United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
M. HOOD SENIOR U.S. DISTRICT JUDGE
matter is before the Court on Plaintiff Brian Fox's
“Motion to Send Notice to Similarly Situated
Employees.” [DE 11]. For the reasons stated herein
below, and the Court being otherwise sufficiently advised,
Fox's motion to send notice, [DE 11], is hereby
2, 2019, Plaintiff, Brian Fox (“Fox”) filed the
above-styled action, bringing claims against the Defendants
Team Goliath, Inc., Christian Reisch, Jason Dascher, alleging
the defendants violated the minimum wage and overtime
provisions of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201, et
seq. and the Kentucky Wage and Hour Law
(“KWHA”), KRS Chapter 337. [DE 1]. In particular,
Fox alleges that defendants willfully failed to compensate
him and similarly-situated individuals in accordance with the
FLSA and the KWHA. [Id.].
9, 2019, Fox filed a motion for leave to send notice of this
action to the alleged similarly situated employees. [DE 11].
Section 216(b) of the FLSA provides that employees may
maintain an action for unpaid wages on behalf of himself and
“similarly situated employees.” However, before
such similarly situated employee may become a party plaintiff
to this lawsuit, he or she must file written consent with the
Court. Id. “Certification of FLSA collective
actions typically proceeds in two phases.” Williams
v. King Bee Delivery, LLC, No. 5:15-cv-306, 2017 WL
987452, *4 (E.D. Ky. Mar. 14, 2017) (citing Comer v.
Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir.
2006)). “At the notice stage, the certification is
conditional and by no means final.” Id.
(internal quotations omitted). “The plaintiff must show
only that his position is similar, not identical, to
the positions held by the putative class members.”
Id. (internal quotations omitted) (emphasis in
original). “This determination is made using a fairly
lenient standard, and typically results in conditional
certification of a representative class.” Id.
filing his motion for leave to send notice to such similarly
situated employees, Counsel for Fox attached the declarations
of Plaintiff, Brian Fox, Justin Kinney, and Michael Miller.
[DE 11-2; 11-3; 11-4]. However, those three declarations were
electronically docu-signed rather than handwritten.
[Id]. On May 10, 2019, the Clerk of Court entered a
“Notice of Deficiency” informing Counsel for Fox
that only a scanned copy of an original signature for the
declarants must be filed, and provided Plaintiff seven (7)
calendar days in which to prepare a “Notice of
Filing” in order to attach scanned copy of the
declarations with the original signature of the declarant.
16, 2019, Fox then filed an “Emergency Motion” to
accept the declarations with electronic signatures rather
than original signatures. [DE 15]. On May 21, 2019, the Court
denied the motion, and directed Fox to file wet signatures
within fourteen (14) days. [DE 17]. Fox did so on June 3,
2019. [DE 23].
during this time, Team Goliath did not file any response in
opposition to Fox's motion to the instant motion. [DE
11]. Instead, on June 21, 2019, the parties filed a joint
motion to stay the case for one hundred and twenty (120)
days, [DE 27], which the Court granted. [DE 29]. As part of
that order, the Court stayed “...the proceedings,
including Defendants' obligation to respond to the
Complaint, Motion to Send Notice, and the Motion to Expedite
Consideration.” [DE 29 at 2, PageID #203].
November 21, 2019, the stay lapsed and this Court
subsequently directed the parties to meet and confer and file
a joint status report. [DE 32]. The parties filed a joint
status report on December 20, 2019. [DE 34]. Therein, the
parties stipulated that “...Defendants will provide
Plaintiff's counsel with the class list so that notice of
this action can be distributed to all similarly situated
employees employed from May 3, 2016 to present.” [DE 34
at 1, PageID #238].
Defendants have filed no response objecting to the instant
motion. See Fed. R. Civ. P. 7.1. Moreover, the
parties have stipulated to Plaintiff's request to send
notice to all similarly situated employees. [DE 34 at 1,
PageID #238]. Accordingly, IT IS ORDERED as
(1) That Plaintiff Fox's motion, [DE 11], is, and hereby
shall be, GRANTED;
(2) That Plaintiff Fox's motion to expedite consideration
of motion, [DE 12], is, and hereby shall be, DENIED
AS MOOT; and
(3) The Parties are DIRECTED to submit with
their Rule 26 discovery plan, [DE 35], the appropriate
procedure by which the parties shall send notice to similarly