UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-61690-CIV-SINGHAL/VALLE

DEBRON WALLEN and

SANJAY SHAKES, individually and on 

behalf of all others similarly situated,

Plaintiffs,

v.

SVENSK MANAGEMENT, INC. and

RICHARD FERNBACH,

Defendants.

___________________________________/

ORDER ON CONDITIONAL CLASS CERTIFICATION

THIS CAUSE is before the Court on Plaintiffs’ Motion to Conditionally Certify 

Collective Class Action and Facilitate Notice to Potential Class Members (“Motion to 

Certify Class”) (DE [26]). Defendants filed a Response in Opposition (DE [29]), and 

Plaintiffs filed a Reply (DE [30]). For the reasons discussed below, the Court grants

Plaintiffs’ Motion.

I. BACKGROUND 

Plaintiffs Debron Wallen and Sanjay Shakes filed a Complaint (DE [1]) individually 

and on behalf of all others similarly situated, alleging that Defendants Svensk 

Management, Inc. and Richard Fernbach violated the Fair Labor Standards Act (“FLSA”), 

29 U.S.C. §§ 201, et seq. Fernbach is an officer and manager at Svensk, setting Plaintiffs’ 

pay, pay policies, and work schedules. Compl. ¶ 13 (DE [1]). Plaintiffs bring this putative 

collective action against Defendants for unpaid overtime compensation owed to them and 

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all other similarly situated employees in the three-year period before the filing of the 

Complaint on August 20, 2020, until the present. Id. ¶¶ 10, 15. 

Plaintiffs allege that they were both employed as pool service technicians by 

Defendants: Wallen worked between October 2018 and October 2019, and Shakes 

worked between March 2018 and December 2019. Id. ¶¶ 7–8. During the relevant time 

period, other similarly situated employees worked as “pool technicians, pool repair 

technicians and pool service technicians.” Id. ¶ 9. Plaintiffs allege that they each worked 

more than forty hours per week continuously during their employment, but neither was 

paid for overtime. Id. ¶ 34. Defendants also allegedly failed to pay other putative 

collective-action members for time worked in excess of forty hours per week, either at 

their regular pay rate or their overtime rate. Id. ¶ 37. Plaintiffs also allege that Defendants 

failed to keep records of their employees’ wages, work hours, and pay and failed to keep 

accurate payroll records. Id. ¶¶ 40–41.

Plaintiffs now seek to issue notice and conditionally certify this FLSA collective 

action. Attached to Plaintiffs’ Motion to Certify Class (DE [26]) are Plaintiffs’ own affidavits 

plus the declarations of two other similarly situated employees, Millet Charles and Olando

Foster (“Opt-In Plaintiffs”), who filed their consents to join without having been given 

official notice. See (DE [26-1] through [26-4]); (DE [18], [19]). Plaintiffs assert that OptIn Plaintiffs also shared the same job title and duties as Plaintiffs and “were subject to the 

same illegal pay practices” because Defendants lacked a time-keeping method. Mot. to 

Certify Class 4 (DE [26]). Plaintiffs contend that they are similarly situated to Opt-In 

Plaintiffs because all performed similar duties and were paid either no overtime or 

arbitrary overtime amounts, regardless of hours worked, over a similar time period. Id. at 

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5, 7. Defendants oppose certification, arguing that Plaintiffs do not identify any other 

similarly situated employees seeking to join this action and that Plaintiffs fail to allege a

common scheme to withhold overtime pay from other employees. Resp. in Opp’n 1–2 

(DE [29]).

II. LEGAL STANDARD

Title 29 U.S.C. § 216(b) “authorizes collective actions against employers accused 

of violating the FLSA.” Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1258 (11th 

Cir. 2008). An employee may file an action against his employer “for and in behalf of 

himself . . . and other employees similarly situated.” 29 U.S.C. § 216(b). Other employees 

who wish to join as plaintiffs must affirmatively opt in by filing consent with the Court. Id. 

“Thus, to maintain a collective action under the FLSA, plaintiffs must demonstrate that 

they are similarly situated.” Morgan, 551 F.3d at 1258 (citing Anderson v. Cagle's, 488 

F.3d 945, 952 (11th Cir. 2007)).

