Opinion
Cause No.: 1:08-CV-305.
November 12, 2009
OPINION AND ORDER
Following Chief Judge Miller's order granting collective action status under the name of Brian Fox v. Martin Transportation Systems, Inc. (Docket #25), this Court took up the Plaintiffs' Motion for Approval of Proposed Collective Action Notice and Opt-In Consent Form (Docket #17) in a hearing on November 12, 2009. Many of Defendant's objections were not challenged by the Plaintiffs at the hearing and, accordingly, the Court will incorporate much of the Defendant's proposed language into the final Notice of Collective Action Lawsuit and Consent Form, attached to this Order as Appendix A.
The remainder of the Defendant's objections which the Plaintiffs did challenge were taken under advisement and will be addressed in this order. Overall, upon the conditional approval of a collective action, "the court has managerial responsibility to oversee the joinder of additional parties to assure that the task is accomplished in an efficient and proper way." Hoffman-LaRoche, Inc. v. Sperling, 493 U.S. 165, 170-71 (1989). The Court is particularly mindful that in exercising its discretionary authority over the notice to potential plaintiffs, it "must be scrupulous to respect judicial neutrality" and "take care to avoid even the appearance of a judicial endorsement of the merits of the action." Id. at 174. With these principles in mind, the Court turns to the issues presented.
Defendant seeks to add language to Section II of the proposed notice to underscore the Court's neutrality and dispel any suggestion that the Court endorses an individual's participation in the collective action. The Defendant also asks that the neutrality statements appear in a bold typeface for further emphasis. During oral argument, the Plaintiffs did not dispute the need for the Court's neutrality to be made clear to potential class members, but argued that the notice already does so. Considering the need to avoid "even an appearance of judicial endorsement of the merits of the action," Hoffman-LaRoche, 493 U.S. at 174, the Court will add the proposed language to further emphasize its neutrality. See Biddings v. Lake County, No. 2:09-cv-38, 2009 WL 2175584, at *4 (N.D. Ind. July 15, 2009); Jirak v. Abbott Laboratories, Inc., 566 F.Supp.2d 845, 850-51 (N.D. II. 2008). The Court will not, however, present the neutrality sections in a bold typeface, as such clear statements (now in the Notice twice), do not require further emphasis.
Defendant also objects to the Notice's current provision that all responses must be returned to Plaintiffs' counsel within sixty days of receipt, asking instead that they actually be post-marked within sixty days, presumably so there is an independent record of the event. Given the relatively small number of potential class members (approximately 20), and the fact that Plaintiffs' counsel has a system for recording the returned Consent Forms, the Court will not require a post-mark. The Court will, however, establish both a date certain for the receipt of the Consent Forms of January 18, 2010, and a date for filing the Consent Forms with the Court of January 25, 2010. Additionally, the Court has slightly recast the language in the second paragraph of Section III to make it clear that there is a specific deadline for receipt of the Consent Forms.
Accordingly, the Plaintiff's Motion is GRANTED and the Court approves the modified Collective Action Notice and Consent Form attached as Appendix A. The last day to file the Consent Forms with the Court is January 25, 2010. Any Consents filed after January 25, 2010 are subject to being stricken.
This matter is set for a further telephone scheduling conference for February 4, 2010 at 10:00 am Eastern time. The Court will initiate the call.
SO ORDERED.
APPENDIX A NOTICE OF COLLECTIVE ACTION LAWSUIT Brian Fox v. Martin Transportation Systems, Inc. United States District Court for the Northern District of Indiana Fort Wayne DivisionTO: Present and former Dispatchers, Senior Dispatchers, Driver Managers, or Load Coordinators employed at the Gas City, Indiana terminal of Martin Transportation Systems, Inc. for any period of time from October 19, 2006, to the present, and who have not been paid wages or otherwise compensated for time spent working beyond 40 hours per week, allegedly resulting in unpaid overtime.
RE: Fair Labor Standards Act Lawsuit for Allegedly Unpaid Overtime
PLEASE READ THIS NOTICE CAREFULLY. I. INTRODUCTION
The purpose of this Notice is to inform you of the existence of a collective action lawsuit and to instruct you on the procedure for participating in this suit, should you choose to do so.II. DESCRIPTION OF THE LAWSUIT
On December 18, 2008, Plaintiff, Brian Fox ("Plaintiff"), brought this lawsuit against Defendant, Martin Transportation Systems, Inc. ("Defendant"), on behalf of himself and all other past and present Dispatchers, Senior Dispatchers, Driver Managers, and Load Coordinators employed at the Gas City, Indiana terminal of Defendant for any period of time from October 19, 2006, to the present, and who have not been paid wages or otherwise compensated for time spent working beyond 40 hours per week, allegedly resulting in unpaid overtime.
Plaintiff claims that he and other similarly-situated current and former Dispatchers, Senior Dispatchers, Driver Managers, and Load Coordinators employed by Defendant at its Gas City, Indiana terminal are entitled to recover allegedly unpaid overtime pay, an amount equal to the unpaid overtime compensation (liquidated damages), plus payment of reasonable attorney's fees and costs. Plaintiff contends the actions of Defendant have violated the Fair Labor Standards Act ("FLSA") and were willful under the FLSA. The suit was filed and is pending in the United States District Court for the Northern District of Indiana, Fort Wayne Division, alleging an unpaid overtime wage claim under the FLSA.
Defendant has answered Plaintiff's Complaint and has denied the allegations.
The Court has not made any determination at this time as to the merits of the case and the issuance of this Notice is not an expression by the Court or any Court personnel regarding the merits of the case or the appropriateness of your participation in the case as a class member.
