Felix ENCINAS, et al., Plaintiffs, v. J.J. DRYWALL CORPORATION, et al., Defendants.
Civil Action No. 08-1156 (RWR)
United States District Court, District of Columbia.
March 8, 2010
RICHARD W. ROBERTS, District Judge.
Finally, the District contends that granting leave to amend would be futile because Davis‘s proposed amended complaint does not properly plead a False Claims Act violation. As noted above, Davis‘s proposed amended complaint does not specifically allege that the supposed false claim was submitted to the federal government. Actual submission to the federal government of an alleged false claim is, as the District points out, “the ‘sine qua non of a False Claims Act violation.” Def.‘s Opp‘n at 17 (quoting United States ex rel. Clausen v. Lab. Corp. of America, 290 F.3d 1301, 1311 (11th Cir. 2002)). Therefore, the District argues, Davis‘s proposed amended complaint could not survive a motion to dismiss.
The District cannot sustain this argument—whatever its merits—in light of concessions the District makes in its opposition to plaintiff‘s motion. In its opposition, the District agrees that “the existing complaint alleges that the District‘s Medicaid program submitted [a] false claim to the federal government.” Def.‘s Opp‘n at 12 (citing Compl. ¶¶ 18, 19, 21, 30, 32). The paragraphs in the existing complaint that the District cites for this proposition, however, are materially indistinguishable from—and at times identical to—paragraphs in the proposed amended complaint. Compare Compl. ¶¶ 18, 19, 21, 30, 32, with Prop. Amend. Compl. ¶¶ 15, 19, 21, 30, 32. Having conceded that the original complaint adequately alleges that the District presented false claims to the federal government, the District cannot now contend that the proposed amended complaint—materially indistinguishable from the original complaint in this respect—fails to do so.
Accordingly, it is hereby ORDERED that [73] Davis‘s motion to amend his complaint is GRANTED; and it is further
ORDERED that [49] the District‘s motion for summary judgment is DENIED as moot.
SO ORDERED.
MEMORANDUM OPINION AND ORDER
RICHARD W. ROBERTS, District Judge.
Plaintiffs Gabriel and Felix Encinas and Silvano Carbajal bring claims on their own behalf and on behalf of all others similarly situated against defendants J.J. Drywall Corporation and Jose Luis Jimenez under the Fair Labor Standards Act (“FLSA“), codified at
The plaintiffs have filed unopposed motions to conditionally certify the collective class challenging the denial of overtime compensation under the FLSA and to certify subclasses of plaintiffs asserting claims under District of Columbia and Maryland Law under Rule 23 of the Federal Rules of Civil Procedure. Because the plaintiffs have made the modest factual showing necessary for conditional certification under the FLSA and satisfied the requirements of Rule 23 to certify the state sub-classes, their unopposed motions will be granted.
BACKGROUND
Defendant J.J. Drywall, owned by pro se defendant Jose Luis Jimenez, installs drywall in commercial construction sites in Washington, D.C. and Maryland. (Compl. ¶¶ 7, 9, 12.) J.J. Drywall employed plaintiffs Gabriel and Felix Encinas and Silvano Carbajal as drywall mechanics. (Id. ¶¶ 4-6.) Plaintiffs allege in their complaint that Gabriel and Felix Encinas worked more than forty hours in a workweek but did not receive time and one-half overtime compensation for those hours. (Id. ¶ 19.) Plaintiffs further allege that J.J. Drywall has a policy of not paying its drywall workers for overtime hours worked and of deducting and retaining ten percent of its drywall employees gross wages without “legal authorization or justification for the deductions.” (Id. ¶¶ 20-21.)
Plaintiffs move to conditionally certify a collective action under the FLSA for all similarly situated employees who did not receive time and one-half compensation for overtime, and to certify Washington, D.C. and Maryland sub-classes under
I. FLSA CONDITIONAL CERTIFICATION
The FLSA provides that “no employer shall employ any of his employees ... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.”
