Leon v. Diversified Concrete, LLC et al
Filing
74
ORDER & REASONS. It is ORDERED that Plaintiffs Motion for Class Certification (R. Doc. 66 ) is GRANTED. The class shall consist of all current and former employees of Defendants, from 2011 to present, who have had amounts deducted from their wages by Defendants for payment of Defendants' workers' compensation insurance premiums. Signed by Judge Carl Barbier on 10/25/2016. (gec)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PEDRO LEON, ET AL.
CIVIL ACTION
VERSUS
NO: 15-6301
DIVERSIFIED CONCRETE,
LLC, ET AL.
SECTION: “J”(5)
ORDER & REASONS
Before the Court is Plaintiff Pedro Leon’s Motion for Class
Certification (R. Doc. 66), a response thereto filed by Defendants
Diversified
Concrete,
LLC,
Ryan
Rodgers,
and
Bradley
Rogers
(Defendants) (R. Doc. 67), and Plaintiff’s reply in opposition to
Defendants’ response (R. Doc. 71). Having considered the motion
and legal memoranda, the record, and the applicable law, the Court
finds that the motion should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff brought this collective action suit under the Fair
Labor Standards Act (FLSA) against his former employer Diversified
Concrete, LLC, and Diversified’s members, Ryan Rogers and Bradly
Rogers, alleging that he and other laborers were not paid overtime
wages. (R. Doc. 1.) On May 5, 2016, Plaintiff amended his complaint
to add violations of Louisiana Revised Statute § 23:1163. (R. Doc.
30.) Specifically, Plaintiff alleges that Defendants unlawfully
deducted workers’ compensation premiums from Plaintiff’s and other
laborers’ paychecks. (R. Doc. 30.) On May 13, 2016, this Court
granted Plaintiff’s Motion for Conditional Class Certification for
Plaintiff’s proposed FLSA class. (R. Doc. 33.) Plaintiff now seeks
to certify a class of all current and former employees of the
Defendants, since 2011, who had any amounts deducted from their
wages by Defendants to satisfy payment of Defendants’ workers’
compensation insurance premiums. (R. Doc. 66-1 at 4.) In short,
Plaintiff argues that the prerequisites of Rule 23 of the Federal
Rules of Civil Procedure are satisfied. Id. In response, Defendants
argue that this Court should deny Plaintiff’s motion because
Plaintiff has failed to prove that joinder is impracticable. (R.
Doc. 67.) Plaintiff’s motion is now before the Court on the briefs
and without oral argument. 1
PARTIES’ ARGUMENTS
1.
Plaintiff’s Arguments
Plaintiff argues that Defendants violated Louisiana Revised
Statute
23:1163
by
offsetting
the
costs
of
their
workers’
compensation premiums by deducting those amounts directly from the
compensation of their workers. (R. Doc. 66-1 at 3.) Plaintiff
argues that the Court should certify a putative class, defined as:
Since 2011 and continuing until the present, all current
and former employees of Defendants who had any amounts
deducted from their wages by Defendants to satisfy the
payment of Defendants’ workers’ compensation insurance.
1 Plaintiff’s motion also requested that the Court suspend the hearing date on
Plaintiff’s Motion for Class Certification. (R. Doc. 66 at 1.) Defendants’ reply
in opposition opposed Plaintiff’s request. (R. Doc. 67 at 3.) Plaintiff’s reply
to Defendants’ opposition clarified that Plaintiff’s original motion contained
an “administrative error” and that Plaintiff is not requesting any postponement
of the submission date. (R. Doc. 71 at 3.)
2
Id. at 3-4. Plaintiff argues that joinder is impracticable, that
common legal and factual questions are shared amongst the proposed
putative class, the claims of Pedro Leon are typical of the claims
of the class as a whole, and that Plaintiff’s counsel regularly
engages in complex collective action litigation. Id. at 4-8.
Further,
Plaintiff
requirements
of
argues
Rule
that
the
23(b)(3)
proposed
in
that
class
meets
class-wide
the
issues
predominate over any individualized issues, and that a class action
is the superior method to fairly and efficiently adjudicate this
controversy. Id. at 9-13. For these reasons, Plaintiff argues that
class certification is appropriate.
2.
Defendants’ Arguments
Defendants
only
argue
that
class
certification
is
inappropriate because Plaintiff “has failed to show, and is unable
to show, that the class is so numerous that joinder of all members
is
impracticable.”
