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Ganci v. MBF Inspection Services, Inc.

United States District Court, S.D. Ohio, Eastern Division

October 27, 2017

THOMAS GANCI, Plaintiff,
v.
MBF INSPECTION SERVICES, INC., Defendant.

          Magistrate Judge, Chelsey M. Vascura

          OPINION AND ORDER

          GEORGE C. SMITH, JUDGE UNITED STATES DISTRICT COURT

         This matter is before the Court upon Plaintiff Thomas Ganci's Motion for Class Certification of claims brought under the Ohio Minimum Fair Wage Standards Act, Ohio Revised Code Chapter 4111, et seq. for unpaid overtime wages. (Doc. 60). The motion is fully briefed and ripe for disposition. For the following reasons, Plaintiff's Motion is GRANTED.

         I. BACKGROUND

         Defendant MBF Inspection Services, Inc. (“MBF”) is a New Mexico corporation that provides inspection services to its customers in the oil and gas industries in various states across the country. (Doc. 6, Ans. ¶¶ 10-12). Plaintiff worked for MBF as a welding inspector from approximately June 2015 to October 2015. (Doc. 60-5, Ganci Decl. ¶ 4). He is a Texas resident but lived and worked in Ohio while under the employment of MBF. (Id. ¶ 2). During his time of employment, he provided inspection services for MBF's customers and routinely worked in excess of forty hours per week. (Id. ¶¶ 5, 10). Plaintiff was paid on a day-rate basis and did not receive overtime compensation for time worked in excess of forty hours per week. (Id. ¶¶ 9, 10).

         On October 30, 2015, Plaintiff filed the present action seeking class relief under both the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., and the Ohio Minimum Fair Wage Standards Act, Ohio Revised Code Chapter 4111, et seq. (“Fair Wage Act”). (Doc. 1, Complaint). On November 24, 2015, MBF filed its Answer asserting as affirmative defenses that MBF inspectors like Plaintiff were exempt from federal and state overtime laws under the executive, administrative, professional, and highly compensated exemptions. (Doc. 6, 25th Affirmative Defense).

         This Court previously conditionally certified a collective action under the FLSA encompassing the following class:

All inspection personnel and those similarly situated who were paid a day rate and who worked for Defendant at any time since three years prior to this Court's order granting conditional certification.

(Doc. 26 at 2). MBF did not contest the conditional certification of the collective action. (Id.). Plaintiff then distributed Court-approved notice of the FLSA collective action to potential members of the collective action class. The FLSA notice period has closed, and a total of 56 inspectors who worked for MBF around the country have filed consent forms to join the FLSA collective action. (Doc. 60-2, Baggio Decl. ¶ 2).

         Plaintiff now seeks to certify as a class action under Federal Rules of Civil Procedure 23(a) and (b)(3) the following class of individuals who allegedly have claims against MBF under Ohio's Fair Wage Act:

All inspection personnel, other than chief inspectors and lead inspectors, who were paid a day rate and who worked for Defendant under a Spectra contract at any time since three years prior to filing of this Complaint.

(Doc. 60, Mot. for Class Certification). During discovery, MBF produced a list of inspection personnel who worked in Ohio during the proposed class period. (Doc. 60-8, Class List). The list identifies 67[1] personnel falling within Plaintiff's proposed Rule 23 class definition. (Doc. 60-2, Baggio Decl. ¶ 3). Of those 67 individuals, five consented to join the FLSA collective action. (Id. ¶ 4).

         II. CLASS CERTIFICATION STANDARD OF REVIEW

         Federal Rule of Civil Procedure 23(a) provides that class action lawsuits may be certified if:

(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)(1)-(4). In addition to the four requirements set forth in Rule 23(a), the party seeking certification must also demonstrate that it satisfies at least one of the subcategories of Rule 23(b). Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013); In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996). Here, Plaintiff has moved for certification pursuant to Rule 23(b)(3), which dictates that a class action may proceed 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).

         District courts have broad discretion in certifying class actions so as long as they exercise such discretion within the framework of Rule 23. Coleman v. Gen. Motors Acceptance Corp., 296 F.3d 443, 446 (6th Cir. 2002). However, a class “may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982); Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998). While the plaintiff's likelihood of ultimate success of his or her claims on the merits is not one of the elements of the “rigorous analysis, ” “[m]erits questions may be considered to the extent-but only to the extent-that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013).

         III. DISCUSSION

         Plaintiff seeks class certification under Federal Rules of Civil Procedure 23(a) and 23(b)(3) of his Ohio Fair Wage Act claims for unpaid overtime wages. The Court will briefly address the proposed class definition and then analyze each of the requirements of Rule 23(a) and Rule 23(b)(3).

