DENNIS. SANDHILLS EMERGENCY PHYSICIANS, P.A.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KENNETH DENNIS, individually )

and on behalf of all others )

similarly situated, )

)

Plaintiff, )

)

v. ) 1:20CV273

)

SANDHILLS EMERGENCY )

PHYSICIANS, P.A., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

This matter is before the court on Plaintiff’s Motion for

Conditional Collective and Class Certification, (Doc. 11), and

Defendant’s Motion to Dismiss, (Doc. 15). For the reasons set

forth herein, this court will deny Defendant’s Motion to

Dismiss. Plaintiff’s motion will be granted in part and denied

in part.

I. BACKGROUND

A. Parties

Plaintiff Kenneth Dennis (“Dennis” or “Plaintiff”) is a

resident of Troy, North Carolina, who worked for Defendant as an

Advanced Practice Provider (“APP”) from March 2018 until

December 31, 2019. (Amended Complaint (“Am. Compl.”) (Doc. 9)

¶¶ 10, 17.) Dennis brings his Complaint on behalf of individuals

who work and who have worked for Defendant as APPs under the

Fair Labor Standards Act (“FLSA”) and North Carolina Wage and

Hour Act (“NCWHA”) statutory periods. (See id. ¶¶ 13, 15, 16.)

Defendant provides medical services at hospitals located in

Pinehurst, Troy, Rockingham, and Raeford, North Carolina. (Id.

¶ 11.) Defendant’s principal place of business is located in

Pinehurst, North Carolina. (Id. ¶ 12.)

B. Factual Background

On a motion to dismiss, a court must “accept as true all of

the factual allegations contained in the complaint . . . .” Ray

v. Roane, 948 F.3d 222, 226 (4th Cir. 2020) (quoting King v.

Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016)). The facts, taken

in the light most favorable to Plaintiff, are as follows.

Defendant employed Plaintiff as an APP from March 2018

until December 31, 2019. (Am. Compl. (Doc. 9) ¶ 17.) Defendant’s

APPs hold the job titles of Physician Assistants and Nurse

Practitioners. (Id. ¶ 16.) APPs share similar training, job

descriptions, and job tasks, and were paid an hourly rate of

pay. (Id.)

Defendant paid APPs on the last day of each month. (Id.

¶ 18.) Defendant had a uniform policy and practice of paying

APPs an overtime premium for all hours worked in excess of 160

hours during each month. (Id.) The APPs’ schedules varied week

to week, working schedules that could be more or less than 40

hours per week. (Id. ¶ 20.) Defendant had a policy and practice

of averaging the number of hours worked each month and paying an

overtime premium only for hours worked in excess of 160 hours

per month, rather than paying overtime for those hours worked in

excess of 40 hours per week. Defendant did not calculate and pay

an overtime premium for Dennis and APPs when they worked in

excess of 40 hours per week. (Id. ¶¶ 19-20.)

Defendant also did not pay APPs for what Dennis refers to

as “off-the-clock time.” (Id. ¶¶ 22-24.) This included requiring

APPs to arrive and begin working at least 10 minutes prior to

the start of their scheduled shifts, but not paying them for

this time, (id. ¶ 22); requiring APPs to continue working past

the end of their scheduled shift, but only paying them if the

time exceeded thirty minutes, (id. ¶ 23); and requiring APPs to

attend company staff or peer review meetings, but not paying

them for this time, (id. ¶ 24).

Dennis filed his original Complaint in this court on

March 24, 2020, alleging only FLSA violations. (Doc. 1.) On

May 11, 2020, Defendant presented Dennis with an offer of

judgment in the amount of $8,000.00. (Doc. 1 at 4-5.)1 Through

counsel, Defendant stated in the correspondence accompanying the

offer that it had deposited the amount of $12,500.00 into the

trust account of Defendant’s counsel, which Defendant stated

“represents the Confession of Judgment amount for Mr. Dennis’s

claim and funds to either satisfy or make a significant payment

on any additional attorneys’ fees awarded by the Court,” and

that if Plaintiff agreed to accept the offer, Defendant’s

counsel had “authority to immediately wire the full $12,500 to

[Plaintiff’s] Firm, with authorization to immediately disburse

$8,000 to [Plaintiff], and to retain the balance pending the

Court’s ruling on the costs and legal fees issue.” (Id. at 5.)