(R.
Doc.
67
at
3.)
Defendants
argue
that
Plaintiff relies solely on the number of putative class members to
satisfy Rule 23’s numerosity requirement and fails to address any
other factor. Id. Further, Defendants argue that the class members
should be easy to locate because Plaintiff was provided with the
names and addresses of potential members. Id. Defendants also argue
that the geographic dispersion of the class is relatively small,
because
all
of
the
proposed
members
3
should
be
residents
of
Louisiana. Id. For these reasons, Defendants argue that class
certification is inappropriate.
LEGAL STANDARD
Rule 23 governs whether a proposed class falls within the
limited exception to “the usual rule that litigation is conducted
by and on behalf of the individual named parties only.” Ibe v.
Jones, No. 15-10242, 2016 WL 4729446, at *7 (5th Cir. Sept. 9,
2016) (citing Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)).
Four
prerequisites
must
be
met
by
all
classes:
numerosity,
commonality, typicality, and adequacy of representation. Fed. R.
Civ. P. 23(a). “Rule 23 does not set forth a mere pleading
standard.” Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350
(2011). The party seeking class certification bears the burden of
demonstrating that the requirements of Rule 23 have been satisfied.
O’Sullivan v. Countrywide Home Loans, Inc., 319 F.3d 732, 737–38
(5th Cir. 2003).
Under Rule 23(a)(1), certification is only appropriate where
“the
class
is
so
numerous
that
joinder
of
all
members
is
impracticable.” “[A] plaintiff must ordinarily demonstrate some
evidence or reasonable estimate of the number of purported class
members.” Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030,
1038 (5th Cir. 1981). But, the Fifth Circuit has repeatedly noted
that
“the
number
of
members
in
a
proposed
class
is
not
determinative of whether joinder is impracticable.” In re TWL
4
Corp., 712 F.3d 886, 894 (5th Cir. 2013) (quoting Mullen v.
Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999)).
Rather, “a number of facts other than the actual or estimated
number
of
‘numerosity’
purported
class
question;
members
these
may
include,
be
relevant
for
to
example,
the
the
geographical dispersion of the class, the ease with which class
members may be identified, the nature of the action, and the size
of each plaintiff’s claim.” Zeidman, 651 F.2d at 1038.
Pursuant to Rule 23(a)(2), there must be “questions of law or
fact common to the class.” The Supreme Court has explained that
“[c]ommonality requires the plaintiff to demonstrate that the
class members have suffered the same injury.’” Dukes, 564 U.S. at
349 (quoting General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156
(1982)). Dissimilarities among class members should be considered
to determine whether a common question is truly presented. Id. at
359. Even a single common question of law or fact can suffice to
establish commonality, so long as resolution of that question “will
resolve an issue that is central to the validity of each one of
the [class member’s] claims in one stroke” Id. at 350, 359.
Rule 23(a)(3) provides that “the claims or defenses of the
representative parties [must also be] typical of the claims or
defenses of the class.” The typicality inquiry rests “less on the
relative strengths of the named and unnamed plaintiffs’ cases than
on the similarity of legal and remedial theories behind their
5
claims.” Jenkins v. Raymark Indus. Inc., 782 F.2d 468, 472 (5th
Cir. 1986). Moreover, Rule 23(a)(4) requires the party seeking
certification to show that “the representative parties will fairly
and adequately protect the interests of the class.” This standard
“requires the class representatives to possess a sufficient level
of knowledge and understanding to be capable of ‘controlling’ or
‘prosecuting’ the litigation.” Berger v. Compaq Comput. Corp., 257
F.3d 475, 482–83 (5th Cir. 2001). The adequacy requirement “also
factors in competency and conflicts of class counsel.” Amchem, 521
U.S. at 626, n. 20.
Nevertheless, class certification is permitted only 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.”
Fed. R. Civ. P. 23(b)(3). The predominance inquiry “tests whether
proposed classes are sufficiently cohesive to warrant adjudication
by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591,
623
(1997).
“In
order
to
‘predominate,’
common
issues
must
constitute a significant part of the individual cases.” Mullen,
186 F.3d at 626 (quoting Jenkins, 782 F.2d at 472). Determining
whether legal issues common to the class predominate also requires
that the court inquire how the case will be tried. O’Sullivan, 319
F.3d at 738. “This entails identifying the substantive issues that
6
will control the outcome, assessing which issues will predominate,
and then determining whether the issues are common to the class.”
