Opinion
5:23-CV-462-M
04-12-2024
MICHAEL JOHNSON, individually and on behalf of others similarly situated, Plaintiff, v. PHP OF NC, INC. and JUSTINE WIGGINS, Defendants.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge
This matter is before the court on Plaintiff Michael Johnson's (“Johnson”) motion to conditionally certify collective action and approve notice. [DE-27]. Defendants PHP of NC, Inc. and Justine Wiggins (collectively, “Defendants”) oppose the motion. [DE-33]. Johnson filed a reply in support of the motion, [DE-34], and the time for further responsive briefing has expired. The matter is referred to the undersigned magistrate judge for a memorandum and recommendation to the district court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. R. 72.3(c)(1), E.D. N.C. For the reasons that follow, it is recommended that the motion be allowed in part and denied in part.
I. Background
Defendant PHP of NC, Inc. (“PHP”) provides support services to individuals who are intellectually and/or developmentally disabled (“Medicaid consumers”). Wiggins Aff. [DE-33-1] at 1-2. Defendant Justine Wiggins (“Wiggins”) is the company's founder and CEO. Id. at 1. PHP contracts with various healthcare provider organizations, which generate “Plans of Care” for Medicaid consumers. Id. at 2. Plans of Care outline daily goals and tasks for Medicaid consumers to complete or conduct, and to facilitate care consistent with these Plans, PHP connects Medicaid consumers and their families to habilitation technicians (“HAB Techs”) who offer two distinct categories of service: Periodic Services and Residential Services. Id. HAB Techs providing Periodic Services “promote[] community engagement and facilitate[] consumers with cognitive and/or physical impairments participating in various activities that promote social, physical, and emotional well-being.” Id. HAB Techs providing Residential Services monitor and assist Medicaid consumers with various levels of at-home care, either at the Medicaid consumer's residence or at one of the four group homes maintained by PHP in the Durham, North Carolina area. Id. at 3.
Johnson first began working for PHP as a HAB Tech in 2015. Pl.'s Mot. [DE-27-1] at 3. He left PHP in October 2019 and was rehired in January 2020, where he then worked as a HAB Tech until approximately June of 2023. Id. The current opt-in plaintiffs are Charles Faulkner, [DE-4]; Tyrell Howze, [DE-5]; and Deanna Kyle, [DE-12]. All opt-in plaintiffs, like Johnson, formerly worked as HAB Techs for Defendant PHP. Faulkner Decl. [DE-27-3] at 2; Howze Decl. [DE-27-2] at 2; Kyle Decl. [DE-27-5] at 2.
The page number in the CM/ECF footer is referenced where, as here, it differs from the document's internal page number.
In the complaint, Johnson asserts that Defendants violated the Fair Labor Standards Act (“FLSA”) in several ways. Am. Compl. [DE-26] ¶¶ 46-59. Specifically, Johnson alleges that he and the other HAB Techs were paid by PHP on an hourly basis and misclassified as independent contractors so that PHP would not have to pay them overtime for working over forty hours in a week, which was a regular occurrence. Id. Johnson also alleges that PHP required HAB Techs to perform off-the-clock, unpaid work, including training and attending staff meetings, and bear expenses associated with the use of their personal vehicles to transport Medicaid consumers. Id. Considering the allegedly unreimbursed expenses HAB Techs were forced to bear, Johnson contends that there were some workweeks where HAB Techs did not earn the federal minimum wage of $7.25 per hour for all hours worked. Id. The opt-in plaintiffs attached declarations to the instant motion, averring that they signed similar contracts, were paid hourly, were classified as independent contractors, and were denied overtime wages. Faulkner Decl. [DE-27-3] at 2-4; Howze Decl. [DE-27-4] at 2-3; Kyle Decl. [DE-27-5] at 2-1.
In his reply, Johnson notes that he has not moved, and will not move, for certification of the minimum wage claims. Pl.'s Reply [DE-34] at 8 n.7. He also states that he intends to amend the complaint to remove these allegations. Id.
Defendants contend that they are not liable to Johnson or the other HAB Techs under any circumstances and that they did not violate the FLSA. Answer [DE-30] at 16-22. Furthermore, Defendants assert that the HAB Techs were properly classified as independent contractors and paid all earnings. Id. Johnson filed the instant motion on September 29,2023. [DE-27]. Defendants responded, [DE-33], and Johnson then filed a reply in support of the motion, [DE-34], Notably, the court entered an order on October 16, 2023 extending the deadline to submit a status report and discovery plan pending ruling on the motion. [DE-32]. The motion was referred to the undersigned for a Memorandum and Recommendation on December 4, 2023.
II. Discussion
A. FLSA Collective Action Certification
Johnson seeks an order from the court conditionally certifying this matter as an FLSA collective action. Pl.'s Mot. [DE-27] at 1. The statute governing FLSA collective actions, 29 U.S.C. § 216(b), provides in pertinent part:
An action to recover the liability prescribed in the [FLSA] may be maintained against any employer... in any Federal or State court of competent jurisdiction by
any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.
Accordingly, there are two requirements for maintaining a collective action under the FLSA: 1) the plaintiffs who are joined in the action must be “similarly situated,” and 2) they must opt in by filing their consent to sue with the court. Id.; Vazquez-Aguilar v. Gasca, 477 F.Supp.3d 418,421 (E.D. N.C. 2020) (citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 173 (1989)). Although the statute does not set forth a process for certifying the members of a collective action, “[l]ower courts have borrowed class-action terminology to describe the process of joining co-plaintiffs under 29 U.S.C. § 216(b),” despite the “significant differences between certification under Federal Rule of Civil Procedure 23 and the joinder process under § 216(b).” Vazquez-Aguilar, 477 F.Supp.3d at 421 (citing Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 n.1 (2013)).
In the instant case, Johnson seeks to define the collective as follows: “All habilitation technicians (HAB Techs) who performed work for PHP of NC, Inc. as an independent contractor, and who submitted invoices to PHP of NC, Inc. reflecting more than forty (40) hours in a workweek at any time within three (3) years from the date of this notice.” Pl.'s Reply [DE-34] at 8 (internal quotation marks omitted). Defendants contend that conditional certification is inappropriate because the proposed collective fails to meet the higher threshold for certification adopted in the Fifth Circuit case Swales v. KLLM Transp. Servs., LLC, 985 F.3d 430 (5th Cir. 2021), and alternatively assert that Johnson's proposed collective fails to satisfy the more modest standards for certification adopted by most courts. Defs.' Resp. [DE-33] at 8-19.
