Espinoza et al v. Galardi South Enterprises, Inc. et al
Filing
193
ORDER granting in part Plaintiffs' 178 Renewed Motion for Rule 23 Class Certification of State Law Minimum Wage Claims. Signed by Magistrate Judge Jonathan Goodman on 1/11/2016. (tr00)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 14‐21244‐CIV‐GOODMAN
[CONSENT CASE]
JASZMANN ESPINOZA, et al.,
Plaintiffs,
v.
GALARDI SOUTH
ENTERPRISES, INC., et al.,
Defendants.
_____________________________/
ORDER ON PLAINTIFFS’
RENEWED MOTION FOR RULE 23 CLASS CERTIFICATION
OF STATE LAW MINIMUM WAGE CLAIMS
The Court previously denied without prejudice [ECF No. 165] Plaintiffs’ Motion
for Rule 23 Class Certification [ECF Nos. 33; 34] because the legal and factual landscape
on which the motion was based had shifted dramatically since it was first filed. The
Court allowed, however, Plaintiffs to file a new motion, incorporating the relevant
changes in circumstances if they wished to still pursue a Rule 23 class action for state
law minimum wage claims. [ECF No. 165].
Plaintiffs have now filed their Renewed Motion for Rule 23 Class Certification of
their Florida state minimum wage claims. [ECF Nos. 178; 179]. Defendants oppose the
motion. [ECF No. 186]. Plaintiffs filed a reply in support of their motion. [ECF No. 187].
As explained below, the Court finds that class certification of Plaintiffs’ state law claims
is appropriate and, therefore, grants, in part, Plaintiffs’ motion. The Court, however,
does not approve Plaintiffs’ proposed class notice. Consistent with the Court’s rulings
below, counsel shall confer regarding the proposed notice and submit a revised
proposed notice for the Court to review within ten days of this Order.
I.
BACKGROUND
Plaintiffs are dancers who are suing Defendants for, among other things,
minimum wage and overtime violations arising from their work1 at Defendant Fly Low,
Inc. d/b/a King of Diamonds (“Defendant” or “KOD”), a strip club. [ECF No. 140].
Plaintiffs allege claims under the Fair Labor Standards Act (“FLSA”) and Florida law.
[Id., at pp. 19‐25]. The Court previously granted conditional certification of an FLSA
collective action against Defendants. [ECF No. 116]. More than 20 claimants have opted
into the collective action. [ECF Nos. 123; 126; 128; 129; 137; 142; 149; 151].
Plaintiffs’ instant motion seeks class certification of their state law claims under
Federal Rule of Civil Procedure 23. [ECF Nos. 178; 179]. Plaintiffs want to certify a class
based on alleged violations of Article X, § 24 of the Florida Constitution and Florida
Statute § 448.110. In their motion, Plaintiffs request that the Court: (1) certify their state
law claims classes, and (2) approve their proposed notice to the putative class.
1
The Court understands why Plaintiffs contend that they “worked” at KOD, while
Defendants contend that Plaintiffs “performed” at KOD. For purposes of this Order, the
Court uses those words interchangeably. Put another way, by using the word
“perform” or “work,” the Court is not implying either way whether Plaintiffs were
employees (who “worked”) or independent contractors (who “performed”).
2
Defendants oppose the motion and contend that no class should be certified.
[ECF No. 186]. Defendants also contend that if the Court certifies the classes, then the
Court should not approve Plaintiffs’ proposed notice because it is confusing and
misleading. [Id. at pp. 15‐17].
In their reply, Plaintiffs agree that some modifications to the proposed notice
should be made and have offered to confer with Defendants’ counsel regarding these
modifications. [ECF No. 179, pp. 14‐15].
II.
LEGAL STANDARD FOR RULE 23 CLASS CERTIFICATION
“A party seeking class certification must affirmatively demonstrate his
compliance with the Rule [23] ‐‐ that is, he must be prepared to prove that there are in
fact sufficiently numerous parties, common questions of law or fact, etc.” Wal‐Mart
Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (emphasis in original). In view of the
broad discretion a court has in certifying a class, any such decision must rest on a
“rigorous analysis” that Rule 23’s requirements are met. Sacred Heart Health Sys., Inc. v.
Humana Military Healthcare Servs., Inc., 601 F.3d 1159, 1169 (11th Cir. 2010) (citing Vega v.
T–Mobile USA, Inc., 564 F.3d 1256, 1266 (11th Cir. 2009)).
While the court’s class certification analysis “may ‘entail some overlap with the
merits of the plaintiff’s underlying claim,’ Rule 23 grants courts no license to engage in
free‐ranging merits inquiries at the certification stage.” Amgen Inc. v. Conn. Ret. Plans &
Trust Funds, 133 S. Ct. 1184, 1194 (2013) (citing Dukes, 131 S. Ct. at 2552 n. 6). Rather,
3
“[m]erits questions may be considered to the extent—but only to the extent—that they
are relevant to determining whether the Rule 23 prerequisites for class certification are
satisfied.” Id.
A party seeking to certify a Rule 23 class must first demonstrate the following
four requirements under Rule 23(a):
(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 are referred to as numerosity, commonality, typicality, and
adequacy. If the party seeking class certification fails to demonstrate any of these
requirements, then the case may not continue as a class action. Agan v. Katzman & Korr,
P.A., 222 F.R.D. 692, 696 (S.D. Fla. 2004) (internal citations omitted).
In addition to meeting Rule 23(a)’s four requirements, the party seeking class
certification must prove that one of Rule 23(b)’s requirements is met. Vega, 564 F.3d at
1265. Here, Plaintiffs are seeking certification under Rule 23(b)(3). That means they
must show “predominance” and “superiority.” Manno v. Healthcare Revenue Recovery
4
Grp., LLC, 289 F.R.D. 674, 689 (S.D. Fla. 2013). That is that “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); Vega, 564 F.3d at 1265.
