UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

HENRY HOLESAPPLE, ANTHONY

NASTASI, and MARK EMORY

WASHINGTON, 

 Plaintiffs,

v.

E-MORTGAGE MANAGEMENT, LLC,

GREG ENGLESBE, and BRIAN

KRASNER,

Defendants.

CIVIL NO. 11-0769(NLH)(KMW)

OPINION

Appearances:

SAMUEL A. DION 

DION & GOLDBERGER, ESQS. 

1616 WALNUT STREET, SUITE 2316 

PHILADELPHIA, PA 19103 

Attorneys for plaintiffs

DAVID J. KHAWAM 

SENTRY OFFICE PLAZA, SUITE 604 

216 HADDON AVE. 

WESTMONT, NJ 08108 

Attorney for defendants

HILLMAN, District Judge

Before the Court is plaintiffs’ motion for conditional

class certification pursuant to the Fair Labor Standards Act

(“FLSA”). Also before the Court is defendants’ motion for

reconsideration of the Court’s Order granting an extension of

time to file a reply brief. For reasons explained below,

plaintiffs’ motion for conditional class certification will be

denied without prejudice, and defendants’ motion for

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reconsideration will be denied.

I. BACKGROUND

Plaintiffs were former employees of defendant EMortgage Management, LLC (“E-Mortgage”). E-Mortgage is a

mortgage lending and brokerage company that operates

approximately eight offices in at least four states, including

New Jersey, Pennsylvania, Maine and Delaware. There is no

dispute that E-Mortgage is an employer within the meaning of 29

U.S.C. § 203(d). Plaintiffs worked as “loan officers” or 1

“customer service representatives.” Their primary job duties 2

were to solicit mortgage loans and oversee the loan applications

until they were sent to processing and closing. Plaintiffs were

paid on a commission only basis. Plaintiffs allege that they

were not paid the minimum wage, and that they routinely worked in

excess of 40 hours per week, but did not receive overtime

compensation. 

Plaintiffs allege that defendants violated FLSA Section

206(a) which requires employers to pay employees the current

 “‘Employer’ includes any person acting directly or 1

indirectly in the interest of an employer in relation to an

employee and includes a public agency, but does not include any

labor organization (other than when acting as an employer) or

anyone acting in the capacity of officer or agent of such labor

organization.” 29 U.S.C. § 203(d).

 It appears that at some point the title changed from “loan 2

officer” to “customer service representative” although plaintiffs

state that the duties were the same. 

2

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minimum wage , and FLSA Section 207(a)(1) which requires 3

employers to pay overtime to employees who work in excess of 40

hours in a workweek at a rate not less than one and one-half

times the regular rate at which he is employed. Plaintiffs seek

for themselves and similarly situated employees declaratory and

compensatory relief, unpaid wages, unpaid overtime, and

reasonable costs and attorneys’ fees. Plaintiffs filed a motion

for conditional class certification under the FLSA. Defendants

oppose plaintiffs’ motion and argue that plaintiffs’ declarations

submitted in support of their motion were inadequate and

factually incorrect. Plaintiffs sought and were granted an

extension to file a reply brief attaching revised affidavits. 

Defendants filed a motion for reconsideration of the Court’s

Order granting the extension. 

II. JURISDICTION

Plaintiffs bring this action on behalf of themselves

and others “similarly situated” to remedy alleged violations of

the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., and

therefore this Court exercises subject matter jurisdiction

pursuant to 28 U.S.C. § 1331 (federal question jurisdiction).

 As of July 24, 2009, the federal minimum wage is $7.25 an 3

hour. See 29 U.S.C. § 201(a)(1)(c). 

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III. DISCUSSION

A. Motion for Reconsideration

Plaintiffs filed their motion for conditional class

certification on May 18, 2011. According to Local Rule 78.1, the

motion day for the hearing was set for June 20, 2011, which date

was entered by the Clerk of Court on the Court’s official docket. 

See L.Civ.R. 78.1. The deadline for opposition briefs is

fourteen days before the motion day, or June 6, 2011, and the

deadline for reply briefs is seven days before the motion day, or

June 13, 2011. See id. When plaintiffs filed their motion for

conditional class certification, they erroneously stated on their

docket entry that the opposition brief was due on June 13, 2011,

rather than June 6, 2011. Defendants filed their opposition

brief on June 13, 2011, presumably according to the date entered

by plaintiffs which was seven days after the deadline. 

