HILLMAN, D.J.
Ramone E. Vargas ("Vargas"), Randy Flambo ("Flambo") and Gary Civil ("Civil" or "Plaintiff") filed suit against Spirit Delivery & Distribution Services, Inc. ("Spirit" or "Defendant") alleging claims for violation of the independent contractor provision of the Massachusetts Wage Act, Mass.Gen.L. ch. 149, § 148 (the "MWA"), unjust enrichment and quantum meruit. More specifically, Plaintiffs, who worked as a delivery drivers, allege that as a result of unlawfully characterizing them as independent contractors rather than employees, Spirit has deprived them of various rights and benefits to which they are entitled. Plaintiffs further alleges that as a result of mischaracterizing the nature of their employment, Spirit has made illegal deductions from their wages and been unjustly enriched. Plaintiffs sue on behalf of themselves and other similarly situated individuals. Spirit filed cross-claims against Vargas, Flambo and Civil for indemnification.
This Memorandum of Decision and Order addresses Plaintiffs' Motion For Class Certification (Docket No. 59), Defendant's Motion for Summary Judgment (Docket No. 108), and Plaintiffs' Motion for Partial Summary Judgment (Docket No. 112)
Summary Judgment is appropriate where, "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Carroll v. Xerox Corp., 294 F.3d 231, 236 (1st Cir. 2002) (citing Fed. R. Civ. P. 56(c)). "`A "genuine" issue is one that could be resolved in favor of either party, and a "material fact" is one that has the potential of affecting the outcome of the case.'" Sensing v. Outback Steakhouse of Florida, LLC, 575 F.3d 145, 152 (1st Cir. 2009) (quoting Calero-Cerezo v. U.S. Dep't. of Justice, 355 F.3d 6, 19 (1st Cir. 2004)).
When considering a motion for summary judgment, the Court construes the record in the light most favorable to the nonmoving party and makes all reasonable inferences in favor thereof. Sensing, 575 F.3d at 153. The moving party bears the burden to demonstrate the absence of a genuine issue of material fact within the record. Id., at 152. "`Once the moving party has pointed to the absence of adequate evidence supporting the nonmoving party's case, the nonmoving party must come forward with facts that show a genuine issue for trial.'" Id. (citation to quoted case omitted). "`[T]he nonmoving party "may not rest upon mere allegations or denials of the [movant's] pleading, but must set forth specific facts showing that there is a genuine issue of material fact as to each issue upon which [s/he] would bear the ultimate burden of proof at trial." Id. (citation to quoted case omitted). The non-moving party cannot rely on "conclusory allegations" or "improbable inferences". Id. (citation to quoted case omitted). "`The test is whether, as to each essential element, there is "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party."'" Id. (citation to quoted case omitted). "Cross-motions for summary judgment require the district court to `consider each motion separately, drawing all inferences in favor of each non-moving party in turn.'" Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014)(citation to quoted case omitted).
Spirit is a property broker authorized by the U.S. Department of Transportation Federal Motor Carrier Safety Administration to perform services in instate commerce. Spirit provides end-to-end supply chain logistics solutions for its customers. Spirit advertises that it specializes in appliance home delivery, furniture home delivery, and electronic home delivery. Spirit employs approximately forty (40) employees in Massachusetts who perform warehouse operations and clerical or managerial functions. However, Spirit does not transport, deliver, or install its customers' products. Instead, it contracts with motor carriers (also referred to herein as "contractors" or "deliverers") that provide trucks and labor necessary to effectuate endpoint deliveries for its customers.