The right to recovery for any individual is not guaranteed or certain.
III. YOUR RIGHT TO PARTICIPATE IN THIS SUIT
If you fit the definition above, you may join this lawsuit (that is you may "opt-in") by completing, signing, and mailing the attached "Notice of Consent to Become a Party Plaintiff in a Collective Action under the Fair Labor Standards Act" ("Consent Form") to Plaintiff's counsel at the following address:
Martin Transportation Systems, Inc. Collective Action Lawsuit
Haskin LaRue, LLP
Attn: Lauren B. Hicks
255 North Alabama Street
Second Floor
Indianapolis, Indiana 46204
Telephone: (317) 955-9500
To preserve your right to participate in this lawsuit, the Consent Form must be received by Plaintiff's counsel no later than January 18, 2010. If the Consent Form is not received by Plaintiff's counsel on or before the above deadline date, you may not be able to participate in this lawsuit. That means you bear the risk of any non-delivery or delay in delivery of the Consent Form. However, your rights will not be affected by the outcome of this lawsuit unless you choose to "optin" by returning the Consent Form in a timely manner.
If you file a Consent Form, your continued right to participate in this suit may depend upon a later decision by the Court that you and others are similarly situated in accordance with the FLSA.
There is a two (2) year deadline for filing overtime claims under the FLSA (or three (3) years if the violation was willful) running from the date(s) the hours were actually worked. You may have multiple deadlines if you worked overtime on multiple occasions.
IV. EFFECT OF JOINING THIS SUIT
If you choose to join in the suit, you will be bound by any judgment entered or settlement reached, whether it is favorable or unfavorable. If the court rules in favor of Defendant, you will be entitled to no relief if you join this action. While this suit is pending, you may be required to respond to written questions or requests for information or documents, sit for depositions, testify in court, and/or participate in other litigation efforts.
The attorneys for the Plaintiff class may be entitled to receive payment of attorneys' fees and costs from Defendant in this lawsuit should there be a recovery or judgment in Plaintiff's favor. If there is no recovery, the attorneys for the class will not receive any attorneys' fees. If there is a recovery, the attorneys for the class will receive a part of any settlement obtained or money judgment entered in favor of all members of the class. The attorneys are being paid on a contingency fee basis — thirty-three and one-third percent (33 1/3 %) of any recovery, whether by settlement or judgment, plus expenses. Attorneys' fees and costs for Plaintiff's counsel are subject to approval and determination by the Court.
By joining this lawsuit, you designate Brian Fox and any successor in interest as your agent to make decisions on your behalf concerning the litigation, the method and manner of conducting this litigation, the entering of an agreement with Plaintiff's counsel concerning attorneys' fees and costs, and all other matters pertaining to this lawsuit. By opting into this lawsuit, you are giving Mr. Fox, as the class representative, and class legal counsel the authority to negotiate and accept a settlement of your claims. These decisions and agreements made and entered into by Mr. Fox will be binding on you if you join this lawsuit. If you desire, you may also retain a lawyer of your choice and have that lawyer enter an appearance in this case, at your own cost.
V. NO LEGAL EFFECT IN NOT JOINING THIS SUIT
If you choose not to join this lawsuit, you will not be affected by any judgment or settlement in this case, whether favorable or unfavorable to the class. However, the statute of limitations on any such claim will continue to run. If you choose not to join this lawsuit, you are free to file your own lawsuit if you believe you have a legal basis to do so.
VI. NO RETALIATION PERMITTED
Federal law prohibits Defendant from terminating your employment or in any other manner discriminating against you because you have exercised your rights under the FLSA by joining this lawsuit.
VII. IF YOU HAVE ALREADY SUBMITTED AN OPT-IN FORM
Individuals who have already submitted an opt-in form do not have to take any further action in response to this Notice. The purpose of this Notice for those who have already opted-in to this action is to provide further information concerning your rights. If you have already opted-in to this action and wish to withdraw as a class member, you may do so by advising Plaintiff's counsel in writing.
VIII. YOUR LEGAL REPRESENTATION IF YOU JOIN
If you choose to join the FLSA claims in this lawsuit by returning the Consent Form, you will be represented by counsel for the class:
John H. Haskin
Bradley L. Wilson
Lauren B. Hicks
HASKIN LaRUE, LLP
255 North Alabama Street
Second Floor
Indianapolis, Indiana 46204
Telephone: (317)955-9500
IX. DEFENDANT'S LEGAL REPRESENTATION
Defendant is represented in this lawsuit by:
John M. Lichtenberg
Michael C. Walton
Mary L. Tabin
Rhoades McKee PC
600 Waters Building
161 Ottawa NW
Grand Rapids, Michigan 49503
Telephone: (616)235-3500
X. FURTHER INFORMATION
Should you wish to inspect or examine the papers and court documents that have been filed thus far, you may do so in person at the Clerk's Office of the United States District Court for the Northern District of Indiana, Fort Wayne Division. Further information about this Notice, the deadline for filing a Consent Form, or other questions about this lawsuit may be obtained by writing or telephoning Plaintiff's counsel or Defendant's counsel at the numbers and addresses stated above. Other than to review the court file of this case, please do not contact the Court or the Clerk of the Court directly.This notice has been authorized by the United States District Court for the Northern District of Indiana. The Court has taken no position in this case regarding the merits of Plaintiff's claims or Defendant's defenses.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION BRIAN FOX, on behalf of himself ) and others similarly-situated, ) ) Plaintiffs, ) ) v. ) CASE NO.: 1:08-CV-00305-RLM-RBC ) MARTIN TRANSPORTATION ) SYSTEMS, INC. ) ) Defendant. )