United States District Court, D. Maryland
Richard D. Bennett United States District Judge.
Spencer Brown, Zaire Acquaah, Lijalem Uregeha, Albert Sims,
and Vincent Emmare (collectively, “Plaintiffs”),
on behalf of themselves and those similarly situated, have
filed an Amended Complaint (ECF No. 17) against
defendants Rapid Response Delivery, Inc. (“RRD”),
NAPA Auto Parts of Hunt Valley, LLC (“NAPA”), and
Timonium Auto Parts, Inc. (“TAP”), alleging
violations of the Fair Labor Standards Act, 29 U.S.C. §
201, et seq. (“FLSA”), the Maryland Wage
and Hour Law, Md. Code Ann., Lab. & Empl., § 3-401,
et seq. (“MWHL”), and the Maryland Wage
Payment and Collection Law, Md. Code Ann., Lab. & Empl.,
§ 3-501, et seq. (“MWPCL”).
pending before this Court is Plaintiffs' Motion for
Conditional Certification of a Collective Action under 29
U.S.C. § 216(b) of the Fair Labor Standards Act
(“Plaintiffs' Motion”) (ECF No. 27). The
parties' submissions have been reviewed, and no hearing
is necessary. See Local Rule 105.6 (D. Md. 2016).
For the reasons described herein, Plaintiffs' Motion for
Conditional Certification (ECF No. 27) is DENIED.
Rapid Response Delivery, Inc. (“RRD”) operates a
delivery service located in Savage, Maryland and employs
courier drivers to make deliveries in Maryland and
surrounding states. (ECF No. 17 at ¶ 21.) Plaintiffs
work (or worked) as drivers for RRD and were assigned to
drive exclusively for NAPA Auto Parts of Hunt Valley, LLC
(“NAPA”) and Timonium Auto Parts, Inc.
(“TAP”), two of RRD's clients. (Id.
at ¶ 22.) Plaintiffs performed this work at varying
times since April 15, 2013. (Id. at ¶ 23.)
allege that RRD compensated Plaintiffs “a set amount
for each delivery completed dependent on the mileage of the
delivery, ” and no other compensation. (ECF No. 17 at
¶ 25.) NAPA and TAP schedule Plaintiffs to perform the
delivery work from 8:00 a.m. to 6:00 p.m. from Monday through
Friday, plus at least one 7:00 a.m. to 4:00 p.m. Saturday
shift per month. (Id. at ¶ 26.) Thus, while
Plaintiffs “regularly work more than 40 hours per week,
” defendants allegedly do not pay Plaintiffs additional
compensation for overtime work and do not pay Plaintiffs the
minimum wage for every hour of work performed. (Id.
at ¶¶ 33-34.)
three defendants contend that the plaintiff drivers are
independent contractors who “have the ability to set
their own schedules, ” and “are permitted to take
days off as they wish, and not work or work other days that
they choose.” (ECF No. 36 at 3.) Defendants further
assert that neither they nor the drivers maintained records
of the time that plaintiffs spent working. (Id. at
4-5.) Given the payment-per-delivery compensation structure,
they claim, “there would be no reason to precisely
track, monitor, and record the time each driver spent making
deliveries, because the time associated with such is not
related to the payment structure.” (Id.)
the FLSA, a plaintiff may bring an action on behalf of
himself and other employees so long as the other employees
are “similarly situated” to the plaintiff. 29
U.S.C. § 216(b); see also Quinteros v. Sparkle
Cleaning, Inc., 532 F.Supp.2d 762, 771 (D. Md. 2008). As
this Court has previously noted, Section 216
“establishes an ‘opt-in' scheme, whereby
potential plaintiffs must affirmatively notify the court of
their intentions to be a party to the suit.”
Quinteros, 532 F.Supp.2d at 771 (citing Camper
v. Home Quality Mgmt., Inc., 200 F.R.D. 516, 519 (D. Md.
2000)). Section 216(b) provides, in relevant part, that:
An action . . . may be maintained against any employer . . .
in any Federal or State court of competent jurisdiction by
any one or more employees for and in behalf of himself or
themselves and other employees similarly situated. No
employee shall be a party plaintiff to any such action unless
he gives his consent in writing to become such a party and
such consent is filed in the court in which such action is
29 U.S.C. § 216(b).
this Court has employed a two-step inquiry when deciding
whether to certify a collective action under the FLSA.
Syrja v. Westat, Inc., 756 F.Supp.2d 682, 686 (D.
Md. 2010); Banks v. Wet Dog Inc., No. CIV.A.
RDB-13-2294, 2015 WL 433631, at *1 (D. Md. Feb. 2, 2015).
First, upon a minimal evidentiary showing that a plaintiff
can meet the substantive requirements of 29 U.S.C. §
216(b), the plaintiff may proceed with a collective action on
a provisional basis. Second, following discovery, the court
engages in a more stringent inquiry to determine whether the
plaintiff class is “similarly situated” in
accordance with the requirements of § 216. Rawls v.
Augustine Home Health Care, Inc., 244 F.R.D. 298, 300
(D. Md. 2007) (internal citations omitted). The Court then
renders a final decision regarding the propriety of
proceeding as a collective action. Id. The second,
more “stringent” phase of collective action
certification under the FLSA is often prompted by a
defendant's filing of a motion to decertify, and thus is
referred to as the “decertification stage.”
Syrja, 756 F.Supp.2d at 686.
to grant conditional certification is a matter of the
court's discretion. Syrja, 756 F.Supp.2d at 686
(stating that “[d]eterminations of the appropriateness
of conditional collective action certification . . . are left
to the court's discretion”); see also
Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169
(1989). As the Court has explained, the “paramount
issue in determining the appropriateness of a conditional
class certification is whether plaintiffs have demonstrated
that potential class members are ‘similarly
situated.'” Williams v. Long, 585
F.Supp.2d 679, 684 (D. Md. 2008).
bear the burden of showing that their claims are
“similarly situated, ” but courts have ruled that
“similarly situated” need not mean
“identical.” See, e.g., Hipp v.
Liberty Nat. Life Ins. Co.,252 F.3d 1208, 1217 (11th
Cir. 2001). This Court has held that a group of FLSA
plaintiffs is similarly situated if they can show they were
victims of a common policy, scheme, or plan that violated the