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Perez v. Shucks Maine Lobster LLC

United States District Court, D. Maine

October 27, 2016

BUNTHOEUN PEREZ, Plaintiff,
v.
SHUCKS MAINE LOBSTER LLC et al., Defendants.

          ORDER ON MOTION FOR CONDITIONAL CERTIFICATION AND PROVISION OF NOTICE UNDER 29 U.S.C. § 216(B)

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

         In this Fair Labor Standards Act (FLSA) and Maine wage and hour law case, the named plaintiff moves for conditional certification of her FLSA claim as a collective action. The Court grants the motion because the plaintiff has made a sufficient factual showing that she and other employees suffered from a common unlawful plan, despite the fact that the plaintiff has not identified other interested potential class members. For purposes of conditional certification and notice only, the Court designates the plaintiff's earliest employment date as the start date of the proposed class period. The Court reserves ultimate judgment on the issue of equitable tolling.

         I. BACKGROUND

         A. Procedural History

         On August 24, 2015, Bunthoeun Perez filed a class and collective action complaint against Shucks Maine Lobster LLC (“Shucks Lobster”) and its owner, John Hathaway; Ideal Global Solutions LLC (“IGS”) and its principal, Senghap Roeun; and Casco Temp Agency LLC (“Casco Temp”) and its principal SoLang Ung. Class and Collective Action Compl. (ECF No. 1). Shucks Lobster and John Hathaway filed an answer on October 15, 2015, Answer (ECF No. 5), and Casco Temp filed its answer on November 3, 2015. Answer (ECF No. 7). Ms. Perez was unable to serve Mr. Ung with process and therefore voluntarily dismissed him as a party without prejudice. Notice of Dismissal (ECF No. 20). Ms. Perez successfully served IGS and its principal, Mr. Roeun, but both failed to answer. On December 9, 2015, Ms. Perez moved for entry of default against IGS and Mr. Roeun. Mot. for Entry of Default (ECF Nos. 16, 17). The Clerk of Court granted the motions for entry of default on December 10, 2015. Order Granting Mot. for Entry of Default (ECF No. 23).

         On January 11, 2016, Magistrate Judge Rich held a telephone conference to address a proposed scheduling order. R. of Hr'g and Order Re: Scheduling and Status (ECF No. 32). Casco Temp failed to appear. Id. at 2. The same day, the Magistrate Judge issued an order requiring Casco Temp to show cause why the Court should not enter default against it. Order to Show Cause (ECF No. 33). Casco Temp failed to respond, and the Magistrate Judge ordered Casco Temp in default on January 27, 2016. Order Defaulting Def. (ECF No. 34).

         On April 18, 2016, Ms. Perez filed a consent motion for leave to file an amended complaint against Shucks Lobster and its owner, John Hathaway (“the Shucks Defendants”). Consent Mot. for Leave to Amend Compl. (ECF No. 38). The following day, the Magistrate Judge granted Ms. Perez' motion without objection. Order Granting Mot. for Leave to File Am. Compl. (ECF No. 39). Ms. Perez filed her Amended Complaint on April 19, 2016. Am. Compl. (ECF No. 40). On April 29, 2016, Ms. Perez filed the instant motion for conditional certification of a class under 29 U.S.C. § 216(b). Mot. for Conditional Certification and Provision of Notice Under 29 U.S.C. § 216(b) (ECF No. 41) (Pl.'s Mot.). The Shucks Defendants filed an opposition on May 19, 2016. Opp'n to Mot. for Conditional Certification and Provision of Notice Under 29 U.S.C. § 216(b) (ECF No. 43) (Defs.' Opp'n). Ms. Perez replied on June 2, 2016. Reply in Supp. of Mot. for Conditional Certification and Provision of Notice Under 29 U.S.C. § 216(b) (ECF No. 44) (Pl.'s Reply).