In June 2011, prior to entering into a business relationship with Spirit, Civil formed Civil Delivery LLC ("Civil Delivery"). Civil is a fifty percent (50%) owner of Civil Delivery and a manager/member
Delivery vehicles were either leased or owned by the contractors. Delivery vehicles were leased through agreements with third parties such as Penske, Ryder and Enterprise. Spirit would, at times, facilitate payment of the lease obligations to the third parties and deduct that amount from the contractors' checks. If the drivers used trucks that they own, Spirit inspected each truck and enforced specifications such as size, color, and the age of the truck. Many of the specifications were imposed by Spirit's customers who required the trucks used by the contractors to have a certain appearance, frequently requiring the drivers to stencil their logo (e.g., Macy's or General Electric) on the truck trailer. Civil's truck only had a Macy' logo; he could not put the logo of his own "company" on the truck. Spirit informed Civil that the truck that he owned did not meet its standards and prohibited him from using it. Specifically, Civil was told he could not use the truck because it was not in compliance with U.S. Department of Transportation regulatory standards.
Spirit's drivers regularly made deliveries five or six days per week. However, under the terms of the Carrier Contract, it was the drivers' companies, not the drivers themselves that were obligated to make the deliveries. The Carrier Contract prohibited Spirit's drivers from using any vehicles identified therein to do delivery work for non-Spirit customers during the term of the agreement without obtaining Spirit's prior written consent. Drivers could use vehicles not identified in the Carrier Contract to do other work. Additionally, Drivers could not use equipment identified in the Carrier Contract which they purchased or leased to make deliveries for Spirit customers, when making deliveries for non-Spirit customers without Spirit's prior written consent.
The terms of the Carrier Contract allowed Spirit to terminate contractors and cease assigning them deliveries if they failed to comply with "performance metrics" imposed by it, or if they utilized the services of any brokers or subcontracted delivery of any freight without its prior written consent. Moreover, the Carriers Contract required the contractors to: (1)
Spirit undertook various obligations in its customer contracts, and imposed these requirements on the contractors. For example, Spirit had the right to require contractors to wear and purchase uniforms bearing the logo of Spirit's retailer clients, such as Macy's or General Electric when required by Spirit's contract with such customers. Spirit's contract with Macy's required drivers/contractors to wear "booties" over their feet, take time to impress the customer, and vacuum under all furniture and bedding.
There is a dispute between the parties as to the control Spirit maintained over contractors' daily activities and delivery schedules. Spirit's customers had various requirements related to the delivery times for their merchandise, including restrictions on how early in the morning a delivery could occur. Among the disputed issues are whether Spirit dictated the specific routes contractors followed to make their deliveries each day (Civil's version), or whether the contractors advised Spirit in advance of the time they wish to begin their routes. For example, according to Spirit a driver, like Civil, would advise it on Tuesday morning of his desired start time and sequence of deliveries for the following Wednesday—it did not require Civil to report to the requisite facility at a specific time. However, drivers generally reported to their assigned warehouses by 5:00 or 5:30 a.m. to complete a daily delivery schedule that often took them into the evening hours.
All drivers were assigned I.D. numbers and required to undergo background checks before working with Spirit. There are occasions when Spirit refused to hire drivers based on the result of the background
Spirit would receive daily reports from some of its customers about late deliveries from the day before which it would then address with the drivers. They would get a report every morning of what trucks ran late, how many late stops they had to customers. Drivers were reminded every morning that if they were going to run late, they had to call dispatch so that dispatch could call the customer and let them know the delivery would be late. Some of Spirit's customers required drivers to use tablets on which they could input different information required by the customer, such as, their arrival at each stop, and the time that each job is completed. Such information permitted the driver's activities to be tracked in "real time" and allowed Spirit to notify the customer of any problems. A Spirit Manager, Robert Dionne ("Dionne"), explained as follows:
Spirit also tracked "real time" GPS data to see where the driver is located. Dionne explained the reason for doing so:
The tablets and GPS information data referred to by Dionne were required by Macy's. Spirit would notify Macy's of any problems and Macy's would notify its customers. Macy's, not Spirit, owned the system which was used to view contractors' progress on their routes. Pursuant to Spirit's contract with Macy's, drivers had to call Spirit's dispatch if they were running late for a delivery. A Spirit manager estimated that Spirit drivers performing Macy's deliveries contact dispatch approximately thirty times per day. Spirit's customer Best Buy required drivers to call an 800 number to update the retailer and Spirit every two or three stops throughout the day in order to keep track of the driver's progress. General Electric operated an application that contractors accessed via smart phone to update delivery information.
