United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE.
Timothy Zettler says that his former employers, defendants
Thurs Trucking, Inc., and Jean Thurs, maintained policies
that violated the Fair Labor Standards Act
(“FLSA”) and Wisconsin law. Zettler now moves for
conditional certification of an FLSA collective action of
current and former Thurs Trucking drivers under 29 U.S.C.
§ 216(b). Dkt. 17.
court will deny the motion. The parties agree that no more
than 18 drivers would be eligible for the proposed class.
Even assuming a 100 percent opt-in rate, this is far fewer
than necessary to satisfy the numerosity requirement for a
class under § 216(b). If the other truck drivers at
Thurs Trucking wish to join the lawsuit, they will need to do
so under Federal Rule of Civil Procedure 20.
FLSA does not specify how collective actions should proceed,
but courts have adopted a two-step approach to collective
action certification. De Leon v. Grade A Constr.
Inc., No. 16-cv-348, 2017 WL 1957537, at *2-3 (W.D. Wis.
May 11, 2017); Kelly v. Bluegreen Corp., 256 F.R.D.
626, 628-29 (W.D. Wis. 2009). First, at the conditional
certification stage, the plaintiff makes a minimal showing
that others in the potential class are “similarly
situated.” Id. If conditional certification is
granted, potential class members are sent a notice of the
action and given an opportunity to opt-in.
after the parties have engaged in discovery and the opt-in
process is complete, the court undertakes a more stringent
analysis using the criteria of Federal Rule of Civil
Procedure 23. De Leon v. Grade A Constr., Inc., No.
16-CV-348-JDP, 2017 WL 6375821, at *1 (W.D. Wis. Dec. 13,
2017) (citing Espenscheid v. DirectSat USA, LLC, 705
F.3d 770, 772 (7th Cir. 2013)). If the conditionally
certified class does not satisfy Rule 23's
requirements-that is if the class does not have (1) a
sufficient number of members; (2) common questions of law or
fact; (3) representatives with claims typical of the class;
and (4) representatives who will protect class interests-the
court will decertify the class.
on a motion for conditional certification, the court does not
consider whether the proposed class will survive
decertification. See Fosbinder-Bittorf v. SSM Health Care
of Wisconsin, Inc., No. 11-CV-592-WMC, 2013 WL 3287634,
at *1 (W.D. Wis. Mar. 21, 2013) (granting conditional
certification even though “the court anticipates
plaintiff may well have difficulty maintaining the proposed
class”). But in this case, the writing is on the wall:
decertification is inevitable because Zettler cannot satisfy
Rule 23's first requirement: that “the class is so
numerous that joinder of all members is impracticable.”
Fed.R.Civ.P. 23(a) (1). The parties agree that only 18
individuals are eligible for the proposed class. And Zettler
does not provide any explanation for why, despite the small
number of plaintiffs, joinder under Rule 20 would be
impractical. See Mulvania v. Sheriff of Rock Island
Cty., 850 F.3d 849, 860 (7th Cir. 2017) (denying
certification of class of 29 members when there is no reason
that joinder would be impractical).
contends that numerosity is not a requirement for certifying
a collective action under the FLSA. But this court has
previously applied a numerosity requirement in FLSA
collective actions. See De Leon, 2017 WL 6375821, at
*3. And as explained by the court of appeals, “despite
the difference between a collective action and a class action
and the absence from the collective action section of the
Fair Labor Standards Act of the kind of detailed procedural
provisions found in Rule 23, there isn't a good reason to
have different standards for the certification of the two
different types of action.” Espenscheid, 705
F.3d at 772.
also says that Wisconsin district courts have allowed other
FLSA collective actions to go forward with fewer than 18
members. But the cases that Zettler cites all
included larger Rule 23 classes that asserted claims
substantively similar to the claims asserted by the FLSA
classes. The court was already adjudicating the issues on a
class-wide basis, so it made sense to do so for the FLSA
claims as well. But when, as here, there are not enough
putative class members to support a class under Rule 23, the
court has denied certification under the FLSA as well.
See De Leon, 2017 WL 6375821, at *3.
remains free to pursue his claims against Thurs Trucking as
an individual, and he may join additional plaintiffs to the
suit under Rule 20. But his motion for certification as a
collective action is denied.
IT IS ORDERED that:
parties' joint motion for leave to file a second amended
complaint, Dkt. 16, is GRANTED. Defendants' answer to the
amended complaint, Dkt. 15, is redirected to the second
Plaintiff Timothy Zettler's motion for conditional