220 F.R.D. 55 | W.D. Tex. | 2003
BEFORE THE COURT are Plaintiffs’ Amended Motion for Class Certification (Docket Nos. 31, 79) and Defendant’s Responses (Docket Nos. 40, 91). Aso pending is Plaintiffs Motion to Facilitate Notice under 29 U.S.C. § 216(b) (Docket No. 75). In resolving the issues of class certification, the Court is also mindful of the parties’ prior briefs and responsive briefs, as well as arguments and case law presented at a hearing held on October 7, 2003. Ater careful consideration of the applicable law, it is the opinion of the Court that Plaintiffs’ Motion to Facilitate Notice under 29 U.S.C. § 216(b) (Docket No. 75) should be GRANTED and that Plaintiffs’ Motion for Class Certification (Docket Nos. 40, 91) should be DENIED, as to Plaintiffs’ claims arising under Texas Government Code § 142 and request for class certification under Rule 23.
Factual and Procedural Background
Plaintiffs are police officers employed by the City of San Antonio (“the City”). They complain, under the Federal Fair Labor Standards Act, 29 U.S.C. § 201 et seq (“FLSA”) and Texas Government Code § 142, that the City failed to pay overtime wages for overtime hours worked. Plaintiffs originally filed this claim in state court on December 26, 2002. Defendant removed to the Western District of Texas on January 22, 2003, and the cause was assigned number SA-03-CA-49 (“the Jackson case”). Plaintiffs did not initially file for class certification under this cause number. In fact, six months elapsed between the removal of the Jackson case to federal court and the filing of the motion for class certification. Some time after the Jackson case was filed, additional Plaintiffs filed a separate, but identical action (“the Christian case”) which was assigned cause number SA-03-CA-412. Defendant argues that the second Christian case was filed solely for the purpose of extending the time during which class certification might be granted, as time had arguably expired in the initially filed Jackson case.
Defendant filed a Motion for Partial Summary Judgment in the Jackson case, claiming that it was entitled to an exception to overtime under 29 U.S.C. § 207. Then presiding Judge Prado denied the City’s motion, basing his opinion in large part upon the application of Texas law to the claim. Relying upon section 14.0015(f) of the Texas Local Government Code and affidavits of several individuals, the Court found that Plaintiffs produced sufficient evidence to raise a genuine issue of material fact about the applicability of the exemption under 29 U.S.C. § 207(k).
In July 2003, the two related cases were consolidated, upon the City’s unopposed request. On August 18, the case was transferred to Judge Rodriguez, and reassigned again on August 25 to this Court. Amidst the multiple transfers, Plaintiffs filed the instant motion for class certification and Defendant responded. Pursuant to the opt-in requirements of the FLSA, approximately 190 officers are Plaintiffs in this case.
On October 7, 2003, the parties appeared before the Court and presented argument on the issue of class certification, under Rule 23 for the state law claims and under section 261(b) for the FLSA claims. Based upon the
Discussion
I. A Tale of Two Classes
The FLSA permits an aggrieved employee to bring suit against an offending employer “for and in behalf of himself ... and other employees similarly situated.”
In contrast to this procedure for certification under section 216(b), Rule 23 permits certification of a class of plaintiffs based on several schemes.
To obtain class certification, Rule 23(a) requires the plaintiff to show that the class is too numerous to allow simple joinder; there are common questions of law or fact; the claims or defenses of the class representatives are typical of those of the class; and the class representatives will adequately protect the interests of the class. To receive (b)(3) certification, a plaintiff must also show that the common issues predominate, and that class treatment is the superior way of resolving the dispute.7
When a plaintiff meets this burden and class treatment is the superior method of resolving the dispute, then a court “shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.”
In this ease, Plaintiffs seek a Rule 23 opt-out class for all individuals pursuing the state claims under Texas Government Gode § 142 and a section 216(b) opt-in class for all individuals pursuing the federal claims under the FLSA. The Court notes that under Plaintiffs’ approach, a federal class action procedure rule would apply to the state claims and a federal statute would provide for class creation on the federal claims.