1. The Swales standard for conditional certification should not apply in this case.
“Congress has stated its policy that [FLSA] plaintiffs should have the opportunity to proceed collectively,” and “[t]he broad remedial goal of the statute should be enforced to the full extent of its terms.” Vazquez-Aguilar, 477 F.Supp.3d at 422 (quoting Hoffman-La Roche, 493 U.S. at 169). To that end, district courts have ordinarily followed a two-step approach for certifying members of an FLSA collective action. Id. at 421. First, at step one, early in the case, the named plaintiffs may seek “conditional certification” based upon a limited record, including approval of a notice to “similarly situated” putative collective action members of their right to opt in. Id. (citing Genesis Healthcare Corp., 569 U.S. at 70). The second step, where the court makes a final determination on certification, occurs later in the case, typically after discovery but before trial, when the court has available to it substantially more information. Id. (citing Scott v. Chipotle Mexican Grill, Inc., 954 F.3d 502, 515 (2d Cir. 2020); Rosinbaum v. Flowers Foods, Inc., 238 F.Supp.3d 738, 743 (E.D. N.C. 2017)).
At issue here is the notice step. Under the traditional approach, the named plaintiff in an FLSA action need only minimally demonstrate at step one that potential opt-in plaintiffs are “similarly situated.” Williams v. XE Servs., LLC, No. No. 2:09-CV-59-D, 2011 WL 52353, at *3 (E.D. N.C. Jan. 4, 2011) (citing cases describing plaintiff's burden as “not particularly stringent,” “not heavy,” and “fairly lenient.”). To determine whether the named plaintiff has made this showing, the court need not address the merits of the plaintiff's case. See id. at *4. Instead, the court should evaluate whether the named plaintiff has raised a “similar legal issue as to coverage, exemption, or nonpayment o[f] . . . overtime arising from at least a manageably similar factual setting with respect to their job requirements and pay provisions,” De Luna-Guerrero v. N.C. Growers Ass'n, 338 F.Supp.2d 649, 654 (E.D. N.C. 2004) (quotation omitted), or whether the named plaintiff has established “a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.” Ceras-Campo v. WF Partnership, No. 5:1 O-CV-215-BO, 2011 WL 588417, at *2 (E.D. N.C. Feb. 9,2011) (citing Patton v. Thomson Corp., 364 F.Supp.2d 263, 267 (E.D.N.Y 2005)).
Defendants argue that the court should deviate from the typical two-step approach to FL SA collective action certification and follow the Fifth Circuit's holding in Swales v. KLLM Transp. Servs., LLC. Defs.' Resp. [DE-33] at 9-11. Swales similarly involved claims of independent contractor misclassification under the FLSA, and there, the court rejected the typical two-step analysis outright. 985 F.3d at 443. Specifically, the Fifth Circuit held that, based on the FLSA's text, lower courts should “rigorously scrutinize the realm of ‘similarly situated' workers . .. from the outset of the case, not after a lenient, step-one ‘conditional certification.'” Id. at 434. In support, the court cited several policy concerns and found it “improper to ignore evidence of other threshold matters, like whether the plaintiffs are ‘employees' such that they can bring an FLSA claim.” Id. at 441. As the court explained, “addressing these issues from the outset aids the district court in deciding whether notice is necessary. And it ensures that any notice sent is proper in scope—that is, sent only to potential plaintiffs.” Id. at 442.
Defendants contend that the Swales standard is appropriate in the instant case because both the Fourth and Fifth Circuits ultimately apply the “economic realities” test to determine whether an individual is an employee or independent contractor under the FLSA. Defs.' Resp. [DE-33] at 10-11. Defendants' argument essentially mirrors that applied by the Swales court: because the economic realities test asks how much control the employer had over the as-classified independent contractor, a highly individualized inquiry into each potential opt-in plaintiffs circumstances is inevitable. See Swales, 985 F.3d at 441-43; see also Schultz v. Cap. Int'l Sec., Inc., 466 F.3d 298, 304-05 (4th Cir. 2006) (describing the six-factor economic realities test derived from United States v. Silk, 331 U.S. 704 (1947)). In Swales, the Fifth Circuit noted that when lower courts apply the more flexible conditional certification standard, “the collective action . .. quickly devolve[s] into a cacophony of individual actions,” as certification at step two ultimately requires a determination that the economic realities test can be applied on a collective basis—an outcome that is unlikely in the face of an individualized test. Swales, 985 F.3d at 442. Defendants argue that if the court applies the two-step approach here, the case will likewise devolve into a cacophony of individual actions at the certification step; thus, the court should save its time and resources, adopt Swales, and deny Johnson's motion sooner rather than later, based on his failure to meet Swales's heightened burden for proving similarity early in the litigation. Defs.' Resp. [DE-33] at 9-11.
Johnson counters that the court should not overturn years of precedent in favor of the stricter Swales standard. Pl.'s Reply [DE-34] at 1-3. To date, only one trial court within the Fourth Circuit has adopted the Swales standard. See Mathews v. USA Today Sports Media Grp., No. 1:22-cv-1407, 2023 WL 3676795, at *3 (E.D. Va. Apr. 13, 2023) (identifying Swales as the correct standard because conditional certification “frequently necessitates that notice will be sent at least to some people who are not ‘similarly situated' to the named plaintiffs,” which contradicts the FLSA's text). Other courts within the Fourth Circuit have overwhelmingly favored the two-step approach, with one even describing Mathews as “an extreme outlier” that “deviates from twenty years of established precedent.” Hernandez v. KBR Servs., Inc., No. 3:22-cv-530-HEH, 2023 WL 5181595, at *6 (E.D. Va. Aug. 11, 2023); see, e.g., Staley v. UMAR Servs., Inc., 630 F.Supp.3d 707, 711 n.1 (M.D. N.C. 2022) (“The two-step approach ... is the near universal practice among courts... [and] the Court will use it here because it is standard practice among courts in the Fourth Circuit”) (citations and quotations omitted); Jones v. Casablanca, No. 6:22-cv-02307-TMC, 2023 WL 4397396, at *3 (D.S.C. July 7, 2023) (finding that the magistrate judge correctly “recommended the court decline to abandon the two-stage approach that is well-established in ... the vast majority of the Circuit”). Most significantly, this court has previously opted to favor the two-step approach over that adopted in Swales. See Jean-Francois v. Smithfield Foods, Inc., No. 7:22-CV-63-D, 2023 WL 4424068, at *2 n.l (E.D. N.C. July 10, 2023) (acknowledging Swales but nevertheless applying the two-step approach).