Dennis did not respond to Defendant’s offer, (Def.’s Br. in

Supp. of Mot. to Dismiss (“Def.’s Br.”) (Doc. 16) at 3), and

filed an Amended Complaint on May 14, 2020, in which he

reasserted his FLSA claim and added a claim under the NCWHA,

(Am. Compl. (Doc. 9). In subsequent correspondence on June 3,

2020, Defendant’s counsel told Plaintiff’s counsel that the

offer remained in effect and that the funds remained in the

1 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

trust account of Defendant’s counsel. (Doc. 15 at 18.) Defendant

filed its Motion to Dismiss on June 4, 2020. (Id. at 2.)

C. Procedural History

Plaintiff filed a Complaint in this court on March 24,

2020. (Doc. 1.) On May 14, 2020, Plaintiff filed an Amended

Complaint. (First Am. Compl. (Doc. 9).)

On May 29, 2020, Plaintiff filed a Motion for Conditional

Collective and Class Certification, (Doc. 11), and an

accompanying brief, (Doc. 12). On June 3, 2020, Plaintiff filed

a corrected brief. (Pl.’s Br. in Supp. of Mot. for Collective

and Class Certification (“Pl.’s Br.”) (Doc. 13).) Defendant

responded on June 25, 2020. (Def.’s Resp. in Opp’n to Mot. for

Conditional Collective and Class Certification (“Def.’s Resp.”)

(Doc. 19).) Plaintiff replied on July 10, 2020. (Reply (“Pl.’s

Reply”) (Doc. 22).)

On June 4, 2020, Defendant filed a Motion to Dismiss, (Doc.

15), and an accompanying brief, (Def.’s Br. in Supp. of Mot. to

Dismiss (“Def.’s Br.”) (Doc. 16)). Plaintiff responded on

June 24, 2020. (Pl.’s Br. in Opp’n to Mot. to Dismiss (“Pl.’s

Resp.”) (Doc. 18).) Defendant replied on July 8, 2020. (Reply

(“Def.’s Reply”) (Doc. 21).) This matter is ripe for

adjudication.

II. ANALYSIS

Although Plaintiff’s motion to certify class was filed

before Defendant’s motion to dismiss, (Docs. 11, 15), a district

court may reserve a decision on a class certification motion

pending disposition of a motion to dismiss. See Fed. R. Civ. P.

23(c)(1). Because Defendant argues in opposition to Plaintiff’s

motion to certify class that Plaintiff lacks a live case or

controversy, and thus, is not suited to serve as a class

representative, (Def.’s Resp. (Doc. 19) at 5), this court will

first consider Defendant’s motion to dismiss, (Doc. 15).

A. Defendant’s Motion to Dismiss

1. Standard of Review

Under Federal Rule of Civil Procedure 12(b)(1), a plaintiff

must prove by a preponderance of the evidence the existence of

subject matter jurisdiction. See Demetres v. East West Constr.,

Inc., 776 F.3d 271, 272 (4th Cir. 2015). A defendant may

challenge subject matter jurisdiction facially or factually. See

Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009).

“When . . . a defendant challenges the existence of subject

matter jurisdiction in fact, the plaintiff bears the burden of

proving the truth of such facts by a preponderance of the

evidence.” United States ex rel. Vuyyuru v. Jadhav, 555 F.3d

337, 347 (4th Cir. 2009) (citation omitted). If subject matter

jurisdiction is lacking, the complaint must be dismissed.

Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). In a factual

challenge, a defendant asserts that the jurisdictional

allegations are false, and the court may look beyond the

complaint to resolve the disputed jurisdictional facts without

converting the motion to one for summary judgment. Kerns, 585

F.3d at 192-93.

An actual “controversy” must exist at all stages of federal

court proceedings. U.S. Const. art. III, § 2, cl. 1; see

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006); United

States Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980). A

plaintiff must “establish[] throughout all stages of litigation

(1) that he is suffering an injury-in-fact or continuing

collateral consequence, (2) that his injury is fairly traceable

to the challenged action or decision, and (3) that a favorable

decision would be likely to redress his injury.” Townes v.

Jarvis, 577 F.3d 543, 554 (4th Cir. 2009) (footnote and

citations omitted) (emphasis removed).