         B. Alleged Facts

         Shucks Lobster is a seafood processing facility in Richmond, Maine. Am. Compl. ¶¶ 18-19. Ms. Perez worked as a lobster picker at the Shucks Lobster facility for approximately three months beginning in May 2012 and another three weeks in the summer of 2015. Id. ¶ 31; Pl.'s Mot. Attach 1 Decl. of Buntheoun Perez ¶¶ 4-5 (ECF No. 41) (Perez Decl.). In her capacity as a lobster picker, Ms. Perez shucked cooked lobster meat from its shell. Perez Decl. ¶ 3; Am. Compl. ¶ 30. Shucks Lobster employed Ms. Perez and other lobster pickers through various temporary agencies (“temp agencies”), including Casco Temp and IGS, Am. Compl. ¶ 20, but according to Ms. Perez, Mr. Hathaway held ultimate control over the lobster picker's operations, hours, and pay rates. Id. ¶¶ 6-7, 23-25, 34. Ms. Perez asserts that the different temp agencies maintained substantially identical employee rosters and employment policies. Am. Compl. ¶ 5.

         Ms. Perez states that Shucks Lobster paid her and the other lobster pickers according to a “piece rate” based solely on the weight of the lobster they processed. Am. Compl. ¶ 33. However, Ms. Perez asserts that the piece rate did not account for other compensable activities that she and the other lobster pickers performed throughout the workday. Id. ¶ 56. For instance, the lobster pickers typically had to arrive by 6 A.M. but often had to wait for shipments of lobsters and linger while the lobsters cooked. Id. ¶¶ 53-54. In addition, the lobster pickers were required to pass through a “clean room” every time the pickers entered or left the room where the shucking occurred, including for breaks, lunch, or any other reason. Id. ¶ 55. The “clean room” process took between five and ten minutes. Perez Decl. ¶ 12. In total, Mr. Perez alleges that she worked between eight and nine hours per day, six days per week. Perez Decl. ¶ 14; Am. Compl. ¶ 58. However, neither she nor the other lobster pickers received overtime pay. Am. Compl. ¶ 60. Ms. Perez contends that in its contracts with the temp agencies, Shucks Lobster specified that the lobster pickers were not entitled to overtime. Id. ¶ 59.

         Ms. Perez estimates that she worked with between ten and twenty lobster pickers each day. Perez Decl. ¶ 8. She further estimates that, over the course of her employment at Shucks Lobsters, she saw between thirty and forty different people working as lobster pickers. Id. ¶ 9. She alleges that all of the lobster pickers shared similar job duties, and that their pay rates and employment circumstances were substantially the same. Pl.'s Mot. at 3. Ms. Perez claims that she spoke with other lobster pickers about the lawsuit but that they have not yet joined the case because they fear retaliation. Perez Decl. ¶ 15. She attests that many of the lobster pickers are seasonal immigrants who speak Spanish or Khmer, and, according to Ms. Perez, they are unaware of their rights to overtime and to protection from retaliation. Id. ¶ 16. She alleges that the Shucks Defendants did not post notice of federal wage provisions, in violation of 29 C.F.R. § 516.4. Perez Decl. ¶ 5; Pl.'s Mot. at 6.

         II. THE PARTIES' POSITIONS

         A. The Plaintiff's Motion

         Ms. Perez alleges that the FLSA, 29 U.S.C. § 216(b), entitles her and the other lobster pickers to overtime for the all hours they worked in excess of forty hours per week, as well as “gap time” for the time they engaged in compensable activities without pay. Pl.'s Mot. at 1. She requests the Court conditionally certify the lobster pickers as a collective action and approve an “appropriate notice to be both sent to all potential opt-in members, handed to all current employees, and prominently posted” at Shucks Lobster's facility. Id.

         1. FLSA Conditional Certification

         To begin, Ms. Perez lays out the standard for conditional certification pursuant to § 216(b). Id. at 5. She explains that certification of collective actions under the FLSA occurs in two parts. Id. First, the Court determines whether to “conditionally certify” the action and provide notice to potential class members. Id. This occurs early in the case and is based on the pleadings and any affidavits. Id. The standard at this stage is “fairly lenient.” Id. (quoting Saunders v. Getchell Agency, No. 1:13-cv-00244-JAW, 2014 WL 580153, at *5 (D. Me. Feb. 12, 2014)). The named plaintiff must show a reasonable basis for the claim that there are other similarly situated employees who might participate in the case. Id. Second, upon the conclusion of discovery, the Court may reassess the “conditional certification to determine whether it is appropriate for the action to continue as a collective action. Id.

