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Kim v. Dongbu Tour & Travel, Inc.

United States District Court, Third Circuit

October 16, 2013

TAE IN KIM and DAVID D. KIM, individually and on behalf of all others similarly situated, Plaintiffs,


WILLIAM H. WALLS, Senior District Judge.

Plaintiffs Tae In Kim and David D. Kim (together, "Plaintiffs") move to conditionally certify a class of tour guides employed by Defendants Dongbu Tour & Travel, Inc. ("Dongbu") and Kyu Sung Cho ("Cho") (together, "Defendants") under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b), et seq. (2013). Plaintiffs also move for equitable tolling of the FLSA statute of limitations. The motion has been decided from the written submissions of the parties under Federal Rule of Civil Procedure 78. Plaintiffs' motion is granted.


On February 24, 2012, Plaintiffs filed a putative collective action alleging violations of the minimum wage and overtime provisions of the FLSA and the New Jersey Wage and Hour Law. Compl. ¶¶ 1-2 (ECF No. 1). On March 23, 2012, Plaintiffs also filed a Motion for Preliminary Injunction. ECF No. 8. On April 4, 2012, Defendants moved to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). ECF No. 10. This Court held a hearing on May 30, 2012, ECF Nos. 16-17, and an evidentiary hearing on July 5, 2012, ECF No. 28. Following the July 5, 2012 hearing, the Court held that Plaintiffs are employees of Dongbu as a matter of law. See Op. dated Oct. 9, 2012 at 1-2 (ECF No. 60). Defendants' Motion to Dismiss was denied on June 6, 2012. ECF Nos. 18-19. Plaintiffs' Motion for Preliminary Injunction was denied on July 23, 2012. ECF Nos. 34, 36. The Court also denied Defendants' Motion to Compel Arbitration on July 25, 2012, ECF No. 38, as well as Defendants' Motion for Reconsideration of that request on September 19, 2012, ECF Nos. 58-59. Defendants appealed this Court's denial of their Motion to Compel Arbitration to the Third Circuit, which affirmed the judgment of this Court on June 19, 2013. See Tae In Kim v. Dongbu Tour & Travel, Inc., No. 12-3285, 2013 WL 3045569, at *4 (3d Cir. June 19, 2013).


Section 216(b) of the FLSA authorizes employees to bring an action on behalf of themselves and others "similarly situated." 29 U.S.C. § 216(b). "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." Id.

The Third Circuit has embraced a two-step approach to determining whether a suit brought under § 216(b) may move forward as a collective action. See Zavala v. Wal Mart Stores, Inc., 691 F.3d 527, 536 (3d Cir. 2012) (adopting "two-tier approach" put forth in Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 192-93 (3d Cir. 2011), rev'd on other grounds, 133 S.Ct. 1523 (2013)). "Conditional certification, " which is sought in the pending motion, is the initial stage of that two-tiered analysis. See Symczyk, 656 F.3d at 192.

During this initial phase, "the court makes a preliminary determination whether the employees enumerated in the complaint can be provisionally categorized as similarly situated to the named plaintiff." Id. "If the plaintiff carries her burden at this threshold stage, the court will conditionally certify' the collective action for the purposes of notice and pretrial discovery." Id.

At this initial stage, the Third Circuit applies a "modest factual showing" standard, under which "a plaintiff must produce some evidence, beyond pure speculation, ' of a factual nexus between the manner in which the employer's alleged policy affected her and the manner in which it affected other employees." Zavala, 691 F.3d at 536 n.4 (quoting Symczyk, 656 F.3d at 193).

"After discovery, and with the benefit of a much thicker record than it had at the notice stage, ' a court following this approach then makes a conclusive determination as to whether each plaintiff who has opted in to the collective action is in fact similarly situated to the named plaintiff." Symczyk, 656 F.3d at 193 (quoting Morgan v. Family Dollar Stores, Inc., 551 F.3d 1223, 1261 (11th Cir. 2008)). "This second stage is less lenient, and the plaintiff bears a heavier burden." Id. "Should the plaintiff satisfy her burden at this stage, the case may proceed to trial as a collective action." Id.

In commenting on the differences in these two stages of the collective action certification analysis, the Third Circuit has cited the rationale of the Second Circuit: "The Second Circuit has described this initial step as determin[ing] whether similarly situated' plaintiffs do in fact exist, ' while at the second stage, the District Court determines whether the plaintiffs who have opted in are in fact similarly situated' to the named plaintiffs.'" Zavala, 691 F.3d at 536 n.4 (quoting Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010)).


I. Conditional Certification of Plaintiffs' FLSA Claims is Appropriate

Plaintiffs contend that they have "more than satisfied their lenient' burden of demonstrating that the proposed class of Dongbu tour guides is sufficiently similarly situated to justify issuing notice to potential class members." Pls.' Br. in Supp. of Conditional Certification ("Pls.' Br.") at 22 (ECF No. 77-3). Plaintiffs point out that the record contains ample evidence that the proposed class was subject to a uniform Dongbu policy of misclassifying tour guides as independent contractors, which had the effect of depriving those tour guides of the wages they were owed. Id. Plaintiffs also contend that apart from ...

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