# Moore v. MW Servicing, LLC

> District Court, E.D. Louisiana · March 15, 2021

URL: https://www.frixlaw.com/law-library/cases/10186438

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** March 15, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10186438

## How later opinions describe it (automated extraction)

- finding that the Eastern District of Louisiana more often used the Lusardi approach
- stating that district courts in the Fifth Circuit have uniformly used the Lusardi approach to determine whether a collective action should be certified under FLSA

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

BRITTANY MOORE, ET AL. CIVIL ACTION

VERSUS NO: 20-0217

MW SERVICING, LLC, ET AL. SECTION: T(5)

ORDER

Before the Court is a Motion for Conditional Certification and Court Authorized Notice,1
filed by Brittany Moore, Dmitry Feller, Jada Eugene, and Christopher Willridge (“Plaintiffs”).
MW Servicing, LLC, WBH Servicing, LLC, and Joshua Bruno (“Defendants”) have filed an
opposition.2 Plaintiffs subsequently filed a reply.3 For the following reasons, the Motion is
GRANTED IN PART with respect to conditional certification and DENIED IN PART with
respect to the form and manner of notice. The Court orders the parties to meet and confer regarding
the form of notice within 30 days of the issuance of this order. Plaintiffs’ related Motion for
Judicial Notice is DISMISSED without prejudice.4
FACTS AND PROCEDURAL HISTORY

This dispute involves allegations of unpaid wages in violation of the Fair Labor Standards
Act (“FLSA”)5 and the Louisiana Wage Payment Act (“LWPA”).6 In November 2019, Plaintiff
Moore started working as an Assistant Property Manager of the Oakmont Apartments, a multi-unit
complex owned and operated by Defendants. Plaintiff resigned a month later citing understaffing
and unsafe conditions at the complex. Plaintiff claims she never received her final paycheck

1 R. Doc. 40.
2 R. Doc. 44.
3 R. Doc. 51.
4 R. Doc. 54.
5 29 U.S.C. § 206 [Plaintiffs allege Defendants failed to pay minimum wage, and in some cases, overtime].
6 La. Rev. Stat. §§ 23:631-632 [Plaintiffs allege Defendants failed to issue final paychecks within fifteen days of
resignation].
despite repeated procurement efforts. This suit followed, with three additional plaintiffs joining
shortly thereafter alleging, inter alia, that they too did not receive a final paycheck.7
In addition to individual complaints, Plaintiffs seek to bring this action collectively on
behalf of “All employees of Metrowide Apartments, including MW Servicing LLC, WBH

Servicing LLC, Bruno Inc., or Joshua Bruno, who were terminated, resigned, or otherwise
separated from employment at any time since May _____, 2017, or who were paid a salary yet
required to track their hours worked.”8
Plaintiffs contend they have satisfied the burden for conditional certification through
affidavits and documentary evidence and maintain that broad certification is warranted because of
Defendants’ conduct.9 Plaintiffs also submit related requests should the Court grant certification,
including: (1) a proposed Form of Notice detailing relevant timelines;10 (2) an order certifying a
subclass of putative members “who were paid a salary yet required to track their hours worked”;11
(3) a request that notice be made via mail, e-mail, text message, and through physical postings at
Defendants’ properties; and (4) an order requiring expedited disclosure of contact information.

Defendants are two property management companies and Mr. Joshua Bruno, their founder
and lead executive, who argue here that Plaintiffs’ Motion should be dismissed because the
proposed class is unreasonably broad, and the named Plaintiffs are not sufficiently similar to justify
a collective action. Defendants reject Plaintiffs’ proposed definition of employers and requested
subclass. Further, Defendants object to the form and manner of notice as “overly broad” and ask
the Court for an order requiring the parties to meet and confer regarding appropriate notice.

7 R. Doc. 21.
8 U.S.C. § 216(b); R. Doc. 40-3.
9 In pertinent part, Plaintiffs’ Proposed Notice defines the subclass as follows all employees “…who were paid a salary
yet required to track their hours worked.” See R. Doc. 40-3.
10 Id.
11 R. Doc. 40. at 14.
Finally, following the filing of this motion, Plaintiffs submitted a separate Motion for
Judicial Notice which is relevant to Defendants’ rejection of Plaintiffs’ proposed definition for
“employers.”12
LAW AND ANALYSIS