Spirit's customers maintained and operated their own customer satisfaction surveys. For example, Macy's conducted customer satisfaction surveys which required drivers to ask customers to take a phone survey about the driver's performance. Macy's also sent e-mails to customers asking the customers to grade the drivers' performances. Spirit did not communicate the response from any such surveys to the drivers. Using the information provided by customers, Spirit's retailer client(s) maintained and accessed performance matrices for all drivers. Macy's used the performance matrices to determine whether the drivers would receive a bonus. Macy's, not Spirit, determined which drivers were eligible for a bonus. The applicable performance standards were set in the Carrier Contract. If a driver's performance fell below the standards set by one of Spirit's customers, a Spirit manager would meet with the contractor to address the driver's poor performance. Spirit had the power to terminate the driver if his performance did not improve.
Spirit compensated drivers on a per-stop basis, without regard to the content or quantity of the goods the driver delivered, with a minimum flat-rate paid on days where a driver has few stops scheduled. Contractor compensation varied from customer to customer and by area. Compensation was agreed to in the Carrier Contract and could not be negotiated by drivers. Spirit made deductions from the contractors' checks for "customer disappoints" such as a driver's failing to make a delivery within the window of time that the customer was expecting delivery. In addition, if customers claimed that the drivers had caused damage to their merchandise or residences, Spirit communicated with the customer and determined whether the drivers were responsible for the damage. The contractor had an opportunity to explain the circumstances surrounding the incidents of property damage. Spirit deducted money from the contractor's compensation to pay for the damages where it was shown that the contractor was responsible for the damage.
In Count I of the Amended Complaint, Civil asserts claims against Spirit under the independent contractor provision
Mass.Gen.L. ch. 149, § 148B. The employer can treat the worker as an independent contractor only if it establishes all three prongs—where the employer cannot do so, the worker must be treated as an employee. See Chambers, 476 Mass. at 100, 65 N.E.3d 1. Spirit asserts that it is entitled to summary judgment on Civil's claim that it violated the independent contractor provision of the MWA because the statutory scheme is preempted by the Federal Aviation Administration Authorization Act of 1994, 49 U.S. C. § 14501 et seq. ("FAAAA"). Civil, on the other hand, asserts that he is entitled to summary judgment on his claim that Spirit violated the MWA because the independent contractor statutory scheme is not preempted by the FAAAA and because, as a matter of law, Spirit cannot satisfy the independent contractor provision's three prong test (and therefore, cannot rebut the presumption that he was an employee).
In Count II of the Amended Complaint, Civil asserts a claim against Spirit for unjust enrichment on the grounds that by treating him as an independent contractor,
DaSilva, 227 F.Supp.3d at 157, 2017 WL 58953, at **2-3 (internal quotation marks, modifications, citations and citations to quoted cases omitted).
In determining whether the FAAAA preempts an individual's claim for violation of state wage laws, the Court "`must carefully evaluate even generally applicable state laws for an impermissible effect on carriers' prices, routes and services' and `engage with the real and logical effects of the state statute, rather than simply assigning it a label.'" Id. at 158-59, 2017 WL 58953, at *4 (quoting Mass. Delivery Ass'n. v. Coakley, 769 F.3d 11, 18 (1st Cir. 2014))(rejecting application of categorical approach exempting from preemption or finding preemption, over all generally applicable state labor laws). While addressing FAAAA preemption in regards to state wage laws, "[t]he First Circuit has held that a state law's potential impact on prices, routes, and services is sufficient for preemption if that impact is significant, rather than tenuous, remote, or peripheral. The potential impact need not
In Schwann v. FedEx Ground Package Sys., Inc., 813 F.3d 429, 440 (1st Cir. 2016), a case involving delivery drivers suing FedEx for violation of the MWA, the First Circuit was asked to hold that the independent contractor provision's three prong test for determining an "employee" is preempted by the FAAAA. However, the First Circuit found that the only issue before it was preemption of the Prong 2
In order to determine whether Prongs 1 and 3 are preempted, it is important to first understand the First Circuit's reasons for finding preemption with respect to Prong 2. Prong 2 provides that a worker is an employee under the MWA unless the worker preforms services that outside employer's usual course of business.
