Rasberry v. Columbia County, AR

Filing 35

ORDER denying 18 Motion to Certify Class. Signed by Honorable Susan O. Hickey on July 31, 2017. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION

MICHELLE RASBERRY, individually
and on Behalf of Others Similarly Situated

V.

PLAINTIFF

CASE NO. 1:16-CV-1074

COLUMBIA COUNTY, ARKANSAS

DEFENDANT
ORDER

Before the Court is Plaintiff’s Motion for Rule 23 Class Certification. ECF No. 18.
Defendant has filed a response. ECF No. 20. Plaintiff has filed a reply. ECF No. 23. Defendant
has further filed a supplemental response. ECF No. 32. Plaintiff has, likewise, filed a
supplemental reply. 1 ECF No. 34. The Court finds this matter ripe for consideration.
I. BACKGROUND
Plaintiff filed her Complaint on August 4, 2016. ECF No. 1. Plaintiff seeks relief
pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq., and the Arkansas
Minimum Wage Act (“AMWA”), Ark. Code Ann. §§ 11-4-201, et seq. ECF No. 1, ¶ 1. Plaintiff
claims that Defendant failed to pay her, and others similarly situated, overtime compensation for
all hours worked in excess of 171 hours in a twenty-eight consecutive day work period. ECF No.
1, ¶ 1. Specifically, Plaintiff alleges that Defendant has “misclassified [Plaintiff and all those
similarly situated] as exempt from the overtime requirements of the FLSA . . . and the
AMWA[.]” ECF No. 1, ¶ 9. Plaintiff claims that she was a salaried employee employed by

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Neither Defendant nor Plaintiff sought or were given leave to file supplemental pleadings and Plaintiff requests
that Defendant’s supplemental response be stricken. However, although the Court notes that both parties should
have sought leave to file their supplemental pleadings, the Court will consider those filings solely in the name of
judicial economy.

Defendant and “was routinely required to work off-the-clock in excess of 171 hours in a 28-day
work period and was not allowed to report all hours worked, including overtime.” ECF No. 1, ¶¶
15, 18. The Court conditionally certified Plaintiff’s FLSA collective action on January 31, 2017.
ECF No. 25. Upon completion of the FLSA opt-in period, only six individuals, including
Plaintiff, had consented to be part of Plaintiff’s FLSA collective action. ECF Nos. 11, 12, 27, 28,
29.
As for Plaintiff’s AMWA claim, Plaintiff seeks recovery individually and collectively,
proposing to “represent the class [of] salaried jailors who are/were employed by Defendant
within the relevant time period.” ECF No. 1, ¶ 51. In the present motion, Plaintiff asks the Court
to certify a Federal Rule of Civil Procedure (“FRCP”) 23 AMWA class with the following
description:
All of Defendant’s salaried jailors (or similar positions) who worked in the State
of Arkansas at the Columbia County Jail at any time after August 04, 2013.
ECF No. 18, ¶ 5.
II. LEGAL STANDARD
Class certification is governed by Rule 23 of the Federal Rules of Civil Procedure. FED.
R. CIV. P. 23. Federal Rule of Civil Procedure 23 (“Rule 23”) states, in relevant part, that:
One or more members of a class may sue or be sued as representative parties on
behalf of all members only 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). These requirements for class certification under Rule 23(a) are commonly
referred to as “numerosity, commonality, typicality, and adequacy of representation.” Gen. Tel.
Co. v. EEOC, 446 U.S. 318, 330 (1980). In order to be certified under Rule 23, the class must

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satisfy all four requirements of Rule 23(a) and one of the three subsections of Rule 23(b). In re
St. Jude Med., Inc., 425 F.3d 1116, 1119 (8th Cir. 2005). In the present action, Plaintiff asserts
that she has met the requirements of Rule 23(b)(3). ECF No. 19, p. 14. Rule 23(b)(3) states:
A class action may be maintained if Rule 23(a) is satisfied and 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. The matters pertinent to these findings include: (A) the class
members’ interests in individually controlling the prosecution or defense of
separate actions; (B) the extent and nature of any litigation concerning the
controversy already begun by or against class members; (C) the desirability or
undesirability of concentrating the litigation of the claims in the particular forum;
and (D) the likely difficulties in managing a class action.
FED. R. CIV. P. 23(b)(3).
On a motion for class certification, the movant has the burden to affirmatively
demonstrate that the requirements of Rule 23 are met. Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 350 (2011) (“A party seeking class certification must affirmatively demonstrate his
compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently
numerous parties, common questions of law or fact, etc.” (emphasis in original)). A court
considering a Rule 23 motion must conduct a rigorous analysis to determine whether the movant
has satisfied the requirements of Rule 23. Id. at 350-51. In order to make this determination, the
court may find it necessary to “probe behind the pleadings.” Id. at 350. The decision whether to
certify a class action is within the broad discretion of the district court. In re Milk Prods.
Antitrust Litig., 195 F.3d 430, 436 (8th Cir. 1999). In determining whether to certify a class
action, “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 citations omitted).

