United States District Court, E.D. North Carolina, Northern Division
TYRONN FEREBEE, on Behalf of Himself and on Behalf of All Others Similarly Situated, Plaintiff,
EXCEL STAFFING SERVICE, INC. et al., Defendants.
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
cause comes before the Court on plaintiffs appeal of an order
entered by United States Magistrate Judge James E. Gates as
well as plaintiffs motion for conditional certification of a
collective action and to provide notice under the Fair Labor
Standards Act, 29 U.S.C. § 216(b). [DE 59 & 77]. The
appropriate responses and replies have been filed, and, for
the reasons discussed below, the decision of Magistrate Judge
Gates is affirmed and plaintiffs motion for conditional
certification is granted.
filed this putative class action alleging that defendants
misclassify their workers as independent contractors instead
of as employees and in doing so deny those workers overtime
pay to which they are entitled under the Fair Labor Standards
Act (FLS A) and the North Carolina Wage and Hour Act (NCWHA).
Defendants Excel Staffing Service, Contractors &
Consultants, and Excel Staffing Professional Nursing are
alleged to operate a staffing company which provides
registered nurses (RNs), licensed practical nurses (LPNs),
and certified nursing assistants (CNAs) to medical care
facilities in multiple sates, including North Carolina,
Texas, and Mississippi. Plaintiff alleges that these three
entities operate as a single enterprise and are owned,
operated, and managed by defendants David J. Tolin and
Frederick Tolin. These defendants (staffing defendants) are
alleged to have entered into a contract with defendant Tar
River to provide labor and other employment functions.
Plaintiff was hired by the staffing defendants and was
assigned to Tar River to work primarily at one of its nursing
home facilities in Nags Head, North Carolina as a CNA.
Plaintiff alleges that defendants maintained a level of
control over plaintiff and putative class members that is
indicative of an employer-employee relationship, that he and
other putative class members often worked in excess of forty
hours per week, and that nursing and related positions are
generally non-exempt from overtime requirements.
Appeal from magistrate judge decision
objects to the order of Magistrate Judge Gates entered
November 18, 2016, as clearly erroneous and contrary to law.
The 18 November 2016 order denied plaintiffs motion to
continue the deadline to conduct pre-certification discovery.
Specifically, the order denied plaintiffs motion as to Excel
Staffing Service, Contractors & Consultants, and
Frederick Tolin and denied plaintiffs motion as moot as to
the remaining two defendants, David Tolin and Excel Staffing
Professional Nursing, which plaintiff had at that time not
been able to serve. Magistrate Judge Gates, after conducting
a hearing on the matter, found that plaintiff had not shown
diligence in the pursuit of pre-certification discovery. [DE
Rule of Civil Procedure 72(a) provides that, where a
non-dispositive pretrial matter is referred to a magistrate
judge, a party may file objections to the magistrate
judge's order within fourteen days after being served
with a copy of the order. See also Local Civil Rule
72.4(a). The district judge to whom the case is assigned
shall "consider timely objections and modify or set
aside any portion of the order that is clearly erroneous or
is contrary to law." Fed.R.Civ.P. 72(a). Under the
clearly erroneous standard, the magistrate judge's
decision must be affirmed unless the district court's
review results in the "definite and firm conviction that
a mistake has been committed." United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948).
undersigned finds no clear error in Judge Gates'
determination that plaintiff failed to demonstrate diligence
in his pursuit of pre-certification discovery, nor is the
undersigned persuaded by plaintiffs argument that the order
is contrary to law in that it results in a denial of due
process for plaintiff. Judge Gates appropriately found
plaintiffs minimal efforts to serve additional defendants and
failure to engage in meaningful discovery with the appearing
i defendants or newly named defendants during the time
allowed was insufficient to support amendment of the
scheduling order. Further, as defendants correctly note,
plaintiffs due process argument is based primarily on his
premise that he was required to wait twenty-one days after
service of the summons and complaint prior to propounding
discovery requests, which is unsupported by the Federal Rules
of Civil Procedure or interpreting authorities. See,
e.g., Atmosphere Hosp. Mgmt., LLC v. Curtullo, No.
5:13-CV-05040-KES, 2015 WL 136120, at *17 (D.S.D. Jan. 9,
2015) ("discovery moratorium does not apply to
later-added parties"); 8A Charles A. Wright & Arthur
R. Miller, Federal Practice & Procedure Civ.
§ 2051.1 n. 10 (3d ed. 2010); see also [DE 18]
(parties appearing after the entry of scheduling order in
this case bound by its terms unless amendment granted). The
decision of the magistrate judge is AFFIRMED.
Motion for conditional collective action
seeks conditional certification of a collective action
pursuant to the FLS A, 29 U.S.C. § 216(b), and asks for
Court approved notice of this suit to be provided to all
current and former nurses of defendants Excel Staffing Service,
Inc., Contractors & Consultants, Inc., Excel Staffing
Professional Nursing, Inc., David Tolin, and Frederick Tolin
who were misclassified as independent contractors in the
United States between February 12, 2013, and present.
FLSA expressly allows employees to maintain a collective
action for, inter alia, "unpaid minimum wages,
or their unpaid overtime compensation." 29 U.S.C. §
216(b). To bring a collective action under the FLSA, the
putative plaintiffs must satisfy two requirements: (1) they
must establish they are "similarly situated, " and
(2), they must affirmatively consent to the named plaintiffs
class representation. 29 U.S.C. § 216(b). As to the
question of whether the putative plaintiffs are
"similarly situated, " the Court applies a two-step
approach. See Cameron-Grant v. Maxim Health Care Servs.,
Inc., 347 F.3d 1240, 1243 (11th Cir.
first, "notice" stage of the process, the court
determines whether the plaintiff and potential opt-in
plaintiffs are sufficiently "similarly situated" to
warrant notice being given to allow potential plaintiffs to
opt-in and to proceed as a collective action through
discovery; at this initial stage, a lenient standard applies.
McLaurin v. Prestage Foods, Inc., 271 F.R.D. 465,
469 (E.D. N.C. 2010). Plaintiffs must 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." Patton v.
Thomson Corp., 364 F.Supp.2d 263, 267 (E.D.N.Y Apr. 5,
2005)) (citations omitted). If the Court finds plaintiff and
potential opt-in plaintiffs sufficiently similarly situated
to warrant issuing notice of the collective action, the Court
will conditionally certify the collective action.
second stage of collective action certification is triggered
later. The Eleventh Circuit Court of Appeals described the