Lopez et al v. Hayes Robertson Group, Inc. et al
Filing
172
ORDER on Plaintiffs' Motion to Dismiss Lopez's Claim as a Class representative and to Proceed with the Class Action with Trdina as Sole Class Representative and to Change Style of Action. Signed by Magistrate Judge Jonathan Goodman on 12/23/2015. Associated Cases: 4:13-cv-10004-JEM, 4:13-cv-10026-JEM (tr00)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
KEY WEST DIVISION
CASE NO. 13‐10004‐CIV‐MARTINEZ/GOODMAN
[CONSENT CASE]
PAUL LOPEZ, et al.,
Plaintiffs,
v.
HAYES ROBERTSON GROUP,
INC., et al.,
Defendants.
_____________________________/
ORDER ON PLAINTIFFS’ MOTION TO DISMISS LOPEZ’S CLAIM
AS A CLASS REPRESENTATIVE AND TO PROCEED WITH THE CLASS ACTION
WITH TRDINA AS SOLE CLASS REPRESENTATIVE
AND TO CHANGE STYLE OF ACTION
In December of 2011, a putative class action was filed against the present
Defendants by 21 of the plaintiffs in the present action. See Bennett et al. v. Hayes
Robertson Group, Inc. et al., No. 11‐10105‐JLK, ECF No. 1 (S.D. Fla. Dec. 30, 2011). The
plaintiffs in Bennett moved to certify a class for their state claims under Federal Rule of
Civil Procedure 23(b). Bennett, ECF No. 78, pp. 1‐2.1 The Bennett court denied the motion
1
The Bennett plaintiffs also brought a claim under the Fair Labor Standards Act
(“FLSA”) for unpaid overtime compensation. The Bennett court certified a collective
action under the FLSA for those federal claims. Bennett, ECF No. 78. However, those
overtime claims are not at issue in this lawsuit.
to certify that class and dismissed without prejudice the minimum wage claims,
directing the plaintiffs to re‐file those claims as individual actions. Id. at pp. 1‐12;
Bennett, ECF No. 115. Following that direction, nearly all of the plaintiffs in Bennett filed
individual minimum wage actions against Defendants. Additionally, several
individuals who were not named plaintiffs in Bennett, but who would have been
encompassed within the requested Bennett class if it had been certified, filed their own
minimum wage actions against Defendants.
In total, twenty‐seven individual actions were filed against Defendants,
including this one, which originated with two named Plaintiffs: Paul Lopez and Andrea
Trdina. In September of 2013, Magistrate Judge Chris McAliley granted certification of a
class action in this matter as to minimum wage claims under Florida law pursuant to
Federal Rule of Civil Procedure 23(b)(3) and the Fair Labor Standards Act (“FLSA”), 29
U.S.C. 216(b). [ECF No. 47].
After the FLSA collective action was certified, the parties stipulated ‐‐ during a
hearing ‐‐ that the action should not proceed as an FLSA collective action; instead, the
parties agreed to proceed solely as a Rule 23 class action pursuing Florida claims. [ECF
Nos. 116; 118].
Defendants recently filed a motion for decertification of both the FLSA and Rule
23 classes. [ECF No. 141]. The Undersigned denied that motion. [ECF No. 149]. In the
2
Order denying Defendants’ motion for decertification, the Undersigned addressed the
issue of subject matter jurisdiction. [Id., at pp. 6‐9].
Defendants argued that, because Plaintiffs acknowledged that there was no
longer an FLSA collective action being pursued, this Court no longer possessed subject
matter jurisdiction. [ECF No. 145, pp. 1‐3]. The Undersigned noted that the situation has
changed because of the stipulation to not pursue a collective action under the FLSA.
However, that choice was made because all “members for the Federal Class have been
identified.” [ECF Nos. 118, p. 2; 125, p. 2].
So, while this is no longer a collective action under the FLSA, each of the Plaintiffs’
individual claims under the FLSA are still live for adjudication.2 Thus, the case still
does arise under a federal statute, which provides the Court with the discretion to
exercise supplemental jurisdiction over Plaintiffs’ state law class action claims.
Request to Dismiss FLSA Claims
Plaintiffs now move [ECF No. 156] to dismiss the individual claims of Lopez
without prejudice (while still allowing him to remain a member of the Rule 23 Class)
and to change the caption of the case to reflect Trdina as the sole named Plaintiff in the
case. While this is the primary relief requested by Plaintiffs (and opposed by
2
None of Plaintiffs’ FLSA claims have been dismissed.
