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Kutzback v. Lms Intellibound, LLC

United States District Court, W.D. Tennessee, Western Division

March 25, 2015

MICHAEL KUTZBACK, individually and on behalf of himself and others similarly situated, Plaintiff,
LMS INTELLIBOUND, LLC., a Foreign Limited Liability Company, and CAPSTONE LOGISTICS, LLC., a Domestic Limited Liability Company, Defendants.


JOHN T. FOWLKES, Jr., District Judge.

Before the Court is Plaintiff's Motion to Conditionally Certify Collective Action and Facilitate Notice to Potential Class Members filed by Plaintiff on February 18, 2014. (ECF No. 43). The Defendants filed a Response in Opposition to the motion on March 21, 2014, and a Corrected Response in Opposition to Plaintiff's Motion on April 2, 2014. (ECF No. 53 and ECF No. 57). Plaintiff filed a Reply to Defendants' response on April 16, 2014. (ECF No. 60). On September 5, 2014, the Court referred the motion to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A). (ECF No. 63). On December 16, 2014, the Magistrate Judge issued a Report and Recommendation, recommending that Plaintiff's motion to conditionally certify the class and to facilitate notice be granted. The Magistrate Judge also entered an Order Denying Plaintiff's Motion to Toll the Statute of Limitations. (ECF No. 68).

On December 30, 2014, Defendants filed Objections to the Magistrate Judge's Report and Recommendation to which Plaintiff filed his Response in Opposition on January 23, 2015. (ECF No. 73). With leave from the Court, Defendants filed a Reply in Support of their Objections to the Report and Recommendation on February 13, 2015. (ECF No. 76 and ECF No. 77).


The Court adopts the factual history provided in the Magistrate Judge's Report and Recommendation. (ECF No. 68, pp. 2-5). Plaintiff brought this action against the Defendants, employers LMS Intellibound, LLC and Capstone Logistics, LLC, for failure to pay overtime wages in violation of 29 U.S.C. § 207 and for failure to pay wages in violation of 29 U.S.C. § 206 of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. Plaintiff seeks to conditionally certify a class of all Uploaders employed by the Defendants during the past three years in 239 or more nationwide locations.[1]


Under 28 U.S.C. § 636(b)(1)(B), a district court may refer nondispositive pretrial matters including requests to pursue a class action to a United States Magistrate Judge for report and recommendation. See U.S. v. Raddatz, 447 U.S. 667, 673 (1980), Callier v. Gray, 167 F.3d 977, 980-81 (6th Cir. 1999), and Hardesty v. Litton's Market and Restaurant, Inc., No. 3:12-CV-60, 2012 WL 6046697, n*1 (E.D. Tenn. 2012). Section 636 (b)(1)(A) provides that the district court may reconsider a referred pretrial matter "where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law." See Baker v. Peterson, 67 F.App'x, 308, 311 (6th Cir. 2003)("A district court normally applies a clearly erroneous or contrary to law' standard of review for nondispositive preliminary measures.") See also Guiden v. Leatt Corp., No. 5:10-CV-00175, 2013 WL 4500319, *3 (W.D. Ky. Aug. 21, 2013). Similarly, L.R.72.1(g) provides that the presiding judge may reconsider any order determining a pretrial matter where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law. The standard does not permit the district court to reverse a magistrate judge's finding merely because it would have decided the matter differently. Sedgwick v. F.A.B.E. Custom Downstream Systems, Inc., Case No. 13-cv-10485, 2014 WL 4658303, *1 (E.D. Mich. 2014), citing Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985).

Finally, a conditional order approving notice to prospective co-plaintiffs is a nondispositive order subject to the clearly erroneous standard of review.[2] Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 548-49 (6th Cir. 2006). Gandee v. Glaser, 785 F.Supp. 684, 686 (S.D. Ohio 1992), aff'd 19 F.3d 1432 (6th Cir. 1994); and Fed.R.Civ.P. 72(a).


In the Sixth Circuit, the determination whether a Plaintiff is similarly situated to other potential opt-in members is a two-step process. The first step is at the beginning of discovery, and the second is after discovery has completed. District courts usually employ a fairly lenient standard that usually results in conditional certification. It is at this first stage that we stand. Comer, 454 F.3d at 546. See also O'Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d 567 (6th Cir. 2009).

Employees can sue in their own behalf and on behalf of similarly situated persons.[3] Hoffmann-LaRoche, Inc., v. Sperling, 493 U.S. 165, 167-68 (1989). The district court may authorize notification of similarly situated employees to allow them to opt-into the lawsuit. Id. at 169. However, the court must first consider whether the plaintiffs have shown that the employees to be notified are in fact similarly situated. See Comer, 454 F.3d at 546.[4]

The Magistrate Judge determined that Plaintiff has satisfied the modest factual showing that his position is similar to the other potential opt-in plaintiffs. (ECF No. 68, pp. 15-18, 20-22). By demonstrating that Plaintiff and other potential opt-in employees were similarly compensated and that all had allegedly worked while off the clock without compensation, Plaintiff met the lenient standard for conditional certification. See Comer v. WalMart Stores, Inc. 454 F.3d at 546; and Monroe v. FTS USA, LLC, 257 F.R.D. 634, 639 (W.D. Tenn. 2009)(plaintiff's evidence on a motion for conditional class certification is not required to meet the same evidentiary standards applicable to motions for summary judgment because there is no possibility of final disposition at the conditional certification stage).

Defendant has raised three primary objections to the Magistrate Judge's Report and Recommendation: 1) that Plaintiff could not obtain conditional certification without showing that Defendants enforced a common compensation policy or plan in violation of the law; 2) that Plaintiff was not similarly situated to the potential collective action members and, 3) that nationwide certification of this collective action, if granted, should be limited only to the five worksites from which Plaintiff has offered evidence. (Objections, ECF No. 69, pp. 11, 18-20, Defendants' Reply in Support, ECF No. 77, pp. 3-5).

After a complete review of the record in this case, including the Report and Recommendation and the objections and responses thereto, the Court finds the Magistrate Judge's Report and ...

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