Moreover, Plaintiffs may not rely upon Rule 23’s opt-out class structure to cover both the FLSA claim and the state claim and proceed with both claims and one class. “It is crystal clear that § 16(b) precludes pure Rule 23 class actions in FLSA suits.”
II. The Pendent Plaintiffs Progress
Defendant objects to the formation of a Rule 23 class and a concurrent section 216(b) class. The City argues that the Court will lack personal jurisdiction over any individuals who are class members of the Rule 23 state claim class but who have failed to opt-in affirmatively to the FLSA claim. The City urges that supplemental jurisdiction does not cover these individuals, or in the alternative, that if the Court finds supplemental jurisdiction to so extend then jurisdiction should be declined under 28 U.S.C. § 1367(c).
In 1966, the U.S. Supreme Court addressed the issue of supplemental jurisdiction in United Mine Workers of America v. Gibbs.
In Finley v. United States,
Section 1367 provides exceptions, though, to supplemental jurisdiction,
The Court finds that there are compelling reasons for declining jurisdiction in this case,
In De Asencio v. Tyson Foods,
The instant cause and De Asencio also share a delicate balance. In both cases, the courts must weigh the competing interests of Congress’ express preference for opt-in actions for the FLSA claims with a strong-interest in joining two claims that are grounded in a common nucleus of operative fact.
The Court agrees that the Texas state claims here do not present the same challenges as did the Pennsylvania state claims in De Asencio. Defendant however correctly notes that here, too, the predominance inquiry relevant to section 1367(c)(2) may favor remand of the state claims. Plaintiffs estimate that the number of individuals included as plaintiffs will increase from 190 to over 2000 under the Rule 23 scheme. The heft of the claims before the Court, then, would dramatically favor the state law claim, assuming that not all of thousands of Rule 23 plaintiffs would opt-in to the FLSA claim. This reality would flaunt the Congressional intention that FLSA claims proceed as an opt-in scheme.
The procedural history of this case weighs in favor of remand as the superior means to economy, convenience, fairness, and comity.
Finally, Plaintiffs argue that Fifth Circuit authority cautions against severing the two claims. In In re: Abbott Laboratories, the Court of Appeals addressed a class action brought under Louisiana antitrust laws and held that the Judicial Improvements Act of 1990 overruled Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973).
The Court agrees with Defendant that Plaintiffs have overstated the instruction that Abbott provides to the instant analysis. First, the district court in Abbott relinquished jurisdiction over all the plaintiffs’ claims by ordering remand.
III. Class Expectations
The Court will grant conditional class status under section 216(b) for the FLSA claim. It is within a district court’s discretion to allow a party asserting FLSA claims on behalf of others to notify potential class members that they may choose to “opt-in” to the suit.
First, the district court must weigh whether the evidence presented by the plaintiff sufficiently demonstrates the existence of a “similarly situated” class of employees.
At the second stage, usually at the completion of discovery and upon the defendant’s motion, the district court reexamines the class to ensure that it is indeed composed of similarly situated members.
Here, Plaintiffs have demonstrated that the individual officers are similarly situated in terms of job requirements and pay provisions. Moreover, Defendant has not disputed this contention. Instead, Defendant argues that this ease is not appropriate for notice.
Because the Court has come mid-stream to a ease that has not traveled a straight path, the procedure for conditionally certifying a class under section 216(b) will provide helpful guidance to the parties and the Court in this instance. At the second stage of the Lusardi analysis, Defendant will have an opportunity to move for decertification of the class after discovery.
As to the individuals pursuing the state claim, Defendant requests that the Court retain jurisdiction over the currently named Plaintiffs and decline to exercise jurisdiction over the as-yet-unnamed individuals. Plaintiffs, of course, request that the named individuals be incorporated into the greater Rule 23 class. The Court declines both proposals and instead severs the state claim from the federal claim and remands the state claim.
Federal Rule of Civil Procedure 42(b) grants district courts discretion to sever claims when such action will further convenience, economy or prevent prejudice.