While the D.C. Circuit has yet to articulate the procedure for certifying a class under the FLSA, courts in this district typically engage in a two-step process. First, “plaintiffs must make a ‘modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.‘” Castillo, 517 F.Supp.2d at 445 (quoting Chase v. AIMCO Props., 374 F.Supp.2d 196, 200 (D.D.C. 2005)). Such a showing, as an initial matter, satisfies the FLSA requirement that putative class members be similarly situated to the plaintiffs, id., and is “ordinarily based mostly on the parties’ pleadings and affidavits.” Chase, 374 F.Supp.2d at 200; see also McKinney v. United Stor-All Ctrs., Inc., 585 F.Supp.2d 6, 8 (D.D.C. 2008) (noting that “[t]his showing may be made through pleadings and affidavits that demonstrate that ‘the putative class members were together the victims of a single decision, policy or plan’ that violated the law” (quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 n. 8 (5th Cir. 1995))). Second, defendants may move at the close of discovery to decertify the conditional class if the record establishes that the plaintiffs are not, in fact, similarly situated. Castillo, 517 F.Supp.2d at 445.
Because conditional certification is not binding and is merely meant to facilitate providing notice to potential class members so that they may choose to opt in to the collective action, “[t]he court employs a lenient standard” in making such a determination. McKinney, 585 F.Supp.2d at 8. While the FLSA does not define “similarly situated[,]” id., courts have considered three factors that bear on the commonality of the claims: “(1) whether [putative class members] all worked in the same corporate department, division and location; (2) whether they all advanced similar claims; and (3) whether they sought substantially the same form of relief.” Hunter, 346 F.Supp.2d at 119 (quoting Lawrence v. City of Phila., No. 03-CV-4009, 2004 WL 945139, at *1 (E.D. Pa. Apr. 29, 2004)). In Castillo, the court conditionally certified a class even though some putative class members did not have identical job titles or duties and worked in different locations. It found these distinctions immaterial in light of the substantive similarity of the putative class members’ job responsibilities, their shared classification as non-exempt for purposes of the FLSA, and the allegation that the employer subjected all of its workers to a uniform payroll policy. 517 F.Supp.2d at 446-48.
Here, the putative class members are similarly situated to the plaintiffs. As in Castillo, the plaintiffs allege that “the duties and responsibilities of the jobs held by members of the proposed Collective Class were the same as or substantially similar to the duties and responsibilities of the jobs held by Plaintiffs Gabriel Encinas and Felix Encinas.” (Compl. ¶ 69.) The named plaintiffs worked for J.J. Drywall installing drywall and insulation at various construction sites (see Pls.’ Mem. of P. & A. in Supp. of Mot. for Conditional Certification of Collective Class (“Pls.’ § 216(b) Mem.“), Gabriel Encinas Decl. ¶¶ 11, 16; Compl. ¶ 4), and the
“The scope of a collective action for overtime pay is limited, however, in that putative class members must affirmatively opt in to the action in order to become part of the lawsuit.” Cryer v. Intersolutions, Inc., Civil Action No. 06-2032(EGS), 2007 WL 1053214, at *1 (D.D.C. Apr. 7, 2007). To opt in to the class, a plaintiff must give “his consent in writing[,]” and such consent must be filed in the court in which the suit is brought.
