Hardemon v. H & R Block Eastern Enterprises, Inc.
Filing
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ORDER DENYING 39 Plaintiff's Amended Motion to Certify Class; GRANTING 50 Defendant's Motion to Strike Opt-In Consent Forms. Signed by Judge K. Michael Moore on 8/23/2011. (rg1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
Case No. 11-20193-CIV-MOORErrORRES
KEITH HARDEMON, et al.,
Plaintiff,
vs.
H&R BLOCK EASTERN ENTERPRISES,
INC. d/b/a H&R BLOCK,
Defendant.
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ORDER DENYING PLAINTIFF'S AMENDED MOTION TO CERTIFY CLASS AND
GRANTING DEFENDANT'S MOTION TO STRIKE OPT -IN CONSENT FORMS
THIS CAUSE came before the Court upon Plaintiffs Amended Motion to Certify Class
(ECF No. 39) and Defendant's Motion to Strike Opt-in Consent Forms (ECF No. 50). These
Motions are ripe for review.
UPON CONSIDERATION of the Motions, the pertinent portions of the record, and being
otherwise fully advised in the premises of the case, the Court enters the following Order.
I.
BACKGROUND
This is a case that involves either egregious attorney incompetence or brilliantly perverse
litigation tactics. Unfortunately, it appears to be the former. What began as a routine Fair Labor
Standards Act ("FLSA") case, has turned into what can only be described as a procedural headache
for our District Court. Before addressing the issues currently before this Court, we must discuss the
previous litigation out of which this mess was borne.
On August 27,2009, Joaquin Llano' filed an FLSA collective action against H&R Block
under 29 U.S.C. Section 216(b). Illano v. H&R Block E. Enters .. Inc., No. 09-CV-22531 (S.D. Fla.
Aug. 27,2009). Plaintiffs sought wages for unpaid "straight or overtime" hours worked rendering
tax services for H&R Block. Plaintiffs moved to certify a nationwide class. The Illano Court
refused, finding that this group of 80,000 employees were not similarly situated, but did eventually
conditionally certify a class of employees limited to Miami-Dade County. There were 67 plaintiffs
in that action, including present name Plaintiff Keith Hardemon ("Hardemon"), and proposed
Plaintiffs Terry Norris ("Norris"), Josefina Silva ("Silva"), Pauline Mumford ("Mumford"), and Cary
Riveron ("Riveron"). H&R Block subsequently filed a motion to de-certify the class. Using a
totality of the circumstances analysis, the lllano Court de-certified the class, directing plaintiffs to
file separate lawsuits. lllano, No. 09-CV -22531, Order Granting Defs.' Mot. Decertify Class (ECF
No. 145) ("Illano Order").
On May 21, 2010, while Illano was still occurring, a portion of those plaintiffs filed a nearly
identical action on behalf of 30 former H&R Block tax preparers, tax professionals, and tax
associates--with a new representative plaintiff, Rita Greene. Greene v. H&R Block E. Enters., Inc.,
727 F. Supp. 2d 1363 (S.D. Fla. 2010). This time they sought minimum wage claims for off-theclock work and compensation for mandatory training sessions. They also moved for class
certification. The court dismissed the action for impermissible claim-splitting from the FLSA claims
Due to a misspelling in the pleadings, the case is denominated Illano.
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in Illano and therefore did not address class certification.
The plaintiffs from Illano then filed various individual and small group claims throughout the
District. They also proceeded in state court to file another minimum wage claim under state law
which H&R Block removed to federal court. Khan v. H&R Block E. Enters .. Inc., No. II-CV20335,2011 WL 3269440 (S.D. Fla. July 29, 2011). The Khan case was dismissed for
impermissible claim-splitting from the individual overtime actions all the plaintiffs had pending
throughout the District. The Khan Court also denied plaintiffs motion to certify a class pursuant to
Federal Rule of Civil Procedure 23(a). Plaintiff Hardemon was a party in Illano and Khan. Plaintiff
Norris was a party in Illano, Greene, and Khan and has his very own individual case before Judge
Jordan, Norris v. H&R Block E. Enters .. Inc., No. 11-CV-20197 (S.D. Fla. 2011). Plaintiff
Mumford was also a party in Illano, Greene, and Khan and is part of a similar suit before Judge
Jordan, Mumford v. H&R Block E. Enters., Inc., No. ll-CV-21148 (S.D. Fla. 2011). Plaintiff
Riveron (also sometimes listed as Cary Rivera or Carry Riveron) was also a party to Illano, Greene,
and Khan and has a small group claim before Judge Seitz, Riveron v. H&R Block E. Enters .. Inc.,
No. ll-CV-21156 (S.D. Fla. 2011).2
II.