The Eleventh Circuit has established a two-stage approach in determining whether 

employees are similarly situated in opt-in collective actions: First, at the notice stage, the 

court determines—based on the pleadings and affidavits—“whether notice of the action 

should be given to potential class members who could be similarly situated.” Mickles v. 

Country Club Inc., 887 F.3d 1270, 1276 (11th Cir. 2018) (citing Hipp v. Liberty Nat’l Life 

Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001)). This stage usually results in “conditional 

certification” of a representative class: “[P]utative class members are given notice and the 

opportunity to ‘opt-in,’” and the action proceeds through discovery. Id. (quoting Hipp, 252 

F.3d at 1218). At this stage, the standard for determining similarity is flexible; the plaintiff 

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need only show a “‘reasonable basis’ for his claim that there are other similarly situated 

employees.” Morgan, 551 F.3d at 1260–61 (citations omitted). 

Second, when discovery is complete and the case is ready for trial, the defendant 

usually moves for decertification so the court can make a factual determination about 

whether the employees are similarly situated: If the claimants are similarly situated, the 

representative action proceeds to trial. Mickles, 887 F.3d at 1276 (citing Hipp, 252 F.3d 

at 1218). If they are not, the court decertifies the class and dismisses the opt-in plaintiffs 

without prejudice. Id. (citing Hipp, 252 F.3d at 1218). The original plaintiffs would “then 

proceed to trial on their individual claims.” Id. (citing Hipp, 252 F.3d at 1218). At the 

second stage, “‘the similarities necessary to maintain a collective action under § 216(b) 

must extend beyond the mere facts of job duties and pay provisions’ and encompass the 

defenses to some extent.” Morgan, 551 F.3d at 1262 (citing Anderson, 488 F.3d at 953).

III. DISCUSSION

Plaintiffs argue that they have carried their burden of showing that other employees 

desire to opt in and that those employees are similarly situated. Defendants respond that 

Plaintiffs have not provided sufficient evidence of other plaintiffs who wish to join and that 

Plaintiffs have failed to show that they and other employees were subject to Defendants’ 

common scheme to withhold overtime pay. Defendants also argue that the resolution of 

Plaintiffs’ claims for unpaid overtime wages would require individualized consideration of 

each employee’s hours, which makes conditional certification unmanageable. The Court 

agrees with Plaintiffs.

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A. Whether Other Employees Desire to Opt In

Under Dybach v. State of Florida Department of Corrections, 942 F.2d 1562 (11th 

Cir. 1991), a plaintiff must “show that there are other employees who desire to opt-in 

before a court can conditionally certify a class.” Didoni v. Columbus Rest., LLC, 327 

F.R.D. 475, 479 (S.D. Fla. 2018) (quoting Kemar Fung Chung v. Affordable Battery, Inc., 

2012 WL 3759029, at *1 (S.D. Fla. Aug. 29, 2012)). The plaintiff “cannot rely on 

speculative, vague, or conclusory allegations.” Id. (quoting Kemar Fung Chung, 2012 WL 

3759029, at *1). But “[c]ourts in this district have held that the existence of just one other 

co-worker who desires to join in is sufficient to ‘rais[e] the Plaintiff’s contention beyond 

one of pure speculation.’” Bennett v. Hayes Robertson Group, Inc., 880 F. Supp. 2d 1270, 

1283 (S.D. Fla. 2012) (second alteration in original) (quoting Guerra v. Big Johnson 

Concrete Pumping, Inc., 2006 WL 2290512, at *4 (S.D. Fla. May 17, 2006)); see also 

Gelber v. Akal Sec., Inc., 2016 WL 8678059, at *4 (S.D. Fla. Oct. 5, 2016), report and 

recommendation adopted, 2016 WL 8678541 (S.D. Fla. Oct. 27, 2016) (“As few as one 

additional opt-in plaintiff is sufficient for conditional certification of a collective class.” 

(citing Pares v. Kendall Lakes Automotive, LLC, 2013 WL 3279803, at *5 (S.D. Fla. June 

27, 2013))).

Here, the two named Plaintiffs submitted their own affidavits. Both Plaintiffs attest 

that they were service technicians for Defendants and that the putative opt-in plaintiffs 

were also service technicians, performed the same tasks and duties in the same or similar 

geographic area, and were subject to the same illegal pay and time-keeping policies. 

