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Bellaspica v. PJPA, LLC

United States District Court, E.D. Pennsylvania

March 11, 2014

CHRIS BELLASPICA, for himself and all others similarly situated, Plaintiff,
v.
PJPA, LLC, Defendant

For CHRIS BELLASPICA, FOR HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff: DAVID J. COHEN, LEAD ATTORNEY, WAYNE A. ELY, KOLMAN ELY PC, PENNDEL, PA; JEREMIAH FREI-PEARSON, TODD S. GARBER, LEAD ATTORNEYS, PRO HAC VICE, D. GREG BLANKINSHIP, PRO HAC VICE, MEISELMAN PACKMAN NEALON SCIALABBA & BAKER PC, WHITE PLAINS, NY.

For PJPA, LLC, Defendant: RANDALL C. SCHAUER, LEAD ATTORNEY, DANIELLE E RYAN, FOX ROTHSCHILD LLP, EXTON, PA; COLIN DAVID DOUGHERTY, ZACHARY ARBITMAN, FOX ROTHSCHILD LLP, EXTON, PA.

OPINION

Page 258

ORDER

Paul S. Diamond, J.

On October 24, 2013, named Plaintiff, Chris Bellaspica, filed a Motion for Conditional

Page 259

Certification of Class. (Doc. No. 29.) I will grant the Motion.

I. BACKGROUND

This action is brought under the Fair Labor Standards Act. 29 U.S.C. § 201 et seq. Bellaspica and the proposed opt-in plaintiffs were delivery drivers for Defendant PJPA, LLC, a Papa John's Pizza franchisee that owned 53 restaurants during the class period. Bellaspica alleges that two of Defendant's policies reduced its drivers' wages below the lawful minimum: (1) inadequate reimbursement of automotive expenses incurred in making deliveries; and (2) excessive non-tipped work performed in-store. (Doc. No. 29-1, at 5.)

II. LEGAL STANDARD

An employee alleging an FLSA violation may bring a collective action on " behalf of himself . . . and other employees similarly situated," subject to the requirement that " [n]o 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). Accordingly, unlike an opt-out class action brought pursuant to Rule 23(b)(3), a collective action brought under the FLSA is an " opt-in" action. Barrios v. Suburban Disposal, Inc., Civ. No. 12-03663 WJM, 2013 WL 6498086, at *2 (D.N.J. Dec. 11, 2013). The district court has discretion to authorize notice to potential opt-in plaintiffs by conditionally certifying the matter as a collective action. Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989).

To qualify for conditional certification, Bellaspica must make the " modest factual showing" that he and the proposed opt-ins are similarly situated. Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 192 (3d Cir. 2011); see also Smith v. Sovereign Bancorp, Inc., Civ. No. 03-2420, 2003 WL 22701017, at *3 (E.D. Pa. Nov. 13, 2003) (requiring " basic factual showing that the proposed recipients of opt-in notices are similarly situated to the named plaintiffs" ). " Under the 'modest factual showing' standard, a plaintiff must produce some evidence, 'beyond pure speculation,' of a factual nexus between the manner in which the employer's alleged policy affected [him] and the manner in which it affected other employees." Symczyk, at 193 (internal citations omitted). This is a " fairly lenient standard." Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, ...


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