The Court has considered the possibility of duplicate claims in severing and remanding the state claims, but this concern may be guarded against and managed with the aid of counsel. All parties, the Court and the state court to which the state claims are remanded will be on guard to monitor the parallel proceedings. Assuming that Plaintiffs were to win on both the federal and the state claims, this Court assumes that a federal judgment would likely be entered prior to a state judgment, and that in such an event, any federal recovery could be credited against the state court claims. In sum, the parties and the Courts can jointly continue to manage the controversy to ensure a just and efficient outcome.
Finally, Plaintiffs provide a proposed notice and consent form,
Conclusion
Based upon the foregoing, the Court will decline to exercise supplemental jurisdiction over the state law claims and the possible Plaintiffs who would be included into the Rule 23 class on the state claims and would fail to opt-in to the section 216(b) class under the FLSA.
Instead, the Court will conditionally certify the section 216(b) class, order notice to those potential plaintiffs, and remand the state claims to state court.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Facilitate Notice (Docket No. 75) is GRANTED. The parties shall meet and confer upon the contents of the notice and consent form and provide a joint proposed notice and consent form to the Court on or before December 22, 2003. Upon filing of the joint notice and consent form, potential plaintiffs shall have until
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Class Certification (Docket Nos. 31, 79) is DENIED in so much as it requests a Rule 23 class.
IT IS FINALLY ORDERED that Plaintiffs’ claims arising under Texas Government Code § 142 be REMANDED to the state court from whence they came. The clerk is hereby ordered to effect the remand.
. Fed. R. Civ. P. 23.
. Plaintiffs acknowledge that over one hundred officers have opted-in to the FLSA claim, even though the Court had not heretofore granted or authorized notice under section 216(b). Plf's Am. Mot. for Class Cert., at 5.
. 29 U.S.C. § 216(b).
. Id. § 216(b). La Chapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288-89 (5th Cir.1975) (finding that the Rule 23 class action and the § 216(b) representative action are “mutually exclusive and irreconcilable”).
. Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1212 (5th Cir.1995) (citing La Chapelle, 513 F.2d at 289).
. Fed R. Civ. P. 23(b)(l)-(3).
. Sandwich Chef of Texas, Inc. v. Reliance National Indemnity Insurance Co., 319 F.3d 205, 218 (5th Cir.2003).
. Fed. R. Civ. P. 23(c)(2).
. The relevant portion of Rule 23(c)(2) states: "The notice shall advise each member that (A) the court will exclude the member from the class if the member so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if the member desires, enter an appearance through counsel.” FED. R. CIV. P. 23(c)(2).
. Hall v. Burk, 2002 WL 413901, at *2, 2002 U.S. Dist. LEXIS 4163, at *5 (N.D.Tex. Mar. 12, 2002) (citing LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288-89 (5th Cir.1975)).
. La Chapelle, 513 F.2d at 288 (referring to 29 U.S.C.§ 216(b) as "§ 16(b)”).
. 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).
. Id. at 720, 86 S.Ct. 1130.
. Id.
. Id. at 725, 86 S.Ct. 1130.
. Id.
. 490 U.S. 545, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989).
. Id. at 549, 109 S.Ct. 2003.
. 28 U.S.C. § 1367.
. 28 U.S.C. § 1367(a).
. De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 307-08 (3d Cir.2003) (citing Gibbs, 383 U.S. at 725, 86 S.Ct. 1130; 28 U.S.C. § 1367(a); Krell v. Prudential Ins. Co. of Am. (In re Prudential Ins. Co. Am. Sales Practices Litig.), 148 F.3d 283, 303 (3d Cir.1998)).
. 28 U.S.C. § 1367(a).
. See id.; De Asencio, 342 F.3d at 308 (noting that Congress did not provide for preemption of state-law claims with the FLSA).
. "The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if — (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” 28 U.S.C. § 1367(c).
. De Asencio, 342 F.3d at 308, n. 10.
. Id. at 308.
. Id.
. Roark v. Humana, Inc., 307 F.3d 298, 313 (5th Cir.2002) (quoting Carnegie-Mellon University v. Cohill, 484 U.S. 343, 351, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988)).
. See 28 U.S.C. § 1367(c)(4).
. Executive Software N. Am., Inc. v. United States Dist. Court, 24 F.3d 1545, 1557-60 (9th Cir.1994).