Moving past precedent, Johnson contends that adhering to the two-step approach will best protect the interests of potential opt-in plaintiffs, as well as the court's interest in judicial efficiency. Pl.'s Reply [DE-34] at 3. First, Johnson claims that the two-step approach ensures that the meritorious claims of potential opt-in plaintiffs are preserved, since the statute of limitations in FLSA cases continues to run unless and until a party files their written consent to sue. Id. Thus, court-authorized notice allows potential plaintiffs to make timely, informed decisions regarding the collective action before the limitations period runs, while the Swales standard abandons the notion of widespread notice altogether—to the detriment of some meritorious claims. Id. Second, Johnson contends that the two-step approach allows the court to better manage a collective action, as it can ascertain the contours of the action at the notice step and exert some control over the opt-in process. Id.
As the Fourth Circuit has acknowledged, district courts have discretion to supervise the notice-giving process. Degidio v. Crazy Horse Saloon & Rest., Inc., 880 F.3d 135, 144 (4th Cir. 2018). Given the facts of the instant case and the bulk of precedent supporting the typical two-step approach, it is recommended that the court decline to adopt the Swales standard here. The undersigned finds one distinction between Swales and the instant case particularly relevant: in Swales, before the plaintiffs moved for collective certification, the trial court had already authorized discovery limited to the issue of § 216(b) certification to determine whether to certify a collective action and facilitate notice to potential members. Swales, 985 F.3d at 438. Here, comparatively little is known about the potential opt-in plaintiffs since discovery has not yet been conducted, limited or otherwise. Pl.'s Reply [DE-34] at 3. “[I]f, after discovery, the court finds that plaintiffs are not similarly situated, the court may decertify the collective action and dismiss without prejudice the claims of the opt-in plaintiffs.” Jean-Francois, 2023 WL 4424068, at *3. However, in the meantime, the court should follow the “near-universal” two-step approach adopted throughout the Fourth Circuit. See id. at *2; Hernandez, 2023 WL 5181595, at *6; Staley, 630 F.Supp.3d at 711 n.1; Jones, 2023 WL 4397396, at *3.
2. If the court applies the Swales standard, it should authorize limited discovery to assist in making the “similarly situated” determination and order the parties to meet and confer regarding a limited discovery plan.
Defendants argue that Johnson “does not even try to meet the Swales burden, as four selfserving declarations relying largely on [independent contractor] classification are clearly insufficient, especially in light of other evidence.” Defs.' Resp. [DE-33] at 11. As described above, the Swales standard eliminates the conditional certification step altogether and instead requires the court to determine, at the outset of the case, whether the proposed collective is “similarly situated” to the named plaintiffs. See supra § III. A. 1. To make this determination, courts may require limited discovery targeted at the factual and legal considerations needed to make the “similarly situated” determination. Mathews, 2023 WL 3676795, at *3 (noting that district courts should authorize discovery limited to the factual and legal considerations needed to make the “similarly situated” determination) (citing Swales, 985 F.3d at 438).
In Mathews, the district court applied Swales and authorized limited discovery designed to aid in determining whether the plaintiff, a former USA Today Sports Media Group, LLC Site Editor who claimed to have been misclassified as an independent contractor, was similarly situated to her proposed collective, Site Editors who had been classified as independent contractors within the past three years. Id. The court ordered the parties to meet and confer regarding a proposed limited discovery plan, and based on the parties' agreement, authorized limited discovery. Id. at *4. Specifically, the court required the named plaintiff and declarants (prospective opt-in plaintiffs) to produce Schedule Cs and W-2s relating to each year they performed services for Sports Media Group; any employment contract, offer letter, or other agreement relating to any employment, freelance work, or other independent contractor services they performed during the relevant period; and appear for a deposition. Id. The court also required the defendants to provide all independent contractor or work for hire agreements for each of the independent contractor Site Editors; any policy documents which were generally applicable to independent contractor Site Editors, including training and orientation documents as well as codes of conduct; an organizational chart relating to Sports Media Group; a 30(b)(6) deposition of defendant USA Today Sports Media Group, LLC; and a deposition of Sports Media Group's founder and NFL Editor. Id. Furthermore, the court established a briefing schedule following the close of the limited discovery period for the plaintiffs to file a motion for collective designation and for the defendants to respond to the motion. Id.
Considering the instant case's similarities to Mathews, the early stage of the litigation and corresponding lack of discovery, as well as the notice and efficiency concerns highlighted by Johnson and summarized above, see supra § III.A.1, if the court follows the Swales standard, it is recommended that FLSA collective certification not be denied outright. Instead, the court should authorize limited discovery targeted towards making the § 216(b) “similarly situated” determination and order the parties to meet and confer regarding a proposed limited discovery plan.
3. If the court applies the two-step approach to FLSA collective action certification, Johnson's motion to conditionally certify should be granted.
As explained above, an FLSA collective action may be brought “by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b) (emphasis added). In the instant case, Defendants argue that Johnson and the proposed opt-in plaintiffs are not similarly situated because Johnson has not shown that he and the other HAB Techs were victims of a common policy or plan that violated the law. Defs.' Resp. [DE-33] at 11-19. Specifically, Defendants contend that common independent contractor classification alone cannot serve as the basis for conditional certification; that Johnson has failed to show any evidence that either he or the other HAB Techs suffered minimum wage violations; and that the putative opt-in plaintiffs' declarations do not demonstrate that they were victims of a common policy or plan related to overtime payments that violated the law. Id.
Defendants' arguments fail. First, as Johnson acknowledges in his reply, he “has not moved, and will not move, for certification of the minimum wage claims.” Pl.'s Reply [DE-34] at 8 n.7. Moreover, Johnson also states that he “intends to amend the Complaint to remove allegations of minimum wage violations.” Id. Thus, he is not required to show any evidence that either he or the other HAB Techs suffered minimum wage violations in the instant motion.
