Moss et al v. Crestpark Dewitt LLC et al
ORDER denying 25 Motion to Certify Class. Signed by Judge Susan Webber Wright on 1/14/14. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JEANNIE MOSS, ET AL.,
CRESTPARK DEWITT, LLC, ET AL.,
No. 2:12CV00204 SWW
Opinion and Order
Before the Court is plaintiffs’ motion for class certification pursuant to Rule 23 of the
Federal Rules of Civil Procedure. Defendants responded to the motion and plaintiffs filed a reply.
For the reasons stated below, the motion is denied,
Plaintiffs Jeannie Moss and Dominique Smith worked as a certified nursing assistants at
defendants’ nursing homes in Dewitt, Arkansas, and Helena, Arkansas, respectively.1 They seek to
bring a class action complaint on behalf of all hourly employees at defendants’ four nursing homes
in Arkansas for pay they did not receive when they worked through their lunch breaks. Plaintiffs
assert defendants violated the Fair Labor Standards Act and the Arkansas Minimum Wage Act.
They also bring claims for unjust enrichment and promissory estoppel. The Court denied without
prejudice plaintiffs’ motion for conditional certification of their FLSA claim as a collective action.
Plaintiffs move to certify the following class:
Three other original plaintiffs, who were employed as certified nurse assistants in defendants’
Wynne and Forrest City facilities, withdrew from the lawsuit.
All individuals who were, are, or will be employed by Defendants at their Arkansas
facilities located in Dewitt, Wynne, Forrest City, and Helena, who, at any time
within the three years prior to filing this Complaint through the date of the final
disposition of this action were, are, or will be required to work through their meal
breaks without compensation.
Rule 23(a) of the Federal Rules of Civil Procedure lists four criteria for the maintenance of a
class: (1) the class is so numerous that joinder of all members is impracticable (“numerosity”); (2)
common questions of law and fact exist among potential class members (“commonality”); (3)
claims or defenses of the representative parties are typical of the claims or defenses of the class
(“typicality”); and (4) the representative parties will fairly and adequately protect the interests of
the class (“adequate representation”). In addition to these requirements, a proposed class action
must fall into one of three categories provided under Rule 23(b). Plaintiffs argue their action
meets the requirements of 23(a) and 23(b)(3). Defendants oppose the motion, contending that
plaintiffs’ claims depend on the resolution of too many individualized issues.
A class action is not appropriate merely because plaintiffs have all purportedly suffered a
violation of the same provision of law. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551
(2011). Plaintiffs’ claims “must depend upon a common contention . . . That common contention,
moreover, must be of such a nature that it is capable of classwide 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.” Id.
District courts must engage in a “rigorous analysis” in
determining whether the 23(a) factors are satisfied. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161
The Supreme Court has held that “the commonality and typicality requirements of Rule
23(a) tend to merge. Id. at 2551 n.5 (quoting Falcon, 457 U.S. at 157-58). “Both serve as
guideposts for determining whether under the particular circumstances maintenance of a class
action is economical and whether the named plaintiff's claim and the class claims are so
interrelated that the interests of the class members will be fairly and adequately protected in their
Plaintiffs propose a number of questions of law and fact that they believe are common to
the proposed class, including whether defendants instituted a policy of deducting 30 minutes from
each hourly employee’s time despite knowing employees are frequently unable to
take a full, uninterrupted lunch break and whether defendants failed to institute a functional
reclamation system which would allow hourly employees to receive credit for the breaks through
which they worked. Plaintiffs argue answers to these and other questions are based on systemwide policies and will drive the resolution of their claims.