“When a case or controversy ceases to exist, the litigation

is moot, and the court’s subject matter jurisdiction ceases to

exist also.” S.C. Coastal Conservation League v. U.S. Army Corps

of Eng’rs, 789 F.3d 475, 482 (4th Cir. 2015) (citing Iron Arrow

Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983) (per curiam)). “A

case can become moot due either to a change in the facts or a

change in the law.” Id. (citation omitted).

2. Parties’ Arguments

Defendant argues that Plaintiff’s Amended Complaint “only

raises allegations pertaining to [Defendant’s] purported failure

to compensate its employees for off-the-clock time in the

context of [Plaintiff’s] NCWHA claim,” (Def.’s Reply (Doc. 21)

at 4), and that Plaintiff only states an FLSA claim for

Defendant’s alleged failure to pay Plaintiff for overtime hours

worked in excess of 40 hours per week, (id. at 5-7). Defendant

also argues that “off-the-clock” time does not give rise to a

claim for a violation of the FLSA. (Id. at 3 (citing Monahan v.

Cnty. of Chesterfield, 95 F.3d 1263, 1284 (4th Cir. 1996)).)

Defendant further argues that, if this court finds that

Plaintiff has not stated a second FLSA claim relating to “off-

the-clock” time, this court should also find Plaintiff’s

individual FLSA claim moot because Defendant deposited what it

argues is the full amount of Plaintiff’s FLSA claim in a trust

account payable to Plaintiff. (Def.’s Reply (Doc. 21) at 7-10.)

Defendant argues that this court should adopt an approach that

the majority left open and the dissenting justices endorsed in

Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016), (Def.’s Br.

(Doc. 16) at 5-11), in which depositing a check for the full

relief to which a plaintiff would be entitled renders a

plaintiff’s claim moot. See Campbell-Ewald Co., 577 U.S. at 166,

176-78). Defendant then argues that this court should decline to

exercise supplemental jurisdiction over Plaintiff’s state law

claim. (Def.’s Br. (Doc. 16) at 11-12.)

Plaintiff argues that Defendant’s offer of judgment

“represents only a portion of Plaintiff’s alleged damages,” and

“ignores [Plaintiff’s] claim for unpaid overtime and liquidated

damages as a result of his off-the-clock work.” (Pl.’s Resp.

(Doc. 18) at 1.) Plaintiff also argues that “Defendant’s motion

is contrary to U.S. Supreme Court precedent holding that

unaccepted offers of judgment for full relief do not moot the

claims depriving the district court of subject matter

jurisdiction.” (Id. at 1-2.) Plaintiff argues that because

Defendant “knows that its offer did not include any compensation

for Plaintiff’s alleged overtime damages resulting from off-the-

clock work,” this court should award “attorneys’ fees and costs

under 28 U.S.C. § 1927 associated with responding to Defendant’s

Motion to Dismiss.” (Id. at 5.)2

3. Plaintiff’s Amended Complaint states a single

FLSA claim that includes overtime resulting from

off-the-clock time

Rule 8 of the Federal Rules of Civil Procedure requires

that “[a] pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court’s

jurisdiction . . . ; (2) a short and plain statement of the

claim showing that the pleader is entitled to relief; and (3) a

2 Plaintiff’s rhetoric is not only unhelpful, but

unjustifiably inflammatory. Plaintiff’s counsel is warned that

this type of briefing is unacceptable.

For example, Plaintiff does not appear to dispute that he

never responded to Defendant’s offer of judgment. (Def.’s Br.

(Doc. 16) at 2-3; Pl.’s Resp. (Doc. 18) at 6-7.) In all candor,

this court is stunned that Plaintiff’s counsel would not respond

in any fashion to an offer to pay allegedly full damages. The

Federal Rules of Civil Procedure should be “employed by the

court and the parties to secure the just, speedy, and

inexpensive determination of every action and proceeding.” Fed.

R. Civ. P. 1. Ignoring the payment of an alleged full recovery

is inconsistent with Fed. R. Civ. P. 1; failing to provide even

a courtesy response is not appropriate.

Moreover, Plaintiff argues that the “parties have not

conducted discovery,” (Pl.’s Resp. (Doc. 18) at 6-7), an

allegation that appears to suggest Plaintiff is uncertain of the

records or a calculation of damages. Nevertheless, without any

basis whatsoever, Plaintiff then alleges that “Sandhills submits

payroll summaries to the Court that Sandhills contends, albeit

falsely, represent ‘full relief’ . . . .” (Id. at 7 (emphasis

added).) To accuse a party of a false submission with no basis

upon which to make that allegation is improper inflammatory

conduct and will not continue.