Realizing the error with regard to the opposition

deadline, on June 20, 2011, plaintiffs filed a motion for

extension of time to file a reply. The extension was necessary

because the defendants did not file their opposition until June

13, 2011, which was the original deadline for the reply under the

Local Rules. The Court granted plaintiffs’ motion for extension

on June 29, 2011. Defendants filed a motion for reconsideration

because the Order granting the extension was entered prior to the

date their opposition brief to the motion for extension was due,

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on July 5, 2011.

This Court has discretion to extend a deadline after

the time has expired upon a showing of good cause if the party

failed to act because of excusable neglect. See Fed.R.Civ.P.

6(b)(1)(B); Drippe v. Tobelinski, 604 F.3d 778, 782 (3d Cir.

2010). Although defendants accurately recite the procedural

history surrounding the filing of the motion for extension, they

do not argue that they have been prejudiced in any way by the

filing of plaintiffs’ reply seven days after the deadline, which

was necessitated by the fact that defendants filed their response

late, without requesting an extension. Here, the interests of

justice would favor allowing defendants to file a late response,

without having requested an extension due to the erroneous

deadline stated by plaintiffs, and allow plaintiffs, upon motion

for extension, a seven day extension to file their reply. 

Accordingly, defendants’ motion for reconsideration

will be denied. 

B. Standard for Class Certification Under the FLSA

Plaintiffs allege that defendants violated the FLSA

Sections 206(a) and 207 and seek to sue on behalf of themselves 4 5

 Section 206(a) requires that employers pay employees at 4

least the minimum wage. See 29 U.S.C. § 206(a).

 Section 207 sets the maximum hours under the FLSA. See 29 5

U.S.C. § 207. An employer shall not employ any employee for a

5

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and other “employees similarly situated” pursuant to Section

216(b) See 29 U.S.C. § 216(b), ruled unconstitutional on other 6

grounds in Alden v. Maine 527 U.S. 706, 712 (1999) (“finding

unconstitutional provision of FLSA authorizing private actions

against states in state courts without their consent). Rather

than opting-out as is done in a traditional class action lawsuit,

in an FLSA class action, potential class members must opt-in by

providing written consent filed with the Court. Manning v. Gold

Belt Falcon, LLC, --- F.Supp.2d ----, 2011 WL 4583776, at *1

(D.N.J. Oct. 5, 2011) (stating that under the FLSA there are “two

pertinent requirements to maintain a collective action: 1) each

Plaintiff must manifest his written consent, and 2) Plaintiff's

attorney must file that consent with the Court.”). 

 The term “similarly situated” is not defined in the

FLSA. See Ruehl v. Viacom, Inc., 500 F.3d 375, 389 n.17 (3d Cir. 

2007). Courts that have addressed whether a putative class is

similarly situated have adopted or recognized a two-step

approach. See Morisky v. Public Service Elec. and Gas Co., 111

F.Supp.2d 493, 497 (D.N.J. 2000) (citation omitted); Kronick v.

“workweek longer than forty hours unless such employee receives

compensation for his employment ... specified at a rate not less

than one and one-half times the regular rate at which he is

employed.” Id. 

 Section 216 permits, inter alia, a plaintiff and other 6

employees similarly situated to file suit against his or her

employer. See 29 U.S.C. § 216(b). 

6

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Bebe Stores, Inc., No. 07-4514, 2008 WL 4546368 at *1 (D.N.J.

2008) (In “the absence of guidance from the Supreme Court and

Third Circuit, district courts have developed a test consisting

of two stages of analysis.”) (citing Morisky, 111 F.Supp.2d at

496). At the first stage, or notice stage, the court determines

whether notice of the action should be given to potential class

members. See Morisky, 111 F.Supp.2d at 497; Kronick, 2008 WL

4546368 at *1 (“During the initial notice phase, courts make a

preliminary inquiry into whether the plaintiff’s proposed class

is one of similarly situated members.”) (citations omitted).