Id.
Generally,
individualized
damages
calculations
will
not
preclude a finding of predominance. See Tyson Foods, Inc. v.
Bouaphakeo, 136 S.Ct. 1036, 1045 (2016). “Where the plaintiffs’
damage claims focus almost entirely on facts and issues specific
to individuals rather than the class as a whole, the potential
exists that the class action may degenerate in practice into
multiple
lawsuits
separately
tried.
In
such
cases,
class
certification is inappropriate.” O’Sullivan, 319 F.3d at 744–45.
Finally, a class action must be the superior method for
adjudicating the controversy. The district court must compare and
“assess the relative advantages of alternative procedures for
handling the total controversy.” In re TWL Corp., 712 F.3d at 896
(quoting Fed. R. Civ. P. 23(b)(3) Advisory Committee’s Note to
1966 Amendment). The superiority analysis is fact-specific and
varies depending on the circumstances of each case. Id. Among the
factors for the court to consider are “(A) the interests of members
of the class in individually controlling the prosecution or defense
of separate actions; (B) the extent and nature of any litigation
concerning the controversy already begun by or against class
members; (C) the desirability or undesirability of concentrating
the litigation of the claims in the particular forum; and (D) the
7
likely
difficulties
encountered
in
managing
a
class
action.”
Amchem, 521 U.S. at 615–616.
DISCUSSION
Plaintiff
seeks
restitution,
monetary
penalties,
and
attorney’s fees for Defendants’ alleged violations of Louisiana
Revised Statute § 23:1163. (R. Doc. 30 at 6-7.) As a preliminary
matter, the Court must determine whether it has the authority to
award restitution and civil penalties under Louisiana Revised
Statute § 23:1163, as Plaintiff has not cited to any case where
the
court
imposed
such
damages
pursuant
to
§
23:1163(D).
23:1163(A) provides:
It shall be unlawful for any employer, or his agent or
representative, to collect from any of his employees
directly or indirectly either by way of deduction from
the
employee’s
wages,
salary,
compensation,
or
otherwise, any amount whatever, or to demand, request,
or accept any amount from any employee, either for the
purpose of paying the premium in whole or in part on any
liability or compensation insurance of any kind whatever
on behalf of any employee or to reimburse such employer
in whole or in part for any premium on any insurance
against any liability whatever to any employee or for
the purpose of the employer carrying any such insurance
for the employer’s own account, or to demand or request
of any employee to make any payment or contribution for
any such purpose to any other person.
The penalty provision of § 23:1163 provides:
In addition to the criminal penalties provided for in
Subsection C of this Section, any person violating the
provisions of this Section shall be assessed civil
penalties by the workers’ compensation judge of not less
than five hundred dollars and not more than five thousand
dollars payable to the employee and reasonable attorney
fees. Restitution shall be ordered up to the amount
8
§
collected from the employee’s wages, salary or other
compensation. The award of penalties, attorney fees, and
restitution shall have the same force and effect and may
be satisfied as a judgment of a district court.
La. Rev. Stat. § 23:1163(D). Prior to June 24, 2004, § 23:1163 was
only a criminal statute. See Chevalier v. L.H. Bossier, Inc., No.
95-2075, pp. 5-6 (La. 7/2/96); 676 So.2d 1072, 1076. In Chevalier,
the Louisiana Supreme Court held that a violation of § 23:1163, “a
criminal
provision
containing
a
clear
and
explicit
penalty
provision, [provided] no basis, in and of itself, for recovery by
claimant of compensation benefits [for the defendant’s] violation
of the statute.” Id. However, in 2004, § 23:1163 was amended and
section (D) was added to authorize civil penalties and restitution
for the unlawful collection of workers’ compensation premiums from
employees. The Court was able to locate only one Louisiana decision
interpreting § 23:1163(D) after the 2004 amendment. See Young v.
Gulf Coast Carpets, No. 2004-854, p. 8 (La. App. 3d Cir. 11/17/04);
888 So.2d 1074, 1081. In Young, the court found that the defendant
secured workers’ compensation for the plaintiff, but did so at the
plaintiff’s
cost.
Id.
