Bonton v. Centerfold Entertainment Club, Inc. et al

Filing 37

MEMORANDUM OPINION AND ORDER granting 18 Motion to Certify Class. Signed by Honorable Robert T. Dawson on May 19, 2015. (hnc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION

TAMATRICA BONTON and DEANNA MILLER,
Each Individually and on Behalf of
All Others Similarly Situated,

v.

PLAINTIFFS

CASE NO. 6:14-CV-6074

CENTERFOLD ENTERTAINMENT CLUB, INC.; and
JESSIE ORRELL, Individually and as Officer
and/or Director of Centerfold Entertainment
Club, Inc.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Currently before the Court are Plaintiffs’ Motion for Rule
23

Class

Certification

Defendants’

Response

Plaintiffs’

Reply

and

(Doc.

and

supporting

supporting
25).

For

Brief

Brief
the

(Docs.

(Docs.

reasons

18-19),

21-22),

stated

and

below,

Plaintiffs’ Motion (Doc. 18) is GRANTED.
I.

Background
Plaintiffs,

similarly

individually

situated,

filed

an

and

on

Amended

behalf

of

Complaint

all

others

(Doc.

17)1

alleging violations of the Fair Labor Standards Act, 29 U.S.C.
§§ 201 et seq. (the “FLSA”) and the Arkansas Minimum Wage Act,
A.C.A. §§ 11-4-201 et seq. (the “AMWA”).

Plaintiffs allege that

they were exotic dancers who worked at the adult entertainment

1

The purpose of the amendment of
Plaintiff Deanna Miller as a party.

the

Page 1 of 11

complaint

was

to

add

club operated by Defendant Centerfold Entertainment Club, Inc.,
in Hot Springs, Arkansas within the three years prior to the
filing

of

the

Complaint.

Plaintiffs

claim

Defendants

intentionally misclassified them as independent contractors in
order

to

avoid

paying

them

minimum

required by the FLSA and the AMWA.

and

overtime

wages

as

Plaintiffs further claim

Defendants violated the law by forcing them to pay for the right
to work and taking improper deductions from their tips.
II.

Discussion
A. Rule 23(a)
Plaintiff asks the Court to certify a liability class under

Rule 23 of the Federal Rules of Civil Procedure consisting of:
All individuals who danced for tips at Defendants’
business located at 1396 East Grand Avenue, Hot
Springs, Arkansas, in any work week any time after
June 3, 2011.
Plaintiffs

contend

objectively

that

identifiable

the

class

class,

definition
that

the

creates
Rule

an

23(a)

prerequisites for certification of a class are satisfied, and
that the Rule 23(b)(3) requirements for maintenance of a class
are satisfied.
In

order

to

obtain

class

certification,

Plaintiffs

must

meet all four prerequisites of Federal Rule of Civil Procedure
23(a), which provides:

Page 2 of 11

One or more members of a class may sue or be sued as
representative parties on behalf of all members only
if:
(1)
(2)
(3)

(4)

the class is so numerous that joinder of all
members is impracticable;
there are questions of law or fact common to the
class;
the claims or defenses of the representative
parties are typical of the claims or defenses of
the class; and
the
representative
parties
will
fairly
and
adequately protect the interests of the class.

The party seeking certification of a class bears the burden of
showing that the class should be certified and that Rule 23’s
requirements are met.
Cir. 1994).

Coleman v. Watt, 40 F.3d 255, 258 (8th

The Court is afforded broad discretion to decide

whether certification is appropriate.

Luiken v. Domino’s Pizza,

LLC, 705 F.3d 370, 372 (8th Cir. 2013).
for

class

‘rigorous

certification,
analysis’

23(a) are met.”

to

a

district

ensure

that

In considering a motion
court

the

“must

undertake

requirements

of

a

Rule

Bennett v. Nucor Corp., 656 F.3d 802, 814 (8th

Cir. 2011) (quoting Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S.
147, 161 (1982)).
1. Numerosity
The first prerequisite of Rule 23(a) is commonly referred
to as the numerosity requirement.

“No arbitrary rules on the

size of classes have been established by the courts and the
question of what constitutes impracticability depends upon the
facts of each case.”

Boyd v. Ozark Air Lines, 568 F.2d 50, 54
Page 3 of 11

(8th Cir. 1977).
may

also

In addition to the size of the class, a court

consider

the

nature

of

the

action,

the

size

of

individual claims, the inconvenience of trying individual suits,
and any other factor relevant to the practicability of joining
all putative class members.