Plaintiff’s counsel is cautioned that if this type of

inflammatory and unfounded rhetoric continues, it will be met

with sanctions from this court.

demand for the relief sought . . . .” Fed. R. Civ. P. 8. This

court finds that Plaintiff’s Amended Complaint complies with

Rule 8 and was sufficient to place Defendant on notice that

Plaintiff had stated a claim which includes one violation of the

FLSA, that is, Defendant improperly calculated overtime pay by

paying Plaintiff only for hours worked in excess of 160 hours

per month, rather than 40 hours per week. However, as part of

that claim, Plaintiff alleges Defendant failed to pay overtime

resulting from Plaintiff’s off-the-clock work.

This court finds that the statement of facts in the Amended

Complaint clearly described the alleged off-the-clock

violations, defining the term and describing the three scenarios

in which Plaintiff alleges off-the-clock work occurred. (Am.

Compl. (Doc. 9) ¶¶ 22-25.) This court finds that, were

Plaintiff’s allegations of off-the-clock time proven, these

hours would then have to be added to Plaintiff’s other work hour

data in order to determine appropriate overtime pay for all

hours worked. Consistent with this court’s findings, the Amended

Complaint’s statement of facts also contains allegations that

“[Defendant] failed to pay all overtime hours worked by

Plaintiffs,” (id. ¶ 26 (emphasis added)), and that Plaintiff was

a “victim[] of [Defendant’s] scheme to deprive [Plaintiff] of

overtime compensation and all accrued regular wages,” (id. ¶ 30

(emphasis added)). Similarly, in a section entitled “FLSA

Collective Action Allegations,” Plaintiff alleges that

Plaintiff, as a member of the class he seeks to represent, “was

not paid an overtime premium rate for all time he worked over 40

hours per workweek.” (Id. ¶ 34 (emphasis added).)

This court does not find that a perfectly pleaded complaint

is required under Rule 8. Here, for the purposes of the

litigation at this stage, this court finds that the factual

allegations regarding off-the-clock time, (id. ¶¶ 22-25), in

addition to Plaintiff’s references to Defendant’s alleged

failure to pay Plaintiff for “all” overtime hours, (id. ¶¶ 26,

30-31, 34), are sufficient, at a minimum, to create plausible

issue of fact as to whether the off-the-clock time should be

included in determining overtime hours. This court does not

find, based upon the allegations of the Amended Complaint,

however, that Plaintiff has alleged a second FLSA claim for

unpaid wages resulting from off-the-clock time separate and

apart from the overtime claim.

Nevertheless, the issues presently unresolved – whether

Plaintiff worked off-the-clock time and whether that time should

be included in calculating wages – require Defendant’s motion be

denied. For this reason, this court does not find, at this time

based on the facts available to this court, that Defendant has

tendered full relief, and thus, this court need not consider

whether it should adopt the approach advocated by the dissenting

justices in Campbell-Ewald Co. v. Gomez, in which depositing a

check for full relief would moot a claim. See 577 U.S at 179.

This court further finds that, contrary to Defendant’s

assertions, the Fourth Circuit’s decision in Monahan v. Cnty. of

Chesterfield, does not foreclose off-the-clock time from being

considered as part of Plaintiff’s FLSA claim. (Def.’s Reply

(Doc. 21) at 3.) In Monahan, the Fourth Circuit held that,

absent a minimum wage/maximum hour violation, there is no remedy

under the FLSA for what they called “pure gap” time claims. 95

F.3d at 1284. In Monahan, the plaintiffs were paid a salary that

compensated them for all straight-time hours worked and were

paid overtime in addition to the salary, if they worked over 147

hours in a 24-day cycle. See id. at 1265-66. Since the

plaintiffs were regularly scheduled to work 135 hours, but

overtime pay did not begin until 147 hours, there was a “gap” of

12 hours for which the plaintiffs who worked past 135 hours but

less than the 147-hour overtime threshold received no additional

pay. See id. at 1266 (defining this difference between their

normal scheduled hours and the threshold for overtime as “pure

gap time”).

