph H. McKinley Jr., Senior Judge United States District Court

This matter is before the Court on Plaintiff Jimmy Cottrell's motion for conditional certification. [DN 13]. In its response to that motion, Defendant Triple J Trucking moved for expedited discovery. [DN 15]. These matters are ripe for decision. For the following reasons, Mr. Cottrell's motion is GRANTED, and Triple J's motion is DENiED.

i Background

Plaintiff Jimmy Cottrell (“Mr. Cottrell”) was a garbage-truck driver for Defendant Triple J. Trucking, Inc. (“Triple J”) for about four years until 2022. [DN 1 at ¶ 7, 20]. During his time at Triple J, Mr. Cottrell drove a garbage-collection route entirely within Kentucky without ever entering another state. The garbage he collected was generated in Kentucky, picked up in Kentucky, driven through Kentucky, and ultimately dumped at a landfill in White Plains, Kentucky without ever leaving Kentucky. [Id. at ¶¶ 21-25]. Mr. Cottrell also alleges that every other Triple J garbage-truck driver drove purely intrastate routes and had no expectation of ever entering another state. [Id. at ¶¶ 20, 27; DN 13-3 at ¶ 6, 14]. He further attests that he and the other garbagetruck drivers frequently worked over forty hours per week. [DN 13-3 at ¶¶ 13-14].

Mr Cottrell submits that all Triple J's current and former garbage-truck drivers, including himself, are entitled to overtime pay for every hour over forty hours a week they worked, and that Triple J violated the Fair Labor Standards Act (“FLSA”) and the Kentucky Wages and Hours Act by not paying them overtime. [DN 1 at ¶ 1]. He alleges that Triple J did not pay these drivers for their overtime work because it believed they fell under a FLSA exemption for truckers driving in interstate commerce for an interstate carrier in trucks weighing over ten thousand pounds. [Id.]; see 29 U.S.C § 213(b)(1); 49 U.S.C. § 31502(b); 49 U.S.C. § 31132(1)(A). But Mr. Cottrell argues that this exemption does not apply to Triple J's garbage-truck drivers because they drove solely in intrastate commerce. [DN 1 at ¶ 1]. To that end, he sued Triple J and its three directors in this Court on behalf of himself and every current and former Triple J garbage-truck driver. [DN 1]. He now moves the Court to conditionally certify the suit and notify the other drivers of their right to become plaintiffs in this case. [DN 13].

II. STANDARD OF REVIEW

The FLSA permits an employee to bring a collective action on behalf of “similarly situated” employees. 29 U.S.C. § 216(b). Unlike a Rule 23 class action, however, an FLSA collective action does not provide “opt-out” procedures. See Rogers v. Webstaurant, Inc., No. 4:18-CV-74-JHM, 2018 WL 4620977, at *1 (W.D. Ky. Sept. 26, 2018) (“A collective action under the FLSA permits similarly situated employees to ‘opt-in' to the action, unlike the opt-out approach typically utilized under [Rule] 23.”). Instead, any employee that wishes to join the FLSA collective action must opt into it by filing written consent with the court. 29 U.S.C. § 216(b).

The FLSA provides limited guidance on how to include opt-in plaintiffs. The statute requires only that opt-in plaintiffs are “similarly situated” to the lead plaintiff. Id. In lieu of statutory guidance, the Supreme Court acknowledged that district courts possess broad discretion to manage the joinder of opt-in plaintiffs. Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989) (“We hold that district courts have discretion, in appropriate cases, to implement 29 U.S.C. § 216(b) . . . by facilitating notice to potential plaintiffs.”). A district court may use that discretion to “authorize notification of similarly situated employees to allow them to opt into the lawsuit.” Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006).

Before a court may authorize notice to prospective opt-in plaintiffs, it must “consider whether plaintiffs have shown that the employees to be notified are, in fact, similarly situated.” Comer, 454 F.3d at 546 (quotation omitted). The “similarly situated” inquiry requires the court to analyze several factors, many of which require discovery. See O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 585 (6th Cir. 2009) (outlining the “similarly situated” factors), abrogated on other grounds by Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016). Thus, there is understandable tension between a plaintiff's desire to notify other potential plaintiffs early in litigation and the fact-intensive nature of the “similarly situated” inquiry.