The
court
determined
that
this
was
a
violation of § 23:1163 and stated that, “[the plaintiff’s] remedy
for the wrongful deduction of workers’ compensation benefits lies
in a separate non-workers’ compensation civil suit.” Id. (citing
Chevalier, 676 So.2d 1072). Moreover, the statute provides that
“any person violating [§ 23:1163] shall be assessed civil penalties
9
by the workers’ compensation judge of not less than five-hundred
dollars and not more than five-thousand dollars payable to the
employee and reasonable attorney’s fees. Restitution shall be
ordered up to the amount collected from the employee’s wages,
salary or other compensation.” La. Rev. Stat. § 23:1163(D). Thus,
it appears that this Court is authorized to award Plaintiffs civil
penalties, restitution of deducted wages, and attorney’s fees if
Defendants in fact violated § 23:1163. See id.
Now that the Court has determined that it has the authority
to award restitution and monetary penalties for violations of §
23:1163, the Court shall address whether it should certify the
proposed
class
of
Plaintiffs.
Plaintiff
bears
the
burden
of
demonstrating that all of Rule 23’s requirements are satisfied.
O’Sullivan, 319 F.3d at 737–38. Although Defendants only argued
that
Plaintiff
because
it
is
has
not
satisfied
Plaintiff’s
burden
the
to
numerosity
requirement,
demonstrate
that
all
requirements of Rule 23 are satisfied, the Court shall address
each requirement in turn.
1.
Rule 23(a) Requirements
a.
Numerosity
Under Rule 23(a)(1), Plaintiff must demonstrate that the
class is so numerous that joinder of all members is impracticable.
The number of members in a proposed class is not determinative of
whether joinder is impracticable. Ibe, 2016 WL 4729446, at *8
10
(quoting
Mullen,
186
F.3d
at
624).
The
Fifth
Circuit
“has
repeatedly counseled that courts must not focus on sheer numbers
alone.” Id. (quoting In re TWL Corp., 712 F.3d at 894) (internal
quotations and citations omitted). The Fifth Circuit has provided
other factors that may support finding that joinder of all members
is impracticable. See Mullen, 186 F.3d at 624-25 (citing Zeidman,
651 F.2d at 1038). These factors include: (1) The geographical
dispersion of the class; (2) The ease with which the class members
may be identified; (3) The nature of the actions; and (4) The size
of each plaintiff’s claim. Id. In the employment context, fear of
retaliation is an additional fact that cuts in favor of the
numerosity requirement, because such fear might deter plaintiffs
from suing individually, making a representative action especially
pertinent. See 1 William B. Rubenstein, et al., Newberg on Class
Actions § 3:12, at 208-09 (5th ed. 2011) (citing Mullen, 186 F.3d
at 624 (finding numerosity requirement satisfied because “putative
class members still employed by the Casino might be reluctant to
file individually for fear of workplace retaliation”)).
Plaintiff argues that numerosity is satisfied because the
class consists of at least one-hundred and eighteen (118) members
and many of the members cannot be easily located. (R. Doc. 66-1 at
5; R. Doc. 71 at 1-2.) Although Plaintiff admits that many of the
members
can
be
easily
identified
through
Defendants’
payroll
records, R. Doc. 66-1 at 5, Plaintiff alleges that many of the
11
members’ addresses are missing street or apartment numbers, while
other members’ addresses are unknown, R. Doc. 71 at 1-2. 2 Plaintiff
also argues that Defendants continue to deduct wages of newly hired
workers classified as “independent contractors,” and thus it is
impracticable to join class members who are not yet ascertainable.
Id. at 2. Finally, because this is an employment action, Defendants
argue
many
class
members
may
be
reluctant
to
file
actions
individually in fear of retribution. Id. at 2-3.
The Court finds that Plaintiff has satisfied his burden of
proving
joinder
of
all
members
is
impracticable.
First,
the
proposed class of 118 members is within the range that generally
satisfies the numerosity requirement. Mullen, 186 F.3d at 624
(“[T]he size of the class in this case—100 to 150 members—is within
the range that generally satisfies the numerosity requirement.”).
Second, while the members may be identified easily, Plaintiff has
already demonstrated the practical difficulty of locating many of
the potential members. See Colindres v. QuitFlex Mfg., 235 F.R.D.
347, 373 (S.D. Tex. 2006) (finding difficulty of locating members
of the class weighed in favor of numerosity). Finally, several of
the potential class members may still be employed by Defendants
and
be
hesitant
to
file
actions
individually
for
fear
of
retribution. See Mullen, 186 F.2d at 624. For these reasons, the
2
Plaintiff also claims that forty-six of the FLSA notice forms have been
returned as undeliverable. (R. Doc. 71 at 2 n. 5.)