III.
ANALYSIS
Because a Rule 23 motion requires a “rigorous analysis,” there are a plethora of
issues that must be resolved here. First, the Court will examine whether it has
jurisdiction over the state law claims. Second, the Court will review the proposed class
definitions. Third, the Court will analyze whether Rule 23(a)’s requirements have been
met. Fourth, the Court will determine whether Plaintiffs’ have met Rule 23(b)(3)’s
requirements. Fifth, the Court will examine the proposed class notice. Finally, the Court
will review Plaintiffs’ request for Defendants to produce a master list of dancers’
information.
Before delving into the required analysis, the Court makes the following
preliminary observation: this is not the first dancer‐wage‐class‐action‐case against a
strip club (and it may not be the last). Indeed, the Court’s cursory research has
uncovered no less than 5 other federal courts that have faced the very same issues this
Court is faced with now, i.e., Rule 23 class certification of dancers’ state law claims
against a strip club. See Flynn v. N.Y. Dolls Gentlemenʹs Club, No. 13 CIV. 6530 PKC RLE,
2014 WL 4980380 (S.D.N.Y. Oct. 6, 2014); In re Penthouse Exec. Club Comp. Litig., No. 10
5
CIV. 1145 KMW, 2014 WL 185628 (S.D.N.Y. Jan. 14, 2014); Ruffin v. Entmʹt of the E.
Panhandle, No. 3:11‐CV‐19, 2012 WL 5472165 (N.D. W. Va. Nov. 9, 2012); Trauth v.
Spearmint Rhino Cos. Worldwide, Inc., No. EDCV 09‐01316‐VAP, 2012 WL 4755682 (C.D.
Cal. Oct. 5, 2012); Hart v. Rickʹs Cabaret Intʹl Inc., No. 09 CIV 3043 JGK, 2010 WL 5297221
(S.D.N.Y. Dec. 20, 2010).
Interestingly enough, in every single one of these cases, the dancers’ state wage
law claims Rule 23 class was either certified or approved in the class settlement context.
In fact, Defendants have not cited to any decision with different results ‐‐ denying the
Rule 23 class certification motion. And the Court has not been able to uncover one
either. To be sure, the above cases are not binding on this Court. But they are persuasive
authority.
A. The Court’s Jurisdiction Over the State Law Claims
“Federal courts have an independent obligation to police the constitutional and
statutory limits on our jurisdiction.” Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d
162, 165 (11th Cir. 1997) (internal citation omitted). While this maxim does not
necessarily apply to a court’s exercise of its supplemental jurisdiction, the more
cautious and prudent approach is for courts to do so. German v. Eslinger, No. 608CV‐
845‐ORL‐22GJK, 2008 WL 2915071, at *1 n. 1. (M.D. Fla. July 25, 2008) (internal citation
omitted). Here, there is no dispute that the Court has jurisdiction over Plaintiffs’ FLSA
claims. See 28 U.S.C. § 1331. The issue is whether the Court should exercise
6
supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367. In that
regard, neither Plaintiffs nor Defendants object to the Court exercising supplemental
jurisdiction over the state law claims. The Court has nevertheless conducted an
independent review of 28 U.S.C. § 1367(c)’s factors.
The Eleventh Circuit has articulated a two‐fold inquiry to determine whether a
jurisdictional basis exists to support a plaintiff’s state law claim in federal court. Baggett
v. First Nat. Bank of Gainesville, 117 F.3d 1342, 1352 (11th Cir. 1997). First, a court must
decide whether it has the power to hear the state law claims. Second, a court must
decide in its discretion if it will retain jurisdiction over the state law claims. Id. (citing
United Mine Workers v. Gibbs, 383 U.S. 715, 725–26, (1966)); 28 U.S.C. §§ 1367(a) and (c).
This Court clearly has the power to hear the state law claims under 28 U.S.C.
§ 1367(a) as Plaintiffs’ claims arise from the same alleged “employment” relationship
with Defendants and “share a common nucleus of operative fact[s] with the FLSA
claims.” Vitola v. Paramount Automated Food Servs., Inc., No. 08‐61849‐CIV, 2009 WL
3242011, at *5 (S.D. Fla. Oct. 6, 2009).
Next, the Court turns to the factors enumerated in 28 U.S.C. § 1367(c). First, the
Court has not dismissed Plaintiffs’ FLSA claims. As such, this is not a situation where
only the state law claims remain pending before the Court. Second, the Court finds that
the state law claims do not predominate over Plaintiffs’ FLSA claims. Third, at this time,
7
the Court cannot say that the state law claims raise novel or complex state law issues.2
Finally, there is no exceptional circumstance here and no compelling reasons for the
Court to decline to exercise jurisdiction. Accordingly, the Court will exercise
supplemental jurisdiction over the state law claims. Vitola, 2009 WL 3242011, at *5
(exercising supplemental jurisdiction over Article X, § 24, Florida Constitution claim in
FLSA case); see also Ruffin, 2012 WL 5472165, at *2‐5 (rejecting defendants’ objection and
exercising supplemental jurisdiction over dancers’ state law claims); accord Hart, 2010
WL 5297221, at *8.