Although the standard applied at this stage is fairly

lenient, courts in the Third Circuit are divided on the amount of

evidence needed to establish whether plaintiff is similarly

situated to the putative class. See White v. Rick Bus Co., 743

F.Supp.2d 380, 387 (D.N.J. 2010). “Some courts, particularly

those in the Western Districts of Pennsylvania, employ the more

lenient of the two relaxed standards.” Id. “Under that case

law, ‘preliminary certification is granted upon a mere allegation

that the putative class members were injured by a single policy

of the defendant employer.’” Id. (citations omitted, emphasis

removed). “In contrast, other courts, including those in the

District of New Jersey, ‘requir[e] the plaintiffs to show a

modest factual nexus between their situation and that of the

proposed class members.’” Id. (citing Garcia v. Freedom Mortg.

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Corp., No. 09–2668, 2009 WL 3754070, *2 (D.N.J. Nov. 2, 2009),

quoting Aquilino v. Home Depot, Inc., No. 04–4100, 2006 WL

2583563 at *2 (D.N.J. 2006) (emphasis removed);

Villanueva–Bazaldua v. TruGreen Lim. Part., 479 F.Supp.2d 411

(D.Del. 2007)). 

The “factual nexus” standard will be applied in this

case for the initial stage. See Kronick, 2008 WL 4546368 at *1

(adopting the evidentiary standard articulated in Aquilino as

requiring a plaintiff to show “a factual nexus between their

situation and the situation of other current and former

[employees] sufficient to determine that they are ‘similarly

situated.’”) (citing Aquilino, 2006 WL 2583563, at *2). “In

spite of the modest [factual nexus] evidentiary standard, courts

have not hesitated to deny conditional certification when

evidence is lacking.” Dreyer v. Altchem Environmental Services,

Inc., No. 6-2393, 2007 WL 7186177, at *3 (D.N.J. Sept. 25, 2007).

 In the second stage, or “reconsideration stage,” the

court “makes a second determination after discovery is largely

complete and the case is ready for trial.” Morisky, 111

F.Supp.2d at 497 (citation omitted); Kronick, 2008 WL 4546368 at

*1 (“In the second stage, after more evidence is available, the

court makes a final determination as to whether the plaintiff is

similarly situated to the rest of the class.”). “In its analysis

of the ‘similarly situated’ question at this stage, the court has

8

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much more information on which to base its decision and, as a

result, now employs a stricter standard.” Morisky, 111 F.Supp.2d

at 497. If the court finds the plaintiffs are similarly situated

during the second stage, the case may proceed to trial as a

collective action. Id. The plaintiff bears the burden of

proving that class members are similarly situated. See Troncone

v. Velahos, No. 10–2961, 2011 WL 3236219, at *4 (D.N.J. July 28,

2011). 

B. Plaintiffs’ Motion for Conditional Class Certification

Initially, plaintiffs alleged that they worked in

excess of 51 hours per workweek based on their bi-weekly paystubs

which stated “Paid Time - Available 112.000 hours.” During the

initial scheduling conference with the Court, which occurred

after plaintiffs had filed the instant motion, it was suggested

that the 112 hours did not refer to biweekly hours worked but

instead was a notation that referred to the amount of time the

employee accrued for “paid time off” such as vacation or sick

time. This explanation was confirmed in the certification

submitted by John Miriello, Director of Human Resources for EMortgage and later admitted by plaintiff Henry Holesapple in his

declaration. Nevertheless, plaintiffs still maintain that they

worked in excess of 40 hours per workweek. 

7

 The timing and shifting basis of plaintiffs’ motion is 7

very troubling to this Court. It seems clear that the original

9

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Plaintiffs Henry Holesapple and Anthony Nastasi

submitted declarations in support of their motion for conditional

class certification. In their response, defendants attacked the

declarations as inadequate. In reply, plaintiffs submitted

revised declarations from Holesapple and Nastasi, and an

additional declaration from plaintiff Mark Emory Washington who

later joined in this lawsuit.