Id. (internal citations omitted). Prong 1, on the other hand, provides that a worker can be classified as an independent contractor if the employer does not control or direct the worker's performance of his service. Under this prong, "the crux of the inquiry is in the actual relationship between the parties, and whether the [worker] performs his work in fact `with minimal instruction.' `The essence of the distinction under common law has always been the right to control the details of the performance . . . and the freedom from supervision not only as to the result to be accomplished but also as to the means and methods that are to be utilized in the performance of the work.'" Ruggiero v. Am. United Life Ins. Co., 137 F.Supp.3d 104, 113 (D. Mass. 2015)(internal citation, citation to quoted case and internal quotation marks omitted). Prong 3 provides where a worker is customarily engaged in an independently established trade, occupation or business which is of the same nature of the services performed by the employer, then that worker may be an independent contractor. "`The critical inquiry under this prong is whether the worker is capable of performing the service to anyone wishing to avail themselves of the services or, conversely, whether the nature of the business compels the worker to depend on a single employer for the continuation of the services.' In the case law, the line is drawn between the worker [who] is wearing the hat of an employee of the employing company and one who is wearing the hat of his own independent enterprise.'" Id., at 123-24 (citation to quoted case and internal quotation marks omitted).
The factors for satisfying both Prongs 1 and 3 are typical of the elements used to determine independent contractor status in many states and for purposes of federal law. See DaSilva, 227 F.Supp.3d at 158-60, 2017 WL 58593 at *4; Chambers, 476 Mass. at 106 n. 15, 65 N.E.3d 1. Therefore, they are less likely to have an effect on a carrier's pricing, routes and services. Id. ("state laws that are more or less nationally uniform, and therefore pose no patchwork problem, or that have less of a reference to and effect on a carrier's service and routes pose closer questions than the that presented in this case" quoting Schwann, 813 F.3d at 440). It is true that to some extent Prong 1 limits the direction and control which an employer can maintain over a worker and still have him characterized as an independent contractor. However, the question is whether Prongs 1 and 3 have a significant restraint on the business model of an employer, like Spirit, such that the employer is compelled to abandon its independent contractor model all together.
Spirit asserts that because it is a broker not a motor carrier
First, Spirit cites no legal authority in support of its assertions that if Civil, and similarly situated drivers, are found to be "employees" for purposes of the MWA, it status under the FAAAA would become that of a "carrier," which would have a significant impact on the way it is required to do business, i.e., the services it provides and, consequently, its pricing. Moreover, in assailing the affect that application of Prongs 1 and 3 would have on its business model (i.e., its status as a broker, as opposed to carrier), Spirit ignores the obvious—it can structure its agreements with drivers such as Civil to ensure that they are properly classified as "independent contractors" by: (1) limiting the control and direction maintained over the drivers' performance (both under the agreement and in fact), and (2) allowing the drivers/drivers' business to do delivery work outside of the work performed for Spirit and it customers. Accord DaSilva, 227 F.Supp.3d at 158-60, 2017 WL 58953, at *4 (Prongs 1 and 3 still allow carrier to use independent contractor model so long as carrier does not exert a certain level of control over driver or prevent them from engaging in independently established trade). Additionally, Spirit's argument regarding the affect Prongs 1 and 3 would have on its status as a "broker" for purposes of the FAAAA was made by the defendant in DaSilva and summarily rejected by Chief Judge Saris:
Id., at 160, 2017 WL 58953, at *5. That leaves the more generic argument that Prongs 1 and 3 are preempted by the FAAAA because they significantly impact the delivery service industry. Spirit argues that "empirical" evidence is not necessary to establish that FAAAA preemption is warranted, rather the courts must logically analyze the effect that application of the statutory scheme would have on the services at issue. I agree. However, Spirit must still make more than conclusory allegations that a finding that Civil and other drivers are employees for purposes of the MWA would have a significant impact on its process, routes or services.