B. The Proposed Class Definitions
Before considering Rule 23’s requirements, the Court must determine whether
the proposed classes have been adequately defined and clearly ascertainable. Little v. T‐
Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012) (“[a] plaintiff seeking to represent a
proposed class must establish that the proposed class is “adequately defined and clearly
ascertainable”) (internal citations omitted); see also C‐Mart, Inc. v. Metro. Life Ins. Co., 299
F.R.D. 679, 687 (S.D. Fla. 2014). A class is adequately defined and ascertainable where
“[t]he description of the class [is] sufficiently definite to enable the court to determine if
a particular individual is a member of the proposed class. The description of the class is
2
See Kwasnik v. Charlee Family Care Servs. of Cent. Florida, Inc., No. 608‐CV‐926‐
ORL‐31KRS, 2009 WL 1607809, at *6 (M.D. Fla. June 9, 2009) (declining to exercise
supplemental jurisdiction over § 448.110 claim because Court found pre‐suit
requirement was novel complex issue of state law). The Court does not decide this issue
because no parry has raised it.
8
sufficiently definite if any member of the proposed class would have the requisite
standing to sue on his own behalf or in his own right.” Pottinger v. City of Miami, 720 F.
Supp. 955, 957 (S.D. Fla. 1989) (internal citations and quotations omitted).
Here, in proposing their class definitions, Plaintiffs have not been entirely
consistent. In their motion, Plaintiffs proposed the following:
[Article X, § 24 Florida Constitution Class
(the “Florida Constitution Class”)]
All persons employed as entertainers at the King of Diamonds
“Gentlemenʹs Club” at any time between April 9, 2009 and July 19, 2014,
specifically excluding all entertainers who have “opted‐in” to the case
styled Geter et al. v Galardi South Enterprises, Inc., et al, Civil Action File
No. 1:14‐cv‐219896‐CMA. See, Article X, Section 24(e) (“Actions to enforce
this amendment shall be subject to a statute of limitations of four years, or
in the case of willful violations, five years[“]).
[§ 448.110, Fla. Stat. Class (the “§ 448.110 Class”)]
All persons employed as entertainers at the King of Diamonds
“Gentlemenʹs Club” in Miami, Florida, at any time between March 24,
2009 and July 19, 2014, specifically excluding all entertainers who have
“opted‐in” to the case styled Geter et al. v Galardi South Enterprises, Inc.,
et al, Civil Action File No. 1:14‐cv‐219896‐CMA (suit filed on April 8, 2014,
plus fifteen days in which claims were tolled after Plaintiff Espinoza
submitted, on behalf of herself and all persons similarly situated a pre‐suit
notice of state law wage claims).
[ECF No. 178, pp. 1‐2 (emphasis added)]. In their attached proposed notice, however,
Plaintiffs stated the following:
If you worked as a Dancer/Entertainer at the Kings of Diamonds at any
time between March 24, 2009 and July 19, 2014, and you do not request to
be excluded from the case, you are automatically a member of the class
9
and you may be entitled to recover minimum wage damages, liquidated
damages, overtime, and other amounts in this action under the Florida
Constitution and/or the Florida Minimum Wage Act.
[ECF No. 179‐6, p. 3 (emphasis added)].
Thus, in their motion Plaintiffs propose two separate class dates: April 9, 2009 for
the Florida Constitution Class and March 24, 2009 for the § 448.110 Class. This 15‐day
difference makes sense because it is based on § 448.110(6)(b)’s 15‐day pre‐suit notice
tolling period. Plaintiffs, however, seek an omnibus March 24, 2009 date in their
proposed notice for both classes. Plaintiffs do not explain this inconsistency. Because it
is not entirely clear which date Plaintiffs are seeking and because the Court is certifying
the classes, counsel shall confer regarding this issue in submitting a joint proposed
notice.3 If counsel are unable to agree on this point, then they shall notify the Court.
Setting aside this minor date inconsistency, Defendants present two objections to
the proposed class definitions.
First, Defendants contend that “Plaintiffs’ separate class definitions presume the
existence of a cause of action to recover minimum wages under Article X, Sec. 24(e),
separate and apart from a cause of action under the FMWA, Fla. Stat. § 448.110.” [ECF
No. 186, p. 4]. Defendants follow this sentence with a footnote about the pre‐suit notice
3
The Court can think of myriad solutions to this issue. For instance, the notice
may advise putative class members of the two class dates. Or, Plaintiffs may seek to
forego this 15‐day tolling period to have a more uniform, and cleaner, class date. The
Court is not imposing any of these solutions on the parties.
10
being defective, but present no argument explaining why that is the case and what
consequences flow from this presumption. [See Id., at p. 4 n. 1]. Neither did Defendants
move to dismiss any of Plaintiffs’ causes of action. Instead, they answered.
As noted, a Rule 23 analysis “grants courts no license to engage in free‐ranging
merits inquiries at the certification stage.” Amgen Inc., 133 S. Ct. at 1194 (citing Dukes,
131 S. Ct. at 2552 n. 6). Accordingly, this Court cannot undertake a sua sponte merits
analysis of the viability of the state law claims, where no party has filed an appropriate
motion seeking such a determination.4
Second, Defendants argue that the definition is “unfair” and “arbitrary” in its
exclusion of the plaintiffs in Geter v. Galardi S. Enter., Inc.5 [ECF No. 186, pp. 5‐6]. The
plaintiffs in Geter are also entertainers who work or did work for Defendants around
the same period of time and who filed a similar lawsuit against Defendants in the
4
Moreover, the Court cannot definitively say that the law is clear on this issue.
The Court’s cursory research shows that there is no on‐point Florida Supreme Court
case and that district courts in this circuit are split on the issue. Compare Bates v.
Smugglerʹs Enters., Inc., No. 210‐CV‐136‐FTM‐29DNF, 2010 WL 3293347, at *4 (M.D. Fla.