         Ms. Perez argues that she satisfies the “lenient” standard for conditional certification. Id. at 6. She defines the class she seeks to conditionally certify as “[a]ll current and former employees of Shucks Lobster and/or any agent hired by Shucks Lobster since May 2012 who worked shucking cooked lobsters at Shucks Maine's facility in Richmond, Maine and who worked, when all waiting time is included, more than forty (40) hours per week.” Id. at 8. According to Ms. Perez, all of the potential class members worked as lobster pickers in the same location under nearly identical circumstances. Id. Moreover, the Shucks Defendants failed to pay all of the lobster pickers for the time they spent in similar compensable activities, such as waiting for lobster to arrive, waiting while the lobster cooked, and passing through the “clean room” as they entered and exited the shucking room. Id. They also failed to pay all of the lobster pickers overtime when they worked more than forty hours per week. Id. Accordingly, Ms. Perez argues that these similarities satisfy the lenient standard of conditional certification. Id.

         Ms. Perez also offers possible reasons why other lobster pickers have not joined her lawsuit. First, the Shucks Defendants engaged different temp agencies over the years to “create a buffer between [the Shucks Defendants] and the potential class members.” Id. at 7. This hiring practice effectively dispersed the lobster pickers across multiple agencies and has made it difficult for Ms. Perez to access potential class members. Id. Additionally, Ms. Perez asserts that other lobster pickers are hesitant to join the lawsuit because they are not aware of their rights to overtime and to protection from retaliation. Id. According to Ms. Perez, this lack of awareness stems, in part, from the fact that many of the lobster pickers are seasonal immigrant laborers who lack knowledge of labor and employment law, and from the fact that the Shucks Defendants failed to provide proper notice of employee rights under the FLSA. Id. Ms. Perez is confident, however, “that the proposed notice will serve the dual purpose of informing all potential class members of both this lawsuit and their rights under the FLSA.” Id.

         2. Notice

         Ms. Perez requests the Court to approve the draft notice and opt-in forms that she attached to her motion. Id. at 8-9. She also requests that the Court order the Shucks Defendants to prominently display the notice in the shucking and the break rooms at the Richmond facility and to distribute paper copies to all current lobster pickers. Id. at 8. Additionally, she urges the Court to order the Shucks Defendants to provide her with a computer readable data file containing the names and last known addresses of all potential class members as defined in the Court's certification order. Id.

         3. Tolling the Statute of Limitations

         Ms. Perez explains that, unlike Rule 23, § 216(b) does not toll the claims of opt-in plaintiffs until they actually file their opt-in forms with the Court. Id. at 9. However, Ms. Perez argues that in this case, the Court should toll the FLSA's statute of limitations because the Shucks Defendants failed to provide the lobster pickers with proper notice of their rights under the FLSA, in violation of 29 C.F.R. § 516.4. Id. at 5-6 (citing Cruz v. Maypa, 773 F.3d 138, 146-47 (4th Cir. 2014)). In addition, the Shucks Defendants “agreed with the various temp agencies that [the lobster pickers]…were not entitled to overtime, thereby actively hiding the fact of their violation” from their employees. Id. at 6. Thus, Ms. Perez urges the Court to toll the statute of limitations especially because many of the potential class members are immigrant workers who are less likely to be aware of their rights. Id.

         B. Defendants' Opposition

         1. FLSA Conditional Certification

         The Shucks Defendants largely agree with Ms. Perez's recitation of the standard for conditional certification, with one important difference. The Shucks Defendants point out that although the standard is “fairly lenient, ” Ms. Perez must present more than mere allegations that other employees suffered from a common unlawful policy or plan. Defs.' Opp'n at 3 (citing Levecque v. Argo Marketing Group, Inc., No. 2:14-cv-00218-JAW, 2015 WL 3672647, at *7 (D. Me. June 12, 2015)). That is, Ms. Perez has “the burden of showing a reasonable basis for [her] claim that there are other similarly situated employees. Id. at 4 (quoting Johnson v. VCG Holding Corp., 802 F.Supp.2d 227, 234 ...


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