Outside of its allegations relating as to how application of Prongs 1 and 3 could affect is classification as a "broker" under the FAAAA (which I have previously rejected), Spirit asserts only that if claims are permitted to be brought pursuant to Prongs 1 and 3, its services would be significantly impacted because such claims would dictate those with whom it can contract. However, countrywide there have been a proliferation of state wage act claims against delivery carriers similar to the claims Civil asserts in this action. Almost uniformly, courts, including courts in this District, that have addressed this issue have found that state laws that define employees for purposes of state wage claims, such as Prongs 1 and 3, are not preempted by the FAAAA. See Costello v. BeavEx, Inc., 810 F.3d 1045 (7th Cir. 2016)
In finding that state wage law claims are not preempted by the FAAAA, the courts are often persuaded by the fact that enacting statutory schemes that protect workers, such as wage laws, are traditionally within the police powers of the state and that while many rules and regulations applicable to carriers affect their price, routes and services, such impact is generally tenuous and does not require the carriers to change their business model. The independent contractor provision of the MWA was enacted by the Massachusetts legislature to grant eligible workers "employee" status thereby giving them the benefits and rights of employees. See Chambers, 476 Mass. at 100, 65 N.E.3d 1. In this case, Spirit has failed to convince the Court that application of Prongs 1 and 3 of that provision would have any impact on its routes, or that any impact on its pricing or services would be more than tenuous. Therefore, I find that Prongs 1 and 3 are not preempted by the FAAAA.
Spirit also asserts that Civil's unjust enrichment claim is preempted by the
Civil asserts that based on the record before the Court, the undisputed facts establish as a matter of law that he is an "employee" of Spirit for purposes of the MWA. See Ruggiero, 137 F.Supp.3d at 113 ("Whether the defendant has carried its burden under § 148B(a)—on facts that are undisputed—is a question of law"). I disagree. With respect to Prong 3, there are clearly material issues of fact as to whether during the course of his business relationship with Spirit Civil was capable of performing delivery services for non-Spirit customers. It is a much closer case as to whether Spirit can satisfy Prong 1 of the independent contractor provision. In order to satisfy Prong 1, Spirit must show that Civil is free from control and direction in connection the performance of the service he performed—bearing in mind that the provision is not read so narrowly as to require the worker to be entirely free from direction and control. Civil has asserted facts, which, if undisputed, would establish that Spirit not only exercised a high degree of direction and control over him, it micromanaged almost every aspect of his performance. Spirit, on the other hand, has put just enough material facts in dispute to preclude a finding that as a matter of law, it cannot satisfy Prong 1. More specifically, Spirit has rebutted Civil's contention that it controlled when he was required to show up, how is truck was loaded, who determined the route he followed and the order in which deliveries were made. While I am inclined to find that the facts largely support a finding that the degree of control Spirit exercised over Civil was such that he is an "employee" for purposes of the MWA, there are genuine issues of material fact which are best decided by a jury. Therefore, Civil's motion for partial summary judgment is denied.
Civil seeks class certification of his state law claims pursuant to Fed.R.Civ.P. 23. In a Rule 23 class action, each individual/entity who falls within the definition of the class is deemed a class member and is bound by any final judgment (favorable or not), unless s/he has opted out of the class. The surviving count of the Amended Complaint (Count I) asserts a claim for violation of the independent contractor provision of the MWA. Civil seeks to certify as a class:
Civil also seeks to be appointed as class representative and to have Lichten & Liss-Riordan, P.C. appointed as class counsel.