3
Defendants [ECF No. 163]), the motion also mentions a stipulation concerning the other
25 Plaintiffs’3 individual claims which were consolidated into this action.
Specifically, the motion notes that the individual claims of the other 25 Plaintiffs
are to be dismissed and that they will proceed only as unnamed members of the class.
The individual claims of the other 25 Plaintiffs, however, are FLSA claims. This is also
true as to a portion of Lopez’s individual claims that Plaintiffs seek to dismiss (and
concerning which, Defendants consent to dismissal [ECF No. 163, p. 2]). Thus, it appears
that Plaintiffs now seek to dismiss the individual FLSA claims of Lopez and all other
individual Plaintiffs with the exception of Trdina.4
Concerning the 25 co‐plaintiffs, the stipulation mentioned in Plaintiffs’ motion
does not specify whether the dismissal is to be with or without prejudice. The motion
clearly states, however, that Lopez’s individual claims are to be dismissed without
prejudice. This is a critical point for resolution of FLSA claims.
3
The “25 Plaintiffs” are those parties who consolidated their FLSA claims with
Lopez’s and Trdina’s FLSA collective action. The “25” Plaintiffs are as follows: Clarke,
Cram, Hirsowitz, Perez, Gomes, Wood, Johnston, Rogers, Collins, Warner, Tate, Lowry,
Montgomery, Bennett, Vidal, Shouldice, Gilliand, Worley, Wise, Campbell, Logue,
Wittler, Pawsey, Leonard, and Griffith.
4
It is unclear from Plaintiffs’ motion whether this is actually the relief that
Plaintiffs seek. While Plaintiffs do not expressly request that the Court dismiss the other
25 Plaintiffs’ individual claims, Plaintiffs’ motion mentions that the parties have
stipulated to this. In addition, Plaintiffs’ motion does not specify that both Lopez’s FLSA
and Rule 23 claims are to be dismissed. However, the Undersigned will address the
motion as though it implicitly made this request.
4
In general, the minimum wage and overtime provisions of the FLSA are
mandatory and not subject to negotiation or bargaining between employers and
employees. See Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 (1945). However, there are
two ways employees may settle and waive a claim against their employer for unpaid
minimum wages or overtime pay under the FLSA: (1) if the payment of unpaid
minimum wage/overtime pay is supervised by the Secretary of Labor; or (2) in a private
lawsuit brought by an employee, if the parties present the district court with a proposed
settlement and the court enters an order approving the fairness of the settlement.
29 U.S.C. § 216(c); Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350, 1353 (11th Cir.
1982); see also Schulte, Inc. v. Gangi, 328 U.S. 108 (1946).
If dismissal of an FLSA claim is sought with prejudice, then the dismissal would
“preclude plaintiff from re‐filing her FLSA claim, [and] it cannot be granted without
[the] Court’s approval.” Perez‐Nunez v. North Broward Hosp. Dist., 609 F. Supp. 2d 1319,
1321 (S.D. Fla. 2009). However, “there is no public policy requiring court scrutiny of the
circumstances surrounding dismissal without prejudice of a FLSA case.” Bleecher v.
Nightingale Nurses, LLC, No. 07–80378–Civ., 2010 WL 3834692, at *5 (S.D. Fla. Sept. 10,
2010), Report and Recommendations adopted in Bleecher v. Nightingale Nurses, LLC, No.
07–80378–Civ., 2010 WL 3834655 (S.D. Fla. Sept. 28, 2010) (citing Perez‐Nunez, 609 F.
Supp. 2d at 1321; Kerr v. Powerplay Arcade, Inc., No. 6:07‐CV‐1441‐ORL‐19KRS., 2007 WL
3307091 at *1 (M.D. Fla. Nov. 6, 2007) (explaining that, where “case is being dismissed
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without prejudice, there will be no final adjudication on the merits” and no settlement
or resolution of FLSA claims for the court to review for fairness)).
Accordingly, if dismissal of the FLSA claims by Lopez and the other 25 Plaintiffs
is “sought . . . without prejudice, the Court would agree that approval would not be
necessary, since Plaintiff[s] would not be foreclosing [their] ability to vindicate any
FLSA claim [they] may have by refiling at a later time.” Perez‐Nunez, 609 F. Supp. 2d at
1320.