Shakes Aff. ¶ 4 (DE [26-1]); Wallen Aff. ¶ 4 (DE [26-2]). Wallen attests that other service 

technicians expressed to him that they will want to opt in to recover the money they are 

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owed. Wallen Aff. ¶ 11 (DE [26-2]). Shakes similarly attests that, after this case was 

filed, two other service technicians approached him to opt in. Shakes Aff. ¶ 15 (DE [26-

1]).

The named Plaintiffs have also filed the declarations and consents of two Opt-In 

Plaintiffs: Millet Charles and Olando Foster. Charles attests that he was a service 

technician who performed the same duties as the named Plaintiffs, was not paid for his 

overtime during the week, and received weekend overtime pay only “a few random times.” 

Charles Decl. ¶¶ 5–6 (DE [26-3]). Charles knows of at least one other employee who 

would opt in if given notice. Id. ¶ 11. Foster attests that he was a service technician who 

“occasionally” received “random” overtime payments that did not actually compensate 

him for hours worked. Foster Decl. ¶¶ 5, 9, 11 (DE [26-4]). Foster knows of current 

employees who wish to opt in “but are afraid of retaliation.” Id. ¶ 14. At this notice stage,

the Court finds that Plaintiffs have satisfied their lenient burden of demonstrating that a 

reasonable basis exists to believe that other similarly situated employees desire to opt in. 

See Gelber, 2016 WL 8678059, at *4; Bennett, 880 F. Supp. 2d at 1283. Indeed, Charles 

and Foster have already opted in without notice. Defendants appear to completely ignore 

this fact. Although none of the affidavits or declarations identify any other putative opt-in 

plaintiffs by name, the Court is satisfied that Plaintiffs have carried their burden at this 

stage.

B. Whether a Reasonable Basis Exists to Believe Other Employees are 

Similarly Situated 

The Court generally considers five factors to determine whether employees are 

similarly situated:

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(1) whether plaintiffs held the same job title; (2) whether they worked in the 

same geographic location; (3) whether the alleged violations occurred 

during the same time period; (4) whether plaintiffs were subjected to the 

same policies and practices, and whether the policies and practices were 

established in the same manner and by the same decision maker; and (5) 

the degree to which the actions constituting the claims violations are similar.

Compere v. Nusret Miami, LLC, 391 F. Supp. 3d 1197, 1202 (S.D. Fla. 2019) (citing 

Didoni, 327 F.R.D. at 480). “No single factor is dispositive.” Id. (citing Roman v. Burger 

King Corp., 2015 WL 12881153, at *2 (S.D. Fla. June 2, 2015)). “Plaintiffs need show 

only that their positions are similar, not identical, to the positions held by the putative class 

members.” Elliott v. Barbeque Integrated, Inc., 2020 WL 4495931, at *2 (S.D. Fla. May 

29, 2020) (quoting Hipp, 252 F.3d at 1217).

Here, based on the five Compere factors, the Court agrees with Plaintiffs that a 

reasonable basis exists to believe that other similarly situated employees exist. First,

Plaintiffs and Opt-In Plaintiffs all share the job title of service technicians. Shakes Aff. ¶

4 (DE [26-1]); Wallen Aff. ¶ 4 (DE [26-2]); Charles Decl. ¶ 4 (DE [26-3]); Foster Decl. ¶ 5 

(DE [26-4]). Plaintiffs also attest that the other putative opt-in plaintiffs are all service 

technicians. Shakes Aff. ¶¶ 4, 15 (DE [26-1]); Wallen Aff. ¶¶ 4, 11 (DE [26-2]). Second, 

all the service technicians worked in the same geographic location—mostly Broward and

Miami-Dade Counites, with one technician servicing Palm Beach County—and were 

required to attend meetings at the Broward County office every week. Shakes Aff. ¶¶ 4, 

16, 18 (DE [26-1]); Wallen Aff. ¶¶ 6, 13 (DE [26-2]). Third, the alleged violations occurred 

during the same time period: Plaintiffs’ and Opt-In Plaintiffs’ periods of employment

overlap between March 20, 2018 and June 13, 2020, all within the three years before 

filing the Complaint. See Shakes Aff. ¶ 5 (DE [26-1]); Wallen Aff. ¶ 5 (DE [26-2]); Charles 

Decl. ¶ 4 (DE [26-3]); Foster Decl. ¶ 4 (DE [26-4]).