The FLSA establishes minimum labor standards for minimum wage, overtime pay, and
record keeping requirements, and creates a private right of action for employees when these rights
are violated.13 Under § 216(b) of the FLSA, one or more employees may pursue a collective action
against an employer if all plaintiffs (1) are “similarly situated,” and (2) give consent in writing,
filed in the court in which the action is brought.14 The FLSA does not establish a test to determine
whether employees are “similarly situated” but courts in the Fifth Circuit apply the two-step
process articulated in Lusardi.15
The first determination is made at the “notice stage” where the district court makes a
decision based on pleadings and affidavits submitted by the parties to determine whether to give
notice of the action to other potential class members.16 Because the court has minimal evidence at
this stage, courts use a lenient standard that typically results in certification.17 If a district court

“conditionally certifies” the class, putative class members are given notice and an opportunity to

12 R. Doc. 54. Plaintiffs submit this affidavit to rebut statements made in Defendants’ response to this motion.
Accordingly, the Court will address Plaintiffs’ Motion for Judicial Notice here.
13 29 U.S.C. §§§ 206(a)(1), 207(2)(1), 216(b).
14 29 U.S.C. §216(b) (otherwise known as the “opt-in” procedure).
15 Lusardi v. Xerox Corp., 118 F.R.D. 351 (1987). See e.g. Johnson v. Big Lots Stores, Inc., Nos. 04-3201, 05-6627,
2007 WL 5200224 at *2 (E.D. La. Aug. 21, 2007) (stating that district courts in the Fifth Circuit have uniformly used
the Lusardi approach to determine whether a collective action should be certified under FLSA); England v. New
Century Financial Corp., 370 F.Supp.2d 504, 509 (M.D. La. 2005) (finding that the Eastern District of Louisiana
more often used the Lusardi approach); Lang v. DirectTV, Inc., No. 10-1085G1, 2011 WL 6934607 at *7 (E.D. La.
2011) (applying the Lusardi approach because it is the more common and routinely used by courts in the Eastern
District).
16 Mooney v. Aramco Servs. Co., 53 F.3d 1207, 1214 (5th Circ. 1995), overruled on other grounds by Desert Palace,
Inc. v. Costa, 539 U.S. 90 (2003).
17 Id.
“opt-in” to the action as a representative throughout discovery.18 Although a lenient standard,
“general allegations that an employer violated FLSA are insufficient.”19 Typically, courts require
only a modest factual basis and do not require more than “substantial allegations that the putative
class members were together the victims of a single decision, policy, or plan.”20 Further, some
variation between potential claimants is not determinative of lack of similarity.21

The Court finds that conditional certification is appropriate based on the pleadings,
affidavits, and evidence submitted by Plaintiffs. At the notice stage, Plaintiffs bear the burden to
demonstrate that “(1) there is a reasonable basis for crediting the assertion that aggrieved
individuals exist; (2) those aggrieved individuals are similarly situated to the plaintiff in relevant
respects given the claims and defenses asserted; and (3) those individuals want to opt in to the
lawsuit.”22 Each named Plaintiff asserts they are similarly situated as former employees who were
allegedly denied their final paycheck, a policy which, if confirmed, would violate the FLSA. In
support of the claim that other similarly situated individuals exist, Plaintiff Feller alleges that
Defendant Bruno “specifically instructed that employees should not be paid final wages and
overtime, regardless of job title or whether they were hourly or salaried.”23 Plaintiff Willridge

alleges that “[t]here was a known practice established by Defendant Bruno of threatening
employees who complained of labor violations, and specifically refusing to pay employees their

18 Id.
19 Chapman v. LHH Grp. Inc., No. 13-6384, 2014 WL 6318785, at *6 (E.D. La. Nov. 13, 2014).
20 See id (quoting Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392, 407 (D.N.J 1988)).
21 Id. See also, e.g., Donohue v. Francis Services, Inc., No. 04-170, 2004 WL 1161366 at *2 (E.D La. May 24, 2004)
(similarity standard met where current and former employees were subject to the same company-wide payment
policies); Crain v. Helmrich and Pain International Drilling Co., No. 92-0043, 1992 WL 91946, at *2 (E.D. La. April
16, 1992) (“similarly situated” requirement met where employees were subject to a company-wide policy that deprived
them of payment for engaging in mandatory job-relating meetings and trainings).
22 See Lang, 2011 WL 6934607, at *4 (quoting Morales v. Thang Hung Corp., 4:08-2795, 2009 WL 2524601, at *2
(S.D. Tex., Aug. 14, 2009); See, e.g., Bridges, 2016 WL 6440326 at *3; Smith v. Dasuya Enterprises LLC, No. 17-
17895 2020 WL 210277, at *3 (E.D. La. Jan. 14, 2020).
23 R. Doc. 40; Declaration of Dmitry Feller at ¶ 6.
final paychecks whenever an employee resigned or was discharged.”24 While the other named
Plaintiffs suggest the existence of aggrieved individuals, these declarations—especially that of a
former Accounting Manager—go beyond general allegations by specifically detailing Defendant’s
instructions for imposing an unlawful, company-wide policy. If true, the putative class would be

