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Ferebee v. Excel Staffing Service, Inc.

United States District Court, E.D. North Carolina, Northern Division

April 19, 2017

TYRONN FEREBEE, on Behalf of Himself and on Behalf of All Others Similarly Situated, Plaintiff,
EXCEL STAFFING SERVICE, INC. et al., Defendants.



         This 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.


         Plaintiff 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.


         I. Appeal from magistrate judge decision

         Plaintiff 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 58].

         Federal 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).

         The 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.

         II. Motion for conditional collective action certification

         Plaintiff 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[1] 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.

         The 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. 2003).[2]

         At the 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.

         The second stage of collective action certification is triggered later. The Eleventh Circuit Court of Appeals described the ...

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