Aug. 19, 2010) (finding that Article X, § 24 of the Florida Constitution created a separate
cause of action apart from § 448.110), with Garcia‐Celestino v. Ruiz Harveseting, Inc., No.
2:10‐CV‐542‐FTM‐38, 2013 WL 3816730, at *17 (M.D. Fla. July 22, 2013) (rejecting Bates
and stating that “construing the FMWA [i.e., § 448.110] and the Amendment [§ 24], as
the Bates court did, to provide separate causes of action—one with a notice requirement
and one without—ignores the purpose of the FMWA as an implementing legislation to
the Amendment.”).
5
Case No. 14‐21896‐CIV (S.D. Fla. 2014) (FLSA collective action case filed by a
second group of entertainers against the same Defendants in this District in close
proximity to the current action, which features many overlapping issues).
11
Southern District of Florida in 2014. Case No. 14‐21896‐CIV (S.D. Fla. 2014). The Geter
plaintiffs would all very likely be encompassed by the class definitions proposed by
Plaintiffs without the explicit carve‐out.
The Geter plaintiffs filed their lawsuit exclusively as a federal collective action
under the FLSA and, on the first day of the jury trial in that case, the parties reached a
settlement agreement on those claims. Case No. 14‐21896‐CIV, ECF No. 305 (S.D. Fla.
July 15, 2015). The district court approved the settlement in accordance with Lynn’s Food
Stores, Inc. v. United States, 679 F.2d 1350, 1353 (11th Cir. 1982) on August 11, 2015. Geter,
Case No. 14‐21896‐CIV, ECF No. 313 (S.D. Fla. Aug. 11, 2015).
Defendants argue that excluding the Geter plaintiffs from the class definition in
this case is arbitrary and unfair because there is no evidence that the Geter plaintiffs
knowingly, voluntarily, or intentionally relinquished any state‐based wage and hour
claims when they chose to opt‐in to the Geter FLSA collective action. [ECF No. 186, pp.
5‐6]. To support this argument, Defendants refer to Boca Raton Community Hospital, Inc.
v. Tenet Healthcare Corp., in which a district court denied certification, in part, because
the class definition was “arbitrary and unfair in that there [was] no legal or factual basis
for using [a specific threshold] to distinguish between hospitals that are in the class and
those that are not.” 238 F.R.D. 679, 689‐91 (S.D. Fla. 2006).
In Boca Raton Community Hospital, the plaintiffs were unable to provide reasoned
support for the threshold that separated class members from non‐class members, and so
12
the court found that the definition was “not workable or practicable because it [was] not
grounded in fact or law and [did] not rationally separate hospitals that allegedly
received or transported stolen outlier funds from those that did not.” Id. at 691. While
Defendants claim the outright exclusion of Geter plaintiffs is not sufficiently “rational,”
the Court disagrees.
As noted above, the Geter plaintiffs have all settled their federal wage claims in
the separate litigation. In the context of the Americans with Disabilities Act, the
Eleventh Circuit held that “plaintiffs may not split causes of action to bring, for
example, state law claims in one suit and then file a second suit with federal causes of
action.” Jang v. United Tech. Corp., 206 F.3d 1147, 1149 (11th Cir. 2000). To allow plaintiffs
to do so would violate the basic tenets of res judicata. The same would potentially apply
in this context if the Court were to allow the Geter plaintiffs to settle their federal wage
claims in one action (an action in which the plaintiffs forewent the opportunity to also
pursue state wage claims), but then subsequently recover for violations of state wage
laws on the same factual predicate in this separate action. Both cases would arise “from
the same nucleus of operative fact” and thus violate the principle of res judicata. See Jang,
206 F.3d at 1149 (citing Israel Discount Bank, Ltd. v. Entin, 951 F.2d 311, 315 (11th Cir.
1992)).
Accordingly, there is nothing “arbitrary” or unfair about Plaintiffs’ decision to
specifically exclude the opt‐in plaintiffs in the Geter action.
13
Notwithstanding Defendants’ objections to the proposed class definitions, the
Court has undertaken an independent review of the proposed Rule 23 classes. The
Court finds that Plaintiffs’ proposed classes are ascertainable and adequately defined
(setting aside the minor date inconsistency to be resolved before the notice is issued).
See, e.g., Ruffin, 2012 WL 5472165, at *11 (certifying class of “all persons who, during the
period of March 8, 2006 and continuing through the entry of judgment in this case,
performed as an entertainer at one or more of Defendants’ three exotic dance clubs in
West Virginia”); Hart, 2010 WL 5297221, at *5, *8 (certifying the following class “[a]ll
persons who worked at Rick’s New York or were employed by Defendant Rick’s
Cabaret International Inc., RCI Entertainment (New York) Inc. and/or Peregrine
Enterprises, Inc. in the state of New York as ‘entertainers’ at any time six years prior to
the filing of the Complaint to the entry of judgment in this case”).
C. Rule 23(a)’s Requirements
Each of the following four requirements under Rule 23(a) must be satisfied:
numerosity; typicality; commonality; and adequacy.
1. Numerosity
To establish numerosity, a plaintiff must show that “the class is so numerous that
joinder of all members is impracticable.” See Vega, 564 F.3d at 1266–67 (quoting Fed. R.
Civ. P. 23(a)(1)). Rule 23(a)(1) imposes a “generally low hurdle,” and “a plaintiff need
not show the precise number of members in the class.” Vega, 564 F.3d at 1267 (internal
14
citations omitted). “Nevertheless, a plaintiff still bears the burden of making some
showing, affording the district court the means to make a supported factual finding,
that the class actually certified meets the numerosity requirement.” Id. (emphasis in
original). As one court has noted, “though mere numbers are not dispositive, the
general rule of thumb in the Eleventh Circuit is that ‘less than twenty‐one is inadequate,
more than forty adequate, with numbers between varying according to other factors.’”
