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Kneipp v. RE-VI Design, LLC

United States District Court, W.D. Wisconsin

March 15, 2019

JOHN KNEIPP, on behalf of himself and all others similarly situated, Plaintiffs,
v.
RE-VI DESIGN, LLC, Defendant.

          OPINION AND ORDER

          STEPHEN L. CROCKER, MAGISTRATE JUDGE

         Plaintiff John Kneipp has brought this action under the Fair Labor Standards Act (FLSA) and Wisconsin wage laws on behalf of himself and similarly-situated employees of defendant Re-Vi Design, LLC. In his FLSA collective action, Kneipp contends that defendant Re-Vi incorrectly relied on the exemption in 29 U.S.C. § 207(g)(2) for employees performing two or more kinds of work and calculated overtime pay using the hourly rate for the type of work performed by the employee during his or her overtime hours rather than a weighted average or blended rate for the different types of work performed throughout the entire workweek. Kneipp's state law claims are somewhat different. He contends that: (1) when an employee took a meal breaks lasting less than 30 minutes, Re-Vi did not compensate the employee for that time or count the time as time worked for the purpose of computing overtime pay; (2) Re-Vi calculated overtime pay using the rate for the type of work performed during overtime hours, rather than the average straight time (or blended) wage rate earned by the employee during the workweek;[1] and (3) Re-Vi failed to pay Kneipp prevailing wages for work he performed on some qualifying projects.

         Now before the court are: (1) Kneipp's motion for class certification of his first two state law claims (lunch breaks and overtime calculation) under Fed.R.Civ.P. 23(a) and (b)(3), dkt. 32; and (2) Re-Vi's motion to decertify the FLSA collective action, dkt. 37. For the reasons stated below, I am denying the motion for class certification and granting the motion to decertify the collective action.

         PROCEDURAL HISTORY

         On August 21, 2018, I conditionally certified the following collective action with respect to Kneipp's FLSA claim:

All hourly Re-Vi employees who, on or after November 10, 2014, during a workweek had his overtime pay computed using a straight time (or non-blended) rate, which was lower than the highest straight time wage rate he received during the workweek.

Dkt. 27.

         I ordered Re-vi to produce to Kneipp by September 5, 2018, an electronic list of names and addresses of all employees who fall within the scope of the collective action, and directed Kneipp's counsel to mail the court-approved notice to the putative members of the collective action by September 14.

         On September 17, 2018, after the notice had been mailed to 29 individuals, Kneipp filed a motion to compel Re-Vi to produce the names and addresses of all hourly employees (totaling about 100 employees) who worked for the company on or after November 10, 2014, regardless how their overtime (if any) was computed, so that they too could be sent the notice. Dkt. 28. Although I granted the discovery request, I denied Kneipp's request to send the collective action notice to all hourly employees, finding that it was likely to be confusing, yield little useful information, and result in most plaintiffs blindly opting in to this case. Dkt. 48 (Oct. 11, 2018 ord). Rather, I instructed Kneipp to identify any additional employees falling within the collective action definition and make arrangements with Re-Vi to send them notice.

         Meanwhile, on September 28, 2018, Kneipp filed his motion to certify the following class with respect to his state law claims concerning lunch breaks and overtime calculation: All hourly employees who performed work for Re-Vi on or after November 10th, 2015. Dkt. 32. On the same day, Re-Vi filed a motion to decertify the collective action. Dkt. 37. Recognizing that the motion for decertification may be premature because the opt-in period for putative FLSA class members had not yet closed, Re-Vi filed an unopposed motion on October 30, 2018, asking to stay the briefing on its motion and the motion for class certification until November 2018. Dkts. 49-50. I granted that motion on November 1, 2018, and set new deadlines for Re-Vi to file a response brief in opposition to Kneipp's motion for class certification and supplemental arguments in support of its motion to decertify the FLSA collective action, as well as deadlines for Kneipp's responses. Dkt. 51.

         On November 20, 2018, Re-Vi responded to Kneipp's motion for class certification, dkt. 53, and filed a second unopposed motion to stay briefing on the motion for class certification and motion to decertify pending distribution of the opt-in notice to 10 additional employees and further discovery, dkt. 52. I granted the motion to stay and extended the parties' briefing deadlines to January 2019. Dkt. 56. On January 18, 2019, Kneipp filed a reply brief in support of its motion for class certification. Dkt. 57. However, Re-Vi did not supplement its motion to decertify the collective action, and Kneipp never filed a brief in opposition to the original motion to decertify, presumably because no one opted in to the collective action.

         ANALYSIS

         The case now stands in the following posture. Kneipp is the sole named plaintiff and has an individual claim under the FLSA for the incorrect calculation of overtime pay under the exemption in 29 U.S.C. § 207(g)(2), an individual prevailing wage claim under Wisconsin law, and individual and proposed class action claims related to lunch breaks and overtime calculation under Wisconsin law. The state of the FLSA collective action is unclear, but I presume from Kneipp's failure to respond to Re-Vi's motion and other statements made in the parties' filings that he does not oppose Re-Vi's motion to decertify the FLSA class because no additional plaintiffs opted into the collective action. However, even if a few other plaintiffs have opted in, the collective action would not be sufficiently numerous. Accordingly, the motion to decertify the collective action will be granted.

         Kneipp's motion to certify a state law class is fully briefed, and the putative class consists of almost 160 Re-Vi employees for the lunch break claim and 39 members for the overtime computation claim. Without ruling on the matter, I note that the ...


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