. See La Chapelle, 513 F.2d at 288-89.
. De Asencio, 342 F.3d at 301.
. Id.
. Id. at 304-05.
. See 28 U.S.C. § 1367(c)(2).
. De Asencio, 342 F.3d at 309-10.
. See id. at 310.
. Bartleson v. Winnebago Industries, Inc., 2003 WL 22427817, 2003 U.S. Dist. LEXIS 19058 (N.D.Iowa Oct. 24, 2003) (Plaintiffs did not brief this case, as it was decided after the filing of their supplemental briefing, but the Court notes that it fits their argument and will therefore cite it accordingly); Belbis v. Cook County, 2002 WL 31600048, 2002 U.S. Dist. LEXIS 22426 (N.D.Ill. Nov. 13, 2002); Scott v. Aetna Services, Inc., 210 F.R.D. 261 (D.Conn.2002); Ansoumana v. Gris tede’s Operating Corp., 201 F.R.D. 81 (S.D.N.Y. 2001); Kelly v. SBC, Inc., 1998 WL 928302, 1998 U.S. Dist. LEXIS 18643, 5 Wage & Hour Cas.2d (BNA) 16 (N.D.Cal. Nov.13, 1998)
. De Asencio, 342 F.3d at 310.
. In determining that the state law claims would predominate, the Court has considered the recent Eleventh Circuit opinion in Prickett v. DeKalb County, 349 F.3d 1294 (11th Cir.2003). "The [district] court's thinking was that opt-in plaintiffs do not join the action, but instead join specific claims within the action at the time they consent to become a plaintiff. This legal conclusion is not supported by the language of the statute, nor is it supported by any holding of this circuit or any other federal appeals court.” Id. at 1297. Therefore, an opt-in plaintiff to the federal claim, opts in to the action as whole, including both the federal and state claims. This rule does not address the instant decision to remand a state claim when to retain the claim would cause state law claims to predominate the proceedings.
. See Carnegie-Mellon, 484 U.S. at 351, 108 S.Ct. 614; Chicago v. International College of Surgeons, 522 U.S. 156, 173, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997).
. See Crocker v. Borden, Inc., 852 F.Supp. 1322, 1329-31 (E.D.La.1994) (declining to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c)(4) due to complexity of asbestos-related litigation).
. 51 F.3d 524, 525 (5th Cir.1995).
. 529 U.S. 333, 120 S.Ct. 1578, 146 L.Ed.2d 306 (2000).
. Id. at 529-30.
. Id. at 530.
. Id. at 525.
. Id.
. Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989).
. Mooney, 54 F.3d at 1212.
. 118 F.R.D. 351 (D.N.J.1987).
. Mooney, 54 F.3d at 1213-14.
. Id. at 1214 & n. 8 (citation omitted); see also Tucker v. Labor Leasing, Inc., 872 F.Supp. 941, 947 (M.D.Fla. 1994) (citation omitted) (affirming that to establish that employees are similarly situated, a plaintiff must show that the employees are “ 'similarly situated' with respect to their job requirements and with regard to their pay provisions”).
. Id. at 1214.
. Id.
. Id.
. Id.
. Defendant cites Hall, 2002 WL 413901, at *2, 2002 U.S. Dist. LEXIS 4163, at *5 ("The relevant inquiry then is not whether the Court has discretion to facilitate notice, but whether this is an appropriate case in which to exercise discretion.”).
. See Haynes v. Singer Co., Inc., 696 F.2d 884, 887 (11th Cir.1983); Garner, Karn v. G.D. Searle Pharmaceuticals & Co., 802 F.Supp. 418, 422 (M.D.Ala.1991).
. See Hall, 2002 WL 413901, 2002 U.S. Dist. LEXIS 4163.
. Mooney, 54 F.3d at 1214.
. Fed. R. Civ. P. 42(b) provides: “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counter claim, or third-parly claim, or of any separate issue or of any number of claims, cross-claims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States.” See also Applewhite v. Reichhold Chemicals, Inc., 67 F.3d 571, 574 (5th Cir.1995).
. PITs' Mot. to Facilitate Notice (Docket No. 75), Ex. 1.