Torrezani et al v VIP Auto Detailing, Inc. et al

Filing 34

District Judge Timothy S. Hillman: ORDER entered granting 20 Motion to Certify Class. (Castles, Martin)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
__________________________________________
)
)
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)
)
v.
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VIP AUTO DETAILING, INC., and
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GILBERT VOLPONI,
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Defendants.
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)
__________________________________________)
CHARLES TORREZANI and JOSIMAR
DESOUZA, individually and behalf of all others
similarly situated,
Plaintiffs,

Civ. Action No. 16-40009-TSH

ORDER
March 6, 2017
HILLMAN, D.J.
Background
The Plaintiffs, Charles Torrezani and Josimar DeSouza (“Plaintiffs”), have filed a Third
Amended Complaint (Docket No. 11)(“Complaint”) against VIP Detailing, Inc. (“VIP”) and
Gilbert Volponi (“Volponi” and, together with VIP, “Defendants”) for violation of the overtime
provision of the Massachusetts Minimum Fair Wage Law, Mass.Gen.L. ch. 151, §1A (Count
I)(“MFWL”), violation of the Fair Labor Standards Act, 29 U.S.C. s. 201 et seq.
(“FLSA”)(Count II), and violation of the Massachusetts Wage Act, Mass.Gen.L. ch. 149, §148
(Count III)(“MWA”) as a result of Defendants alleged failure to pay them, and similarly situated
individuals, overtime wages. Plaintiffs have filed a motion seeking: (1) class certification of their
state law claims pursuant to Fed.R.Civ.P. 23, and (2) collective certification of class claims and
issuance of notice pursuant to 29 U.S.C. §216(b). For the reasons set forth below, that motion is
granted.

Discussion
The Plaintiffs worked for the Defendants for several years performing vehicle detailing
and cleaning at auto dealerships in Auburn and Millbury, Massachusetts. Plaintiffs typically
worked somewhere between fifty (50) and sixty (60) hours per week and were not provided with
breaks. Plaintiffs were paid on an hourly basis. Torrezani, for example, was paid twelve dollars
($12) per hour. Plaintiffs were not paid premium or overtime compensation for hours worked in
excess of forty (40) per week; instead, they were paid the so-called “straight-time” hourly wage
for all hours worked. Moreover, Defendants failed to accurately record the time worked by
employees and did not issue them paystubs detailing the hours worked and rate of pay.
Plaintiffs seek class certification of their state law claims pursuant to Fed.R.Civ.P. 23 and
collective class certification under the FLSA. In a Rule 23 class action, each individual employee
who falls within the definition of the class is deemed a class member and is bound by any final
judgment (favorable or not), unless s/he has opted out of the class. Under the FLSA, a potential
class member must opt in to the action by filing written notice of consent with the Court; only
individuals who have opted to be class members are bound by the final judgment.

Because the

standards to obtain class certification are different, the Court will conduct a separate analyses of
whether the Plaintiffs have met the requirements for class certification under Rule 23 and/or the
FLSA.
Certification Of State Law Claims Under Fed.R.Civ.P. 23
Count I of the Complaint asserts a violation of the overtime provision of the MFWL,
which provides that non-exempt employees be paid at least one and one-half times their regular
wage rate for hours worked om excess of forty (40) hours per week Mass. Gen. L. ch. 151, §

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1A.1 Count III of the Complaint asserts a claim for violation of the MWA, which mandates that
non-exempt hourly employees be paid their hourly wage for all time worked. See Id., ch. 149,
§148. Plaintiffs seek to certify as a class:
All individuals who have worked for VIP Auto Detailing, Inc., and Gilbert
Volponi performing automobile detailing and cleaning at any time since
August 2, 2012, at either of the Herb Chambers dealerships in Auburn and
Millbury, Massachusetts, and who were not paid overtime compensation
when they worked more than 40 hours in a week.
Rule 23(a) Requirements
A proposed class under Rule 23(a) must meet the following four requirements: “(1) the
class is so numerous that joinder of all members is impracticable (numerosity); (2) there are
questions of law or fact common to the class (commonality); (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the class (typicality); and (4) the
representative parties will fairly and adequately protect the interests of the class (adequacy). The
plaintiffs have the burden of showing that all the prerequisites for a class action have been met.”
Garcia v. E.J. Amusements of New Hampshire, Inc., 98 F.Supp.3d 277, 284–85 (D. Mass.
2015)(internal citations omitted). In this case, Defendants only dispute whether the fourth
requirement has been met, i.e., the adequacy of the Plaintiffs to protect the interests of the class.
Nevertheless, because the law charges the Court with “‘conduct[ing] a rigorous analysis of the
prerequisites established by Rule 23 before certifying a class’ ”, see id. at 285 (citation to quoted
case omitted), I will independently analyze whether each requirement has been met.
Number of Class Members (Numerosity)
To be certified as a class under Rule 23, the number of members must so numerous that
joinder of all would be “impracticable.” “‘No minimum number of plaintiffs is required to

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Certain employees are expressly exempt from the MFWL’s overtime provision, including executives,
restaurant workers, fisherman, farm workers, etc.