The “pure gap” time from Monahan is distinct from the “off-

the-clock” time alleged in Plaintiff’s Amended Complaint. Unlike

in Monahan, Plaintiff is not seeking hours that fall into a gap

between his normal scheduled hours and the threshold for

overtime. Instead, Plaintiff is an hourly employee who seeks

compensation for time that he alleges should have been counted

as working time, and thus, factored into the calculation for

overtime pay. (Am. Compl. (Doc. 9) ¶¶ 16, 22-25.) This court

finds that including off-the-clock time as part of an overtime

calculation is not foreclosed by the Fourth Circuit’s holding in

Monahan. See Monahan, 95 F.3d at 1282 (finding that “meal time

is compensable if employees are not completely relieved of their

duties); Billioni v. Bryant, Civil Action No. 0:14-cv-03060-JMC,

2015 WL 4928999, at *11 (D.S.C. Aug. 18, 2015) (holding that the

plaintiff had stated a claim for violations of the FLSA related

to unpaid meal times and training).

In the absence of additional arguments by Defendant that

off-the-clock hours may not contribute to an FLSA claim, (see

Def.’s Reply (Doc. 21) at 6), this court will not dismiss

Plaintiff’s FLSA claim. Accordingly, this court will deny

Defendant’s motion. This court will not, however, award

Plaintiff attorney’s fees and costs pursuant to 28 U.S.C.

§ 1927. (See Pl.’s Resp. (Doc. 18) at 5, 12.) Assuming, without

deciding, that Plaintiff’s motion for attorney’s fees is

properly before this court,3 this court does not find that

Defendant’s counsel behaved “unreasonably and vexatiously” in

filing the motion. 28 U.S.C. § 1927.

B. Plaintiff’s Motion for Collective and Class

Certification

1. Conditional Certification of Plaintiff’s FLSA

Claim

Plaintiff first seeks conditional certification of his FLSA

claim. (Pl.’s Br. (Doc. 13) at 1.)

a. Standard of Review

The FLSA provides that an action can be brought “by any one

or more employees for and in behalf of himself or themselves and

other employees similarly situated,” but 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); see also Simmons v. United Mortg. & Loan Inv.,

LLC, 634 F.3d 754, 758 (4th Cir. 2011).

3 Plaintiff’s counsel is further cautioned that motions for

attorney’s fees should be filed separately, with adequate

justification. See LR 7.3, 54.2. This court does not find that

Plaintiff’s counsel has made a proper motion for attorney’s

fees. (See Pl.’s Resp. (Doc. 18) at 5, 12.)

Courts employ a two-stage certification procedure for FLSA

collective actions. Adams v. Citicorp Credit Servs., Inc., 93

F. Supp. 3d 441, 452-53 (M.D.N.C. 2015). During conditional

certification, the first stage, a court determines whether

employees’ claims are similar enough to merit the distribution

of court-approved notice to possible class members. Kirkpatrick

v. Cardinal Innovations Healthcare Solutions, No. 1:16CV1088,

2017 WL 3841858, at *4 (M.D.N.C. Sept. 1, 2017); see

also Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 169

(1989) (“[D]istrict courts have discretion, in appropriate

cases, to implement . . . § 216(b) . . . by facilitating notice

to potential plaintiffs.”). During the second stage – known as

“decertification” and occurring only after a defendant moves to

decertify a conditionally certified class – courts “apply a

heightened fact specific standard to the ‘similarly situated’

analysis.” Solais v. Vesuvio’s II Pizza & Grill, Inc., No.

1:15cv227, 2016 WL 1057038, at *6 n.7 (M.D.N.C. Mar. 14, 2016)

(citation omitted). This second stage is not presently at issue.

The plaintiff bears the burden of demonstrating that notice

is appropriate. See, e.g., Purdham v. Fairfax Cnty. Pub. Schs.,

629 F. Supp. 2d 544, 548 (E.D. Va. 2009), aff’d, 637 F.3d 421

(4th Cir. 2011). “Conditional certification is appropriate when

it would serve judicial efficiency, and the court must be

mindful that granting conditional certification expands the

scope of the litigation and begins a process of class-wide

discovery.” Kirkpatrick, 2017 WL 3841858, at *4 (citations

omitted). The “similarly situated” requirement, “although

certainly not a ‘rubber-stamp approach,’ remains relatively

modest.” Adams, 93 F. Supp. 3d at 453. While parties generally

“have minimal evidence at this point in the proceedings[,] . . .

