The opinion of the court was delivered by: Irenas, Senior District Judge
Pursuant to this Court's direction during oral arguments conducted on August 25, 2010, the parties have submitted supplemental briefs on Plaintiffs' request for conditional certification of the collective action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b). Plaintiffs ask this Court to conditionally certify their collective action and to approve notice be sent to prospective collective action members.
Plaintiffs filed their original complaint, a collective action under the FLSA, on July 10, 2008, in the United States District Court for the District of New Jersey against Defendants Goldbelt Falcon, LLC ("Falcon"), Goldbelt Eagle, LLC ("Eagle"), and Bionetics Corporation ("Bionetics").*fn1 On February 22, 2010, Plaintiffs filed a motion seeking an order granting conditional class certification and judicial notice (Pls.' Mot. for Certification.) Docket No. 43. On August 25, 2010 and again on September 28, 2010, this Court heard oral arguments concerning Plaintiffs' motion.
Defendants object to this Motion and contend it should be denied because 1) individualized issues would predominate class members' claims and thereby preclude collective action treatment; 2) Manning is not an appropriate class representative; and 3) Plaintiff's counsel would be unable to adequately and fairly manage the collective action. (Def. Br. In Opp., 14.)
Under 29 U.S.C. § 216(b), an employee who feels his or her right to unpaid overtime compensation has been violated may bring an action "for and in behalf of himself or themselves and other employees similarly situated."
The term "similarly situated" is not defined in the FLSA. In "the absence of guidance from the Supreme Court and Third Circuit, district courts have developed a test consisting of two stages of analysis" to determine if employees are similarly situated. Kronick v. Bebe Stores, Inc., 2008 WL 4546368 at *1 (D.N.J. 2008).
The first analysis occurs when plaintiffs move for conditional certification of the potential class. This first analysis is also called a stage one determination. During stage one the court determines if notice should be given to potential class members. Morisky v. Public Service Electric and Gas Co., 111 F.Supp.2d 493, 497 (D.N.J. 2000)(quoting Thiessen v. General Electric, 996 F.Supp. 1071, 1080 (D.Kan. 1998)). Should conditional certification be awarded during stage one, then notice will be sent out to the potential class of plaintiffs.
It is possible for a class to be certified at stage one but fail certification at stage two. Unless a case is "ready for trial," Third Circuit courts consider the case in stage one. When some discovery has been conducted and several plaintiffs have opted in, the case has moved beyond a typical stage one determination. Herring v. Hewitt Assoc., Inc., 2007 WL 2121693 at *4 (D.N.J. 2007). In such cases, the trial judge must decide whether the case is ready for trial. Id. In Herring, three plaintiffs had opted in and discovery was already underway. Id. The court decided that the litigation was in stage one because the case was not "ready for trial." Id. Likewise, in Morisky, the court stated a case is in stage two after "discovery is largely complete and the case is ready for trial." 111 F.Supp. at 497. In holding that the litigation was in stage two, the court noted that "over 100 potential plaintiffs have already opted into this lawsuit," and that the motion for conditional certification was filed after the date that discovery was scheduled to be complete. Id. at 497-98.
Granting a conditional certification in stage one is not a final or permanent decision. Once discovery is largely complete and the case is ready for trial, the case is in stage two. If the defendant moves to decertify the class, a second, final determination on class certification will be made during stage two. The burden of proof that must be met by the plaintiff is higher during stage two because the court "has much more information on which to base its decision." Thiessen, 996 F.Supp. at 1080; See also Herring v. Hewitt Assoc., Inc., 2007 WL 2121693 (D.N.J. 2007). During this final determination, the court decides whether the plaintiff has shown that he or she is "similarly situated" to the potential class. If the court determines during the stage two determination that the class of plaintiffs are "similarly situated," then the case may proceed to trial as a collective action. Morisky, 111 F.Supp.2d at 497. Should the court determine, however, that the plaintiffs are not "similarly situated," then the class will be decertified or split into subclasses.
Here, the case is not yet ready for trial and discovery has not been formally concluded, so it is more appropriate to consider Plaintiffs' motion under the burden of proof used for stage one. Like Herring, some discovery has been conducted and some plaintiffs have opted in. Additionally, the present case is not yet ready for trial.*fn2 Unlike Morisky, where the motion for conditional certification was filed after discovery was formally concluded and the case was ready for trial, there has been no formal conclusion to discovery here.*fn3 Therefore, because this case is not ready for trial and discovery has not been formally concluded, it is appropriate to consider this motion for conditional certification under the stage one burden of proof.
Plaintiffs' motion to conditionally certify the class will be granted because Plaintiffs have met the low requirements needed to fulfill a stage one determination. As of this time, courts in the Third Circuit are split between two levels of proof to apply during stage one. Despite the two standards, courts generally agree that both standards set very low hurdles to pass. Morisky, 111 F.Supp.2d at 497. One court held that "substantial allegations that the putative class members were together the victims of a single . . . policy" are enough to conditionally certify a class. ...