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maintain a suit as a class action, but generally if the named plaintiff demonstrates that the
potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met.’ ” Id.,
(citation to quoted case omitted). In this case, based on the Defendants’ own records, the
Plaintiffs alleged that they have established a class of approximately 46 current/former
employees who worked for VIP at local car dealerships during the relevant time period.
However, after review of the evidence submitted by the Plaintiffs, I questioned whether they
could, in fact, establish that the number of potential class members was so numerous that joinder
would be impractical. For that reason, I issued an Order For Supplemental Briefing (Docket No.
28), requiring the parties to review the records submitted by the Plaintiffs and identify those
individuals which they contend are potential class members. After reviewing the parties’
submissions2, I find that the concerns about the number of potential Plaintiffs was warranted.
Simply put, Plaintiffs’ evidence does not support their allegation that there are forty-six potential
Plaintiffs. Defendants, on the other hand, have filed a response, which addresses the exact
concerns raised by the Court regarding the documentary evidence submitted by the Plaintiffs in
support of their numerosity claim. Defendants have identified, at most, thirty potential class
members. See Defs’ Resp. To Pls’ Revised Supp. Mem. Concerning Numerosity (Docket No. 32)
and Aff. Of Gilbert Volponi Re Defs’ Resp. To Pls’ Revised Supp. Mem. Concerning Numerosity
(Docket No. 33). I find based on the parties’ supplemental submissions, that there are thirty
potential class members. The question now becomes whether this lesser number of potential
class members is sufficient to satisfy the numerosity requirement.

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Plaintiffs’ initial supplemental brief included legal argument and analysis which went well beyond the
information requested by the Court; that original brief was stricken and thereafter, Plaintiffs filed a brief responsive
to this Court’s order. See Plaintiffs’ Revised Supplemental Mem. Concerning Numerosity (Docket No. 31).

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Classes of forty of more have been found to be sufficiently numerous for purposes of
Rule 23(a)(1), see DeRosa v. Massachusetts Bay Comm. Rail Co., 694 F.Suppp.2d 87, 98
(D.Mass. 2010). Where the potential class number is less than forty, federal courts “have taken a
more flexible approach to the numerosity analysis,” In re Nexium (Esomeprazole) Antitrust
Litigation, 296 F.R.D. 47, 51 (D.Mass. 2013), considering “[s]ubjective factors such as the
geographic location of proposed class members, the nature of the action, and matters of judicial
economy.” Id., at 52. Other factors considered are “‘the ability of individual claimants to institute
separate suits,…whether injunctive or declaratory relief is sought,’ ” the financial resources of
proposed class members and their (the proposed class member’s) ability to file individual suits.
McCluskey v. Trustees of Red Dot Corp. Employee Stock Ownership Plan & Trust, 268 F.R.D.
670, 674 (W.D. Wash. 2010)(citation to quoted case omitted). The focus of the inquiry remains
whether joinder of all potential plaintiffs would be impracticable; impracticable does not mean
that it would be impossible, rather it “means only ‘the difficulty or inconvenience of joining all
members of the class.’ “ Id. (citation to quoted case omitted).
In this case, I have little information concerning the current residences of potential class
members, however, I will assume for purposes of this discussion they are primarily located
within Central Massachusetts. Given this assumption, this factor cuts against a finding that
joinder would be impractical. At the same time, one of the primary purposes behind class
actions is judicial economy. I agree with the Plaintiffs that avoiding multiple suits by as many as
thirty additional class members strongly favors maintaining this suit as a class action. This is
particularly true in this case given that the Court can reasonably infer that substantially all of the
class members have limited financial resources and would find it difficult to pursue the claims

