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Brown v. Rapid Response Delivery, Inc.

United States District Court, D. Maryland

January 4, 2017

SPENCER BROWN, et al., Plaintiffs,


          Richard D. Bennett United States District Judge.

         Plaintiffs 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)[1] 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”).

         Currently 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.


         Defendant 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.)

         Plaintiffs 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.)

         All 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.)


         Under 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 brought.

29 U.S.C. § 216(b).

         Furthermore, 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.

         Whether 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).

         Plaintiffs 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 ...

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