Manno, 289 F.R.D. at 684 (citing Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th
Cir. 1986); Kuehn v. Cadle Co., 245 F.R.D. 545, 548 (M.D. Fla. 2007)).
Here, to support a numerosity finding, Plaintiffs cite to several sources,
including: (1) named Plaintiff Tiffany Thompson’s statement in her affidavit that there
are 500 or so dancers at KOD [ECF No. 34‐1, p. 42]; (2) the testimony of KOD’s general
manager, Akinyele Adams, at an evidentiary hearing that on any given week KOD could
have 300 dancers working. [ECF No. 78, p. 38]; and (3) KOD’s unqualified admission
that “[t]he number of entertainers who have performed at KOD since April 9, 2009 is
greater than 300.” [ECF No. 179‐2, p. 15].
The Court finds that the numerosity requirement is met, regardless of whether
the number is Adams’ 300 or Thompson’s 500. See Kilgo v. Bowman Transp., Inc., 789 F.2d
859, 878 (11th Cir. 1986) (affirming certification of a class of “at least thirty‐one
individual class members”); Collins v. Erin Capital Mgmt., LLC, 290 F.R.D. 689, 694 (S.D.
Fla. 2013) (plaintiff’s preliminary showing of 48 class members was sufficient to meet
15
numerosity requirement); Ruffin, 2012 WL 5472165, at *6 (157 dancers was sufficient to
meet numerosity requirement).
Defendants present additional arguments concerning numerosity, but they all
are based on pure conjecture and do not necessarily apply to numerosity per se. For
instance, Defendants argue that there is no showing that the 300 dancers are eligible to
participate as part of the Florida Constitutional Class, the § 448.110 Class, or both.
However, the class definition encompasses all entertainers from the relevant timeframe
in which Defendants admit there were at least three hundred dancers. This clearly
satisfies numerosity despite Defendants’ contrary argument.
Defendants make other statements about numerosity which are not applicable to
this element of a class action: “Plaintiffs also offer no evidence regarding the geographic
diversity of the class members, the size of each Plaintiff’s claim, the inconvenience of
trying individual lawsuits, or the ability or feasibility of the individual class members to
institute individual lawsuits.” None of these arguments goes to the subject of
numerosity, which requires a plaintiff to show that “the class is so numerous that joinder
of all members is impracticable.” See Vega, 564 F.3d at 1266–67 (emphasis added)
(quoting Fed. R. Civ. P. 23(a)(1)). Clearly, these arguments are not applicable here.
Defendants’ other argument that “potential plaintiffs could have, but did not, opt
in to the Plaintiffs’ FLSA collective action should be taken as a strong indication that
such dancers have no interest in pursuing state law wage and hour claims either,” is
16
also not persuasive. Rule 23(a)(1) imposes a “generally low hurdle,” and “a plaintiff
need not show the precise number of members in the class.” Vega, 564 F.3d at 1267
(internal citations omitted). In this action, more than 20 plaintiffs have opted into the
FLSA collective action. [ECF Nos. 123; 126; 128; 129; 137; 142; 149; 151]. While certainly
less than 300, this level of participation is evidence of some interest to actively
participate in a case. Because Rule 23 class actions do not require parties to opt‐in (only
opt‐out), the Court cannot say for certain that only those 20 claimants will seek to
recover on the state law claims. What the Court can determine at this point though,
based on Defendants’ own admissions, is that there are at least 300 potential class
members, which satisfies numerosity.
2. Commonality
“The commonality requirement demands only that there be ‘questions of law or
fact common to the class.’” Vega, 564 F.3d at 1268 (quoting Fed. R. Civ. P. 23(a)(2)).
Commonality “does not require that all the questions of law and fact raised by the
dispute be common,” or that the common questions of law or fact “predominate” over
individual issues. Id. (quoting Cox, 784 F.2d at 1557). Stated another way, “commonality
requires the plaintiff to demonstrate that the class members have suffered the same
injury,” and the plaintiffs’ common contention “must be of such a nature that it is
capable of classwide resolution—which means that determination of its truth or falsity
17
will resolve an issue that is central to the validity of each one of the claims in one
stroke.” Dukes, 131 S. Ct. at 2551 (internal quotations and citation omitted).
Here, as Defendants concede [ECF No. 68, p. 6], the commonality requirement is
met because the issue of whether Defendants treated all dancers as independent
contractors is common to all the putative class members. See Ruffin, 2012 WL 5472165, at
*7 (finding commonality met in similar circumstance); Hart, 2010 WL 5297221, at *6
(finding that commonality requirement was met where one issue was “the propriety of
the defendants’ policy of characterizing entertainers as independent contractors, rather
than employees”).
3. Typicality
Typicality requires that “the claims or defenses of the representative parties [be]
typical of the claims or defenses of the class.” Manno, 289 F.R.D. at 686 (quoting Fed. R.
Civ. P. 23(a)(3)). The “[c]lass members’ claims need not be identical to satisfy the
typicality requirement; rather, there need only exist ‘a sufficient nexus between the legal
claims of the named class representatives and those of individual class members to
warrant class certification.’” Ault v. Walt Disney World Co., 692 F.3d 1212, 1216 (11th Cir.
2012) (quoting Prado–Steiman v. Bush, 221 F.3d 1266, 1278–79 (11th Cir. 2000)). That
nexus exists “if the claims or defenses of the class and the class representative arise from
the same event or pattern or practice and are based on the same legal theory.” Ault, 692
18
F.3d at 1216 (quoting Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir.