Second, Defendants' remaining arguments oversimplify the standard for conditional certification in this district. 29 U.S.C. § 216(b) does not define the term “similarly situated” for purposes of determining collective action membership. The Supreme Court and the Fourth Circuit have also not announced a test to determine whether individuals are “similarly situated.” However, this court has previously held that at the notice step, putative plaintiffs are similarly situated to the named plaintiff when the named plaintiff is able to establish “a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law,” Ceras-Campo, 2011 WL 588417, at *2, or “raise a similar legal issue as to coverage, exemption, or nonpayment of minimum wages or overtime arising from at least a manageably similar factual setting with respect to their job requirements and pay provisions ... Gonzalez-Rodriguez v. Gracia, No. 5:21-CV-406-BO, 2023 WL 2450170, at *3 (E.D. N.C. Feb. 6, 2023) (citing McLaurin v. Prestage Foods, Inc., 271 F.R.D. 465 (E.D. N.C. 2010)); Rosinbaum, 238 F.Supp.3d at 743. To make the “similarly situated” assessment, the court proceeds under a lenient standard, but “[m]ere allegations will not suffice; some factual evidence is necessary.” Bernard v. Household Int'l, Inc., 231 F.Supp.2d 433, 435 (E.D. Va. 2002). Critically, though, similarly situated plaintiffs' situations “need not be identical. Differences as to time actually worked, wages actually due and hours involved are . . . not significant to this determination.” Gonzalez-Rodriguez, 2023 WL 2450170, at *2 (citing Romero v. Mountaire Farms, Inc., 796 F.Supp.2d 700, 705 (E.D. N.C. 2011)). Under either “similarly situated” standard, Johnson has made the requisite modest factual showing.
First, turning to the “common scheme or plan” approach, Johnson and the putative plaintiffs do not contend that conditional certification is appropriate merely because they were all independent contractors. Rather, Johnson and the putative plaintiffs argue that conditional certification is proper because they were all classified as independent contractors and allegedly subjected to a common pay policy, scheme, or plan that underpaid overtime for non-salaried employees. Defendants' call to view the plaintiffs' “scant evidence [that they were PHP employees, not independent contractors] . . . against the backdrop of relevant evidence,” Defs.' Resp. [DE-33] at 18, merely constitutes a request to prematurely decide the case on the merits. Williams, 2011 WL 52353, at *3. Remembering that the step one standard is fairly lenient, id., the facts alleged in the four witness declarations—that Johnson and the other PHP HAB Techs signed similar contracts, were classified as independent contractors, were not paid overtime for working more than forty hours in a week, communicated with PHP in the same way, and were subject to the same policies and procedures— are more than sufficient. See Ceras-Campo, 2011 WL 588417, at *3 (no common scheme or plan where the plaintiff failed to “provide[] the Court with a single declaration from any other worker who claims he or she was not properly paid or reimbursed in such a way that (a) violates the law and (b) aligns that worker's interests with the Plaintiffs”); Chapman v. Saber Healthcare Grp., LLC, 623 F.Supp.3d 664, 676 (E.D. Va. 2022) (“the submission of consistent employee declarations has long been treated as sufficient to justify conditional certification”).
Second, with respect to the “similar legal issue” approach, this court's prior opinion in Rosinbaum v. Flowers Foods, Inc. is instructive. In Rosinbaum, this court found that conditional certification was appropriate where the plaintiffs' declarations showed that, in practice, the defendants' managers exerted sufficiently strict control over the plaintiffs' workflow such that the plaintiffs may have qualified as employees under Schultz, and that the named and putative plaintiffs were similarly situated. 238 F.Supp.3d at 744-45. The Rosinbaum court briefly discussed the Schultz factors to evaluate the legal issue at play, finding that the defendants maintained control over product prices, the quantity of product to be delivered, and the required protocols imposed upon distributors. Id. at 745. Regarding the similarity of the named and putative plaintiffs, the court found that the defendants' distributor agreements varied in only minor details; that no potential plaintiff embraced within the plaintiffs' proposed class definition ever received overtime pay for time worked in excess of forty hours in a given week; and that the defendants subjected members of the proposed class to similar policies potentially facilitating supervision of or control over the potential plaintiffs' job performance. Id. Importantly, while the defendants contended that the plaintiffs' evidence was inaccurate and misrepresented the extent of dissimilarity between the plaintiffs' positions, the court found that these arguments “conflat[ed] the ultimate merits determination regarding plaintiffs' proper FLSA classification with the pertinent question whether members of the proposed class are similarly situated.” Id. at 746.
Applying a Rosinbaum-like. framework in the instant case, conditional certification is likewise warranted. Performing a top-level Schultz analysis, the witness declarations and other exhibits indicate that PHP potentially maintained some level of control over the HAB Techs' duties by setting certain uniform policies and procedures, holding staff meetings, requiring training, supervising their work, and communicating with them via email, text message, and by phone call. See [DE-27-2 to 27-10]. Regarding similarity, the declarations, exhibits and Wiggins's affidavit indicate that HAB Techs potentially performed the same or similar job duties to implement Medicaid consumer Plans of Care, which are not created by individual HAB Techs, are standard documents used in the field, and are relied on by PHP's business model; were paid as 1099 workers, with no potential plaintiff ever receiving overtime pay; were subject to standard policies and expectations; and signed virtually identical Addendum Contracts with minor variations. See id. To the extent that Defendants disagree with these representations, Johnson and the putative plaintiffs have introduced sufficient contrary evidence to warrant a threshold finding that members of the class are similarly situated employees, and Defendants' arguments are best left for final resolution at a later stage in the case. See Rosinbaum, 238 F.Supp.3d at 746.
Defendants attempt to cast doubt upon Johnson's threshold showing that the prospective plaintiffs' factual issues are manageably similar by appealing to Syrja v. Westat and Purdham v. Fairfax Cnty. Pub. Schs, but their efforts are unsuccessful. In Syrja, the court declined to conditionally certify a collective action where the plaintiffs presented no evidence suggesting a uniform national policy of denying overtime and their proposed collective included field interviewers for a statistical research company—but each field interviewer operated “across multiple geographic locations throughout the country, over different time periods, in offices run by different managers,” and “set his own schedule” with assignments varying between managers in an “infinite” number of ways. 756 F.Supp.2d 682, 687-88 (D. Md. 2010). None of these shortcomings are present in the instant case, where there is a centralized location, single set of managers, well-defined duties, and an alleged uniform policy of denying overtime.