A proposed class under Rule 23(a) must meet the following four requirements:
To be certified as a class under Rule 23, the number of members must so numerous that joinder of all would be "impracticable." "`No minimum number of plaintiffs is required to maintain a suit as a class action, but generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met.'" Id. (citation to quoted case omitted). In this case, Civil asserts that based on Spirit's own records, it entered into approximately 19-60 Carrier Agreements per year, during the relevant class period. Accordingly, Civil estimates that the class is well over sixty drivers—a contention that is not challenged by Spirit and which is borne out by the record. Therefore, Civil comfortably meets the numerosity requirement. See DeRosa v. Massachusetts Bay Comm. Rail Co., 694 F.Supp.2d 87, 98 (D. Mass. 2010)(classes of forty or more have been found sufficient to meet numerosity requirement).
Rule 23 requires that there be questions of law or fact common to the class. More specifically, "the class claims must depend upon a `common contention' that is `capable of class wide resolution-which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.' In other words, the commonality requirement is met where the `questions that go to the heart of the elements of the cause of action' will `each be answered either `yes' or `no' for the entire class' and `the answers will not vary by individual class member.'" Garcia, 98 F.Supp.3d at 285 (Internal citations and citation to quoted case omitted). In this case, Civil alleges that Spirit improperly classified its drivers as independent contractors when they were actually "employees" for purposes of the MWA. As a consequence, Spirit has allegedly violated the MWA by subjecting Civil and other similarly situated individuals to improper deductions from their compensation checks and shifting expenses to the drivers.
Civil asserts that the class is defined by the common legal question of the drivers' employment status, that is, whether Spirit has misclassified him and other delivery drivers as independent contractors in violation of the independent contractor provision of the MWA. Civil also asserts that the employment status of proposed class members can be resolved through common evidence. He argues that Spirit's ability to meet its burden to satisfy Prongs 1 and 3 of the MWA's independent contractor provision will turn on "class wide" evidence regarding its practices and policies rather than on evidence regarding
Given that the record before me shows that drivers worked for different Spirit customers who set their own standards and requirements, it remains an open question as to whether individualized scrutiny will be required as to each class member both on the issue of whether they were "employees" and, if they were, the extent to which Spirit is liable to them. At the same time it appears that answers to such inquiries should be readily ascertainable through a common source—Spirit's corporate records. Moreover, given the nature of the allegations, the issue of when/if the drivers created corporate entities and whether those corporate entities continued to exist after the relationship with Spirit ended is ultimately of minimal relevance to the proposed classes' MWA claim and should not require a significant amount of individualized evidence: the primary issues will be how much control Spirits exercised over the drivers/corporate entities and whether under the terms of the Carrier Agreement and, in practice, such drivers/corporate entities had the right to avail themselves of other jobs while working for Spirit. See note 3, supra. Under the circumstances, the Court finds that Civil's allegation that Spirit's system wide policy of mischaracterizing its drivers as independent contractors in violation of the MWA satisfies the commonality requirement.
"Typicality," as the term suggests, requires that the claims of the representative plaintiff be typical of the claims of the class. The typicality requirement is met "when [the representative plaintiff's] injuries arise from the same events or course of conduct as do the injuries of the class and when plaintiff[s'] claims and those of the class are based on the same legal theory." In re Credit Suisse-AOL Sec. Litig, 253 F.R.D. 17, 23 (D. Mass. 2008). This does not mean that the representative plaintiff's claims must be identical to those of proposed class members, rather the "`question [is] whether the putative class representatives can fairly and adequately pursue the interests of the [proposed] class members without being sidetracked by their own particular concerns.'" Id. (citation to quoted case omitted).
In this case, Spirit asserts that Civil's claims are not typical of the claims of the proposed class. More specifically, Spirit argues that the corporate status of the various class members who contracted with it and the presence of some contracts with individuals and absence of contract with others destroys any possibility of a finding that Civil's claims are typical of the proposed classes' claims. Essentially, Spirit's arguments with regard to typicality mirror its argument with respect to commonality: individual inquiry will be required to as a result of the differing corporate status of the proposed class members, for example, to determine whether the corporate structure of each proposed class member's company was legitimate. I disagree and find that Civil's alleged injuries arise from the same events and course of conduct as those of the proposed class members.