1984)).
Here, like with commonality, the typicality requirement is met because Plaintiffs’
allegation that their mis‐categorization as independent contractors ‐‐ the central issue
that gives rise to all of their claims ‐‐ was pursuant to a blanket policy that applied to all
members of the putative class. Thus, Plaintiffs’ claims “arise from the same course of
conduct as that of the putative class members, and the same legal theory underlies the
claims of each.” Ruffin, 2012 WL 5472165, at *8 (finding typicality met); accord Hart, 2010
WL 5297221, at *6.
Defendants concede the above point (i.e., the central independent contractor
categorization issue). But they nevertheless raise two main arguments against finding
that the typicality requirement is met. The Court will address each of their arguments.
First, Defendants note that “several” named Plaintiffs also have retaliation
claims, which they contend means the typicality requirement is not met. [ECF No. 186,
p. 9]. There are, in fact, only two named Plaintiffs who have potential retaliation claims,
Seleta Stanton and Thompson. [ECF No. 116]. Typicality does not require that the class
member’s claim be identical. Accordingly, the Court does not find that two plaintiffs
with potential retaliation claims to be sufficient to find that the typicality requirement
has not been met.
19
Second, Defendants contend that it is impossible to know which of the named
Plaintiffs fall into which proposed class, the Florida Constitution Class or the § 448.110
Class. [ECF No. 186, pp. 9‐10]. The Court does not find this to be a viable argument
because, as noted, typicality rests on whether “the claims or defenses of the class and
the class representative arise from the same event or pattern or practice and are based
on the same legal theory.” See Ault, 692 F.3d at 1216 (citations omitted). Defendants’
argument focuses on the completely separate and unrelated issue of which class a
named Plaintiff falls into. Indeed, Defendants cite to no legal authority to support this
argument. In any event, the Court notes that in the amended complaint all the named
Plaintiffs asserted causes of action under Article X, § 24 of the Florida Constitution and
§ 448.110. [See ECF No. 140, pp. 37‐38].
4. Adequacy
To satisfy Rule 23(a)(4)’s adequacy requirement, the named Plaintiffs and their
counsel must demonstrate that they will adequately protect the interests of the putative
class. See Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003).
“The adequacy‐of‐representation requirement ‘encompasses two separate inquiries: (1)
whether any substantial conflicts of interest exist between [Plaintiffs or their attorneys]
and the class; and (2) whether [they and their lawyers] will adequately prosecute the
action.’” Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1323 (11th Cir. 2008) (citing Valley
Drug Co., 350 F.3d at 1189).
20
Here, Defendants concede that that the adequacy of representation requirement
is met. [ECF No. 186, p. 10]. 6 Despite this commendable concession, the Court has
conducted an independent review of whether this requirement is met. The Court finds
that the named Plaintiffs and their counsel will adequately represent both putative
classes in this case for the following reasons.
First, the named Plaintiffs and the putative class members seek to hold
Defendants liable for allegedly mis‐categorizing them as independent contractors. The
claims and defenses applicable to the named Plaintiffs and the classes appear to be
substantially the same and there is no antagonism between the named Plaintiffs’
interests and those of the putative class members. In other words, the named Plaintiffs
share common interests with the putative class members and they generally seek the
same type of relief for themselves as they seek for the class. See, e.g., Pottinger, 720 F.
Supp. at 959; Hart, 2010 WL 5297221, at *6.
Second, as for class counsel, because Plaintiffs’ counsel primarily practices out of
Georgia, this Court does not have the benefit of prior experience with Plaintiffs’ counsel
and his handling of a class action case in this district, as it does in other cases before it.
As such, the Court has undertaken a thorough review of lead counsel’s affidavit and
6
Defendants note, however, that if the Court rejected the class definition
excluding the Geter plaintiffs, then the adequacy of Plaintiffs’ counsel to represent those
parties would be questionable. [ECF No. 186, pp. 10‐11]. Because the Court accepts
Plaintiffs’ class definition that excludes the Geter plaintiffs, the Undersigned need not
address this potential issue.
21
many of the similar cases in which he has been counsel. See, e.g., [ECF No. 34‐2]; Caley
v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1366 (11th Cir. 2005); Prickett v. DeKalb
Cnty., 349 F.3d 1294, 1297 (11th Cir. 2003) (FLSA collective action); Jones v. City of
Columbus, Ga., 120 F.3d 248, 251 (11th Cir. 1997) (FLSA action); Kreher v. City of Atlanta,
Ga., No. 1:04‐CV‐2651‐WSD, 2006 WL 739572, (N.D. Ga. Mar. 20, 2006) (certifying FLSA
collective action). After considering lead counsel’s qualifications and experience, the
Court finds him sufficiently adept and able to handle this class action litigation.
D. Rule 23(b)(3)’s Requirements
“In addition to establishing the Rule 23(a) requirements, a plaintiff must also
establish that the proposed class satisfies at least one of the three requirements listed in
Rule 23(b).” Little, 691 F.3d at 1304; see also Pickett v. Iowa Beef Processors, 209 F.3d 1276,
1279 (11th Cir. 2000). In this case, Plaintiffs move under Rule 23(b)(3). That rule
“permits class certification 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.’” Little, 691 F.3d at 1304 (quoting Rule 23(b)(3)) (emphasis
in original). “These are commonly referred to as the predominance and superiority
requirements.” Manno, 289 F.R.D. at 688‐89 (internal citation omitted).
