Robinson v. Open Top Sightseeing San Francisco, LLC

Filing 111

ORDER by Judge Hamilton granting 107 Motion to Certify Class.(pjhlc2, COURT STAFF) (Filed on 3/28/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HAROLD C. ROBINSON, et al.,

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Case No. 14-cv-0852-PJH

Plaintiffs,

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v.

OPEN TOP SIGHTSEEING SAN
FRANCISCO, LLC,

ORDER GRANTING MOTION FOR
CLASS CERTIFICATION UNDER RULE
23(B)(2)

United States District Court
Northern District of California

Defendant.
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Before the court is plaintiffs’ motion for class certification under Rule 23(b)(2). The

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court has already granted class certification under Rule 23(b)(3), but because plaintiffs

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seek injunctive relief in addition to monetary damages, the court required them to

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separately seek certification under Rule 23(b)(2).

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In the order granting class certification under Rule 23(b)(3), the court already

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addressed the Rule 23(a) factors, and found that they all were met. See Dkt. 95.

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However, defendant raises a new challenge in response to this motion, arguing that

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plaintiffs have not sufficiently established numerosity for the proposed injunctive relief

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class. Defendant explains that the Rule 23(b)(3) class includes both current and former

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employees, whereas the proposed Rule 23(b)(2) class includes only current employees,

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and while the (b)(3) class is made up of at least 88 individuals, the (b)(2) class is

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“substantially smaller.”

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In their reply, plaintiffs argue that the size of the proposed (b)(2) class is not fixed,

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because the number of current employees is higher during “peak season” (when it

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includes 26 individuals) than it is during the “off season” (when it includes 14 individuals).

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Plaintiffs argue that Rule 23(a) requires consideration of “more than mere numbers,” and

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set forth the following factors for the court to consider: (1) any injunctive relief would

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benefit not only current employees, but also future employees, (2) the putative class

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members are low wage workers with limited financial resources and thus limited ability to

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institute individual suits, (3) certification would avoid a multiplicity of actions and promote

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judicial economy, and (4) the aforementioned fluctuation in class size would make joinder

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impracticable.

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The court finds that the numerosity requirement has been sufficiently established.
In particular, because class certification has already been granted under Rule 23(b)(3),

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and because conditional certification of a FLSA collective action has also been granted

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United States District Court
Northern District of California

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(see Dkt. 51), it would be a waste of judicial and party resources to require the putative

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(b)(2) class members to proceed individually. Accordingly, the court finds that the

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numerosity requirement is met.

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Turning to the requirement of Rule 23(b)(2), that “the party opposing the class has

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acted or refused to act on grounds that apply generally to the class, so that final

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injunctive relief or corresponding declaratory relief is appropriate respecting the class as

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a whole,” plaintiffs offer three bases for meeting that requirement: (1) defendant’s policy

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of not paying overtime applies to every bus operator, (2) defendant’s pay stubs are

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standardized documents provided to every bus operator, and (3) defendant’s failure to

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pay proper wages at termination applies to every bus operator. The court finds that any

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one of these reasons is enough to satisfy Rule 23(b)(2).

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In its opposition brief, defendant challenges two other aspects of plaintiffs’ motion.

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First, it argues that the proposed class definition – “all people employed by Open Top

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Sightseeing San Francisco, LLC in California as bus operators, excluding anyone

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employed by counsel for plaintiff in this action, and any judge to whom this action is

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assigned and his or her immediate family members” – is overbroad, and requests that the

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phrase “all people employed” be changed to “all people currently employed.” The court

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finds this proposed change unnecessary.
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Second defendan requests that separ
d,
nt
s
rate notices be sent to the (b)(2) class and
s
o

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to the (b)(3) class. The court finds that requiri ng separat notices w
c
c
te
would entail
l

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h
ential to con
nfuse indivi
iduals who receive both notices.
unnecessary cost, and has the pote

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Thus, the cou finds tha the langua propos in plaintiffs’ reply b
urt
at
age
sed
brief can sim
mply be

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added to the notice that will be sent to the Rule 23(b)(3) class.
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For the foregoing reasons, plaintiffs’ mo
e
p
otion for cla certifica
ass
ation under Rule

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23(b)(2) is GR
RANTED.
The co will con
ourt
nduct a case managem
e
ment confer
rence on May 5, 2016 at 2:00

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m.
p.m

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United States District Court
Northern District of California

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IT IS SO ORDER
S
RED.
Da
ated: March 28, 2016
h
__
__________
__________
__________
_______
PH
HYLLIS J. H
HAMILTON
Un
nited States District Ju
s
udge

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