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III. DISCUSSION
The Court will address each of the requirements of Rule 23 in turn, first discussing
whether Plaintiff has satisfied the requirements of Rule 23(a) and then moving on to Rule
23(b)(3).
A. Requirements of Rule 23(a)
i. Numerosity
To satisfy the numerosity requirement of Rule 23(a), the moving party must demonstrate
that the proposed class is so numerous that joinder would be impracticable. FED. R. CIV. P.
23(a)(1). Although no arbitrary rules regarding class size have been established, the plaintiff
bears the burden of establishing that numerosity does exist. Belles v. Schweiker, 720 F.2d 509,
515 (8th Cir. 1983). “In general, a putative class exceeding 40 members is sufficiently large to
make joinder impracticable.” Alberts v. Nash Finch Co., 245 F.R.D. 399, 409 (D. Minn. 2007);
see also WILLIAM B. RUBENSTEIN, NEWBURG

ON

CLASS ACTIONS § 3:12 (5th ed. 2017) (“[A]

class of 40 or more members raises a presumption of impracticability of joinder based on
numbers alone.”).
In the present case, Plaintiff claims at one point that there are “approximately 45
individuals who worked as jailors” for Defendant (ECF No. 19, p. 8) but later states that “the
class consists of forty-one people in addition to Plaintiff” (ECF No. 34, p. 2). Plaintiff bases her
calculation on information provided by Defendant pursuant to a Freedom of Information Act
request in which Plaintiff requested a list of current and former salaried jailors going back to
August 4, 2013. ECF No. 23, p. 4. Plaintiff states that “Defendant provided a list of forty-five
names[.]” ECF No. 23, p. 4. Plaintiff has also provided the Court with a spreadsheet reflecting
forty-two individuals who would allegedly fall within the class. Accordingly, the Court is
satisfied that the proposed class consists of between forty-one and forty-five individuals. As
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noted above, a putative class size of forty individuals is generally large enough to make joinder
impracticable. As such, the Court finds that Plaintiff has satisfied the numerosity requirement of
Rule 23(a)(1).
ii. Commonality
The second requirement for class certification under Rule 23(a) is that “questions of law
or fact common to the class” must be present. FED. R. CIV. P. 23(a)(2). The commonality
requirement does not require that every question of law or fact be common to every class
member. Paxton v. Union Nat’l Bank, 688 F.2d 552, 561 (8th Cir. 1982). This requirement may
be satisfied when the legal question uniting the class members is substantially related to the
resolution of the case. DeBoer v. Mellon Mortg. Co., 64 F.3d 1171, 1174 (8th Cir. 1995).
Plaintiff asserts that all potential class members suffered under the same allegedly illegal
policies and that “answering the question of whether Defendant should have compensated for the
overtime hours for one plaintiff will answer the question for all.” ECF No. 19, p. 10. Plaintiff
further states that each class member’s claims present the same issue—whether he or she should
have been compensated for overtime hours. ECF No. 19, p. 11. In response, Defendant argues
that individual issues such as “whether there are differences in (1) employee duties and
responsibilities, (2) employee status and classification, and (3) employee hours worked” will
overwhelm alleged common questions. 2 ECF No. 20, p. 5. Defendant further argues that Plaintiff
has failed to provide sufficient proof that there are common questions of law or fact uniting all
potential class members’ claims. ECF No. 20, pp. 4-5. In reply, Plaintiff asserts that to fall within
the proposed class, all potential class members must necessarily share factual commonalities

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Although Defendant makes this argument in regard to the discussion on commonality under Rule 23(a)(2), it is not
germane to that issue. Instead, arguments regarding individual claims “overwhelming” common issues are more
appropriate in regard to Rule 23(b)(3)’s predominance requirement. As such, the Court will consider this argument
in relation to Rule 23(b)(3).