Equally inapposite is Purdham, where the court declined to conditionally certify a class of “all past and present employees of the Fairfax County Public Schools who performed security, athletic coaching, after school monitoring, ticket-taking . . . and other services for Defendant [school system] in addition to their regular jobs for Defendant.” 629 F.Supp.2d 544, 546 (E.D. Va. 2009). There, each public school within the defendant school system “exercise[d] substantial discretion over the athletic and other activity ‘supplements,'” and there were “[n]o county-wide guidelines.” Id. at 549. The court noted the number of hours “varies widely between sports and between coaches at different schools within the same sport,” and the amount of money received per hour and per activity at different schools “varies significantly,” with amounts “determined locally, within each individual school.” Id. In this manner, Purdham involved some of the same key distinguishing factors as Syrja, most tellingly lack of uniform management structure and scattered locations with different pay policies, none of which are present in the instant case.
As previously highlighted, the standard for proving that putative plaintiffs are similarly situated is “not particularly stringent,” Williams, 2011 WL 52353, at *3, and conditional certification may be appropriate even in cases where “some individualized inquiry may be necessary,” Vazquez-Aguilar, 477 F, Supp. 3d at 425 (citing Rosinbaum, 238 F.Supp.3d at 747). Given the foregoing, it is clear that Johnson has met this burden. Accordingly, it is recommended that the court grant Johnson's request to conditionally certify this action as an FLSA collective action.
B. Notice
If the court conditionally certifies the collective action, Defendants argue that the scope of notice recipients should be limited to only those current and former HAB Techs who submitted invoices to PHP reflecting more than forty hours per week within the past three years; that Johnson's proposed notice of collective action and delivery methods should be curtailed; and that Johnson's request for putative collective member information should be rejected. Defs.' Resp. [DE-33] at 19-22. As mentioned above, Johnson has agreed to modify the collective, and therefore the scope of notice recipients, per Defendants' request. Pl.'s Reply [DE-34] at 4 n.2. Johnson has also agreed to amend his original proposed notice of collective action to incorporate some of Defendants' requested language and move the court neutrality language to the first page. Id. at 9. The undersigned will address Defendants' remaining arguments below.
1. The court should order that notice of collective action be issued by U.S. Mail, email, and text message, with a forty-five-day opt-in period and one reminder notice sent via email thirty days after the initial mailing.
District courts have discretion to implement § 216(b) by facilitating notice to potential plaintiffs. Cirillo v. Citrix Sys., Inc., No. 5:21-CV-88-BO, 2022 WL 841327, at *4 (E.D. N.C. Mar. 21, 2022) (citing Hoffmann-La Roche, 493 U.S. at 169). Potential plaintiffs must obtain accurate and timely notice of the collective action so that they can make an informed decision about whether to participate. Id. (citing Hoffmann-La Roche, 493 U.S. at 170). In FLSA actions, “time is of the essence” as the statute of limitations continues to run for potential opt-in plaintiffs until they file written consent to join the collective action. Velasquez-Monterrosa v. Mi Casita Rests., No. 5:14-CV-448-BO, 2016 WL 1703351, at *3 (E.D. N.C. Apr. 27, 2016).
Johnson argues that prompt and broad notice is especially appropriate in the instant case because HAB Techs are “typically in the lower rungs of the socio-economic ladder and live paycheck to pay check. Contact information, such as addresses and phone numbers, often change[s] due to an inability to pay rent and phone bills if work is interrupted.” Pl.'s Mot. [DE-27-1] at 10. Consequently, Johnson initially requested that notice of the collective action be issued by mail, email, text, and workplace posting, with a reminder call and postcard issued towards the end of the sixty-day opt-in period. Id. at 9-18. Defendants objected, contending that notice should be issued by U.S. Mail and email only, with an opt-in period of forty-five days and no subsequent reminder notices. Defs.' Resp. [DE-33] at 19-20, 23. Johnson conceded in his reply to limit notice to U.S. Mail, email, and text message, with a forty-five-day opt-in period if the court approves notice by text message and a sixty-day opt-in period if the court denies notice by text. Pl.'s Reply [DE-34] at 8-10. Johnson also agreed to request that one reminder notice be sent thirty days after the original mailing, rather than two. Id. Given that the parties agree on using U.S. Mail and email as delivery methods, as well as a forty-five-day opt-in window, the undersigned will not address these issues and will instead turn to those that remain contested: delivering notice of the action via text message and sending a reminder notice towards the end of the opt-in period.
Defendants emphasize that sending notice via U.S. Mail and email is largely accepted in the Fourth Circuit, and Johnson's request to use additional methods and reminder notices amounts to “nothing more than the invasive and duplicative procedures various courts in this Circuit have expressed concerns about.” Defs.' Resp. [DE-33] at 20 (internal quotation marks omitted). To that end, some courts have noted that repetitive unsolicited contact with potential party plaintiffs after initial notice “may create the appearance of undue Court involvement in the solicitation of claims,” Moseman v. U.S. Bank Nat'l Ass'n, No. 3:17-cv-00481-FDW-DCK, 2018 WL 3616864, at *2 (W.D. N.C. June 12, 2018), and others have found that sending notice through multiple methods, as well as sending reminder notices, is unnecessary where the plaintiffs have not shown that the original notice was or is likely to be ineffective. See, e.g., Stacy v. Jenmar Corp. of Va., Inc., No. 1:21CV00015, 2021 WL 4787278, at *4-5 (W.D. Va. Oct. 14, 2021) (citing Martinez v. Cargill Meat Sols., 265 F.R.D. 490, 500-01 (D. Neb. 2009); Charbonneau v. Mortg. Lenders of Am.,No. 18-2062-CM-KGS, 2018 WL 6423584, at *4 (D. Kan. Dec. 6, 2018)). However, these sentiments are not shared by all the district courts in the Fourth Circuit; sending notice through multiple methods is frequently allowed, as are reminder notices. See, e.g., Lopez v. Boykin Farms, No. 5:22-CV-491-BO-RN, 2023 WL 7026921, at *4 (E.D. N.C. Oct. 25, 2023) (authorizing notice via U.S. Mail, text message, social media posting, website posting, and workplace posting); Cirillo, 2022 WL 841327, at *4 (authorizing notice via U.S. mail, email, text, radio message, and social media postings, with one reminder notice); Parker v. K&L Ent., Inc., No. 5:20-CV-217-BO, 2020 WL 7491077, at *3 (E.D. N.C. Dec. 21, 2020) (authorizing notice via U.S. Mail, email, text, social media, publication, radio, and television).
