For the purposes of conditional certification, the court draws the relevant facts from "the complaint and any affidavits that have been submitted." Bitner v. Wyndham Vacation Resorts, Inc., 301 F.R.D. 354, 357 (W.D. Wis. 2014) (quoting Austin v. CUNA Mut. Ins. Soc'y, 232 F.R.D. 601, 606 (W.D. Wis. 2006)). Any factual disputes are resolved in plaintiff's favor.
This court applies a two-part test to determine whether an FLSA claim may proceed as a collection action. Bitner v. Wyndham Vacation Resorts, Inc., 301 F.R.D. 354, 357 (W.D. Wis. 2014); Espenscheid v. DirectSat USA, LLC, 2010 WL 2330309, *6 (W.D. Wis. Jun. 7, 2010); Austin v. Cuna Mutual Insurance Society, 232 F.R.D. 601, 605 (W.D. Wis. 2006). At the first stage, the question is whether the plaintiff has made a "modest factual showing" that he and potential class members were victims of a common policy or plan that violated the law.
At the second step, the defendants may move for decertification, at which point the court determines whether the plaintiffs are in fact similarly situated to those who have opted in. Bitner v. Wyndham Vacation Resorts, Inc., 301 F.R.D. 354, 358 (W.D. Wis. 2014). At that stage, the court applies a standard similar to class certifications under Federal Rule of Civil Procedure 23. Jones v. Cruisin' Chubbys Gentlemen's Club, No. 17-cv-125-jdp, 2018 WL 1175412, at *2 (W.D. Wis. Mar. 6, 2018) (citing Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 772 (7th Cir. 2013)).
At the second step, the defendant may move for decertification, at which point the court determines whether the plaintiff is in fact similarly situated to those who have opted in. Bitner v. Wyndham Vacation Resorts, Inc., 301 F.R.D. 354, 358 (W.D. Wis. 2014). At that stage, the court applies a standard similar to class certifications under Federal Rule of Civil Procedure 23.
Later-usually after discovery- the court moves to the second step, determining whether the plaintiffs who opted in are similarly situated. Bitner v. Wyndham Vacation Resorts, Inc., 301 F.R.D. 354, 357 (W.D. Wis. 2014).
Appreciating that flexible case-by-case considerations might too move such decisions in equity, the court finds the sounder wisdom in an individualized inquiry of diligence, and in the greater weight of authority, particularly so in the FLSA action as presented here today. See Sandoz, 700 F. Appx. at 320-21 (rejecting idea that opt-in members in FLSA action could exercise no diligence and enjoy equitable tolling); Bitner v. Wyndham Vacation Resorts, Inc., 301 F.R.D. 354, 364 (W.D. Wis. July 25, 2014) (reserving question of diligence for opt-in members in FLSA case); Calloway v. AT&T Corp., 419 F. Supp.3d 1031, 1037 (N.D. Ill. 2019) ("on the diligence requirement, the question will be whether the later-filing plaintiffs were diligent in pursuing their claims"); Soto v. Wings 'R Us Romeoville, Inc., 2016 WL 4701444, at *11, 2016 U.S. Dist. LEXIS 121223, 36 (N.D. Ill. Sept. 8, 2016) ("the question is whether the putative class members have been diligent"); Sylvester v. Wintrust Fin. Corp., 2014 WL 10416989, at *3, 2014 U.S. Dist. LEXIS 135907, 9-10 (N.D. Ill. Sept. 26, 2014) (rejecting argument that individual opt-in members exercised diligence because they promptly joined after receiving notice).
At the second step, the defendants may move for decertification, at which point the court determines whether the plaintiffs are in fact similarly situated to those who have opted in. Bitner v. Wyndham Vacation Resorts, Inc., 301 F.R.D. 354, 358 (W.D. Wis. 2014). At that stage, the court applies a standard similar to class certifications under Federal Rule of Civil Procedure 23.
“This standard is ‘fairly lenient' and does not involve adjudicating the merits of the claims or the ‘rigorous analysis' required when considering Rule 23 class certification.” Pastrana v. Meiji Rest., LLC, 2020 WL 6544699, at *1 (E.D. Wis. Nov. 6, 2020) (quoting Bitner v. Wyndham Vacation Resorts, Inc., 301 F.R.D. 354, 357 (W.D. Wis. 2014)). In addition, the court does not “weigh evidence, determine credibility, or specifically consider opposing evidence presented by a defendant.” Bergman v. Kindred Healthcare, Inc., 949 F.Supp.2d 852, 855-56 (N.D. Ill. 2013).
Ms. Fitzgerald's factual showing must be “sufficient to demonstrate that [she] and potential plaintiffs together were victims of a common policy or plan that violated the law.” Ahad v. Bd. of Trs. of S. Ill. Univ., 2017 U.S. Dist. LEXIS 160584, 3 (C.D. Ill. Sept. 28, 2017) (quoting Bitner v. Wyndham Vacation Resorts, Inc., 301 F.R.D. 354, 357 (W.D. Wis. 2014)); accord Hoffmann-La Roche, 493 U.S. at 170.
Jan. 10, 2007); see also Bitner v. Wyndham Vacation Resorts, Inc., 301 F.R.D. 354, 357 (W.D. Wis. 2014) (“[M]ost courts, including this one, apply a two-step approach to certifying collective actions.”).