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such as being salaried jailors, or in similar positions, employed by Defendant. ECF No. 23, p. 5.
The Court finds Plaintiff’s arguments on this issue convincing. Although there may be
some uncommon issues, Rule 23 does not require that all questions of law or fact be common.
Each potential class member’s claim will concern the issue of whether Defendant maintained a
policy of misclassifying salaried jailors, or those employed in similar positions, in violation of
the AMWA. Accordingly, Plaintiff has met her burden of showing that there are questions of law
or fact common to the class.
iii. Typicality
The third requirement under Rule 23(a) is that the claim or defense of the representative
party must be typical of the claims or defenses of the class. FED. R. CIV. P. 23(a)(3). Typicality
requires that other members of the class have the same or a similar grievance as the plaintiff.
Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1540 (8th Cir. 1996). In general, typicality is
established if the claims of all the class members arise from the same event or course of conduct,
or are based on the same legal theory. Paxton, 688 F.2d at 561-62.
In the case at bar, Plaintiff asserts that she “makes the same sorts of claims as would be
typical of the class of jailors she seeks to represent, and those claims are based on the same set of
factual circumstances.” ECF No. 19, p. 12. In response, Defendant states that Plaintiff has
offered no evidence to establish that her claims are typical of all members of the proposed class.
ECF No. 20, p. 5. However, Defendant acknowledges that another former employee of
Defendant, Kumesha Ward, has signed an affidavit stating that she suffered under the same
alleged policy, but states that “at most, Plaintiff has offered evidence to show that her claims are
typical of Ms. Ward’s claims.” ECF No. 20, p. 6.
The Court is satisfied that Plaintiff has shown that her claims are typical of the claims of
potential class members. Plaintiff contends that all potential class members suffered under the
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same alleged policy. Accordingly, the Court finds that class members’ claims would almost
certainly be similar to Plaintiff’s—namely that Defendant misclassified them and failed to pay
them overtime wages, in violation of the AMWA. Further, Plaintiff has provided the affidavit of
another former employee of Defendant attesting to the same facts contained in Plaintiff’s
affidavit. ECF No. 14-8. Likewise, four other individuals have chosen to opt-in to Plaintiff’s
FLSA collective action, further suggesting that her claims are in accord with those of other
potential AMWA class members. Therefore, Plaintiff has satisfied this requirement of Rule
23(a).
iv. Adequacy of Representation
The fourth requirement of Rule 23(a) is that the representative plaintiff will fairly and
adequately protect the interests of the class. FED. R. CIV. P. 23(a)(4). In determining adequacy of
representation, the Court makes a two-fold inquiry to determine: (1) whether the class
representatives have common interests with members of the class and (2) whether the class
representatives will vigorously prosecute the interests of the class through qualified counsel.
Paxton, 688 F.2d at 561-62.
Plaintiff asserts that she has the same interests as all members of the proposed class “in
establishing the impropriety of Defendant’s requirement that class members were not entitled to
be paid for overtime hours worked.” ECF No. 19, p. 13. Further, Plaintiff states that she has no
individual claims that would bring her interests into conflict with those of potential class
members. ECF No. 19, p. 13. In response, Defendant argues that Plaintiff has failed to offer
sufficient evidence to support a finding that she has common interests with proposed class
members.
Upon examination of the record, the Court finds that Plaintiff has satisfied this
requirement. Plaintiff’s allegations and supporting documents make it appear that Plaintiff’s
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interests are the same as those of potential class members, as Plaintiff and potential class
members likely have the same interest in arguing that Defendant’s policies and practices run
afoul of AMWA requirements. Likewise, up to this point, Plaintiff has vigorously prosecuted the
interests of the proposed class. Finally, Plaintiff’s counsel has a strong history of representing
plaintiffs in wage and hour litigation and there is nothing to suggest Plaintiff’s counsel would be
unqualified in the instant case. Accordingly, the Court finds that Plaintiff has satisfied this
requirement of Rule 23(a).
B. Requirements of Rule 23(b)(3)
Having found that Plaintiff has satisfied the requirements of Rule 23(a), the Court now
moves on to the issue of whether Plaintiff has met her burden under Rule 23(b). As noted above,
Plaintiff claims that she has met the requirements of Rule 23(b)(3). ECF No. 19, p. 14. An action
may be maintained 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.” FED. R. CIV. P. 23(b)(3). Rule 23(b)(3) provides a nonexclusive
list of factors courts may use to guide a determination of whether a movant has met this standard:
(A) the class members’ interest in individually controlling the prosecution or
defense of separate actions; (B) the extent and nature of any litigation concerning
the controversy already begun by or against class members; (C) the desirability or
undesirability of concentrating the litigation of the claims in the particular forum;
and (D) the likely difficulties in managing a class action.
FED. R. CIV. P. 23(b)(3)(A)-(D).
i. Predomination
In regard to the issue of predomination, the Eighth Circuit has stated that “[a]t the core of
Rule 23(b)(3)’s predominance requirement is the issue of whether the defendant’s liability to all

