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N.D.Ga.: Conditional Certification Granted Although Defendants In Default; Same Framework Applicable To Court’s Stage 1 Determination

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Andrew Frisch

Davis v. Precise Communication Services, Inc.

Following Plaintiffs’ request for notice, defense counsel withdrew. This court issued an order in November 2008 informing Defendant PCS that it could not proceed pro se under Local Rule 83.1. The court directed Defendant PCS to obtain counsel or risk default and directed Defendant Hinton to inform the court if she intended to proceed pro se. Neither defendant complied with the court’s order and is therefore in default. On January 7, 2009, Plaintiffs filed the instant Motion for Default Judgment. Notwithstanding Defendants’ default, the Court granted Plaintiffs’ Motion for Conditional Certification, following the same framework as if the Defendants had not been in default:

“Contrary to its styling, Plaintiffs’ Motion for Default Judgment does not move for final judgment and damages. Rather, Plaintiffs request that the court grant their motion for opt-in notice and allow a forty-five day opt-in period. Plaintiffs contend that they will move for an actual judgment as to liability and specific damages once the number of plaintiffs is clear. As such, the only actual issue before the court is whether to allow Plaintiffs a conditional class certification and a forty-five day opt-in notice.

As an initial matter, the court notes the unusual procedural posture of this matter. However, the court finds that PCS’s default does not fundamentally change the analysis the court must undertake in deciding whether to conditionally certify Plaintiffs’ class. See Sniffen v. Spectrum Indust. Servs., No. 2:06-CV622, 2007 WL 1341772 (S.D.Ohio Feb. 13, 2007) (addressing FLSA conditional certification and notice in conjunction with motion for default judgment); c.f. Hoxworth v. Blinder, Robinson & Co., Inc., 980 F .2d 912 (3d Cir.1992) (finding that default did not preclude defendants from challenging class certification in Rule 23 context). By defaulting, PCS has foregone its right to challenge any of the well-pleaded factual allegations in Plaintiff’s complaint. Nishimatsu Constr. Co., Ltd. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir.1976). PCS has not conceded, however, that Plaintiffs have satisfied the legal standard for conditional class certification under the FLSA. See McCoy v. Johnson, 176 F.R.D. 676, 679 (N.D.Ga.1997) (Forrester, J.) (explaining that a court may only grant default judgment on those claims which are legally sufficient and supported by well-pleaded allegations); c.f. Trull v. Plaza Assoc., No. 97 C 0704, 1998 WL 578173 (N.D.Ill. Sept. 3, 1998) (explaining that default cannot substitute for court’s analysis of four legal requirements for class certification under Rule 23).

Further, the court must address the certification issue at this time, despite PCS’s default, for issues of judicial economy. If the court were to grant the Plaintiffs’ forthcoming motion for default judgment without resolving the issue of conditional certification, only the named plaintiffs would be able to enforce it. Numerous potential plaintiffs would not receive any redress for their claims and would likely file separate suits resulting in an additional burden on the court. See Partington v. American Intern. Specialty Lines Ins. Co., 443 F.3d 334 (4th Cir.2006) (finding default judgment unenforceable by putative class without formal class certification).”

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