Opinion
Civil Action File No. 4:03-CV-60-3.
December 20, 2005
HATCHER, STUBBS, LAND, HOLLIS ROTHSCHILD LLP
James E. Humes, II, Georgia Bar No. 377700.
Gregory S. Ellington, Georgia Bar No. 246863.
Carter P. Schondelmayer, Georgia Bar No. 558998.
Sarah E. Hart, Georgia State Bar 141441, Attorneys for Defendants.
DEFENDANTS' SUPPLEMENTAL BRIEF IN SUPPORT OF THEIR MOTION FOR DECERTIFICATION
INTRODUCTION
Comes now, Defendant Muscogee County School District, and files this, its Supplemental Brief in Response to the Court's Request for Authority at Oral Hearing. Op-in plaintiffs seek to have their claims tried as a collective action under § 216(b) of the Fair Labor Standards Act. Defendant's Motion and Brief in Support thereof contends that the discovery conducted since this Court conditionally certified a collective action of MCSD paraprofessionals shows that the conditionally certified opt-in's are not similarly situated to either the remaining representative plaintiff, Cynthia Johnson, or to each other, and that their claims should therefore be decertified and dismissed without prejudice. (Defendant's Brief in Support of Motion to Decertify, ¶ 1). During the Oral Hearing on the Defendant's Motion to Decertify on December 1, 2005, the Court indicated that it would allow parties an opportunity to submit authority regarding the appropriate procedural posture of a case wherein a Motion to Decertify has been granted. Defendant's position, consistent with Eleventh Circuit precedent, and that of every case that Defendant is aware of, is that Opt-in plaintiffs who are not `similarly situated' and are therefore not appropriately joined as members of the class for the purposes of the collective action should be dismissed without prejudice and given the opportunity to pursue their claims individually.
ARGUMENT AND CITATION OF AUTHORITIES
Opt-in plaintiffs become parties only upon becoming members of the conditionally certified class. It follows that where the class is decertified, its members are no longer parties to the action. Consistent with this rationale, every Court Defendant is aware of having faced this issue has decertified the class and dismissed Opt-in plaintiffs without prejudice. "If the claimants are not similarly situated, the court decertifies the class, and the claims of the opt-in plaintiffs are dismissed without prejudice. The class representatives then proceed to trial on their individual claims." See Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d. 1208, 1208 (11th Cir. 2001); Cameron-Grant v. Maxim Healthcare Services, Inc., 347 F.3d 1240 (11th Cir. 2003);Mendez v. Radec Corp., ___ F.R.D. ___, 2005 WL 3110691 (W.D.N.Y.); Melendez Cintron v. Hershey Puerto Rico, Inc., 363 F. Supp 2d. 10, 16 ("If from the record, the court finds that claimants are not similarly situated the court may decertify the class by dismissing those claimants not similarly situated without prejudice. Contrarily, if they are found to be similarly situated, then the Court proceeds to trial as a collective action."); Lusardi v. Lechner, 855 F. 2d 1062, 1062 (3rd Cir. 1988) (cited by Fed. Prac. Proc. Civ.3d § 1807 for the proposition that "A district court has no power or jurisdiction to rule on the merits of the claims of individual members of a putative opt in class when it denies class certification under the Fair Labor Standards Act."); Kane v. Gage Merchandising Servs., Inc., 138 F. Supp.2d. 212, 212 (D.C. Mass. 2001); Vaszlavik v. Storage Technology Corp., 175 F.R.D. 672, 679-680(D.C. Colo. 1997).
Putative Plaintiffs are not prejudiced if dismissed without prejudice at this stage.
Because their dismissal is not on the merits, and is without prejudice as to refilling, excluded class members would not be prejudiced by such a dismissal. See 9 Moore Federal Practice ¶ 110.13[1] n. 30. The court in Davis v. Charoen Pokphand (USA), Inc., 303 F.Supp.2d 1272 (M.D. Ala. 2004) determined that plaintiffs before did not meet their burden for maintaining a collective action, but stated that "if there are such employees, they are not precluded by this decision from bringing their own actions." Id. Defendant suggests that Plaintiffs in the instant case have not met their burden, but that they, like the plaintiffs in Pokphand, are not precluded from re-filing suit should they be dismissed.
The collective action provision of the F.L.S.A. was enacted in part to further the "broad remedial goal of the statute," by giving more bargaining power to individual plaintiffs with smaller claims. "A collective action allows age discrimination plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources." Hoff-La Roche, Inc. v. Sperling, 110 S.Ct. 482, 486 (1989). Counsel for Plaintiffs has indicated that it would continue to represent any individual who returned an opt-in form who wishes to pursue their own claim, thus ensuring no prejudice would result from their dismissals without prejudice. Moreover, excluded class members' claims' statutes of limitations have been tolled as of the dates on which they chose to opt-into Cynthia Johnson's lawsuit, so there is no timeliness issue created by a dismissal and re-filing. Grayson v. K-Mart Corp., 79 F.3d 1086 (11th. Cir. 1996), 1086 cert. denied 117 S.Ct. 435.
Finally, a plaintiff who has opted to become a member in a collective action stands in a very different position than those plaintiffs who have knowingly filed individual lawsuits. Ordinarily, opt-in Plaintiffs need not necessarily be present during the course of litigation. "The Section 216 plaintiffs does not formally appear before the court to file a pleading; he simply files his written consent," and "once the consent is filed, the section 216 action is maintained by the named plaintiffs `for and on behalf of' the person who has consented."Shushan v. The University of Colorado at Boulder., 132 F.RD. 263, 264 (D.C. Colo. 1990). A Plaintiff filing his claim individually has likely contemplated the consequences of filing suit — the investments in time and money, appearing for trial, testifying at trial, etc., have likely been considered. A plaintiff who has opted into a proposed collective action merely responds to a mailed notice, indicating at best that he contends he is eligible to share in the recovery of a bigger group, but not necessarily that he is willing to undertake the considerable commitment that is required of an individual party. It is less likely that he has contemplated the ramifications of pursuing an individual claim on the merits of his lawsuit. Defendant, in deposing less than half of the fourteen-member class, took two depositions by phone to accommodate opt-in plaintiffs Houser and Williams who were unavailable for depositions in Muscogee County. (Depo. Williams pp. 2); (Depo. Houser pp. 4). While Defendant does not suggest that these two individuals will not proceed with their individual actions. However, this illustrates the harmlessness in a procedural mechanism that requires them to determine that they want to pursue the merits of their claims. A dismissal without prejudice of the claims of the purported opt-in Plaintiffs would not operate to prejudice their claims in any way, and in fact, would allow them time to re-evaluate their claims, with the benefit of the extensive discovery that has already taken place.
CONCLUSION
Because Plaintiffs will not be prejudiced thereby, and because they are not similarly situated, Defendant asks that the Court dismiss without prejudice the opt-in Plaintiffs' claims.