         A. Class definition

         The class definition proposed by Plaintiff (“All inspection personnel, other than chief inspectors and lead inspectors, who were paid a day rate and who worked for Defendant under a Spectra contract at any time since three years prior to filing of this Complaint”) does not on its face limit the class to those inspectors who worked in Ohio. However, Plaintiff seeks to certify this class only for his Ohio Fair Wage Act claims, and the Complaint specifies that Plaintiff brings the putative Rule 23 class action “on behalf of all similarly situated individuals within the State of Ohio.” (Doc. 1, Complaint ¶ 26). Moreover, both parties in their briefing refer to the proposed class as comprising only those inspectors who worked in Ohio. (Doc. 60-1, Pl.'s Mem. in Supp. at 1; Doc. 69, Def.'s Mem. in Opp. at 10; Doc. 60-8, Class List). The Court therefore construes Plaintiff's motion to seek certification of the following amended class definition:

All inspection personnel, other than chief inspectors and lead inspectors, who were paid a day rate and who worked for Defendant in Ohio under a Spectra contract at any time since three years prior to filing of this Complaint.

         B. Rule 23(a) Requirements

         1. Numerosity

         Class certification is not appropriate unless the class is so numerous as to render joinder of all members impracticable. Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 541 (6th Cir. 2012); Fed.R.Civ.P. 23(a)(1). “There is no strict numerical test for determining impracticability of joinder, ” Am. Med. Sys, 75 F.3d at 1079, but courts routinely hold that “a class of 40 or more members is sufficient to meet the numerosity requirement.” Castillo v. Morales, Inc., 302 F.R.D. 480, 487 (S.D. Ohio 2014) (Marbley, J.).

         Beyond sheer numbers, Rule 23(a)(1) requires that joinder be “impracticable, ” an inquiry that “requires examination of the specific facts of each case and imposes no absolute limitations.” General Tel. Co. v. EEOC, 446 U.S. 318, 330 (1980). The plaintiff is not required to “establish that it is impossible to join all members of the proposed class[, ]” but simply that joinder “would be difficult and inconvenient.” Swigart v. Fifth Third Bank, 288 F.R.D. 177, 182 (S.D. Ohio 2012) (Black, J.) (quoting Day v. NLO, 144 F.R.D. 330, 333 (S.D. Ohio 1992) (Spiegel, J)). Practicability of joinder is informed by “ease of identifying members and determining addresses, ease of service on members if joined, and geographical dispersion among other things.” Turnage v. Norfolk S. Corp., 307 F. App'x 918, 921 (6th Cir. 2009).

         Here, the parties are in agreement that the proposed class numbers approximately 67 individuals. While this number is larger than the 40-member rule of thumb, MBF argues that joinder would nevertheless be easily accomplished because MBF has produced the names and contact information of all 67 members of the class. Class members are therefore already identified and could easily be served if joined as named plaintiffs. MBF also asserts that, based on the wages it paid potential class members, inspectors do not lack resources to bring their own individual suits. Finally, MBF argues that judicial economy concerns are not implicated when there is no indication that a multiplicity of suits is imminent.

         a. Ease of identifying and serving class members

         While MBF is inarguably correct that that “where class members may be easily identified, joinder is…more practicable, ” Iron Workers Local Union No. 17 Ins. Fund v. Philip Morris, Inc., 182 F.R.D. 523, 530 n.15 (N.D. Ohio 1998), this does not end the Court's inquiry. None of the cases (save one) relied on by MBF in making this argument address an important mitigating factor raised by Plaintiff: employees' fear of their employer's retaliation for pursuing wage and hour claims individually.

         This District has recognized that litigating against one's employer is an inherently fraught proposition that may discourage class members from either opting in to an FLSA collective action or asserting their state law wage and hour claims on an individual basis. Thus, even when class member identities are easily determined from employee rosters, joinder is often nevertheless impracticable. Swigart, 288 F.R.D. at 183 (“In employment class actions like this one, a class member's potential fear of retaliation is an important consideration in deciding whether joinder is impracticable and thus whether the numerosity requirement is satisfied.”); Castillo, 302 F.R.D. at 487 (finding joinder impracticable in an employment class action where “the non-trivial fear of reprisal and posture of economic dependency . . . would likely repress the willingness of the class members to bring suit individually”); Myers v. Marietta Mem'l Hosp., No. 2:15-CV-2956, 2017 WL 3977956, at *3 (S.D. Ohio Sept. 11, 2017) (Marbley, J.) (finding joinder impracticable due to retaliation concerns).

         These decisions have cited with approval similar cases from outside this Circuit. See, e.g., Ladegaard v. Hard Rock Concrete Cutters, Inc., 2000 WL 1774091, at *4 (N.D. Ill.Dec. 1, 2000) (finding in an employment class action that joinder was impracticable due to “[t]he possibility of retaliation” and the “economic dependency involved in the employment relationship [which] is inherently inhibiting” and which is not cured by “the availability of the FLSA action”); Damassia v. Duane Reade, Inc.,250 F.R.D. 152, 163 (S.D.N.Y. 2008) (“Indeed, it may be that in the wage claim context, the opt-out nature of a class action is a valuable feature lacking in an FLSA collective action, insofar as many employees will be reluctant to participate in the action due to fears of retaliation.”); Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 244 (2d Cir. 2011) (“[A]n employee fearful of retaliation or of being ‘blackballed' in his or her industry may choose not to assert his or her FLSA rights.”). See also Sanft v. Winnebago Indus., ...


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