12
Court finds that Plaintiff has satisfied his burden of proving
that joinder of all members is impracticable.
b.
Commonality
Under
Rule
23(a)(2),
Plaintiff
must
demonstrate
that
questions of law or fact are common to the class. Commonality
requires Plaintiff to demonstrate that the class members have
suffered the same injury. Dukes, 564 U.S. at 349. “The test for
commonality is not demanding and is met ‘where there is at least
one issue, the resolution of which will affect all or a significant
number of the putative class members.’” Mullen, 186 F.2d at 625
(quoting Lightbourn v. Cnty of El Paso, 118 F.3d 421, 426 (5th
Cir. 1997)). Plaintiff alleges that all members of the class have
suffered
the
same
injury—unlawful
deductions
of
wages
by
Defendants for workers’ compensation premiums. (R. Doc. 66-1 at
6.) Thus, the following issues of law and fact, inter alia, will
affect all or a significant number of the putative class members:
(1)
Whether
paychecks
insurance;
Defendants
to
pay
and
“independent
(2)
deducted
towards
Defendant’s
Whether
contractors”
money
class
for
from
worker’s
members
purposes
class
of
are
members’
compensation
“employees”
Louisiana
or
Revised
Statute § 23:1163. Defendants provided no argument in opposition.
Accordingly, the Court finds that Plaintiff has satisfied his
burden of proving commonality.
13
c.
Typicality
Under Rule 23(a)(3), Plaintiff must prove that the claims or
defenses of the representative parties are typical of the claims
or
defenses
of
the
class.
“Like
commonality,
the
test
for
typicality is not demanding.” Mullen, 186 F.3d at 625. Typicality
focuses
on
the
general
similarity
of
the
legal
and
remedial
theories behind plaintiffs’ claims. Lightbourn, 118 F.3d at 426.
Courts have found typicality if the claims or defenses of the
representatives and the members of the class stem from a single
event or a unitary course of conduct, or if they are based on the
same legal or remedial theory. In re Pool Prods. Distribution Mkt.
Antitrust Litig., 310 F.R.D. 300, 310 (E.D. La. 2015). In this
case, the named Plaintiff’s and the proposed class members’ legal
and remedial theories are the same—Defendants unlawfully deducted
wages
to
pay
towards
workers’
compensation
payments.
Again,
Defendants do not present any argument in opposition. Accordingly,
the Court finds that Plaintiff has satisfied his burden of proving
typicality.
d.
Under
Adequacy of Representation
Rule
23(a)(4),
Plaintiff
must
prove
that
“the
representative parties will fairly and adequately protect the
interests of the class.” “The adequacy inquiry under Rule 23(a)(4)
serves to uncover conflicts of interest between named parties and
the class they seek to represent.” Amchem, 521 U.S. at 625 (citing
14
Falcon, 457 U.S. at 158, n. 13). Class representatives “must be
part of the class and possess the same interest and suffer the
same injury as the class members.” Id. at 625–26 (citations and
internal quotation marks omitted). The adequacy requirement “also
factors in competency and conflicts of class counsel.” Id. at 626
n. 20. Courts also consider whether the named plaintiff has a
sufficient stake in the outcome of the litigation, or has interests
antagonistic to the class members. See Jenkins, 782 F.3d at 472.
Plaintiff argues that its counsel is competent to handle the case
as it regularly engages in complex class-based litigation, and
that there are no conflicts between Plaintiff and the class he
seeks to represent which would undermine adequate representation.
(R. Doc. 66-1 at 8.) Plaintiff argues that he and the class share
the same interest in recovering the sums deducted from their wages
as well as the other damages listed in § 23:1163(D). Id. Once
again, Defendants have provided no argument in opposition. The
Court finds that Plaintiff will fairly and adequately protect the
interests of the class.
2.
Rule 23(b)(3) Requirements
a.
Whether Questions of Law or Fact Predominate
Plaintiff
asserts
that
the
proposed
class
meets
the
requirements of Rule 23(b)(3). (R. Doc. 66-1 at 8.) For a Rule
23(b)(3) class to be certified, “the questions of law or fact
common to class members [must] predominate over any questions
15
affecting only individual members.” The predominance requirement
“tests
whether
proposed
classes
are
sufficiently
cohesive
to
warrant adjudication by representation.” Crutchfield v. Sewerage
and Water Bd. of New Orleans, 829 F.3d 370, 376 (5th Cir. 2016)
(quoting
Amchem,
521
U.S.
at
623).