Plaintiffs also move for an order directing defendants to supply the names, last known addresses, and telephone numbers of all employees in the putative class. (Id. at 13.) A district court may order a defendant to produce the names and last known addresses of putative FLSA collective action class members in order to facilitate providing these individuals with notice. See Hoffmann-La Roche, 493 U.S. at 170 (finding that “[t]he District Court was correct to permit discovery of the names and addresses of the discharged employees” to facilitate notice of collective action under
II. RULE 23 CERTIFICATION
The plaintiffs also move to certify a Washington, D.C. sub-class and a Maryland sub-class under Rule 23. These sub-classes would include all hourly-paid or piece-work drywall finishers, drywall mechanics, carpenters, or mechanics who were not paid for all hours worked or had ten percent deducted from their gross wages, and who were employed by J.J. Drywall in Washington, D.C. or Maryland between July 1, 2005 and the date of final disposition of this action.2 (Pls.’ Mem. of P. & A. in Supp. of Pls.’ Mot. for Order Certifying Classes and Appointing
A. Rule 23(a) requirements
1. Numerosity
“Rule 23(a)(1) permits maintenance of a class action if ‘the class is so numerous that joinder of all members is impracticable.‘” Taylor v. D.C. Water & Sewer Auth., 241 F.R.D. 33, 37 (D.D.C. 2007) (quoting
Plaintiffs claim that there are at least thirty-five members in the Washington, D.C. sub-class and at least thirty members in the Maryland sub-class. (Pls.’ Rule 23 Mem. at 9, 11.) The declaration of plaintiff Gabriel Encinas states that there were at least twenty similarly situated employees at one Washington job site at which he worked and fifteen similarly situated employees at another Washington job site at which he worked. (Id., Gabriel Encinas Decl. ¶¶ 13, 18.) However, the declaration of Miguel Linares confirms only that there were fifteen other similarly situated employees at one Maryland job site. (Id., Miguel Linares Decl. ¶ 16.) Even though both sub-classes fall short of forty confirmed members, the plaintiffs still have satisfied their required showing of numerosity.3 First, because plaintiffs allege a company policy of deducting ten percent of gross wages from its workers at all job sites, the number of class members is potentially much greater than forty for each sub-class, since the declarations cover only three of J.J. Drywall‘s many work sites. Second, because “the recent downturn in the construction sector has made construction-related work, including drywall installation, scarce[,] ... other employees have traveled hundreds of miles in search of work.” (Id., Gabriel Encinas Decl. ¶ 20.) Such geographic dispersion of potential plaintiffs also makes joinder impracticable because it will be difficult for individuals who no longer reside in or around D.C. to take on the responsibilities of prosecuting their cases in this court.
2. Commonality
“Commonality requires that the plaintiff raise claims which rest on ‘questions of law or fact common to the class.‘” Taylor, 241 F.R.D. at 37 (quoting
3. Typicality
“Typicality requires that the claims of the representative be typical of those of the class.” Taylor, 241 F.R.D. at 44 (citing
4. Adequacy of representation
“The fourth and final requirement of Rule 23(a) requires that the court determine whether the proposed representatives can adequately represent the interests of the class.” Taylor, 241 F.R.D. at 45. This requirement is satisfied upon a showing that 1) there is no conflict of interest between the proposed class representative and other members of the class and 2) the proposed class representative “will vigorously prosecute the interests of the class through qualified counsel.” Lindsay, 251 F.R.D. at 55. When determining whether potential class counsel is qualified, a court considers “(i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel‘s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel‘s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class[.]”
The plaintiffs have shown that they will adequately represent the class. Nothing in the record suggests that there is any conflict between the class representatives and members of the sub-classes. Plaintiffs also have retained qualified class counsel. Counsel have already committed substantial time and resources to identifying and investigating potential claims in the action. (See id., Brian Quinn Decl. ¶ 6, Charles Gilligan Decl. ¶ 6.) The firms have experience in handling class actions and labor litigation, providing them expertise in the applicable area of law. (Id., Brian Quinn Decl. ¶¶ 4-5, Charles Gilligan Decl. ¶¶ 4-5.) Finally, counsel have sufficient resources to devote to representing the class. (Id., Brian Quinn Decl. ¶¶ 6-8, Charles Gilligan Decl. ¶¶ 6-8.) The plaintiffs therefore have satisfied all requirements under Rule 23(a).
B. Rule 23(b)
The plaintiffs assert that the class action may be maintained under either Rule 23(b)(1)(A) or Rule 23(b)(3). (Pls.’ Rule 23 Mem. at 16-17.)
A court may certify a class under Rule 23(b)(3) if “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.”
1. Predominance
Whether “common factual and legal issues predominate over any such issues that affect only individual class members[] is related to the commonality requirement of Rule 23(a).” Bynum II, 217 F.R.D. at 49. If the questions of law and fact identified as common to the named plaintiffs and members of the class predominate over any non-common issues, the requirement is satisfied. Id. Here, the common issues of whether J.J. Drywall maintained a policy of retaining ten percent of its drywall workers’ gross wages and whether that practice violates D.C. or Maryland law predominate over any issues that may affect individual class members. All members of each sub-class appear to have identical legal claims, and the only apparent non-common factual issues involve determining at which job sites and for how many hours each member of the class worked.