AN AL YSIS
Plaintiffs are seeking to conditionally certify a class pursuant to 29 U.S.C. § 216(b).
Plaintiffs' proposed class is:
each and every person ... who was employed by Defendants, performed services on
Defendants' behalf, and/or performed services which benefited Defendants in any way,
at any time for the past three (3) years, and who was classified and/or described by
Silva was a party in Illano, Greene, and Khan. She has settled her individual suit,
Silva v. H&R Block E. Enters .. Inc., No. ll-CV-20199 (S.D. Fla. 2011). Plaintiffs withdrew her
consent to join notice and she is no longer a plaintiff in this action.
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Defendants as an Office Manager and/or Office Leader and/or Office Coordinato~ or the
like ....
Pis.' Am. Mot. Certify Class, at 1-2 (ECF No. 39).
Defendant argues that a collective action cannot be certified based on the doctrine of issue
preclusion because the Illano Court already decided the issue of certification. Issue preclusion
"forecloses the relitigation of an issue of fact or law that has been litigated and decided in a prior
suit." LA. Durbin, Inc. v. Jefferson Nat'l Bank, 793 F.2d 1541, 1549 (11th Cir. 1986). To claim this
benefit,
the party relying on the doctrine must show that: (I) the issue at stake is identical to the
one involved in prior proceeding; (2) the issue was actually litigated in prior proceeding;
(3) the determination of issue in prior litigation must have been a critical and necessary
part of the judgment in first action; and (4) the party against whom collateral estoppel is
asserted must have had full and fair opportunity to litigate issue in prior proceeding.
Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1359 (11 th Cir. 1998). The issue here is
painstakingly similar, but not identical. In Illano, the Court de-certified a "narrow and limited" class
of tax-professionals in Miami-Dade County. By contrast, here, Plaintiffs seek to conditionally certify
a class of Office Managers and Office Coordinators nationwide. Moreover, though this proposed
class has the same limitations as the Illano class, it is arguable that Plaintiffs did not have a full and
fair opportunity to litigate whether this specific class should be certified. Thus, the Court will not
apply the doctrine of issue preclusion but must deny certification on other grounds.
The proposed class still does not qualify for certification because the members of the class
The term Office Leader is a generic term for Office Manager and Office
Coordinator. These are managerial positions that report to District Managers. An Office
Manager is paid on a salaried basis, and H&R Block argues they are not eligible for overtime
pay. Office Coordinators are non-exempt employees who are paid on an hourly basis and eligible
for overtime pay.
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are not similarly situated. "For an opt-in class to be created under § 216(b), a named plaintiff must
be suing on behalf of himself and other 'similarly situated' employees. [P]laintiffs need show only
that their positions are similar, not identical, to the positions held by the putative class members."
Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1217 (lIth Cir. 2001) (citations and quotation
marks omitted). In normal FLSA cases, the court would use a two-tiered approach to class
certification as suggested by the Eleventh Circuit in Hipp. Id. Such an approach would typically
involve the court applying a lenient standard in determining whether to certifY a class at the initial
"notice stage" of litigation. Id. at 1217-18. Then, in the second stage, once discovery occurs and the
defendant files a motion for decertification, the court would make a factual determination as to
whether the proposed class was similarly situated. Id. This approach, however, is merely a
suggestion. Id. at 1219 ("[W]e suggest that district courts in this circuit adopt it in future cases.
Nothing in our circuit precedent, however, requires district courts to utilize this approach."). The
voluminous discovery that the Parties have already conducted in connection with class certification
in this matter, as well as related actions, merits a heightened level of scrutiny rather than the lenient
one recommended in l::l.Um.