The
predominance
inquiry
requires the court to identify the substantive issues that will
control the outcome of the litigation, assess which issues will
predominate, and then determine whether the issues are common to
the class. O’Sullivan, 319 F.3d at 738. The Fifth Circuit has
explained that,
[A]n individual question is one where members of a
proposed class will need to present evidence that varies
from member to member, while a common question is one
where the same evidence will suffice for each member to
make a prima facie showing [or] the issue is susceptible
to generalized, class-wide proof. When one or more of
the central issues in the action are common to the class
and can be said to predominate, the action may be
considered proper under Rule 23(b)(3) even though other
important matters will have to tried separately, such as
damages or some affirmative defenses peculiar to some
individual class members. At bottom, the inquiry
requires the trial court to weigh common issues against
individual ones and determine which category is likely
to be the focus of a trial.
Crutchfield, 829 F.3d at 376 (internal quotations and citations
omitted).
Plaintiff seeks to prove that Defendants violated § 23:1163
by unlawfully deducting wages from its laborers to pay toward
workers’ compensation premiums. One of the key substantive issues
that will control whether Defendants violated § 23:1163 is whether
16
Plaintiff and the class members are defined as “employees” or
“independent contractors,” because Louisiana law only makes it
unlawful for an employer to deduct wages for workers’ compensation
from its “employees.” See La. Rev. Stat. § 23:1163. 3 Another key
substantive issue is whether Plaintiff and the class members spend
a substantial part of their work time performing manual labor,
because under Louisiana Revised Statute § 23:1021, independent
contractors are treated as employees if a substantial part of their
work time is spent performing manual labor. See Mullen v. R.A.M.
Enters., No. 2002-1157 (La. App. 1 Cir. 3/28/03); 844 So.2d 376.
Thus, even if some of the putative class members were in fact
“independent
contractors,”
they
may
still
receive
protections
under the Louisiana workers’ compensation statute. Id.
Plaintiff argues that all class members performed manual
labor and that their duties are or were comprised of pouring
concrete, breaking down forms, and setting rebar. See (R. Doc. 667 at 2) (explaining that Diversified Concrete’s workers “put the
3 Although “employee” is not defined within the Chapter, Louisiana Revised
Statute 23:1021(7) defines “independent contractor” as:
. . . [A]ny person who renders service, other than manual labor,
for a specified recompense for a specified result either as a unit
or as a whole, under the control of his principal as to results of
his work only, and not as to the means by which such result is
accomplished, and are expressly excluded from the provisions of
this Chapter unless a substantial part of the work time of an
independent contractor is spent in manual labor by him in carrying
out the terms of the contract, in which case the independent
contractor is expressly covered by the provisions of this Chapter.
The operation of a truck tractor or truck tractor trailer, including
fueling, driving, connecting and disconnecting electrical lines and
air hoses, hooking and unhooking trailers, and vehicle inspections
are not manual labor within the meaning of this Chapter.
17
bars down, the rebar down, . . . the form down, . . . and the
cement down”). If all class members performed the same duties and
are defined as “employees” or “exempt independent contractors,”
and Defendant in fact unlawfully deducted workers’ wages to pay
toward workers’ compensation premiums, then each class member may
be entitled to restitution of deducted wages and a monetary award
between $500 and $5,000. See La. Rev. Stat. 23:1163(D). Plaintiff
further claims that the class’s restitution damages can be proven
by
Defendants’
payroll
records,
which
allegedly
reveal
that
Defendants’ deducted approximately nine percent from the pay of
every worker Defendants classified as independent contractors. See
(R. Doc. 66-1 at 11; R. Doc. 66-8, at 22-23.) Plaintiff claims
that civil penalties may be determined on a class-wide basis
because Defendants employed a uniform policy of deducting workers’
compensation
premiums
contractors.
Thus,
at
the
Plaintiff
same
claims
rate
that
from
there
independent
is
“nothing
specific to any class members’ claim that would warrant an upward
or downward modification of the statutory damage award.” Id. at
12.
Because
the
Defendants
did
not
provide
any
argument
in
opposition, and assuming that all potential class members are
manual laborers whose duties consist of pouring concrete, breaking
down forms, and setting rebar, the common issues of law and fact
can be resolved using class-wide evidence. Accordingly, the Court
concludes that Plaintiff has proven questions of law and fact
18
common to class members predominate over any individual questions
affecting the class. 4
b.
