Botero v. Commonwealth Limousine Service, Inc. et al

Filing 117

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: "Accordingly, plaintiff's motion to amend the complaint (Docket No. 106 ) to include as named plaintiffs the 14 individuals who filed "opt-in" notices under FLSA § 216(b) is DENIED. So ordered."(Moore, Kellyann)

United States District Court
District of Massachusetts
)
JAIME BOTERO, on behalf of
)
himself and all others similarly )
situated,
)
)
Plaintiff,
)
)
v.
)
)
COMMONWEALTH LIMOUSINE SERVICE
)
INC. and DAWSON A. RUTTER, JR., )
)
Defendants.
)
)

Civil Action No.
12-10428-NMG

MEMORANDUM & ORDER
GORTON, J.
This is a putative class action brought by a former
chauffeur, Jaime Botero (“Botero”), who claims that defendant
Commonwealth Limousine Service (“Commonwealth”) and its
president, Dawson A. Rutter (“Rutter”) (collectively,
“defendants”) violated the Massachusetts Wage Act and the Fair
Labor Standards Act (“the FLSA”) through their failure to
compensate chauffeurs properly.

Now pending before the Court is

plaintiff’s motion to amend the complaint to implead as
plaintiffs 14 individuals who filed “opt-in” notices
(collectively, the “opt-ins”) under the FLSA.

For the reasons

that follow, the Court will deny plaintiff’s motion.

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I.

Procedural History
In January, 2012, plaintiff filed suit against Commonwealth

in the Massachusetts Superior Court for Suffolk County alleging
violations of state wage regulations.

Later that month, he

filed a three-count amended complaint in state court, adding an
FLSA claim.

In March, 2012, defendants removed the case to this

Court.
During March and April, 2012, seven individuals filed “optin” Notices of Filing Consent to Sue under 29 U.S.C. § 216(b) of
the FLSA.
In March, 2014, the Court denied plaintiff’s renewed motion
for conditional class certification, concluding that the
putative class members were not similarly situated in the FLSA
context because the inquiry into whether the lunch break of a
particular member of the putative class constituted a “bona fide
meal break” would be “fact-intensive” and not susceptible to
common, class-wide analysis. Botero v. Commonwealth Limousine
Serv. Inc. (“Botero I”), No. 12-10428-NMG, 2014 WL 1248158, at
*5-6 (D. Mass. Mar. 25, 2014).
Since the Court’s denial of the motion to conditionally
certify the class, seven additional individuals have filed “optin” notices pursuant to FLSA § 216(b).
individuals have filed such notices.

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All together, 14

II.

Plaintiff’s Motion to Amend Complaint
At a scheduling conference held in August, 2014, plaintiff

maintained that the 14 “opt-ins” had already joined the case as
party-plaintiffs by filing their “Notices of Filing Consent to
Sue.”

The “opt-ins” are not currently part of the case,

however, because their notices of consent were filed under the
FLSA and the plaintiff’s motion for conditional class
certification under the FLSA was denied. See, e.g., Clay v.
Huntington Ingalls, Inc., Civ. No. 09-7625, 2012 WL 860375, at
*3 (E.D. La. Mar. 13, 2012); see also Prescott v. Prudential
Ins. Co., 729 F. Supp. 2d 357, 370 (D. Me. 2010) (noting that if
a FLSA conditionally certified class was subsequently
decertified, any “opt-in” plaintiffs would be dismissed without
prejudice).
Accordingly, plaintiff now moves for leave to amend the
complaint to include the 14 individuals who filed “opt-in”
notices as named party plaintiffs in this case.

Plaintiff

contends that such an amendment is proper under Fed R. Civ. P.
15, 20(a) and 21.

He argues that all 14 individuals also work,

or at one time worked, as chauffeurs for defendants and
therefore have claims for overtime pay arising out of the
defendants’ same behavior.

Plaintiff further contends that he

has not delayed in seeking an amendment of the complaint and

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that defendants had notice of these individuals and thus will
not be prejudiced by such an amendment.
A.

Legal Standard

In order to join additional plaintiffs pursuant to Fed. R.
Civ. P. 20(a)(1), plaintiff must establish that
(A) [he] assert[s] any right to relief jointly,
severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or
series of transactions or occurrences; and (B) any
question of law or fact common to all plaintiffs will
arise in the action.
While the First Circuit Court of Appeals has yet to establish a
definitive standard, courts in this district have held that the
same “transaction or occurrence” referenced in Rule 20(a) exists
where the “infringing acts share an aggregate of operative
facts.” See, e.g., New Sensations, Inc. v. Does 1-175, 947 F.
Supp. 2d 146, 148 (D. Mass. 2012) (citing In re EMC Corp., 677
F.3d 1351, 1358 (Fed. Cir. 2012)).

