PYFROM v. CONTACTUS LLC (2022)

OPINION AND ORDER

This matter is before the Court on Plaintiff's Renewed Motion for Court-Supervised Notice to the Putative Collective Members by Text Message (ECF No. 62). Defendants filed a response in opposition (ECF No. 70), to which Plaintiff replied (ECF No. 71). For the following reasons, Plaintiff's motion is GRANTED IN PART AND DENIED IN PART.

On April 5, 2022, this Court granted Plaintiff's Motion for Conditional Class Certification and Court-Supervised Notice to Potential Opt-In Plaintiffs. (Order & Op., ECF No. 33.) The Court permitted Plaintiff to send notice to potential opt-in plaintiffs via email and U.S. Mail and approved a 90-day notice period. Following that Order, Plaintiff asked the Court to permit notice via text message in addition to U.S. Mail and email. (ECF No. 35.) The Court denied Plaintiff's motion (ECF No. 41) but noted that “Plaintiff may renew her motion to issue text message notices to particular potential class members if she provides evidence that postal and electronic mail notice were not sufficient.” (ECF No. 43.) Plaintiff, believing she has evidence demonstrating that postal and email notice were insufficient, has renewed her motion.

As discussed in the Order denying Plaintiff's first motion requesting notice via text message (ECF No. 41), this Court has “discretion in deciding how notice is disseminated.” Staggs v. Fuyao Glass Am., Inc., No. 3:17-CV-191, 2018 WL 840178, at *2 (S.D. Ohio 2018). The trend in the Southern District of Ohio is to allow notice by U.S. Mail and email but prohibit notice by text messaging unless the other two methods are ineffective. See, e.g., Brittmon v. Upreach, LLC, 285 F. Supp. 3d 1033, 1044–45 (S.D. Ohio 2018). This Court has previously noted the importance of permitting two means of notice rather than one: “The use of two methods will (i) increase the likelihood that all potential opt-in plaintiffs receive notice of the suit and (ii) likely obviate the need to resend notice if an employee's home address is inaccurate.” Parker v. Breck's Ridge, LLC, 2018 WL 551328, at *6, 2018 U.S. Dist. LEXIS 11655, at *18 (S.D. Ohio 2018) (permitting notice by email in addition to U.S. Mail). By authorizing two methods of service, the Court “advances the remedial purpose of the FLSA.” Atkinson v. TeleTech Holdings, Inc., 2015 WL 853234, at *5, 2015 U.S. Dist. LEXIS 23630, at *12 (S.D. Ohio 2015).

Plaintiff attempts to establish that both U.S. Mail and email are ineffective for all potential collective members by relying on the declarations of 14 opt-in plaintiffs who did not receive the original notice by U.S. Mail or email. (Renewed Mot., ECF No. 62, PageID 1360-66.) (These opt-in plaintiffs received notice via Plaintiff's independently sent advertising letter.)¹ (Id. at PageID 1361.) Of these 14 opt-in plaintiffs, two of them had their postal mail notices returned as undeliverable (though Plaintiff does not specify whether they were able to receive notice via electronic mail). (Id. at PageID 1365-66.)

In response, Defendant argues that Plaintiff has failed to meet the criteria set forth in the addendum to the Order permitting notice via text message—that is, Plaintiff has not shown that the notices sent via U.S. Mail and email were ineffective (i.e., Plaintiff has not established that “postal and electronic notices to a particular individual were returned as undeliverable.” Brittmon, 285 F. Supp. 3d at 1044–45). The Court agrees with Defendants; Plaintiff does not identify a single putative collective member for whom both postal and electronic mail notice were insufficient.

But Plaintiff's failure to establish that postal and electronic mail were insufficient for any particular putative collective member does not end the Court's analysis. Plaintiff reiterates in her renewed motion that Defendants have only provided email addresses for 1,523 of the total 5,530 putative collective members. (ECF No. 62, PageID 1353.) For these putative collective members, notice via email is an obvious impossibility, which leaves U.S. Mail as the sole method of notice permitted under the original denial Order. Under that Order, the Court authorized two methods of service for the purpose of increasing the likelihood that a potential opt-in plaintiff would receive notice. But for those putative collective members without documented email addresses, the Court's Order effectively authorized only a single notice method. This does not “advance[ ] the remedial purpose of the FLSA.” See Atkinson, 2015 WL 853234, at *5, 2015 U.S. Dist. LEXIS 23630, at *12. Given that Plaintiff cannot issue notice via email to 4,007 of these putative collective members, notice via text message, which would effectively be the second notice method for these members, is appropriate. Therefore, the Court permits Plaintiff to issue notice by text message to those putative collective members for whom Defendants have not provided email addresses.

For good cause shown, Plaintiff's motion is GRANTED IN PART AND DENIED IN PART. (ECF No. 62.) Plaintiff may send a text message notice to those individuals for whom Defendants have not provided an email address and/or to any others where U.S. Mail and email were ineffective. Plaintiff shall have a thirty-day notice period from the date of sending the text notice.

This case shall remain open on the docket of the Court.

IT IS SO ORDERED.

FOOTNOTES

1.   Not lost on the Court is the fact that Plaintiff sent her advertising letters, which provided notice to these 14 opt-in plaintiffs, via mail.

EDMUND A. SARGUS, JR., UNITED STATES DISTRICT JUDGE