Notably, in the instant case, Johnson has alleged facts suggesting that members of the proposed collective action are often difficult to contact using traditional methods of communication because of socioeconomic factors. Pl.'s Mot. [DE-27-1] at 10. Johnson has also alleged that PHP communicates with HAB Techs via text message. Id: at 14-15. Defendants have not contested these claims. Consequently, there is reason to doubt that the original notice will be effective, particularly given the abbreviated forty-five-day opt-in period, as well as reason to believe that subsequent notices will not be invasive or duplicative. See Moseman, 2018 WL 3616864, at *2; Stacy, 2021 WL 4787278, at *4-5. Therefore, it is recommended that the court order that notice of the collective action be issued by U.S. Mail, email, and text message, with a forty-five-day opt-in period and one reminder notice to be sent by email thirty days after the initial mailing.
2. The court should direct PHP to produce certain information about putative collective action members but deny Johnson's request to call individuals whose notices are returned as undeliverable.
In Hoffman-La Roche, the Supreme Court held that,
Section 216(b)'s affirmative permission for employees to proceed on behalf of those similarly situated must grant the court the requisite procedural authority to manage the process of joining multiple parties in a manner that is orderly, sensible, and not otherwise contrary to statutory commands or the provisions of the Federal Rules of Civil Procedure.493 U.S. at 170.
In pursuit of the goals of judicial economy and efficiency and recognizing the need for putative opt-in plaintiffs' personal information due to workplace-specific circumstances (such as high turnover), this court has in the past directed defendants to produce sensitive employee information to the extent they are in possession of or can reasonably obtain it. See Velasquez-Monterrosa, 2016 WL 1703351, at *4 (ordering production of a list of all non-tipped and non-management employees employed during a relevant period, including name, job title, address, telephone number, email address, dates of employment, location of employment, date of birth, and the last four digits of their social security number). Here, Johnson contends that the court should direct Defendants to produce the names and contact information for putative class members, including their last known addresses and telephone numbers, in an importable format such as an Excel document; order PHP to supply the dates of birth and partial social security numbers (the last four digits) for anyone whose notice is returned as undeliverable within three days of counsel receiving the notice of nondelivery; and permit Johnson's counsel to call any individual whose notice is returned as undeliverable, solely to obtain a current address for the re-mailing of the notice. Pl.'s Mot. [DE-27-1] at 10-12. Defendants aver that Johnson's requests are invasive and unnecessary. Defs.' Resp. [DE-33] at 20.
District courts have taken conflicting positions and approaches as to what information regarding potential plaintiffs may or must be disclosed to named plaintiffs at the notice step of FLSA actions. Compare Velasquez v. Digit. Page, Inc., No. 11-3892 LDW AKT, 2014 WL 2048425, at *15 (E.D.N.Y. May 19, 2014) (“In general, it is appropriate for courts in collective actions to order the discovery of names, addresses, telephone numbers, email addresses, and dates of employment of potential collective members.”), with Amrhein v. Regency Mgmt. Servs., LLC, No. SKG-13-1114, 2014 WL 1155356, at *10 (D. Md. Mar. 20,2014) (“Courts in this district hold that absent a showing by plaintiffs of a ‘special need' for disclosure of class members' telephone numbers or other personal information, such as social security numbers or dates of birth, ordering such disclosure is inappropriate.”).
In the Fourth Circuit, district courts have tended to require a showing of a “special need” before requiring the disclosure of telephone and social security numbers. See Hunt v. Barbeque Integrated, Inc., 299 F.Supp.3d 762, 772 (D.S.C. 2017); Ruiz v. Monterey of Lusby, Inc., No. DKC 13-3792,2014 WL 1793786, at *3 n.1 (D. Md. May 5, 2014) (citing Calderon v. Geico Gen. Ins. Co., No. RWT 10cv1958, 2011 WL 98197, at *9 (D. Md. Jan. 12, 2011) (“Defendants will not... be required to provide phone numbers for potential opt-in plaintiffs at this time because Plaintiffs have made no showing of any ‘special need' for the disclosure of this information,”)); Amrhein, 2014 WL 1155356, at *10 (requiring showing of a special need for disclosure of social security numbers). While not all Fourth Circuit trial courts have followed the special need approach, see, e.g., Cirillo, 2022 WL 841327, at *5; Parker, 2020 WL 7491077, at *3, those that do have at times framed the analysis as “balancing] the benefits of additional notice . . . against the ‘highly personal and confidential nature of social security [and telephone] numbers and the harm that can flow from disclosure.'” Arevalo v. D.J. 's Underground, Inc., No. DKC 09-3199, 2010 WL 4026112, at *2 (D. Md. Oct. 13, 2010) (citing and quoting Jackson v. Papa John's USA, Inc., No. 08-CV-2791, 2009 WL 1011105, at *3 (N.D. Ohio Apr. 15, 2009)).
As explained above, in the instant case, Johnson has alleged facts indicating that potential members of the collective action may be difficult to contact using traditional methods of communication because of socioeconomic factors, Pl.'s Mot. [DE-27-1] at 10, and Defendants have not contested this claim. Additionally, Johnson has indicated that PHP primarily contacts the HAB Techs via text message and phone call and has requested that PHP supply putative plaintiffs' birthdates and partial social security numbers only after their notices are returned as undeliverable, so that counsel may locate their current addresses via skip tracing. Id. at 11, 14-15. Applying the more restrictive special need approach, these facts are sufficient to justify the risk inherent in disclosing putative plaintiffs' last known telephone numbers for the purpose of sending notice of the action via text message and partial social security numbers and birthdates for those individuals whose notices are returned as undeliverable.