Paxton v. Union Nat’l Bank, 688

F.2d 552, 560 (8th Cir. 1982).
contend

that

joinder

of

In the instant case, Plaintiffs

all

members

of

the

class

is

impracticable based upon the number of class members and also
upon the possible reluctance of current employees to join in the
lawsuit.

Plaintiffs cite Eighth Circuit and other case law in

which courts have recognized that potential class members still
employed

by

individually
retaliation.

the
or

defendant
opt

in

to

may
a

be

reluctant

collective

to

action

bring
for

suit

fear

of

See Ark. Educ. Assoc. v. Bd. of Educ., 446 F.2d

763 (8th Cir. 1971); see also Mullen v. Treasure Chest Casino,
LLC, 186 F.3d 620 (5th Cir. 1999); Horn v. Associated Wholesale
Grocers, Inc., 555 F.2d 270 (10th Cir. 1977).

Plaintiffs also

point to the difficulty experienced in identifying and locating
all

members

of

the

proposed

class

as

another

factor

showing

joinder to be impracticable and therefore weighing in favor of
class certification.
Defendants

argue

that

Plaintiffs’

position

regarding

numerosity of the class is vague and based on speculation.

In

their Amended Complaint, Plaintiffs indeed state that they “do
Page 4 of 11

not know the exact number of potential class members.”
17, p. 8).

(Doc.

Plaintiffs also point out, however, that a list of

dancers provided by Defendants contains 34 names and that the
list appears to be incomplete.

While the exact size of the

potential class remains unclear, the record shows that it is
large enough to warrant certification.
the

additional

impracticability

factors
of

cited

joinder,

by

Especially in light of
Plaintiffs

the

Court

showing

finds

that

the
this

prerequisite is met.
2. Commonality
The second prerequisite of Rule 23(a) is generally referred
to as the commonality requirement.

The commonality standard

requires “a common issue the resolution of which will advance
the litigation.”

Sprague v. Gen. Motors Corp., 133 F.3d 388,

397 (6th Cir. 1998).

It is not required that every question of

law or fact be common to every member of the class.
F.2d at 561.

Paxton, 688

“Commonality requires the plaintiff to demonstrate

that the class members ‘have suffered the same injury.’”
Mart

Stores,

Inc.

v.

Dukes,

131

S.

Ct.

2541,

2551

Wal(2011)

(quoting Falcon, 457 U.S. at 157).
There are several issues of law and fact common to the
members

of

the

proposed

class,

such

as

whether

an

employer-

employee relationship existed between the proposed class members
and Defendants, whether Defendants are covered employers under
Page 5 of 11

the AMWA, and whether Defendants violated the minimum wage and
overtime provisions of the AMWA by the policies and practices
they adopted with regard to the dancers who performed at the
club.
the

All members of the proposed class have allegedly suffered
same

injury.

The

Court

finds

that

the

commonality

prerequisite is also met.
3. Typicality
The third prerequisite of Rule 23(a) is commonly called the
typicality requirement.

In order for this prerequisite to be

met, the claims of the representative parties must be typical of
the claims of the proposed class.

Typicality requires a showing

“‘that there are other members of the class who have the same or
similar grievances as the plaintiff.’”

Chaffin v. Rheem Mfg.

Co., 904 F.2d 1269, 1275 (8th Cir. 1990) (quoting Donaldson v.
Pillsbury

Co.,

requirement

is

554

F.2d

generally

825,

830

(8th

considered

to

Cir.
be

1977)).

satisfied

“This
if

the

claims or defenses of the representatives and the members of the
class stem from a single event or are based on the same legal or
remedial theory.”

Paxton, 688 F.2d at 561-62.

The evidence before the Court tends to show that Plaintiffs
and the members of the proposed class were similarly affected by
the practices and policies of Defendants.
and

the

proposed

class

members

would

Therefore, Plaintiffs
share

any

claims

for

statutory violations that may have resulted from those practices
Page 6 of 11

and policies.

The Court accordingly finds that the typicality

prerequisite is met.
4. Adequacy of Representation
The fourth and final prerequisite under Rule 23(a) is that
the representative parties must fairly and adequately represent
the proposed class.

The focus of this requirement is whether

“(1) the class representatives have common interests with the
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 562-63.

In this case, Plaintiffs’ interests appear to align with
those of the proposed class and no conflicting interests have
been suggested.

Furthermore, Plaintiffs have retained qualified

counsel to prosecute this case on their behalf.