Whether
a
Class
Action
is
the
Superior
Form
of
Adjudication
For a class to be certified under Rule 23(b)(3), a court must
not only find that questions of law or fact common to class members
predominate over any questions affecting only individual members,
but also that a class action is a superior method for adjudicating
the controversy. See Fed. R. Civ. P. 23(b)(3). Rule 23(b)(3) lists
four illustrative factors to help guide courts in determining
whether the advantages of aggregation are present. See Fed. R.
Civ. P. 23(b)(3)(A)-(D). These factors include:
(A) Class members’ interests in individually controlling
their own litigation;
(B) The extent and nature of any already-pending
litigation concerning the controversy;
(C) The desirability of concentrating claims in one
judicial forum; and
4
Generally, the determination of whether a laborer is characterized as an
“employee” or an “independent contractor” for purposes of Louisiana Revised
Statute § 23:1163 is an individual inquiry determined on a case-by-case basis.
Guillory v. Overland Express Co., No. 01-419, p. 3 (La. App. 3 Cir. 10/3/01);
796 So.2d 887, 889 (citing Fontenot v. J.K. Richard Trucking, No. 97-220, p. 7
(La. App. 3 Cir. 6/4/97); 696 So.2d 176, 180); Whitlow v. The Shreveport Times,
No. 2002-1215, p. 3-4 (La. App. 3 Cir. 4/23/03); 843 So.2d 665; 668 (noting
conditions that must be met for there to be a principal and independent
contractor relationship). However, in this case, Plaintiff alleges that all
class members performed manual labor which was essentially comprised building
concrete structures such as sidewalks and driveways. See (R. Doc. 66-3.) Because
Defendants have not provided any information to the contrary, the Court
concludes that common questions of law and fact, i.e., whether Plaintiff and
class members are defined as employees or independent contractors for purposes
of § 23:1163, and whether Plaintiff and class members performed “manual labor,”
predominate over any individual questions.
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(D) Potential problems that could arise in managing the
case as a class suit.
See id.; see also Amchem, 521 U.S. at 615. Plaintiff argues that
a
class
action
individually,
is
because
superior
to
“liability
litigating
can
be
these
established
matters
using
representative testimony and class-wide proof, and thus the action
can be managed efficiently.” (R. Doc. 66-1 at 13.) Because this
Court has already conditionally certified an FLSA overtime class
in this case, (R. Doc. 33), Plaintiff claims that the class
definitions will be “nearly identical” and issues will be resolved
using similar evidence. Id.
The Fifth Circuit has recognized that class actions are
superior methods of adjudication when individually pursuing the
claim may result in a “negative value” suit, i.e., where the
possible recovery is less than the cost of bringing suit. Castano
v. Am. Tobacco Co., 84 F.3d 734, 748 (5th Cir. 1996); Amchem, 521
U.S. at 617 (finding that small individual recovery supports
superiority). The statutory penalty for the improper deduction of
workers’ compensation benefits from employees ranges from $500 to
$5,000. La. Rev. Stat. § 23:1163(D). Further, it is alleged that
Defendants deducted approximately nine percent of “independent
contractors” wages for workers’ compensation premiums. Thus, some
members may receive awards just over $500. Also, the claims at
issue are not personal injury claims, thus the class members are
20
unlikely to have a substantial interest in controlling their own
litigation individually. Cf. In re Katrina Canal Breaches Consol.
Litig., 258 F.R.D. 128, 142 (E.D. La. 2009) (noting that class
members’ individual control over litigation matters most when
absent class members have personal injury claims). Finally, the
Court
is
unaware
of
any
pending
litigation
concerning
this
controversy or any potential problems that could arise in managing
the case as a class suit. The Court concludes that maintaining
this suit as a class action is the superior method of adjudication,
and
that
Plaintiff
has
satisfied
his
burden
of
proving
Rule
23(b)(3)’s requirements for class certification.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Class
Certification (R. Doc. 66) is GRANTED. The class shall consist of
all current and former employees of Defendants, from 2011 to
present,
who
Defendants
have
for
had
payment
amounts
of
deducted
Defendants’
from
their
workers’
wages
compensation
insurance premiums.
New Orleans, Louisiana this 25th day of October, 2016.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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by
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