District courts developed a two-step certification process to alleviate this tension. The first step, which occurs at the start of discovery, requires a plaintiff to make a “modest factual showing” that “his position is similar, not identical, to the positions held by the putative class members.” Comer, 454 F.3d at 546-47 (quoting Pritchardv. Dent WizardInt'l Corp., 210 F.R.D. 591, 595 (S.D. Ohio 2002)). This step is known as “conditional certification.” White v. Baptist Mem'l Health Care, 699 F.3d 869, 877 (6th Cir. 2012). It is a “fairly lenient standard, and typically results in conditional certification of a representative class.” Comer, 454 F.3d at 547 (quotation omitted). The only practical significance of conditional certification is that the plaintiff can notify prospective opt-in plaintiffs. See Hall v. Gannett Co., No. 3:19-CV-296, 2021 WL 231310, at *2 (W.D. Ky. Jan. 22, 2021) (“The point [of conditional certification] is to inform potential members of the collective action at the outset ....”). The second step is final certification; it occurs “after all class plaintiffs have decided whether to opt-in and discovery has concluded.” White, 699 F.3d at 877.

At this step, courts “examine more closely the question of whether particular members of the class are, in fact, similarly situated.” Comer, 454 F.3d at 547.

Neither statute nor court rule requires a district court to use a two-step certification process. Nor is it required by Sixth Circuit precedent-the Sixth Circuit has recognized, but never required, district courts' use of the two-step procedure. See White, 699 F.3d at 877 (“District courts determine whether plaintiffs are similarly situated in a two-step process ....”); Comer, 454 F.3d at 546-47 (recognizing that the district court applied the two-step process, but never stating it was required). Yet two-step certification remains common, both within this district and around the nation. See, e.g., York v. Velox Express, Inc., 524 F.Supp.3d 679, 685 (W.D. Ky. Mar. 10, 2021); Hall, 2021 WL 231310, at *2-4; Marcum v. Lakes Venture, LLC, No. 3:19-CV-231, 2020 WL 6887930, at *2-3 (W.D. Ky. Nov. 24, 2020); Jones v. H&J Rest., LLC, No. 5:19-CV-105, 2020 WL 759901, at *2-3 (W.D. Ky. Feb. 14, 2020); Johnston v. J&B Mech., LLC, No. 4:17-CV-51-JHM, 2017 WL 3841654, at *2-3 (W.D. Ky. Sept. 1, 2017).

III. Discussion

A. Expedited Discovery

While two-step certification is the most common method for notifying the collective in FLSA actions, Triple J prefers a single-step approach. It asks the Court for a ninety-day period to conduct limited discovery on the issue of whether its other garbage-truck drivers would be “similarly situated” to Mr. Cottrell. [DN 15 at 3-4].

The Supreme Court has “ ‘confirm[ed] the existence of the trial court's discretion' to facilitate notice of a pending collective action to potential plaintiffs.” McClurg v. Dallas Jones Enterprises Inc., No. 4:20-CV-00201, 2021 WL 5763563, at *3 (W.D. Ky. Dec. 3, 2021) (quoting Hoffman-La Roche, 493 U.S. at 170). Although “[t]he judicial system benefits by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged discriminatory activity,” those benefits “depend on employees receiving accurate and timely notice concerning the pendency of the collective action.” Hoffman-La Roche, 493 U.S. at 170. A court-authorized notice helps expedite actions, avoid multiple lawsuits, and prevent plaintiff's counsel from misleading collective members. Id. at 171-72. When issuing such notices, district courts must “avoid even the appearance of judicial endorsement of the merits of the action.” Id. at 174.

Bearing these principles in mind, Triple J advocates for a single-step determination before the Court facilitates notice to the collective, citing Swales v. KLLM Transport Service, LLC, 985 F.3d 430 (5th Cir. 2021). [DN 15 at 4]. According to the Fifth Circuit, “a district court should identify, at the outset of the case, what facts and legal considerations will be material to determining whether a group of ‘employees' is ‘similarly situated.' And then it should authorize preliminary discovery accordingly.” Id. at 441. But this Court has previously rejected Swales's method in favor of the traditional two-step approach, finding the latter better implements Hoffman-La Roche's guidance. See, e.g., McClurg, 2021 WL 5763563, at *3; see also Back v. Ray Jones Trucking, Inc., No. 4:22-cv-00005-JHM, 2022 WL 2252608, at *3 (W.D. Ky. June 22, 2022) (following McClurg). Moreover, courts within the Sixth Circuit regularly implement the twotiered approach. See McClurg, 2021 WL 5763563, at *3 (collecting district court cases).

This Court still favors the traditional two-step certification approach. In its recent opinions in McClurg and Back, the Court considered that the employer-not the potential plaintiffs- possessed the relevant government forms, haul records, and employee timekeeping records. Id.; Back, 2022 WL 2252608, at *3. Furthermore, the Court...