2. Superiority
“Rule 23(b)(3) favors class actions where common questions of law or fact permit the court to ‘consolidate otherwise identical actions into a single efficient unit.‘” Bynum I, 214 F.R.D. at 40 (quoting Wells v. Allstate Ins. Co., 210 F.R.D. 1, 12 (D.D.C. 2002)). Several of the Rule 23(b)(3) factors weigh in favor of consolidating the class members’ claims into a single action. First, construction-related work has become more scarce during the current economic downturn, and former J.J. Drywall employees have dispersed geographically in search of other work. (Pls.’ Rule 23 Mem., Gabriel Encinas Decl. ¶ 20.) Accordingly, many class members likely have no interest in prosecuting their actions individually, which would require sacrificing time that otherwise could be spent working or pursuing employment opportunities. Second, the plaintiffs assert on information and belief that “there is no current litigation concerning the instant controversy by class members,” in part because “many are non-English speakers, and are unfamiliar with the U.S. court system and may be disinclined to individually engage in such a system with which they are unfamiliar.” (Pls.’ Rule 23 Mem. at 19.) Finally, the common issues of law and fact predominate over individual issues to such a great extent that there does not appear to be any likely difficulty in managing the class action. Thus, the sub-classes will be certified under Rule 23(b)(3).4
C. Notice
Once a court certifies a Rule 23(b)(3) class, “the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.”
The plaintiffs also move for defendants to produce the names, last known mailing addresses, and telephone numbers of all potential members of both sub-classes to facilitate providing them with notice. (Pls.’ Rule 23 Mem. at 20.) A court may order a defendant to cooperate “in identifying the class members to whom notice must be sent” under Rule 23(d). Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 355 (1978). Just as with the collective action, however, plaintiffs have not justified a special need for disclosure of class members’ telephone numbers to facilitate providing them with notice of the suit. Accordingly, defendants will be ordered to produce only the names and last known addresses of class members.
The plaintiffs request that the defendants produce information for all “non-exempt employees in their employ since July 1, 2005.” (Pls.’ Rule 23 Mem. at 20.) However, the plaintiffs’ complaint alleges that J.J. Drywall “classified or treated” the plaintiffs and “all similarly situated employees as exempt employees under FLSA and/or the D.C. Minimum Wage Revision Act.” (Compl. ¶ 17 (internal citations omitted) (emphasis added).) To avoid any confusion, defendants will be ordered to produce the same names and addresses under Rule 23(d) as they will produce under
CONCLUSION AND ORDER
The plaintiffs have made the modest factual showing necessary for conditional certification under the FLSA and satisfied the requirements of Rule 23 to certify the state sub-classes. Accordingly, it is hereby
ORDERED that plaintiffs’ motion [20] for conditional certification of a collective class, approval of notice to potential plaintiff employees, and court-ordered discovery and posting of notice be, and hereby is, GRANTED. The collective class is conditionally certified as all individuals who are or have been employed by J.J. Drywall Corporation as hourly-paid or piece-work employees and employed as drywall finishers, drywall mechanics, carpenters, or mechanics, who perform work similar to the work performed by employees in those classifications, and who worked more than forty hours during any given work week between July 1, 2005 and the date of final disposition of this action. The proposed notice to the collective class is approved. Defendants shall provide to plaintiffs’ counsel the names and last known addresses of all workers employed as drywall finishers, drywall mechanics, carpenters, or mechanics, or in similar jobs, performing drywall installation and finishing work at construction job sites at any time since July 1, 2005. For a period of ninety days from the date of this Order, defendants shall post the approved notice at all of their workplaces and job sites in such a way as to reasonably assure that prospective class members may see it in the ordinary course of performing their duties. It is further
ORDERED that plaintiffs’ motion [19] to certify classes and appoint class counsel under Rule 23 of the Federal Rules of Civil Procedure and to approve proposed notices be, and hereby is, GRANTED. The Washing
RICHARD W. ROBERTS
UNITED STATES DISTRICT JUDGE