[m]ere allegations will not suffice; some factual evidence is

necessary.” Id. (citations omitted) (second alteration in

original). That evidence must tend to show that there exists a

“common policy, scheme, or plan” that violates the FLSA, but it

“need not . . . enable the court to determine conclusively

whether a class of similarly situated plaintiffs exists, and it

need not include evidence that the company has a formal policy

of refusing to pay overtime.” Id. (citation omitted). The class

certification determination “is ‘usually based only on the

pleadings and any affidavits that have been submitted’ during

the initial stages of litigation.” Cerrato v. Durham Pub. Schs.

Bd. of Educ., No. 1:16CV1431, 2017 WL 2983301, at *5 (M.D.N.C.

Mar. 17, 2017) (quoting Mooney v. Aramco Servs., Co., 54 F.3d

1207, 1214 (5th Cir. 1995)). “At this stage, ‘the Court does not

resolve factual disputes, decide substantive issues on the

merits, or make credibility determinations.’” Kirkpatrick, 2017

WL 3841858, at *4 (citation omitted).

b. Parties’ Arguments

Defendant opposes conditional certification for Plaintiff’s

FLSA claim on two grounds. First, Defendant argues that this

court lacks subject matter jurisdiction to adjudicate Dennis’

individual claim, and that, as a result, Dennis is not similarly

situated to the other putative members of the proposed

collective. (Def.’s Resp. (Doc. 19) at 5-6.) Because this court

has found, however, that Plaintiff’s FLSA claim presents a live

case or controversy, see discussion supra Section II.B., this

court finds Defendant’s argument unpersuasive.

Second, Defendant argues that if Plaintiff’s FLSA claim is

certified as a collective action, this court, “would be required

to ‘conduct an individualized assessment of each’ putative

collective member’s claim,” (Def.’s Resp. (Doc. 19) at 7 (citing

Pelczynski v. Orange Lake Country Club, Inc., 284 F.R.D. 364,

369 (D.S.C. 2012)), because “the hours worked by the putative

members varied greatly.” (Id.)

c. Analysis

This court disagrees. Contrary to Defendant’s assertions,

Plaintiff is required at this stage to make only a “relatively

modest factual showing that a common policy, scheme, or plan

that violated the law exists.” Adams, F. Supp. 3d at 453

(internal punctuation marks omitted). Specifically, Plaintiff

alleges in a sworn declaration attached to his motion, that

Defendant had a “uniform policy and practice” of paying him “and

other APPs an overtime premium for all hours worked in excess of

one hundred-sixty (160) during each month,” and “did not

calculate and pay an overtime premium for APPs based on a 7-day

workweek . . . .” (Pl.’s Br., Ex. A, Declaration of Kenneth

Dennis (“Pl.’s Decl.”) (Doc. 13-1) ¶ 5.) Plaintiff also states

that “[p]ursuant to its uniform policy and practice, [Defendant]

also requires APPs to arrive and begin working at least 10

minutes prior to the start of their scheduled shifts,” and to

“attend company staff or peer review meetings,” but “does not

pay APPs for this off-the-clock time,” and that Defendant

requires APPs to “continue working past the end of their

scheduled shifts, but only pays APPs if the extra time exceeds

30 minutes . . . .” (Id. ¶ 6.) Plaintiff further states that

“APPs share similar training, job descriptions and job tasks,”

and are paid “pursuant to the same compensation policy and

practice.” (Id. ¶ 4.)

This court finds that Plaintiff’s declaration satisfies the

modest factual requirement for notice, as it “raise[s] a similar

legal issue as to . . . nonpayment or minimum wages or overtime

arising from at least a manageably similar factual setting with

respect to [class members’] job requirements and pay

provisions,” and class members’ “situations need not be

identical.” Rosinbaum v. Flower Foods, Inc., 238 F. Supp. 3d

738, 743 (E.D.N.C. 2017) (internal quotations omitted); see also

Hollis v Alston Personal Care Servs., LLC, No. 1:16CV1447, 2017

WL 3327591, at *4 (M.D.N.C. Aug. 3, 2017) (permitting a

declaration to satisfy the factual requirement for notice). This

court should not, at this stage, “delve[] too deeply into the

merits of the dispute; such a steep plunge is inappropriate for

such an early stage of a FLSA collective action.” Essame v. SSC

Laurel Operating Co. LLC, 847 F. Supp. 3d 821, 826 (D. Md.

