TOOKER v. BLUJAY SOLUTIONS INC LLC (2024)

OPINION AND ORDER

This is a collective action wage-and-hour case in which Plaintiffs Tooker and Hahn, former Logistics Coordinator (LC) employees of Defendant BluJay, allege the company improperly treated them as exempt from federal overtime laws and thus deprived them of their overtime wages in violation of the Fair Labor Standards Act (“FLSA”). Tooker and Hahn sought to serve as lead plaintiffs for a proposed collective action, (First Am. Compl. ECF No. 28), but also signed consents indicating a desire to proceed individually even in the absence of a collective. (ECF No. 28-1). The Court authorized notice to potential claimants and ultimately 19 other employees or former employees elected to opt into the action. Like the lead plaintiffs, each opt-in plaintiff signed a consent expressing a desire to proceed even “[i]f this case does not proceed collectively.” (See, e.g., ECF No. 22-1).

Following discovery, both sides filed motions relating to FLSA certification, the administrative exemption, and damages. The Court entered summary judgment for plaintiffs on the inapplicability of the administrative exemption to Logistics Coordinators and denied summary judgment to both sides on liquidated damages, willfulness, and the potential application of the fluctuating workweek method. (ECF Nos. 123 and 124). The Court also denied the plaintiffs’ motion for certification and the defendants’ motion for decertification in a bench ruling. As the Court stated, a total of 21 claimants affirmatively stated they wanted to be a part of the case regardless of whether the case proceeded as a collective. In the Court's mind, there was no question the claims of these 21 persons were in the case. The only question was how best to test and litigate them. These were predominantly evidentiary questions best addressed at the upcoming Final Pretrial Conference, currently set for June 25, 2024. A formal certification or decertification was an unnecessary distraction, and so the Court denied the cross motions but made clear it would “discuss the evidentiary issues related to collective proofs at the final pretrial conference. (ECF No. 123, PageID. 2284).

The matter now before the Court is on Defendants’ Motion to Dismiss Opt-in Plaintiffs. (ECF No. 130). Defendants say by declining to formally certify a collective, the court effectively lost jurisdiction over the opt-in claims. The Court views the motion as essentially one seeking reconsideration of the Court's previous decision on the certification motions. The Court determines that no further briefing or argument on the matter is necessary. For the following reasons, the motion is DENIED.

The basis of the defense motion is the Sixth Circuit Court of Appeals’ decision in Clark v. A&L Homecare & Training Ctr., LLC, 68 F.4th 1003, 1009 (6th Cir. 2023) and in particular, its observation that “other employees become parties to an FLSA suit (as opposed to mere recipients of notice) only after they opt in and the district court determines—not conditionally, but conclusively—that each of them is in fact ‘similarly situated’ to the original plaintiffs.” Id. Absent such a conclusive determination, the defense says, the opt-in plaintiffs here are not parties to this case because Plaintiffs have failed to satisfy their burden of demonstrating the opt-in plaintiffs are similarly situated. Defendants marshal a number of recent district court decisions from within this circuit that have applied the above language in FLSA decisions.

The Court does not see its decisions thus far as being at odds with the Clark decision, and to the extent the Court's rulings are inconsistent with decisions of district courts that have applied Clark, the Court respectfully disagrees with those cases. In a collective action, the Court cannot blithely dismiss those who opt into a collective action after notice the Court authorized. This is especially true when the opt-ins joined the case and affirmatively asserted their desire to proceed collectively or individually. There can be no question but that joinder was proper under the broad general rules of federal joinder for individual plaintiffs. Fed. R. Civ. P. 20. The only question remaining is whether representative proofs and other typical collective action vehicles are appropriate, or whether severance, separate trials or some protective measures under Rule 20(b) are most fitting for the case. The Court sees nothing in Clark that suggests a trial court can simply dismiss the opt-in plaintiffs if a collective action is ultimately not fitting. To the contrary, the normal remedies of Fed. R. Civ. P. 20(b) provide ample protection for the rights of both plaintiffs and defendants in such a case. Furthermore, in this case it is likely that at least some collective action vehicles will be effective and appropriate because the Court has already determined as a matter of law that the administrative exemption does not apply.

In its ruling on both certification motions the Court clearly decided that all 21 plaintiffs belong here, and that the Court and the parties would work out evidentiary matters at the final pretrial conference. So, in denying the motions “without prejudice,”¹ the Court was making it clear that it wasn't dismissing any of the plaintiffs, but also wasn't guaranteeing that representative proofs would be suitable on all the claims. Put differently, under the collective action model set out in Clark, the Court does not see dismissal, as opposed to severance, as the remedy for a conclusion that the collective is a bad model for plaintiffs that affirmatively opted into the case and expressed a desire to proceed individually or collectively.² This is, of course, effectively what the Court already decided at the summary judgment hearing.

ACCORDINGLY, IT IS ORDERED that the motion to dismiss (ECF No. 130) is DENIED.

FOOTNOTES

1.   The unofficial transcript notes of the proceedings reflect the Court using these words. The written order following the hearing expresses the same point by stating the Court would discuss “collective proofs” and related evidentiary issues at the final pretrial conference. (ECF No. 123).

2.   Indeed, Clark itself rejected use of the term “certification” entirely for FLSA collective actions: “As an initial matter, we reject Lusardi's [v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987)] characterization of the notice determination as a ‘certification,’ conditional or otherwise.” 68 F.4th at 1009. Clark went on to instruct that “certification” is a Rule 23 class action term and concept “fundamentally different from collective actions under the FLSA.” Id. (quoting Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 74 (2013)). The Court summarized: “[u]nder Rule 23, the district court certifies the action itself as a class action; whereas in an FLSA action ․ the district court simply adds parties to the suit.” Id. And when these plaintiffs opt-in, they “become parties with ‘the same status in relation to the claims of the lawsuit as do the named plaintiffs.’ ” Id. (quoting Canaday v. Anthem Companies, Inc., 9 F.4th 392, 402-03 (6th Cir. 2021)). Because of all this “the term ‘certification’ has no place in FLSA actions.” Id.

ROBERT J. JONKER, UNITED STATES DISTRICT JUDGE