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plaintiffs may be established with common evidence.” Avritt v. Reliastar Life Ins. Co., 615 F.3d
1023, 1029 (8th Cir. 2010). Predominance under Rule 23(b)(3) parallels Rule 23(a)(2)’s
commonality requirement in that both rules require that common questions exist. However, the
predominance criterion under Rule 23(b)(3) is far more demanding. Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 623-24 (1997). Further, the predomination requirement “tests whether
the proposed classes are sufficiently cohesive to warrant adjudication by representation.” Id. at
623. To determine if a common question predominates over individual questions, the court looks
to the nature of the evidence necessary to make out a prima facie case. Blades v. Monsanto Co.,
400 F.3d 562, 566 (8th Cir. 2005). If the members of the proposed class need to present evidence
that varies from member to member to make a prima facie showing on a given question, then it
is an individual question. Id. If the same evidence will suffice for each member to make a prima
facie showing, then it is a common question. Id.
In the present case, Plaintiff argues that “Defendant’s liability to all class members may
be established with common representative evidence.” ECF No. 19, p. 18. Plaintiff states that
“[a]s already discussed in the section on commonality, the common questions of fact and law
cover all the elements of liability in an FLSA case.” 3 ECF No. 19, p. 18. In response, Defendant
argues that individual issues such as “whether there are differences in (1) employee duties and
responsibilities, (2) employee status and classification, and (3) employee hours worked” will
overwhelm alleged common questions. ECF No. 20, p. 5. Likewise, Defendant argues that
“[s]ince each member of the proposed class would have to produce evidence of their
individualized duties, status, pay rate, worked hours, documentation, rank, and a host of other
question[s], individualized questions predominate[.]” ECF No. 20, p. 7. In reply, Plaintiff argues
that she is “seeking only a liability class, not a damages class, and therefore, differences among
3

The Court believes Plaintiff meant to say “AMWA case.”

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the individual members’ pay rate, hours worked, and rank are not only not fatal to the proposed
Rule 23 class, but wholly irrelevant.” ECF No. 23, p. 7 (emphasis in original). Plaintiff further
argues that Defendant’s “vague and unclear” concerns are “inadequate to undercut Plaintiff’s
proof of predomination.” ECF No. 23, p. 8.
Although the Court has found that Plaintiff satisfied the commonality requirement of
Rule 23(a)(2), the Court is unconvinced that Plaintiff has established that common questions
predominate. As noted above, the issue of predominance parallels the Rule 23(a) requirement of
commonality, but is a far more demanding standard. Plaintiff relies too heavily on the
relationship between Rule 23(a)(2)’s requirement of commonality and Rule 23(b)(3)’s
predomination requirement. Further, Plaintiff relies on general statements alleging that class
issues predominate, but fails to provide the Court with a detailed argument explaining what is
required to make out a prima facie case under the AMWA or how the common questions of law
or fact will predominate over individualized questions. Accordingly, though there are certainly
common questions that will affect all proposed class members, Plaintiff has failed to establish
that common questions predominate.
ii. Superiority
Moving on to the issue of superiority, Plaintiff states that “Plaintiff’s counselors are
unaware of any individual who is interested in controlling the prosecution of separate actions.”
ECF No. 19, p. 19. Likewise, Plaintiff notes that there are no other lawsuits regarding this matter
pending in any other court. ECF No. 19, p. 19. Plaintiff further argues that potential class
members likely have no desire to bring suit on their own or control the litigation. ECF No. 19, p.
19. Plaintiff also argues that this court is the natural forum for adjudication of all potential class
members’ claims, as “every member of the proposed class works or worked at Defendant’s jail