2012)); see also Adams, 93 F. Supp. 3d at 454 (“[T]he Court does

not resolve factual disputes, decide substantive issues on the

merits, or make credibility determinations at the conditional

certification stage.”). “The crux of the matter is whether

Plaintiff[] [has] made a modest factual showing that” he was a

“victim[] of a common policy or scheme that contravenes the

FLSA.” Essame, 847 F. Supp. 3d at 826. Because this court finds

that Plaintiff has made this modest showing, this court will

grant Plaintiff’s motion for conditional certification of this

collective action.

2. Class Certification for Plaintiff’s NCWHA Claim

Plaintiff also seeks class certification under Federal Rule

of Civil Procedure 23 for Plaintiff’s NCWHA claim. (Pl.’s Br.

(Doc. 13) at 10.)

a. Standard of Review

Under Federal Rule of Civil Procedure 23, a plaintiff

seeking to sue on behalf of a class must satisfy all four

requirements of Rule 23(a), and one of the requirements

of Rule 23(b). See Amchem Prods., Inc. v. Windsor, 521 U.S. 591,

614 (1997). The prerequisites under Rule 23(a) are:

(1) the class is so numerous that joinder of all

members is impracticable;

(2) there are questions of law or fact common to the

class;

(3) the claims or defenses of the representative

parties are typical of the claims or defenses of the

class; and

(4) the representative parties will fairly and

adequately protect the interests of the class.

Fed. R. Civ. P. 23(a). The Fourth Circuit has also recognized

that Rule 23 contains an implicit threshold requirement that the

members of the proposed class be “readily identifiable,” EQT

Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014) (internal

quotations omitted), meaning that “[a] class cannot be certified

unless a court can readily identify the class members in

reference to objective criteria.” Id.

b. Parties’ Arguments

Plaintiff seeks to maintain this class action

under Rule 23(b)(3), (Pl.’s Br. (Doc. 13) at 11), which is

proper when “the court finds that the questions of law or fact

common to class members predominate over any questions affecting

only individual members, and that a class action is superior to

other available methods for fairly and efficiently adjudicating

the controversy.” Fed. R. Civ. P. 23(b)(3). The requirements for

commonality under Rule 23(b)(3) are more stringent than those

of Rule 23(a). See Lienhart v. Dryvit Sys., Inc., 255 F.3d 138,

146 n.4 (4th Cir. 2001).

Defendant argues that this court should deny Plaintiff’s

motion, arguing that Plaintiff has not satisfied Rule 23(a)(1)’s

numerosity requirement and Rule 23(b)(3)’s predominance and

superiority requirements. (Def.’s Resp. (Doc. 19) at 8.)

c. Numerosity under Rule 23(a)(1)

The numerosity requirement for class certification under

Rule 23(a) is that the class must be so numerous so as to make

joinder of all the class members impracticable. Fed. R. Civ. P.

23(a)(a).

This court finds Defendant’s citation of Brown v. Eckerd

Drugs, Inc., 669 F.2d 913, 917 (4th Cir. 1981), for the

proposition that “the Fourth Circuit has acknowledged the

existence of certain general ‘rules of thumb’” regarding

numerosity, (Def.’s Resp. (Doc. 19) at 9), unpersuasive, as the

cited passage comes from the dissent, not the majority. Instead,

the Fourth Circuit has held that “[n]o specified number is

needed to maintain a class action.” Brady v. Thurston Motor

Lines, 726 F.2d 136, 145 (4th Cir. 1984) (internal quotations

omitted), and “[t]here is no mechanical test for determining

whether in a particular case the requirement of numerosity has

been satisfied,” Kelley v. Norfolk & W. Ry. Co., 584 F.2d 34, 35

(4th Cir. 1978). The Fourth Circuit has further held that

“district courts have wide discretion in deciding whether or not

to certify a class and their decisions may be reversed only for

abuse of discretion.” Gunnells v. Healthplan Servs. Inc., 348

F.3d 417, 424 (4th Cir. 2003) (internal quotations omitted).