Based on the Undersigned’s reading of the motion, which, as noted, is less than
clear, Plaintiffs appear to seek dismissal without prejudice of Lopez’s and the other 25
Plaintiffs’ FLSA claims. Because the dismissal is sought without prejudice, the
Undersigned need not analyze the fairness of this resolution. Accordingly, the
Undersigned grants Plaintiffs’ motion as to the voluntary dismissal of the FLSA claims.
Request to Dismiss Lopez’s Claim as a Class Representative
Plaintiffs also move to dismiss Lopez as a Class Representative and to proceed to
trial with Trdina as the only class representative. Plaintiffs include a request to change
the official caption of this case to remove Lopez’s name if the motion is granted.
Defendants oppose this motion.
Defendants oppose the motion on the ground that allowing Lopez to dismiss his
personal claim post‐certification violates his fiduciary duty as a class representative to
the class as a whole. [ECF No. 163, pp. 3‐5]. Thus, Defendants are seemingly opposing
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this motion on behalf of their opponents, the unnamed class members. This argument is
unpersuasive, however.
Defendants cite to Rule 23(e), which states that “[t]he claims, issues, or defenses
of a certified class may be settled, voluntarily dismissed, or compromised only with the
court’s approval.” Citing to Shelton v. Pargo, 582 F.2d 1298 (4th Cir. 1978), Defendants
claim that Lopez undertook a fiduciary duty to the class members and cannot be
allowed to abandon this role as a representative at will. In Shelton, the Fourth Circuit
ruled that individual class representatives “may not abandon the fiduciary role they
assumed at will or by agreement with the appellant, if prejudice to the members of the
class they claimed to represent would result or if they have improperly used the class
action procedure for their personal aggrandizement.” Id. at 1305.
The Fourth Circuit in Shelton addressed “the procedure to be followed by a
district court in passing upon a voluntary motion to dismiss an action, filed both as an
individual and as a class action, when the individual action has been settled without
court approval in advance of any certification of the action as a class action under Rule
23(c)(1)[.]” Id. at 1300. The Shelton court ultimately ruled that the District Court should
have inquired carefully into circumstances of settlement and made findings as to
whether the settlement was tainted by collusion or whether absent class members
would be prejudiced by settlement. Id.
7
The situation in Shelton is clearly different than here. In the instant case, there is
no indication that Lopez has entered into a settlement. Additionally, Plaintiffs are not
moving to dismiss the entire class action. Indeed, Plaintiffs’ motion represents that the
case will proceed with Trdina as the class representative.
Defendants assert that the class representation will ultimately be harmed by the
absence of Lopez, but state nothing specifically beyond vagaries about ensuring
continued fair and adequate representation of the class members. [ECF No. 163, p. 5].
Defendants’ argument is unpersuasive. First, Defendants cannot point to a single
specific, tangible harm that the class members would face because of Lopez’s absence.
The case will continue to be prosecuted with Trdina as a class representative and so the
Undersigned does not see the harm in dismissing Lopez’s Rule 23 claim. Second, even if
the Court were to deny Plaintiffs’ motion, there would seemingly be no practical effect
on the case.
Plaintiffs’ motion represents that Lopez has no intention of appearing on behalf
of the class at the trial, whether he is a named class representative or not. Thus, for all
practical purposes, it does not seem to make a difference if the Court were to maintain
Lopez’s class representative status, as he has no intention of personally pursuing this
case anymore. So, with Plaintiffs still represented by a class representative (i.e., Trdina),
the Undersigned sees no harm in dismissing Lopez as a class representative.
8
The Court takes seriously its duty to preserve the integrity of the class action. See
Kleiner v. First Nat. Bank of Atlanta, 751 F.2d 1193, 1203 (11th Cir. 1985). Accordingly, the
Undersigned has analyzed whether the class members will face any specific harm if
Lopez is dismissed as a class representative. For the reasons stated above, the
Undersigned does not find any specific harm and therefore grants Plaintiffs’ motion to
dismiss Lopez as a class representative.
Additionally, Plaintiffs’ request to change the case caption and remove Lopez
individually from the case as a whole is granted because all of Lopez’s individual
claims are now dismissed. The Clerk of Court is directed to change the caption officially
displayed on the CM/ECF system and the case shall now proceed as Andrea Trdina v.
Hayes Robertson Group, Inc. et al.
DONE and ORDERED, in Chambers, in Miami, Florida, December 23, 2015.
Copies furnished to:
Hon. Jose E. Martinez
All Counsel of Record
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