United States District Court, E.D. Pennsylvania
CHRIS BELLASPICA, for himself and all others similarly situated, Plaintiff,
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.
Paul S. Diamond, J.
On October 24, 2013, named Plaintiff, Chris Bellaspica, filed a Motion for Conditional
Certification of Class. (Doc. No. 29.) I will grant the Motion.
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, ...