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facility in Columbia County[.]” ECF No. 19, pp. 19-20. Finally, Plaintiff contends that the
proposed class will present no difficulties in management, as “all members of the proposed class
worked in the State of Arkansas [and therefore] all of their claims are governed by the same
body of law.” ECF No. 19, p. 20. In response, Defendant simply argues that Plaintiff has failed
to establish that a Rule 23 class action suit is a superior method of adjudicating the present
controversy, taking the position that joinder of interested parties would be a superior form of
adjudication. ECF No. 20, pp. 7-8.
At this point in the litigation, the Court has conditionally certified a FLSA collective
action and the opt-in period for that action has passed. During that period, five individuals chose
to opt-in to pursue alleged FLSA violations on a collective basis. The class description approved
by the Court in that instance was as follows:
All salaried jailors (or similar positions) employed by Defendant Columbia
County, Arkansas who worked in the State of Arkansas at the Columbia County
Jail at any time after August 04, 2013.
ECF No. 25. This FLSA collective action class description is strikingly similar to the AMWA
Rule 23 class Plaintiff now asks the Court to certify:
All of Defendant’s salaried jailors (or similar positions) who worked in the State
of Arkansas at the Columbia County Jail at any time after August 04, 2013.
ECF No. 18, ¶ 5.
Although the fact that only five individuals other than Plaintiff chose to opt-in to
Plaintiff’s FLSA collective action is interesting, it is in no way dispositive of the present issue of
whether Rule 23 class certification is proper for Plaintiff’s and potential class members’ AMWA
claims. However, the fact that so few individuals have chosen to take part in the FLSA collective
action causes the Court to seriously question whether a Rule 23 class action is truly superior to
other methods in fairly and efficiently adjudicating Plaintiff’s and potential class members’
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AMWA claims. Of course, it would be a mistake to read too deeply into the fact that such a
small number have chosen to take part in Plaintiff’s FLSA collective action, as the Court would
be left to guess at the reasons potential collective action members failed to opt-in. That being
said, at one point Plaintiff, in responding to Defendant’s contention that perhaps those who have
chosen not to opt-in do not want to be part of the lawsuit, argues that “it is even more likely that
those who have not opted in fear that they will be retaliated against by Defendant or blacklisted
from future employment in the small county.” ECF No. 34, p. 3.
Plaintiff’s argument that those still employed by Defendant may fear bringing suit rings
true to a certain extent, and that reasoning may partially explain why the sixteen 4 or so potential
class members still employed by Defendant failed to join the FLSA collective action. 5 However,
the argument that those who failed to opt-in to Plaintiff’s FLSA collective action fear being
“blacklisted” is not very persuasive. Based on the fact that the proposed class, although
sufficiently large, is modest and following Plaintiff’s reasoning that word of lawsuits travels
quickly in Magnolia, Arkansas, and Columbia County, (ECF No. 34, p. 3) those who fear being
“blacklisted” would find it necessary to opt-out of a Rule 23 class action if they honestly feared
negative future employment consequences. 6 Further, assuming potential class members’ fears of
being “blacklisted” are real, the Court is hesitant to certify a Rule 23 class and potentially cause
some individuals to take part in a lawsuit they have no desire to join. Plaintiff may argue that
4

Plaintiff claims that only “[s]eventeen of the forty-one potential class members were still employed by Defendant
at the time the class list was produced.” ECF No. 34, p. 3. At this time it appears that at least one of those seventeen
has since left his employment with Defendant (ECF No. 34-2) thereby bringing the number of potential class
members still employed by Defendant to sixteen.
5
Although Plaintiff initially provided little support for this assertion, in her supplemental reply she has included the
affidavit of a former employee of Defendant, Donnie Dodd, who states that he was reluctant to join Plaintiff’s FLSA
collective action while still an employee out of fear of retaliation and “of being blacklisted by future employers in
the county and surrounding areas.” ECF No. 34-2, ¶ 5. Likewise, Mr. Dodd states that he spoke with other
employees who shared his fears. ECF No. 34-2, ¶ 7.
6
Although larger Rule 23 class actions provide some level of anonymity for class members, in the case of such a
small class consisting of individuals who live in and around a small town in a rural county such anonymity would
likely be lost.

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such concerns are illusory, as fearful class members could simply opt-out. However, if that were
to happen, there would be very few individuals left in the proposed class. Likewise, Plaintiff and
five other individuals chose to join the conditionally certified FLSA action—if those individuals
were able to overcome their fears of being “blacklisted,” it is unclear why others could not be
expected to do the same if they felt their rights under the AMWA had been violated.
Furthermore, although Plaintiff has made cursory arguments regarding the nonexclusive
list of factors courts may consider in making the present determination, those contentions are
largely conclusory. Accordingly, the Court is unconvinced that a Rule 23 class action is superior
to other available methods for fairly and efficiently adjudicating Plaintiff’s and potential class
members’ AMWA claims.
IV. CONCLUSION
Having concluded that Plaintiff has failed to meet the predominance and superiority
requirements of Rule 23(b)(3), the Court finds that Plaintiff’s Motion for Rule 23 Class
Certification (ECF No. 18) should be and hereby is DENIED.
IT IS SO ORDERED, this 31st day of July, 2017.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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