“Previous cases, though uneven at best, suggest that a

class as large as 74 persons is well within the range

appropriate for class certification,” but the Fourth Circuit has

recognized that “a much smaller class can meet the numerosity

requirement.” Brady, 726 F.2d at 145. For example, the Fourth

Circuit has recognized class certification where the class had

as few as eighteen members. Cypress v. Newport News Gen. &

Nonsectarian Hosp. Ass’n, 375 F.2d 648, 653 (4th Cir. 1967).

Other courts have held “that a class of as few as twenty-five to

thirty members raises a presumption that joinder would be

impracticable.” Rodger v. Elec. Data Sys. Corp., 160 F.R.D. 532,

535-36 (E.D.N.C. 1995) (citing In re Kirschner Med. Corp. Sec.

Litig., 139 F.R.D. 74, 78 (D. Md. 1991)).

In addition to numerosity, courts consider other factors to

determine impracticability, including the ease of identifying

and serving class members, their geographic dispersion, whether

individual claims are so small as to inhibit a class member from

pursuing his own interest, class members’ financial resources,

and judicial economy arising from the avoidance of multiple

actions. See Baehr v. Creig Northrop Team, P.C., Civil No. WDQ-

13-0933, 2014 WL 346635, at *8 (D. Md. Jan. 29, 2014); Cuthie v.

Fleet Reserve Ass’n, 743 F. Supp. 2d 486, 498 (D. Md. 2010);

Rodger, 160 F.R.D. at 536-37.

The parties disagree about the size of the class. Defendant

argues that “the size of the class, under the definition

proposed by Dennis, would come to only twenty individuals.”

(Def.’s Resp. (Doc. 19) at 10; see also Affidavit of Linda

Williams (Doc. 19-1) ¶¶ 8, 10-11.) Plaintiff argues that the

proposed class contains at least 23 individuals, (Pl.’s Reply

(Doc. 22) at 7), because “Defendant incorrectly . . . suggest[s]

three individuals did not work overtime,” (id. (citing (Doc.

19-1) ¶¶ 10-11).) Plaintiff argues that because Plaintiff’s

proposed class action relates to a state law unpaid wage claim

and not to overtime pay, working overtime in one or more

workweeks is not a prerequisite to being a class member for

Plaintiff’s NCWHA claim, and thus, these three individuals

should be counted. (Id. at 10-11.)

This court finds, even if this court assumes that the

number of potential class members is as many as twenty-three

individuals, that Plaintiff has not satisfied the requirements

for numerosity under Rule 23. A class of twenty-three members

does not raise a presumption that joinder would be

impracticable. See Rodger, 160 F.R.D. at 535-36. Moreover, this

court finds that joinder is not impracticable because class

members are readily identifiable from Defendant’s employment

records, (Def.’s Resp. (Doc. 19) at 11), and thus, the class

members would be easy to identify and locate, see Cuthie, 743

F. Supp. 2d at 498. This court further finds that class members

are not geographically dispersed, see Baehr, 2014 WL 346635, at

*8, because, at one time, all of the class members would have

lived within the narrow geographic region in North Carolina in

which Defendant’s medical facilities are located, (see Am.

Compl. (Doc. 9) ¶ 11; see also Def.’s Resp. (Doc. 19) at 11),

and Plaintiff has not presented evidence that these class

members are not geographically disbursed, (see Pl.’s Reply (Doc.

22)).

For these reasons, this court finds that Plaintiff has not

satisfied the requirements under Rule 23(a), and thus, this

court will deny Plaintiff’s motion for class certification as to

his NCWHA claim.

III. CONCLUSION

For the foregoing reasons,

IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss,

(Doc. 15), is DENIED.

IT IS FURTHER ORDERED that Plaintiff’s Motion for

Conditional Collective and Class Certification, (Doc. 11), is

GRANTED IN PART AND DENIED IN PART. Plaintiff’s motion is

GRANTED with regard to Plaintiff’s FLSA claim and DENIED with

regard to Plaintiff’s NCWHA claim.

IT IS FURTHER ORDERED that the parties meet and confer to

agree on a notice form and report back to this court within 21

days of the entry of this Memorandum Opinion and Order. If the

parties are not able to agree, this court will hold a hearing

after receipt of the parties’ respective position.

This the 30th day of March, 2021.

□

Ws Uirm L. Bhan, \.

United States District Jud

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