In situations like the one before us, it is appropriate for the Court to make a factual
determination based on the totality of the circumstances as to whether the claimants are similarly
situated. Indeed, other courts in the Eleventh Circuit have recognized that in cases where there has
been substantial discovery, a court may bypass the suggested two-tier approach and decide whether
to certifY the class based upon the evidence before it. See Lemming v Sec. Forces Inc., 2010 WL
5058532, at *2 (M.D. Fla. Dec. 6,2010); Vaughn v. Oak S1. Mortg., LLC, 2006 WL 1529178, at * 1
(M.D. Fla. May 30, 2006). Thus, we will consider the discovery presented in this case, as well as
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related cases in analyzing whether to permit class certification.
Though this Court cannot rely on Illano to apply the doctrine of issue preclusion, it is still
illustrative with respect to the reasons this Court also will not find the proposed class similarly
situated. As stated in Illano, in determining whether plaintiffs are "similarly situated" pursuant to
§216 (b) a court will look at several non-exhaustive factors in determining whether plaintiffs are
similarly situated. Illano Order, at 3. They include:
(1) the disparate factual and employment settings of the individual plaintiffs,
(2) the various defenses available to the defendant which appeared to be individual to
each plaintiff, and
(3) fairness and procedural considerations.
Id. (citing Pfohl v. Farmers Ins. Grp., No. 03-3080,2004 WL 554834, at *2 (C.D. Cal. Mar. 1,
2004)). In analyzing these factors, the Illano court noted that the disparate factual and employment
setting of the individual plaintiffs weighed against collective action. Id. at 5. Even though the
plaintiffs alleged a national, unifying policy, "the hierarchy of supervision alone demonstrate[ d] that
collective consideration of all offices run by Defendant within Miami-Dade County is
inappropriate." Id. It explained how office leaders reported to district managers who reported to
regional directors. Id. It referred to depositions of proposed plaintiffs who explained how district
managers or office leaders would manage the districts or offices differently. Id. at 5-6. These
discrepancies required individualized inquiries and a collective action was not appropriate. Here,
Plaintiffs merely take one step-up with respect to hierarchy, attempting to create a class of office
leaders, completely ignoring the Illano court's explanation as to why there existed disparate factual
issues. Moreover, Illano was only referring to a class of tax preparers in Miami-Dade County.
Plaintiffs want to create a nationwide class, clearly implicating even more factual discrepancies.
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Second, the facts here explicitly show various defenses available to Defendant that, based on
the positions of the present opt-in Plaintiffs, appear to be individual to each Plaintiff. First,
Defendant claims Mumford never worked in a non-exempt managerial position. From 2007-09 she
worked as a salaried exempt Office Manager. See Meoqui Dec. ~ 10 (ECF No. 50-6); see also Dep.
P. Mumford at 59:24-60:3 (ECF No. 50-8). In 2010, she worked as a tax professional in a nonexempt position. Meoqui Dec.
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10. Defendant may argue that she is exempt under the FLSA.
Second, Defendant may want to argue that Norris was never in a managerial position. This would be
a strong argument as Norris' personnel file indicates he was never in a managerial position while
employed at H&R Block. Personnel File ofT. Norris (ECF No. 50-9). Third, Defendant may elect
to argue that Riveron was never an Office Manager and perhaps that Riveron is retaliating for being
terminated for filing fraudulent tax returns. Meoqui Dec. ~~ 15, 16. Finally, Norris and Riveron may
also be subject to a statute of limitations defense. In Illano, the court noted that the undetermined
number of individuals subject to the FLSA time-bar provision weighed against collective treatment.
Illano Order at 7. The same problem exists here. These variances indicate the proposed Plaintiffs
are not "similarly situated" as to require a collective action.
Finally, for the reasons stated above, the Court will strike all of the Plaintiffs who have filed
Notices of Consent to Join. These Plaintiffs are involved in other actions and will not be prejudiced.
III.
CONCLUSION
For the reasons stated above, it is
ORDERED AND ADJUDGED that Plaintiff's Amended Motion to Certify Class (ECF No.
39) is DENIED. It is further
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ORDERED AND ADJUDGED that Defendant's Motion to Strike Opt-in Consent Forms is
GRANTED (ECF No. 50). Plaintiffs Norris, Mumford, and Riveron Opt-in Consent Forms (ECF
Nos. 34,38, and 43) are STRICKEN. This case shall remain OPEN.
DONE AND ORDERED in Chambers at Miami, Florida,
this;(3~ay of August, 2011 .
. MICHAEL MOORE
UNITED STATES DISTRICT JUDGE
cc:
All Counsel of Record
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