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Clugston v. Shamrock Cartage and Spotting Services

United States District Court, S.D. Indiana, Indianapolis Division

October 30, 2014

MICHAEL D. CLUGSTON, on Behalf of Himself and All Others Similarly Situated, Plaintiff,



This matter is before the Court on a Motion for Certification and Notice of Collective Action Lawsuit filed by Plaintiff Michael D. Clugston ("Mr. Clugston") on behalf of himself and all others similarly situated (Filing No. 40). Mr. Clugston brought this action against Defendants Shamrock Cartage and Spotting Services ("Shamrock"), Daniel O'Brien ("Mr. O'Brien"), and Matthew Harper ("Mr. Harper") (collectively, "Defendants") for alleged violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et. seq. ("FLSA"). A hearing was held on the motion on August 12, 2014. Mr. Clugston appeared in person and by counsel Ronald E. Weldy. Defendants appeared by counsel Natascha B. Rieco and Noah A. Finkel. Mr. Harper appeared as the party representative for Defendants. The Court Reporter was David Moxley.


Shamrock is a company that provides cartage pickup and delivery, as well as spotting or yard jockeying and yard management services. Shamrock provides services for clients at locations in Illinois, Indiana, Pennsylvania, Georgia, Texas and North Carolina. Filing No. 48-1, at ECF p. 2. Mr. O'Brien is the President of Shamrock, and Mr. Harper is the Vice-President of Operations and co-owner. Mr. Clugston began working for Defendants on March 14, 2011 as a Spotter. Spotters are drivers who are responsible for moving truck trailers on or about Defendants' customers' premises, either within the customers' yard or between the loading docks and the yard, so as to maximize space and maintain organization of the yard. At all times while he was employed by Defendants, Mr. Clugston was an hourly employee, as were all Spotters working for Defendants. Mr. Clugston was not paid any overtime premiums for hours that he worked over 40 during a given workweek. Defendants admitted in their Amended Answer that they do not pay any overtime premiums for hours worked by Spotters over 40 hours per week, and that Mr. Clugston himself was not paid overtime wages. See Filing No. 43, at ECF pp. 5-7.

Defendants assert that some employees that performed spotting services engaged in duties that would render them properly classified as exempt from FLSA overtime requirements under the Motor Carrier Act ("MCA") exemption. See 29 U.S.C. § 213(b)(1). The MCA exemption refers to employees who are exempt from the FLSA's overtime requirements by virtue of being subject to the U.S. Secretary of Transportation's power to establish qualifications and maximum hours of service pursuant to 49 U.S.C. § 31502. 29 U.S.C. § 213(b)(1). Defendants argue that because some potential class members could be subject to this exemption, Mr. Clugston has not shown that he is similarly situated to the putative class members. Because of this, Defendants argue, conditional class certification is not proper until the Court is able to engage in "fact-intensive individual inquiries." Filing No. 14, at ECF p. 12.


The FLSA provides that an action for unpaid minimum wages or unpaid overtime compensation may be brought "by any one or more employees for and on behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). A collective action under the FLSA differs significantly from a class action brought pursuant to Federal Rule of Civil Procedure 23. Moss v. Putnam Cnty. Hosp., No. 2:10-cv-00028-JMS-WGH, 2010 WL 2985301, *1 (S.D. Ind. July 21, 2010). The primary difference is that plaintiffs who wish to be included in a collective action must affirmatively opt-in by filing a written consent with the court, while members of a Rule 23 class action are automatically included unless they affirmatively opt-out. Alvarez v. City of Chi., 605 F.3d 445, 448 (7th Cir. 2010). Rule 23 and its standards governing class certification do not apply to a collective action brought under the FLSA. Moss, 2010 WL 2985301 at *1-2. Therefore, no showing of numerosity, typicality, commonality and representativeness needs to be made. Brickel v. Bradford-Scott Data Corp., No. 1:09-CV-58, 2010 WL 145348, at *1 (N.D. Ind. Jan. 11, 2010).


In order to decide whether to conditionally certify a collective action, the Court must initially determine whether members of the proposed class are similarly situated to the class representative, Mr. Clugston. Campbell v. Advantage Sales & Mktg., LLC, No. 1:09-cv-1430-LJM-DML, 2010 WL 3326752, *3-4 (S.D. Ind. Aug 24, 2010). Courts in this Circuit typically use a two-step inquiry. In the first step, also known as the notice stage, the court analyzes the pleadings and affidavits that have been submitted to determine whether notice should be given to the putative class members. Hawkins v. Alorica, Inc., 287 F.R.D. 431, 438-39 (S.D. Ind. 2012) (citing Campbell, 2010 WL 3326752 at *3); see also Fravel v. Cnty. of Lake, No. 2:07-CV-253, 2008 WL 2704744, at *2-3 (N.D. Ind. July 7, 2008) ("Conditional certification... is an initial determination that simply allows for putative class members to be identified and notified of their opportunity to opt-in.") (internal quotations omitted). After conditional certification, notices are issued and go to the conditionally certified collective action members. The action proceeds as a representative action throughout discovery, and near the end of discovery, the court makes a factual determination of whether the plaintiffs are similarly situated. Fravel, 2008 WL 2704744 at *3. This first step does not impose a high burden on the plaintiff, who is only required to make a "modest factual showing" that the class members were "victims of a common policy or plan that violated the law." Id .; Wiyakaska v. Ross Gage, Inc., No. 1:10-CV-1664, 2011 WL 4537010, at *2 (S.D. Ind. Sept. 28, 2011). At this stage, the court must accept as true the plaintiff's allegations and does not reach the merits of the plaintiff's FLSA claims. Fravel, 2008 WL 2704744 at *2.

The second step occurs after discovery has largely been completed and allows a defendant the opportunity to seek decertification of the class, or restrict the class because various putative class members are not, in fact, similarly situated as required by the FLSA. Adair v. Wis. Bell, Inc., No. 08-C-280, 2008 WL 4224360, at *3 (E.D. Wis. Sept. 11, 2008). This involves a more stringent inquiry under which courts typically consider the following factors: "(1) whether plaintiffs share similar or disparate factual and employment settings; (2) whether the various affirmative defenses available to the defendant would have to be individually applied to each plaintiff; and (3) fairness and procedural concerns." Threatt v. CRF First Choice, Inc., No. 1:05-cv-117, 2006 WL 2054372, at *5 (N.D. Ind. July 21, 2006). This two-step inquiry is collapsed when a plaintiff seeks conditional certification of a FLSA collective action after significant discovery has occurred in the case. Hawkins, 287 F.R.D. at 439 (citing Purdham v. Fairfax Cnty. Pub. Schs., 629 F.Supp.2d 544, 547 (E.D. Va. 2009)).

The FLSA does not define "similarly situated" or instruct judges when they should exercise their discretion and authorize notice to potential plaintiffs. However, district courts within this Circuit have held that being similarly situated does not require identical positions of the putative class members; instead, it requires that common questions predominate among the members of the class. Campbell, 2010 WL 3326752 at *3-4 (citing cases).

A. Conditional Certification

Mr. Clugston filed his motion for conditional certification of the proposed collective action prior to engaging in discovery; thus, only the first step of the two-part inquiry is applicable under these circumstances, and he must only make a modest showing that he is similarly situated to the purported plaintiffs. The class definition proposed by Mr. Clugston is:

All present and former yard hostlers and/or yard jockeys and/or yard drivers and/or spotters employed by Shamrock Cartage and Spotting Services that have worked more than 40 hours in a ...

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