22
1. Predominance
To satisfy the predominance requirement, a plaintiff must establish that the
issues subject to generalized proof in the class action, and thus applicable to the class as
a whole, predominate over those issues that are subject only to individualized proof. See
Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir. 1997). Predominance
does not require that “all the questions of law and fact raised by the dispute be
common.” Cox, 784 F.2d at 1557. If the liability issue is common to the class, then
common questions predominate over individual questions. See Kirkpatrick v. J.C.
Bradford & Co., 827 F.2d 718, 725 (11th Cir. 1987).
Here, there is no real dispute that the liability issue is common to the class, i.e.,
the propriety of Defendants’ blanket categorization of the class members as
independent contractors. Defendants argue that notwithstanding that the liability issue
is common, the predominance requirement is not met because of the myriad factual
issues that must be resolved to determine each dancer’s damages. In particular,
Defendants’ argue that class members will, among other things, have worked different
hours per week, including a distinction of working more or less than 40 hours, and
made different amounts of money. [ECF No. 186, pp. 12‐13]. Plaintiffs brush off this
argument by stating that differences in damages is not a legally sufficient ground to not
find predominance. [ECF No. 74, p. 3].
23
To the extent that Plaintiffs’ argument is that differences in damages among class
members can never be a sufficient legal ground to find that the predominance
requirement is not met, the Court rejects that argument. The law is far more nuanced.
To be sure, in general, the Court should be focused on liability issues, and the presence
of individualized damages issues does not necessarily prevent a finding that the
common issues in the case predominate. See Allapattah Servs., Inc. v. Exxon Corp., 333
F.3d 1248, 1261 (11th Cir. 2003). But that does not mean that is always the case. Rather, as
the Eleventh Circuit has said, individualized damages issues will seldom upset a case
otherwise suited for class treatment:
It is primarily when there are significant individualized questions going to
liability that the need for individualized assessments of damages is
enough to preclude 23(b)(3) certification. Of course, there are also extreme
cases in which computation of each individualʹs damages will be so complex, fact‐
specific, and difficult that the burden on the court system would be simply
intolerable[,] but we emphasize that such cases rarely, if ever, come along.
Owner–Operator Ind. Drivers Assʹn, Inc. v. Landstar Sys., Inc., 622 F.3d 1307, 1326 (11th
Cir. 2010) (internal citations omitted) (emphasis added).
Here, Defendants have raised some valid arguments about why individual
damages calculations may prove difficult in this case. The problem for Defendants is
that they have not sufficiently shown that these damages “will be so complex, fact‐
specific, and difficult that the burden on the court system would be simply
intolerable[.]“ Id. And the Court does not find that, at this time, these damages
calculations will prove particularly onerous. Two reasons support the Court’s decision.
24
First, multiple district courts have been able to determine the amount of damages
in similar cases, i.e., dancer state law class actions. Indeed, to date, it appears that no
less than three district courts have approved class settlements of state law claims
brought by dancers. See, e.g., Flynn, 2014 WL 4980380; In re Penthouse Executive Club
Comp. Litig., 2014 WL 185628; Trauth, 2012 WL 4755682. The fact that three district
courts were able to approve a damages calculations severely undermines Defendants’
argument that damages cannot be easily calculated.
Second, as the Hart court noted, if individual damage calculations prove
necessary and cannot be easily managed, then this Court, which has a continuing
obligation to monitor class actions, may decertify the class if necessary. Hart, 2010 WL
5297221, at *7; Shin v. Cobb Cnty. Bd. of Educ., 248 F.3d 1061, 1064 (11th Cir. 2001) (“the
district court retains the ability, and perhaps even a duty, to alter or amend a
certification decision,” as circumstances change).
2. Superiority
The focus of the superiority analysis is on “the relative advantages of a class
action suit over whatever other forms of litigation might be realistically available to the
plaintiffs.” Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Servs., Inc., 601
F.3d 1159, 1183–84 (11th Cir. 2010) (internal citation omitted). In this vein, “the
predominance analysis has a tremendous impact on the superiority analysis for the
simple reason that, the more common issues predominate over individual issues, the
25
more desirable a class action lawsuit will be as a vehicle for adjudicating the plaintiffs’
claims, both relative to other forms of litigation such as joinder or consolidation, and in
absolute terms of manageability[.]” Id. at 1184 (internal citations and alterations
omitted).
In deciding superiority, a court must consider at least some of the factors set
forth in Rule 23(b)(3), including: “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.” See Vega, 564
F.3d at 1278 n. 19 (“a complete failure to address these factors or any other pertinent
consideration when conducting a Rule 23(b)(3) inquiry is an abuse of discretion”).
Here, Defendants assert the same individual damages argument they raise
regarding the predominance requirement. [ECF No. 186, pp. 11‐13]. But “the specter of
individual damages trials bears more directly on predominance than superiority.”
Manno, 289 F.R.D. at 692 n. 9 (citing Newberg on Class Actions § 4:54 (2012)). In any
event, the Court rejects this argument for the same reasons stated above.
Regarding Rule 23(b)(3)’s superiority factors inquiry, the Court finds the
following (which Defendants concede):
26
First, given the cost of litigation relative to any likely recovery, “it [is] unlikely
that the majority of putative class members would have any interest in maintaining a
separate action.” Ruffin, 2012 WL 5472165, at *11.
Second, while there was another litigation with potential class members pending
in this district, the plaintiffs there alleged only FLSA violations. See Geter, Case No. 14‐
21896‐CMA, ECF No. 1 (S.D. Fla. May 22, 2014). The Geter plaintiffs did not allege any
State Law Claims, and the case has settled.
Third, litigation of this case in this forum is desirable because it is where KOD is
located and does business, where the alleged unlawful acts occurred, and where a large
number of putative class members presumably reside. Ruffin, 2012 WL 5472165, at *11.