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Fourth, Plaintiffs and Opt-In Plaintiffs demonstrated that Defendant Fernbach—the 

decision maker responsible for pay policies—failed to track their hours and withheld their 

overtime wages. Compl. ¶¶ 13, 15, 20 (DE [1]); Shakes Aff. ¶¶ 8–10, 12–14 (DE [26-1]);

Wallen Aff. ¶¶ 6–7, 10 (DE [26-2]); Charles Decl. ¶¶ 6, 9 (DE [26-3]); Foster Decl. ¶¶ 9, 

12 (DE [26-4]). Fifth, Defendants’ actions underlying the alleged violations are similar: 

Plaintiffs and Opt-In Plaintiffs contend that Defendants failed to keep track of employees’ 

hours and pay them consistent and regular overtime wages for hours actually worked. 

Shakes Aff. ¶¶ 4, 8–10, 14–15, 17, 19 (DE [26-1]); Wallen Aff. ¶¶ 6–7, 10 (DE [26-2]); 

Charles Decl. ¶¶ 6–7 (DE [26-3]); Foster Decl. ¶¶ 9–10 (DE [26-4]).

Based on these factors, the Court finds that Plaintiffs have carried their 

reasonable-basis burden, which is not a “particularly stringent” standard at this stage. 

See Morgan, 551 F.3d at 1260–61. Nevertheless, Defendants argue that Plaintiffs “failed 

to provide any evidence that Defendants actually have a policy that results in unpaid 

overtime.” Resp. in Opp’n 11 (DE [11]). Defendants provide Fernbach’s declaration in 

support of their argument that Shakes, Wallen, Charles, and Foster were paid the proper 

overtime amounts for their hours worked. See Fernbach Decl. ¶¶ 11–17 (DE [11-1]). But 

the Court does not resolve factual conflicts or make credibility determinations at this first 

stage. See Flete v. All Am. Facility Maint. Inc., 2020 WL 5534270, at *3 (S.D. Fla. July 

13, 2020) (“While Defendants’ opposition attempts to counter Plaintiff and Opt-in Plaintiffs’ 

factual assertions with conflicting evidence, the Court does not resolve any factual 

conflicts or make credibility determinations at this stage of the certification.”); Bennett, 

880 F. Supp. 2d at 1284 (“At the notice stage, courts ordinarily do not engage in credibility 

determinations; ‘defendant's burden is, for all practical purposes, to attempt to 

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demonstrate that a plaintiff has presented insufficient, not factually wrong, evidence.’” 

(quoting Reyes v. AT & T Corp., 801 F. Supp. 2d 1350, 1358 (S.D. Fla. 2011))). 

Further, this Court rejects Defendants’ argument that Federal Rule of Civil 

Procedure 23’s procedural considerations are pertinent to the § 216(b) FLSA collectiveaction analysis in this case. See Calderone v. Scott, 838 F.3d 1101, 1104 (11th Cir. 2016) 

(stating that Rule 23’s class-action certification requirements “are more demanding” than 

§ 216(b)’s conditional-certification requirements and that an FLSA collective action and a 

Rule 23(b)(3) class action are “fundamentally different creatures”); Grayson v. K Mart 

Corp., 79 F.3d 1086, 1106 (11th Cir. 1996) (“[T]he requirements for satisfying Rule 23 are 

considerably more involved than is the unitary ‘similarly situated’ requirement of § 16(b) 

[§ 216(b)].” (alteration in original) (quoting Howard Eglit, 1 Age Discrimination § 6.50 at 

6–304 (2d ed. 1994))). 

Lastly, at this stage, the Court is also unpersuaded by Defendants’ argument that 

a collective action in this case would be unmanageable because it would require factspecific individualized inquiries into liability, affirmative defenses, and damages for each 

putative plaintiff. Affirmative defenses come into play during the second—not first—

stage. See Morgan, 551 F.3d at 1261–62 (“[A]t the second stage, ‘although the FLSA 

does not require potential class members to hold identical positions, the similarities 

necessary to maintain a collective action under § 216(b) must extend beyond the mere 

facts of job duties and pay provisions’ and encompass the defenses to some extent.” 