similarly situated with respect to Plaintiffs’ claims because they also would not have received a
final paycheck or overtime under Defendant’s alleged scheme. These first-hand accounts thus
create a reasonable basis to crediting Plaintiffs’ assertion that putative class members exist.
Defendants and Plaintiffs illustrate conflicting accounts of the same story, but settling that
dispute requires a factual inquiry, and the Court's review here is limited to the applicable standard
for conditional certification. Therefore, the Court finds that conditional certification of the primary
class and subclass is appropriate because Plaintiffs’ declarations have provided a modest factual
basis for concluding that a factual nexus exists between Plaintiffs and putative class members.
Turning to specific arguments regarding notice, Defendants argue that Plaintiffs have failed
to establish that Bruno, Inc. and Defendant Bruno qualify as employers. The Court finds Plaintiffs’

assorted authorities persuasive and agrees that this question cannot be resolved on a motion for
conditional certification and should be addressed at a later stage. Furthermore, the Court finds
Plaintiffs’ separate pending Motion for Judicial Notice25 relevant to this issue. In that filing,
Plaintiffs request that the Court take judicial notice of an affidavit of Defendant Bruno filed in an
unrelated case from this District in which he states: “Through Bruno, Inc., I also manage numerous
other commercial real estate entities in the New Orleans area and several other states, all of which
are owned by me personally.”26 This statement, Plaintiffs contend, directly contradicts Mr.

24 R. Doc. 40 at 7; Declaration of Christopher Willridge ¶ 10.
25 R. Doc. 54.
26 Sonder USA, Inc. v. 635 N. Scott LLC, 2:18-13891-NJB-MBN (Brown, J.); R. Doc. 54 at 1-2.
Bruno’s affidavit in this dispute, which states that Bruno Inc. “operates wholly outside the state of
Louisiana.”27 Plaintiffs offer this affidavit not to prove the truth of the matter asserted, but instead
as a form of impeachment to “show that Mr. Bruno has contradicted himself.”28 Federal Rule of
Evidence 201(b) provides that the court may judicially notice a fact that is not subject to reasonable

dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can
be accurately and readily determined from sources whose accuracy cannot reasonably be
questioned. Reviewing both affidavits, the fact that Mr. Bruno offered conflicting statements is
relatively straightforward. However, because the Court finds Defendants’ employer qualification
argument premature at this stage of the proceeding, the Motion for Judicial Notice is rendered
moot and dismissed without prejudice.29
Regarding the form and manner of notice, the Court agrees with Defendants that the
proposed form and manner of notice are overly broad. The Court finds Defendants’ request for an
order requiring the parties to confer on the form of notice appropriate, and thus orders the parties
to schedule a meeting on this issue within 30 days of this order’s issuance. As for the manner of

notice, the Court also finds Plaintiffs’ suggested manners of notice unnecessarily broad. Physical
postings at Defendants’ offices or residential properties are not necessary to effectively issue notice
based on the characteristics of putative class members. Thus, the Court orders that the manner of
notice be limited to U.S. Mail, e-mail, and text messages.

27 Id.
28 R. Doc. 65.
29 Id. at 2. Plaintiffs requested the Court “disregard Mr. Bruno’s…statements regarding Bruno Inc. for the purposes
of the Motion for Conditional Certification.” Because the Court will not address that question at this stage, the
Motion is moot.
CONCLUSION
For the foregoing reasons, IT IS ORDERED the that Motion for Conditional Certification and
Court Authorized Notice is GRANTED IN PART with respect to conditional certification and
DENIED IN PART with respect to the form and manner of notice. The Court orders the parties
to meet and confer regarding the form of notice within 30 days of the issuance of this order.
Plaintiffs’ related Motion for Judicial Notice is DISMISSED without prejudice.°°
New Orleans, Louisiana, on this 15‘ day of March, 2021.

GREG GERARD GUIDRY
UNITED STATES DISTRICT JUDGE

Doc. 54.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10186438. Public record. Not legal advice.