For comparison, in Arevalo v. D.J. 's Underground, Inc., the trial court found that the defendants did not need to produce potential plaintiffs' telephone numbers where the named plaintiffs failed to submit an affidavit or declaration establishing a need for providing notice via telephone contact. 2010 WL 4026112, at *2. The Arevalo court emphasized that if the plaintiffs had provided information such as the number of notices that had been sent, the number that were returned as undeliverable, whether forwarding information was provided, and the number of putative plaintiffs contacted by other means, the court would have been better able to assess the effectiveness of the initial mailing and gauge the need for permitting notice by alternative methods. Id. (citing Jackson, 2009 WL 1011105, at *3).
Here, Johnson has alleged facts and provided declarations indicating that PHP contacts its HAB Techs, who often do not have consistent housing or access to other communication methods, via text message and phone call. See Pl.'s Mot. [DE-27-1] at 10, 11, 14-15; Pls.' Deels. [DE-27-2 to 27-5]. Johnson has requested that PHP's production of partial social security numbers and birthdates be limited to potential plaintiffs whose notices are returned as undeliverable, so that counsel may “find current addresses for those individuals” and forward notice there. Pl.'s Mot. [DE-27-1] at 11. And finally, Johnson has also requested that, rather than wait for the undeliverable notices to be returned, then move for the additional information highlighted in Arevalo or negotiate with PHP for it, the court order PHP to produce individuals' birthdates and partial social security numbers within three days of Johnson's counsel notifying Defendants' counsel of nondelivery. Id. at 12.
The instant case is distinguishable from Arevalo because there, by the time the plaintiffs moved for permission to send notice by telephone call, the court had already authorized conditional certification and an initial round of notice had been sent by mail. Arevalo, 2010 WL 4026112, at * 1-2. In other words, at that point, it would be reasonable for the plaintiffs to have access to data indicating how many notices were returned as undeliverable and the like. However, here, where such information is not readily available and “time is of the essence” for putative plaintiffs with older claims, Velasquez-Monterrosa, 2016 WL 1703351, at *3, Johnson has also asserted a special need for initial notice to be sent via text message, has limited the production of more sensitive data to individuals whose notices have been returned as undeliverable, and has asserted a special need for producing this information without additional judicial intervention. Given the foregoing, and in light of the court's ability to control the content and scope of the written notice, it is recommended that the court direct PHP to produce all potential plaintiffs' names and last known addresses and telephone numbers so that Johnson's counsel may send notice of the collective action via U.S. Mail, email, and text message, and produce birthdates and partial social security numbers for those individuals whose notices are returned as undeliverable within three days of receiving notice of nondelivery.
With respect to Johnson's request for counsel to call individuals whose notices are returned as undeliverable, any plausible special need for this type of contact is not sufficient to justify the inherent risk in permitting interested counsel to speak with putative class members by phone. Telephone calls are interactive, cannot be regulated in the same way that mail, email, and text messages can be, and thus pose a greater intrusion on individuals. See Amrhein, 2014 WL 1155356, at * 11. Most importantly, telephone calls run the risk of overstepping the bounds set for notice by the Supreme Court in Hoffman-La Roche—that is, that such intervention be “distinguishable in form and function from the solicitation of claims.” Bernard, 231 F.Supp.2d at 435 (citing 493 U.S. at 174). In the instant case, Johnson asserts that “[g]iven the short window for opting inf],.. . a quick telephone call to find the current address is [] the most expeditious way of ensuring the best practicable notice.” Pl.'s Mot. [DE-27-1] at 12. However, Johnson has also requested that PHP produce birthdates and partial social security numbers for these individuals so that counsel may locate their current mailing addresses via skip tracing. Id. at 11. He has not presented a special need justifying both interventions, and given the risks posed by telephone calls between counsel and prospective plaintiffs, it is invasive and unnecessary to permit such communication when Johnson has not shown that skip tracing and forwarding notice will be ineffective. See Moseman, WL 3616864, at *2. Accordingly, the court should deny Johnson's request to call individuals whose notices are returned as undeliverable.
3. The court should order the parties to meet and confer regarding the proper form and substance of the notice of collective action.
Johnson attached a proposed notice of collective action to the instant motion. [DE-27-11]. In their response, Defendants requested the court to order the parties to meet and confer regarding the proper form and substance of the notice. Defs.' Resp. [DE-33] at 20. Defendants identified a “number of misstatements that require correction so as to avoid any confusion or sense of coercion,” including, “among other things,” a mandate that prospective plaintiffs will be represented by Johnson's counsel; a failure to properly state all of Defendants' positions; a court neutrality advisement placed on the second, not first, page of the document; and a lack of statements regarding putative plaintiffs' obligations should they choose to join the lawsuit. Id. at 21. In Johnson's reply, he agreed to incorporate Defendants' proposed language regarding the availability of other counsel and Defendants' positions and to move the court neutrality advisement to the first page of the notice. Pl.'s Reply, [DE-34] at 9; see Am. Proposed Notice, [DE-34-1], Johnson included some of Defendants' proposed language regarding putative plaintiffs' rights and obligations in his amended proposed notice but objected to advising prospective plaintiffs of the risk of paying litigation costs in the notice. Pl.'s Reply, [DE-34] at 9. Given that Defendants have indicated that they did not list all their objections to the proposed notion in their response, it is recommended that the court order the parties to meet and confer on the matter. However, the undersigned will address issues raised by Johnson's reply: specifically, the inclusion of language regarding putative plaintiffs' obligations should they choose to join the collective action.
“Courts should not modify a plaintiffs proposed notice ‘unless such alteration is necessary,”' Thomas v. Maximus, Inc., No. 3:21cv498 (DJN), 2022 WL 1482010, at *7 (E.D. Va. May 10, 2022) (citing Brown v. Energy Servs. Grp. Int'l, Inc., 2021 WL 5889707, at *3 (E.D. Va. Dec. 13, 2021) (citation omitted)). Some courts have held that a notice of collective action must appraise potential plaintiffs of the obligations they may take on if they choose to join the lawsuit, including preserving information, see Freeman v. MedStar Health Inc., 187 F.Supp.3d 19, 32 (D.D.C. 2016), appearing for depositions, responding to written discovery, testifying at trial and/or paying litigation costs, Bah v. Shoe Mania, Inc., 2009 WL 1357223, at *4 (S.D.N.Y. May 13, 2009) (citing Hallissey v. Am. Online, Inc., No. 99-CIV-3785 (KTD), 2008 WL 465112, *4 (S.D.N.Y. Feb. 19, 2008)). However, other courts have found that including language regarding payment of litigation costs in the notice has a “chilling effect that... is antithetical to the remedial purpose of the collective action,” and that such risks are better discussed with an attorney. Lupurdus v. Elk Energy Servs., LLC, No. 2:19-cv-00529, 2020 WL 4342221, at *7 (S.D. W.Va. July 28, 2020). Thus, the authority on this issue is decidedly split.