All three plaintiffs state that they worked at EMortgage’s Hainesport, New Jersey office. Plaintiff Holesapple

states that he was formerly employed by E-Mortgage as a loan

officer from April 9, 2009 until December 30, 2010. Holesapple

states that although the employee handbook states that the normal

work schedule is Monday through Friday from 8:30 a.m. to 5:30

a.m., that he was directed by his supervisor, Jeff Krasner, to

motion and certifications as filed by plaintiffs were based on a

completely inaccurate factual assumption and, moreover, that the

inaccuracy of those certifications was made known to plaintiffs’

counsel as early as June 9, 2012. Instead of withdrawing their

motion, which would have been the responsible thing to do,

plaintiffs waited until after defendants had filed their

opposition to amend their legal and factual basis for the pending

motion. Not only did plaintiffs’ lack of diligence and accuracy

improperly shift and expand the factual and legal basis for their

motion, it effectively denied defendants a fair opportunity to

reply. This kind of gamesmanship is litigation practice at its

worst and could provide a basis, standing alone, to deny

plaintiffs’ motion. While the Court will exercise its discretion

to resolve the motion on the merits and deny it without

prejudice, plaintiffs’ counsel is advised that their pleadings,

attestations, and motion practices are subject to Appendix R of

the Court’s Local Rules, the Rules of Professional Conduct and

Rule 11 of the Civil Rules of Federal Procedure. 

10

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work from 8:00 a.m. to 8:00 p.m. Mondays through Fridays. 

Holesapple states that he regularly worked between 48 and 60

hours on weekdays and another 5 to 10 hours on weekends. He

states that his supervisor required him to take files home to

work on in the evenings and weekends. 

Holesapple states that he observed other employees in

the Hainesport office work similar hours, in excess of a 40 hour

workweek, including plaintiffs Anthony Nastasi and Mark

Washington, as well as Musa Branham, and not receive overtime

pay. Holesapple also states that all loan officers were paid on

a 100% commission basis so that if he did not earn any

commissions during a pay period, he would receive no pay at all. 

Plaintiff Anthony Nastasi states in his declaration

that he was formerly employed by E-Mortgage as a loan officer

from April 9, 2009 until December 30, 2010. He states that EMortgage had a policy requiring plaintiffs and all customer

service representatives to work at least 53 hours or more per

week, and that they were paid on a 100% commission basis. Natasi

states that he was told that office hours were 10:00 a.m. to 8:00

p.m. Mondays through Thursday, and 10:00 a.m. until work was

completed on Fridays but no earlier than 3:00 p.m. He states

that his work hours exceeded 50 hours weekly. He states that he

usually came in by 10:30 a.m. and stayed until 8:00 p.m., and

worked 2-3 hours daily at home, including weekends. Nastasi

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states that he and the other customer service representatives

were not paid for the hours that they actually worked, and were

not paid for overtime hours. Nastasi states that the commissions

he received did not amount to minimum wages ($7.25 per hour). 

Plaintiff Mark Emory Washington states in his

declaration that he was formerly employed by E-Mortgage as a loan

officer from July 2, 2008 until August 2009. In August 2009, he

was given the title of office manager. He performed the same 8

duties as a loan officer, with additional duties to oversee other

loan officers. Washington states that he normally worked 52

hours per week. He states he worked 8:30 a.m. to 8:00 p.m.

Mondays through Thursday, and on Fridays, he worked six hours.

As officer manager, Washington observed the work hours

of all loan officers and states that all of them, including

himself, on average worked in excess of 50 hours weekly.9

Washington also states that any worker that did not come into the

Washington does not state when his employment with E- 8

Mortgage was terminated. 

The Court has already noted, supra note 7, the unusual 9

and troubling way that plaintiffs submitted their motion. The

Declaration of Mark Washington, dated June 17, 2011, and filed

pursuant to 28 U.S.C. § 1746, was not part of plaintiffs’

original motion nor has any reason been proffered as to why it

was presented to the Court only in reply. What is most troubling

is that it directly contradicts the June 9, 2011 Declaration of

Brian Krasner, who declares under penalty of perjury that “All

CSRs work and have worked less than 40 hours per week....” It

appears to this Court that Washington’s and Krasner’s

Declarations can not both be truthful. 

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office before 10:00 a.m. would be criticized for their lack of

work ethic by supervisors Brian Krasner and Jeff Krasner and

those loan officers would be taken off inbound calls. He 10

states that when he became office manager, he would have to deny

inbound leads to anyone who did not arrive by 10:00 a.m. 

Washington also states that all loan officers were paid on a 100%

commission basis, and that he observed that some loan officers

did not receive any compensation if they failed to close out any

loans. He states that all loan officers had the same duties as

himself, including Henry Holesapple, Musa Branham, and Anthony

Nastasi. 