Defendants argue that automatically deducting a meal period is not per se illegal as long
as the employer provides employees with a method to reclaim the time that they worked during
their meal break.2 Defendants assert that whether or not plaintiffs were aware of the process to
reclaim their time and did not take advantage of it are fact issues peculiar and individualized to
the plaintiffs and not to a class. For example, although plaintiffs testified they were never told or
informed about a procedure to reclaim deducted meal break time, defendants submit evidence that
plaintiffs both signed documents, one of which provides: “In the event an emergency arises and
Defs.’ Br. in Supp. of Resp. to Pls.’ Mot. Collective Action (ECF # 28), Ex. 7.
you are unable to take a scheduled 30-minute lunch break, it is your responsibility to have the
Supervisor who authorized you missing your lunch break to sign your timecard.” 3 The second
document, titled “Agreement of Breaks,” states: “In the event of emergency arises and you are
unable to take your break, it is your responsibility to have the Supervisor who authorized you
missing your lunch break to sign your timecard.”4 Plaintiffs Moss and Smith signed these
documents on their first day of work. Defendants further point to evidence that a former
plaintiff’s time reports show she received payment for lunch breaks that she reported were not
Even if plaintiffs could satisfy the requirements of Rule 23(a), the Court finds that
plaintiffs fail to meet the predominance requirements of Rule 23(b)(3). Class certification is
allowed only 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.”
Fed.R.Civ.P. 23(b)(3). “ The predominance standard requires that common questions
predominate over individual questions, and it “tests whether proposed classes are sufficiently
cohesive to warrant application by representation.” Amchem Prods., Inc. v. Windsor, 512 U.S.
591, 623 (1997). The standard for certification imposed by Rule 23(b)(3) is “far more
demanding” than the commonality requirement of Rule 23(a). Id, at 624.
Id., Ex. 5.
Id. Exs. 3 and 6 (Dilks Aff. and Time Reports of D. Foreman).
“When deciding whether common issues predominate over individual issues under Rule
23(b)(3), the court should conduct a ‘rigorous analysis’ including ‘an examination of what the
parties would be required to prove at trial.’” In re Zurn Pex Plumbing Prods. Liability Litigation,
644 F/3d 604, 611 (8th Cir. 2011)(internal citation omitted).
The nature of the evidence that will suffice to resolve a question determines
whether the question is common or individual. If, to make a prima facie showing
on a given question, the members of a proposed class will need to present evidence
that varies from member to member, then it is an individual question. If the same
evidence will suffice for each member to make a prima facie showing, then it
becomes a common question.
Blades v. Monsanto Co., 400 F.3d 562, 566 (8th Cir. 2005). In this case, a determination of
whether defendants’ timekeeping policy violated the AMWA will require individualized,
testimonial evidence to establish how often each class member worked through a meal break
without compensation and whether the members knew how to reclaim their time. Likewise,
plaintiffs’ unjust enrichment and promissory estoppel claims will depend on individualized
To establish liability under a theory of unjust enrichment, a plaintiff must prove that she
performed a service which benefitted another party and that the plaintiff had a reasonable
expectation of payment. Adkinson v. Kilgore, 970 S.W.2d 327, 331 (Ark. App. 1998). The
evidence reflects that at least one employee knew how to reclaim her lunch break time. To
establish a claim of promissory estoppel would require the consideration of individual evidence
regarding reliance. See Van Dyke v. Glover, 934 S.W.2d 204, 209 (Ark. 1996).
District courts are afforded broad discretion in determining whether or not to certify a
class. Gilbert v. City of Little Rock, 722 F.2d 1390, 1399 (8th Cir. 1983). In making that
determination, “the question is not whether the plaintiff or plaintiffs have stated a cause of action
or will prevail on the merits, but rather whether the requirements of Rule 23 are met.” Eisen v.
Carlisle & Jacquelin, 417 U.S. 156, 178 (1974)(internal quotation and citation omitted).
The Court finds plaintiffs fail to show that there are common questions that could be
resolved on a classwide basis using common proof.
IT IS THEREFORE ORDERED that plaintiffs’ motion for class certification pursuant to
Fed.R.Civ.P. 23 [ECF No. 25] is denied.
DATED this 14th day of January 2014.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
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