While many courts across the Fourth Circuit have not decided the liability language issue, of those that have, most have found that because “[a]n award of costs to a prevailing defendant in an FLSA case is clearly possible and is not merely theoretical,” the disclosure of this possibility serves the overarching purposes of the notice, i.e., allowing putative plaintiffs to “make informed decisions about whether to participate.” See, e.g., Byard v. Verizon W.Va., 287 F.R.D. 365, 375 (N.D. W.Va. 2012) (citing and quoting Creten-Miller v. Westlake Hardware, Inc., No. 08-2351, 2009 WL 2058734, at *4 (D. Kan. July 15, 2009); Hoffman-La Roche, 493 U.S. at 170); Lewis v. Precision Concepts Grp., LLC, No. 1:18CV64, 2019 WL 13143749, at *2 (M.D. N.C. July 29, 2019) (following Byard); Wiley v. Asplundh Tree Expert Co., Case No. 2:13-cv-2952, 2013 WL 12182396, at *3 (S.D. W.Va. July 19, 2013) (“Plaintiff shall modify the Notice to include statements to clarify the potential arrangements addressing attorney's fees, costs and awards.”); Laney v. S.C. Farm Bureau Ins. Co., No. 3:18-cv-02730-TLW, 2019 WL 13110358, at *6 (D.S.C. Aug. 21, 2019). But see Lupurdus, 2020 WL 4342221, at *7; Ricketts v. NV5, LLC, NO. 2:21-cv-00056,2022 WL 949947, at *5 (S.D. W.Va. Mar. 29,2022) (stating that the defendant's “proposed warnings are unnecessary and do more to dissuade participation than inform potential plaintiffs” where the defendant requested to inform putative plaintiffs that they could be subject to costs if they did not win); Santos v. E&R Servs., Inc., No. DLB-20-2737, 2021 WL 6073039, at *6 (D. Md. Dec. 23, 2021) (“the notice need not include language about potential liability for defendants' costs”). Notably, in Mondragon v. Scott Farms, this court previously held that “prospective plaintiffs must be made aware that they are potentially liable for some portion of defendants' costs if defendants should prevail in the action .... Plaintiffs must include language which makes opt-in plaintiffs aware of this risk.” No. 5:17-CV-00356-FL, 2019 WL 489117, at *10 (E.D. N.C. Feb. 7, 2019) (internal citation omitted).
In the instant case, considering this court's prior decision in Mondragon and the breadth of case law favoring inclusion of liability language, it is recommended that the court adopt the same approach. In Byard, the court noted that there “is no need for undue emphasis” on the possible award of costs to a prevailing defendant and ordered the notice to include the statement, “If you do not prevail on your claim, court costs and expenses may possibly be assessed against you.” 287 F.R.D. at 375 (citing Harris v. Pathways Cmty. Beha v. Healthcare, Inc., No. 10-0789, 2012 WL 1906444, at *4 (W.D. Mo. May 25, 2012) (modifying notice to include statement that “if you do not prevail on your claim, court costs and expenses may possibly be assessed against you”); Creten-Miller, 2009 WL 2058734, at *4 (same); Garcia v. Elite Labor Serv., Ltd., No. 95-2341, 1996 WL 33500122, at *4 (N.D. Ill. July 11, 1996) (same)). The court should require similar language here to balance the interest in informing prospective plaintiffs of their obligations against the threat of a chilling effect. See id.
Defendants' response also addresses the inclusion of language pertaining to prospective plaintiffs' obligations to participate in discovery and at trial and to preserve information. Defs' Resp. [DE-33] at 21. In his reply, Johnson claims to have “included some of Defendants' suggested language in the notice,” Pl.'s Reply [DE-34] at 9, but that language is notably absent in the attached amended proposed notice of collective action, [DE-34-1]. Turning first to the issue of potential plaintiffs' trial and discovery obligations, this court has previously held that a notice of collective action should include language advising prospective plaintiffs of their duty to participate in discovery and at trial, Mondragon, 2019 WL 489117, at *11, as have most other Fourth Circuit district courts that have ruled on the matter, see, e.g, Byard, 287 F.R.D. at 374; Lewis, WL 13143749, at *2. In light of precedent and Johnson's apparent lack of objection to this language, the court should order that the parties meet and confer to decide on notice language to this effect.
Regarding the inclusion of language regarding the duty to preserve information, Defendants cite to Fed.R.Civ.P. 54(d), which pertains to costs and attorneys' fees. Defs' Resp. [DE-33] at 21. Presumably, Defendants intended to reference either Fed.R.Civ.P. 23(c)(2), which governs notice to class members, or Fed. R. Civ. P 37(e), which dictates that electronically stored documents and information must be preserved in anticipation of or during litigation. In any event, neither Rule—or the Rule actually cited by Defendants—directly addresses the inclusion of information preservation language in a notice of collective action under the FLSA. See Fed.R.Civ.P. 23(c)(2), Fed.R.Civ.P. 37(e), Fed.R.Civ.P. 54(d). And while some courts have found including information preservation language in notices of collective action wise, see Freeman, 187 F.Supp.3d at 32 (“the Court agrees with Defendants that some modest language regarding preservation would be proper”), there is an overall dearth of authority on the issue, including within the Fourth Circuit. Consequently, it is recommended that the court order the parties to meet and confer regarding this matter.
III. Conclusion
For the reasons stated herein, it is recommended that Johnson's motion to conditionally certify collective action and approve notice, [DE-27], be allowed in part and denied in part.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the parties. You shall have until Friday, April 26, 2024, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-17 (4th Cir. 1985).
Submitted.