(quoting Anderson, 488 F.3d at 953)); Javier v. Soc. Serv. Coordinators, Inc., 2014 WL 

12531532, at *4 (S.D. Fla. Apr. 16, 2014) (stating that the availability of FLSA defenses 

is an example of a factual issue that is not considered at the notice stage (quoting

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Vondriska v. Premier Mortg. Funding, Inc., 564 F. Supp. 2d 1330, 1335 (M.D. Fla. 2007))). 

Thus, the Court grants Plaintiffs’ Motion and finds that they are entitled to give notice to 

putative opt-in plaintiffs.

C. Plaintiffs’ Proposed Notice 

Plaintiffs have submitted a Proposed Notice of Pending Overtime Collective Action 

Lawsuit (“the Notice”) (DE [26-5]), which Defendants challenge as deficient for several 

reasons, see Resp. in Opp’n 17–20 (DE [29]). Plaintiffs reply that they are willing to 

amend the Notice to some extent. See Reply 9–10 (DE [30]). Given Plaintiffs’ concession 

of amendment, and in the interest of judicial economy, the Court will give the parties an 

opportunity to confer and reach an agreement on a revised proper notice as ordered 

below. See, e.g., Vondriska, 564 F. Supp. 2d at 1336–37 (giving parties opportunity to 

confer and submit revised FLSA notice). The Court will evaluate the revised proposed

notice once it is submitted.

But the Court addresses one of Defendants’ objections now: Defendants argue 

that the collective action should encompass alleged violations only in the past two—not 

three—years because Plaintiffs have failed to show that the violations were willful. “Under 

the FLSA, the two-year statute of limitations is extended to three years if a cause of action 

arises out of a willful violation of the FLSA.” Ojeda-Sanchez v. Bland Farms, LLC, 499 F. 

App’x 897, 902 (11th Cir. 2012) (citing 29 U.S.C. § 255(a)). Plaintiffs have adduced 

evidence that Defendants failed to remedy the violations after being informed of unpaid 

overtime wages and that two prior FLSA lawsuits were filed against Defendants; 

Defendants respond that the two FLSA lawsuits are factually dissimilar and irrelevant. At 

this stage, the Court does not have enough facts to determine whether the alleged 

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violations were willful. Thus, the Court will conditionally certify a three-year collective 

action and notes that, later, the action may be limited to a two-year period when a more 

complete record is presented. See, e.g., Flete, 2020 WL 5534270, at *3 n.1 (noting that 

the two-year versus three-year statute of limitations was a fact-intensive question “better 

resolved at a later stage”; certifying a three-year action with the possibility that it may be 

limited to two years “upon a more complete record”).

IV. CONCLUSION

For the reasons discussed above, the Court finds that Plaintiffs have carried their 

burden of showing that the FLSA collective action for service technicians employed by 

Defendants should be conditionally certified. Accordingly, it is hereby 

ORDERED AND ADJUDGED that:

1. Plaintiffs’ Motion to Certify Class (DE [26]) is GRANTED. The following FLSA 

collective action is conditionally certified:

All service technicians who worked for the Defendants at any time between August 

20, 2017 to the present who, as a result of the Defendants’ pay practices—not 

keeping time records and not paying for all overtime worked during the week—

were not paid all wages due for overtime worked during one or more workweeks 

as required by the Fair Labor Standards Act.

2. The parties shall confer and try to agree on the form of the notice. Within 15 days

of this Order, Plaintiffs shall file a motion for approval of the revised proposed 

notice. The motion shall attach copies of the revised proposed notice and 

proposed consent form and shall note all Defendants’ remaining objections to the 

notice or consent form that have not been resolved. If Plaintiffs fail to file a motion 

by the deadline, the Court will make its own rulings based on the Notice already 

filed (DE [26-5]). 

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3. The Court will direct the terms of giving notice after ruling on Plaintiffs’ motion for 

approval of the revised proposed notice.

DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 22nd day of 

March 2021.

Copies furnished to counsel of record via CM/ECF

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