Defendants submitted 14 declarations to rebut the

original declarations of the plaintiffs. Supervisors at the

Hainesport office, Brian Krasner (also a defendant) and Jeff

Krasner, state in their declarations that there has never been a

policy requiring employees to work over 40 hours a week,

regardless of how an employee is paid. The other 12 declarations

are from current E-Mortgage employees who state that they have

never been subjected to a company policy requiring them to work

over 40 hours in a workweek. Four of the declarations are from

employees from the Hainesport, New Jersey office, the same office

Nastasi clarifies in his declaration that although he 10

came in after 10:00 a.m., he was still allowed to receive leads

because his supervisors were aware of all the work he was doing

outside the office.

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where plaintiffs worked, four are from employees located in the

Haddon Township, New Jersey office, three are from employees in

the Lancaster, Pennsylvania office, and three are from the

Lebanon, Pennsylvania office. 

With regard to the employees located in offices from

Haddon Township, Lancaster, and Lebanon, plaintiffs have not

provided any evidence that they have any personal knowledge of

the hours worked by employees in those offices and whether those

employees work in excess of 40 hours per week without receiving

overtime compensation. With regard to the employees in the

Hainesport office, the declarations of current employees Musa

Branham and George McCartney both state that they have not worked

over 40 hours a week or on weekends, and by their experience,

there has never been a policy in place requiring them to work

over 40 hours per week or on weekends. Mr. Branham’s declaration

directly contradicts Holesapple’s declaration in which he states

that he observed Mr. Branham working in excess of 40 hours

weekly, and that he told Holesapple he worked more than 40 hours

per week. 

The declarations submitted by defendants indicate that

even if plaintiffs worked in excess of 40 hours per week without

receiving overtime pay, their situation is not similar to other

employees, or potential class members. See Aquilino, 2006 WL

2583563, at *2 (requiring a plaintiff to show “a factual nexus

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between their situation and the situation of other current and

former [employees] sufficient to determine that they are

‘similarly situated.’”). The declarations of the current

employees who work in the same office location where the

plaintiffs worked contradict plaintiffs’ declarations that all

loan officers or customer service representatives were required

to work in excess of 40 hours per week. 

Plaintiffs also declare that they were paid on a 100%

commission basis and if they did not earn commissions, they would

receive no pay at all in violation of the FLSA requiring

employers to pay at least the minimum wage. Washington states

that he observed that other loan officers did not receive any

compensation because they failed to close out any loans. 

Washington’s declaration, which was not part of plaintiffs’

original motion, does not state who the other loan officers were

that received no pay or, generally, when it occurred. Nastasi

states his commissions did not amount to minimum wages, but does

not state that he has knowledge of, or observed, other loan

officers who did not receive minimum wages. Accordingly, as with

the excess hours claim, plaintiffs have not provided the factual

nexus needed between their claim of E-Mortgage’s failure to pay

them minimum wage and the potential claims of the other class

members. At best, plaintiffs have only established that all loan

officers received 100% commission pay, a statement defendants do

15

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not dispute. 

11

The Declaration of Mark Washington, submitted without

the opportunity for fair reply, does provide some support for a

factual nexus regarding a minium wage claim since he states that

he observed other loan officers who did not receive any

compensation at all because they failed to close out loans.

Washington’s Declaration is more notable, however, for what it

fails to say. He does not state, for example, whether he saw the

other loan officer’s paychecks while office manager of the

Hainesport office, nor does he provide the names of officers who

did not receive any pay, when those pay periods were, or estimate

the number of loan officers affected. These vague, non-specific,

and conclusory allegations from a person presumably in a position

to know fail to establish the required factual nexus even

applying a lenient standard. As such, plaintiffs’ motion will be

denied without prejudice. 

Although defendants responded only to the original 11

affidavits because the revised affidavits had not yet been filed,

plaintiffs do raise the minimum wage claim in their complaint and

also state in their original declarations that their pay was

based on 100% commissions.

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IV. CONCLUSION

For the foregoing reasons, plaintiffs’ motion for

conditional class certification will be denied without prejudice.

 s/Noel L. Hillman 

NOEL L. HILLMAN, U.S.D.J.

Date: December 29, 2011 

At Camden, New Jersey

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