Spirit also challenges whether Civil satisfies the adequacy requirement. More specifically, Spirit essentially argues that Civil lacks the integrity to represent the class because he failed to provide complete personal and corporate tax returns relating to the services performed for Spirit. I am troubled by Civil's failure to provide un-redacted, complete tax records given that his corporation existed prior entering a relationship with Spirit and apparently employed other individuals. It is likely that at trial, issues will be raised concerning Civil Delivery's employment of other individuals and how it treated them for tax purposes. How Civil Delivery characterized compensation received from Spirit on his individual and corporate tax returns may also be issues addressed during the course of the trial. Nevertheless, I do not at this time find that such conduct makes Civil inadequate to represent the interests of the class. Cf. Randle v. Spectran, 129 F.R.D. 386, 392 (D. Mass. 1988)(putative class representative's failure to file tax returns, while serious, is not so conclusive as to individual's honesty or capacity for truthfulness to compel conclusion that he cannot adequately represent class). As to the second prong of the adequacy determination, i.e., whether Civil and his counsel will vigorously prosecute the case, I am satisfied that they will do so. I am also satisfied that Civil's counsel has demonstrated that they are qualified, experienced and are also fully prepared to represent the class to the best of their abilities. Accordingly, I find that they typicality and adequacy requirements are met.
I find that all of the Rule 23(a) requirements are met and therefore, that class certification thereunder is appropriate. However, in order to obtain class certification, Civil must also establish that the action may be maintained under Fed. R.Civ.P. 23(b)(1),(2) or (3). See Fed. R.Civ.P. 23(b); Smilow v. Southwestern Bell Mobile Systems, Inc., 323 F.3d 32, 38 (2003).
Civil also asserts that he has satisfied Rule 23(b)(3), which requires, in relevant part that:
Id. The factors to be considered by the Court in making this finding include:
Id.
In order to establish predominance, the putative class representative must show that the proposed class is "`sufficiently cohesive to warrant adjudication by representation.'" "While `the predominance criterion is far more demanding' than the commonality requirement, it presumes that individual issues will exist. The heart of the predominance inquiry is whether the `uncommon questions,' outweigh the commonalities. `Rule 23(b)(3) requires merely that common issues predominate, not that all issues be common to the class.' Put another way, there must be a `sufficient constellation of common issues bind[ing] class members together . . . .'" Donovan v. Philip Morris USA, Inc., 268 F.R.D. 1, 28 (D. Mass. 2010)(internal citations and citation to quoted cases omitted). In this case, I am satisfied that common issues predominate. Moreover, the proposed relief, in the form of monetary damages, is common to all class members. As discussed, there may be some individual issues, however, these uncommon issues do not outweigh the common ones. Therefore, on the whole, common issues predominate.
"Superiority exists where `there is a real question whether the putative class members could sensibly litigate on their own for these amounts of damages, especially with the prospect of expert testimony required.'" Id., at 29 (citation to quoted case omitted). While class members probably could litigate the claims on their own, given that some class members worked for Spirit only for a limited period and are likely to recover a minimal amount, pursuing individual claims would be impractical. Moreover, as pointed out by Civil, multiple actions would result in increased expense for the parties and the Court as the result of duplicative discovery, multiple court proceeding, etc. While I do not necessarily find the argument compelling, I also give some weight to Civil's assertion that in the employment context, individual's decline to bring suit because of the fear of retaliation.
I agree with Civil that it will be far more efficient and economical, both to the class members and the Court, for this matter to be pursued as a class action rather than a series of individual suits. Accordingly, I find that this matter may be maintained as a class action under Rule 23.
1. On or before April 7, 2017, Civil shall provide the Court with a proposed class certification Order defining the class
2. Spirit is ordered to produce to Civil by April 12, 2017, the list of names and current or last known mailing and e-mail addresses and telephone numbers of the individual and/or entities that may belong to the collective action.