Plaintiff must show

“substantial evidentiary overlap in the facts giving rise to the
cause of action against defendant.” In re EMC, 677 F.3d at 1358.
Thus, joinder is not warranted simply because defendants
allegedly “committed the exact same violation of the law in
exactly the same way.” New Sensations, 947 F. Supp. 2d at 1358
(citations omitted).
In addition to the permissive joinder rule, district courts
have discretion to permit leave to a plaintiff to amend their

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complaint “when justice so requires.” Fed. R. Civ. P. 15(a)(2).
Rule 15(a) gives courts wide discretion in deciding whether to
grant leave to amend. U.S. ex rel. Gagne v. City of Worcester,
565 F.3d 40, 48 (1st Cir. 2009).

Reasons for denying such leave

include, inter alia, undue delay in filing the motion, undue
prejudice to the opposing party and futility of amendment. Id.
B.

Analysis
First, the Court concludes that Rule 20(a) joinder is

unwarranted here for substantially the same reasons it denied
FLSA conditional class certification in the March, 2014 Order.
The Court previously held that plaintiff failed to satisfy the
FLSA’s “similarly situated” standard because
[t]he circumstances surrounding each instance [of alleged
non-payment of overtime] are different and not the result
of a “single decision, policy, or plan that violated the
law.”
Botero I, 2014 WL 1248158, at *4 (citing Trezvant v. Fidelity
Emp’r Servs. Corp., 434 F. Supp. 2d 40, 43 (D. Mass. 2006)).
The Court also found that the would-be class members “have
sufficiently particularized experiences” that require a “factintensive inquiry” to be considered on a “case-by-case basis.”
Botero I, 2014 WL 1248158, at *5-6.
The “similarly situated” standard for conditional
certification under § 216(b) of the FLSA is, in fact, “more
elastic and less stringent than the requirements found [for Fed.

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R. Civ. P.] 20 (joinder).” Grayson v. K Mart Corp., 79 F.3d
1086, 1095 (11th Cir. 1996); see Cruz v. Bristol-Myers Squibb
Co., PR, 699 F.3d 563, 569 (1st Cir. 2012).

Joinder is thus not

warranted here because plaintiff has already failed to convince
this Court that the experiences of the various chauffeurs at
Commonwealth are susceptible to FLSA class treatment.

As such,

it can hardly be said that the factual scenarios of the 14 “optins” stem from the same “transaction or occurrence” or “share an
aggregate of operative facts.”

Accordingly, plaintiff will not

be permitted to amend his complaint pursuant to Fed. R. Civ. P.
20(a).
The Court also will not permit plaintiff to amend his
complaint under Fed. R. Civ. P. 15(a).

Notably, half of the 14

individuals who “opted-in” pursuant to § 216(b) of the FLSA did
so months after the Court refused to conditionally certify the
FLSA class.

It is unclear why plaintiffs, after having their

FLSA conditional class rejected, have continued to utilize a
FLSA provision in an attempt to add party plaintiffs rather than
immediately to seek leave to amend the complaint. See Prescott,
729 F. Supp. 2d at 370.
Moreover, allowing plaintiff now to amend their complaint
and convert the 14 “opt-ins” into parties plaintiff
would [] create the same unmanageable situation that [the
Court] sought to avoid in denying collective certification.

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Clay, 2012 WL 860375, at *3.

The case-by-case, fact-intensive

nature of each chauffeurs’ wage claim would undoubtedly create
logistical difficulties for defendants, as the defenses it
raises against each chauffeur are likely to be factually
individualized. Patrick Collins, Inc. v. Does 1-38, 941 F. Supp.
2d 153, 165 (D. Mass. 2013).

Rather than expediting the

litigation, the case would devolve into “scores of mini-trials
involving different evidence and testimony” regarding each
chauffeur’s factual circumstances. Id. (citation omitted).
Accordingly, plaintiff will not be permitted to amend their
complaint to add the § 216(b) “opt-in” individuals as named
plaintiffs.

To the extent those individuals wish to raise their

claims against Commonwealth, they must file separate complaints.
The Court notes that it reaches this decision regarding the
instant motion without prejudice as to plaintiff’s anticipated
motion for class certification under Fed. R. Civ. P. 23(a).
That motion, as plaintiff argued at the scheduling conference
held in August, 2014, will have the additional benefit of Rule
23 class certification-related discovery.

On the other hand,

the Court reminds plaintiff of the similarities that it drew
between the FLSA’s “similarly situated” standard and Rule 23’s
“commonality” requirement when it refused to conditionally
certify a FLSA class. Botero I, 2014 WL 1248158, at *6.

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ORDER
Accordingly, plaintiff’s motion to amend the complaint
(Docket No. 106) to include as named plaintiffs the 14
individuals who filed “opt-in” notices under FLSA § 216(b) is
DENIED.
So ordered.
/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated October 8, 2014

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