Finally, it is unlikely that any difficulties will be encountered in the management
of this case, other than typical issues of the language of the notice to the putative class
members.
Accordingly, having considered all of Rule 23(b)(3)’s superiority factors, the
Court finds that “the class action vehicle is superior in the instant matter.” C‐Mart, Inc.,
299 F.R.D. at 692.
3. Rule 23(b)(3) and Geter Plaintiffs
In addition to the above arguments, Defendants secondarily raise the potential
complication of the Geter litigation in the context of predominance. [ECF No. 186, pp.
13‐15]. Once again, however, Defendants’ argument of potential conflicts and
27
complications only comes into play if the Court were to reject Plaintiffs’ class definition
that excludes the Geter plaintiffs from the class. If the Court were to reject that portion of
the class definition, then there would certainly be problems concerning overlapping
representation of the Geter plaintiffs by two separate attorneys for different portions of
their claims. As noted above, though, Defendants’ arguments to reject the class
definition are without merit. Therefore, the exclusion of the Geter plaintiffs from the
state law class claims resolves any potential issues regarding the Rule 23(b)(3) factors.
E. Plaintiffs’ Proposed Notice
Plaintiffs’ proposed notice includes several references to the FLSA and creates
confusion. [See ECF No. 179‐6, p. 1]. Before the Court approves a Notice for this class
action, those confusing references must be removed. In addition, it is apparent that the
parties disagree concerning the blanket statement about the effect of the arbitration
agreements that Defendants mandated dancers to sign following the filing of this
lawsuit. Specifically, the language in the proposed notice states:
If you began working at KOD before April 8, 2014 and signed a
mandatory arbitration agreement after that date because you believed you
would be fired or terminated if you did not sign it, then you may
participate in the case even though you signed the mandatory arbitration
agreement.
[Id.].
On December 31, 2015, the Undersigned entered an Order rejecting Defendants’
motion to enforce the referenced arbitration agreements against four opt‐in claimants in
28
the FLSA collective action. [ECF No. 191]. In that Order, the Undersigned concluded
that Defendants’ arbitration policy was conducted with the clear “purpose of
undermining this litigation. [Id., at p. 15]. The Undersigned refused to enforce the
agreements with regard to four specific plaintiffs. But the Undersigned did not enter a
blanket ruling concerning the enforcement of all arbitration agreements though, as that
issue has not been presented to the Court.
Accordingly, the Undersigned finds that the language in the proposed Notice is
too broad, as currently written. While it is certainly true that the Court’s perspective of
Defendants’ arbitration policy is decidedly negative on account of Defendants’ stated
intent, it remains to be decided whether other arbitration agreements signed after the
filing of this lawsuit are unenforceable.
In evaluating how to proceed on this issue, the Court notes the following. First,
this issue is not properly before the Court because no party has raised the issue. See
Rosen v. J.M. Auto Inc., 270 F.R.D. 675, 679 (S.D. Fla. 2009) (noting that arbitration issue
was not properly before court on class certification motion), order vacated in part on
reconsideration (May 26, 2009) (the portion of the earlier cited order was not vacated).
Second, the fact “that some members of a putative class may have signed
arbitration agreements or released claims against a defendant does not bar class
certification.” Herrera v. LCS Fin. Servs. Corp., 274 F.R.D. 666, 681 (N.D. Cal. 2011); see
also Bittinger v. Tecumseh Prods. Co., 123 F.3d 877, 884 (6th Cir. 1997). Rather, courts will
29
rule on the merits of the class certification motion and reserve “the right to create
subclasses or exclude members from the class at a later juncture.” Coleman v. Gen.
Motors Acceptance Corp., 220 F.R.D. 64, 91 (M.D. Tenn. 2004) (internal citations omitted);
Bittinger, 123 F.3d at 884; see also Collins v. Intʹl Dairy Queen, 168 F.R.D. 668, 677 (M.D.
Ga. 1996) (establishing subclasses where some of the class members had contracts
containing arbitration provisions). Accordingly, while Plaintiffs’ state law claims’
classes are being certified, the Court reserves the right to create subclasses or exclude
class members depending on later developments.
What the foregoing means for the instance notice is the following: the notice will
advise that any potential plaintiff who signed the arbitration agreement will be allowed
into the state law claims classes for now, but that she may later be excluded.
To address the above changes (and possibly others), counsel shall confer and
submit a joint proposed notice to the Court for consideration within ten days of this
Order.
In conferring about the proposed notice, counsel shall follow the Court’s
previous ruling. [ECF No. 116, pp. 12‐13]. To reiterate, those rulings (as modified here)
are as follows:
The notice will be in 12‐point font and have 1‐inch margins.
References to Plaintiffs’ proposed FLSA collective action must be
removed.
30
The notice shall make clear that it applies only to KOD
dancers/entertainers, not all KOD employees.
The notice shall advise putative class members that they may be required
to participate in discovery.
The notice and the envelopes containing the notice will not use language
to suggest judicial endorsement of the notice.
The proposed notice must notify class members that if there is no
judgment in their favor, then Defendants may request the Court to order
reimbursement of their litigation expenses against them.
To assist counsel with preparing the revised notice, counsel are directed to
review the Ruffin notice, ECF No. 34‐5.
IV.
CONCLUSION
For the reasons set forth above, Plaintiffs’ motion for class certification is granted
in part. Within ten days of this Order, the parties shall submit a revised proposed class
notice for the Court to review. The parties shall also email a “Word” version of the
proposed notice to the Court’s e‐file inbox.
DONE and ORDERED, in Chambers, in Miami, Florida, January 11, 2016.
Copies furnished to:
All Counsel of Record
31
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