The Court finds

that this prerequisite has been met.
The

Court

further

finds

that

Plaintiffs’

counsel

may

properly be appointed as class counsel pursuant to Rule 23(g).
Plaintiffs’ counsel has demonstrated a thorough knowledge of the
applicable

law

collective

and

and

has

class

significant

actions

experience

similar

to

the

in

prosecuting

instant

case.

Plaintiffs’ counsel has further indicated commitment to devote
the necessary resources to represent the class.

Page 7 of 11

B. Rule 23(b)
In

order

for

a

class

action

to

be

requirements of Rule 23(b) must also be met.

maintained,

the

Plaintiffs contend

that the Court may certify a class in the instant case based
upon Rule 23(b)(3), which provides that a class action may be
maintained 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.”

Defendants

failed

to

offer

any

counter-

Rule

23(b)(3)

argument in their briefing on this point.
1. Predominance
According
predominance

to

inquiry

sufficiently

(1997).

Supreme
tests

cohesive

representation.”
623

the

“In

Court,

whether

to

“[t]he
proposed

warrant

classes

adjudication

are
by

Amchem Prods., Inc. v. Windsor, 521 U.S. 591,
order

to

‘predominate,’

common

issues

constitute a significant part of the individual cases.”

must

Jenkins

v. Raymark Indus., Inc., 782 F.2d 468, 472 (5th Cir. 1986).

“At

the

the

core

of

Rule

23(b)(3)’s

predominance

requirement

is

issue of whether the defendant’s liability to all plaintiffs may
be established with common evidence.”

Avritt v. Reliastar Life

Ins. Co., 615 F.3d 1023, 1029 (8th Cir. 2010).

Page 8 of 11

As discussed above, the questions of law and fact common
to the class in the instant case include whether an employeremployee relationship existed between Defendants and the class
members,

whether

Defendants

are

covered

employers

under

the

AMWA, and whether Defendants had a policy or practice of not
paying minimum wage to dancers who performed at the club.

These

questions are key to each individual class member’s claims and
may be answered through the presentation of common evidence.
The Court finds that these common questions predominate over any
questions affecting only individual members.
2. Superiority
Rule

23(b)(3)

contains

four

relevant

factors

to

be

considered when deciding whether a class action is superior to
other available methods for fairly and efficiently adjudicating
the controversy:
(A)

(B)

(C)

(D)

the class members’ interests in individually
controlling
the
prosecution
or
defense
of
separate actions;
the
extent
and
nature
of
any
litigation
concerning the controversy already begun by or
against class members;
the
desirability
or
undesirability
of
concentrating the litigation of the claims in the
particular forum; and
the likely difficulties in managing a class
action.

Plaintiffs contend that these factors all weigh in favor of
class certification.
attorneys

assert

that

As to the first two factors, Plaintiffs’
they

are

unaware

Page 9 of 11

of

any

other

class

members who are interested in controlling the prosecution of
separate actions or of any other lawsuits pending in any other
court regarding the claims at issue here.

No contrary argument

or evidence on these points has been presented to the Court, and
the Court is persuaded that these factors weigh in favor of
certification.
As to the third factor, Plaintiffs assert that this forum
is

a

desirable

one

for

prosecution

of

the

claims

at

issue

because the proposed class consists entirely of individuals who
danced at Defendants’ club in Hot Springs, Arkansas.

The Court

is persuaded that this factor also weighs in favor of class
certification.
As to the fourth factor, Plaintiffs contend that this case
presents few if any difficulties in managing a class action.
The fact that Plaintiffs are seeking only certification of a
liability class further reduces any potential complexity in this
case.

The Court does not foresee any notable difficulties that

would arise from certification of the proposed class.

Based

upon the circumstances of this case, the Court finds the class
action

device

to

be

superior

to

other

available

methods

for

fairly and efficiently adjudicating this controversy.
III. Conclusion
For the reasons stated above, Plaintiffs’ Motion for Rule
23

Class

Certification

(Doc.

18)

is

Page 10 of 11

GRANTED.

The

Court

certifies under Federal Rule of Civil Procedure 23(b)(3) a class
consisting of all individuals who danced for tips at Defendants’
business
Arkansas,

located
in

any

at

1396

work

East

week

Grand

any

time

Avenue,
after

Hot
June

Springs,
3,

2011.

Plaintiffs’ counsel, Josh Sanford and Sanford Law Firm, PLLC,
are

appointed

as

class

counsel

for

this

action

pursuant

Federal Rule of Civil Procedure 23(g).

to

IT IS SO ORDERED this 19th day of May, 2015.
/s/ Robert T. Dawson________
Honorable Robert T. Dawson
United States District Judge

Page 11 of 11