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themselves3. See Id. Thus, these combined factors favor a finding that the numerosity
requirement has been met.
Commonality of Facts and Law
Rule 23 requires that there be questions of law or fact common to the class. More
specifically, “the class claims must depend upon a ‘common contention’ that is ‘capable of
classwide resolution-which means that determination of its truth or falsity will resolve an issue
that is central to the validity of each one of the claims in one stroke.’ In other words, the
commonality requirement is met where the ‘questions that go to the heart of the elements of the
cause of action’ will ‘each be answered either ‘yes’ or ‘no’ for the entire class’ and ‘the answers
will not vary by individual class member.’ Id. (Internal citations and citation to quoted case
omitted). In this case, Plaintiffs have essentially alleged that Defendants have engaged in per se
illegal wage policies, i.e., non-payment of overtime wages, which violated the rights of all class
members. Defendants do not dispute that there are factual and legal questions common to the
class, i.e., that VIP failed to pay employees who worked as car detailers and cleaners overtime
wages for hours worked in excess of 40 hours per week. Plaintiffs have included citations to
deposition testimony by Volponi, the President and owner of VIP, and his sister, Gelcineia
Piccirillo, the manager of VIP, to support their claims. While the evidence is far from
overwhelming, I find, on this record, that the prospective class shares common questions of law
and fact sufficient to satisfy the commonality requirement of Rule 23.

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Many cases alleging state wage law and FLSA violations are taken on a contingent fee basis and
therefore, proposed class members may not need significant financial resources to pursue their claims. This case is
in its early stages and the current record is scant, at best. Nonetheless, the evidence which the Plaintiffs presented in
support of the instant motion suggests that many of the potential class members will be entitled to minimal monetary
recovery and therefore, there may be little incentive for attorneys to bring individual suits on their behalf. See
McCluskey, 268 F.R.D. at 675.

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Typicality and Adequacy
“Typicality,” as the term suggests, requires that the claims of the representative plaintiffs
be typical of the claims of the class. The typicality requirement is met “when [the representative
plaintiff’s] injuries arise from the same events or course of conduct as do the injuries of the class
and when plaintiff[s’] claims and those of the class are based on the same legal theory.” In re
Credit Suisse-AOL Sec. Litig, 253 F.R.D. 17, 23 (D.Mass. 2008). This does not mean that the
representative plaintiff’s claims must be identical to those of proposed class members, rather the
“question [is] whether the putative class representatives can fairly and adequately pursue the
interests of the [proposed] class members without being sidetracked by their own particular
concerns.’” Id.(citation to quoted case omitted).
The “Adequacy” requirement “demands a similar inquiry into whether the putative
representative plaintiff’s interests are aligned with other class members and whether the plaintiff
is in a position to vigorously protect the class’ interests …. The analyses has two steps: The
Court must determine, ‘first, whether any potential conflicts exist between the named plaintiffs
and the prospective class members, and, second, whether the named plaintiffs and their counsel
will prosecute their case vigorously. Both typicality and adequacy may be defeated where the
class representatives are subject to unique defenses which threaten to become the focus of the
litigation’” Id. (citation to quoted case omitted).
In this case, the Defendants do not challenge Plaintiffs’ assertion that they meet the
typicality requirement and the Court finds that, in fact, the Plaintiffs alleged injuries arise from
the same events and course of conduct as the injuries of the proposed class members. However,
Defendants vigorously challenge whether Plaintiffs satisfy the adequacy requirement. More
specifically, Defendants argue that these Plaintiffs lack the integrity to represent the class

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because they refused to provide their social security or tax identification numbers to VIP, did not
file federal or Massachusetts tax returns for the years in question, or pay income tax on the
monies received. I am troubled by the Plaintiffs’ conduct given that their failure to file tax
returns/pay income taxes could “become the focus of the litigation.” However, I do not at this
time find that such conduct makes them inadequate to represent the interests of the class4 Cf.
Randle v. Spectran, 129 F.R.D. 386. 392 (D.Mass. 1988)(putative class representative’s failure to
file tax returns, while serious, is not so conclusive as to individual’s honesty or capacity for
truthfulness to compel conclusion that he cannot adequately represent class). As to the second
prong of the adequacy determination, i.e., whether the Plaintiffs and their counsel will vigorously
prosecute the case, I am satisfied that the Plaintiffs will vigorously pursue both their own claims
and those of the proposed class members, and that their counsel has demonstrated that they are
qualified, experienced and are also fully prepared to represent the class to the best of their
abilities. Accordingly, I find that they typicality and adequacy requirements are met.
I find that all of the Rule 23(a) requirements are met and therefore, that class certification
thereunder is appropriate. However, in order to obtain class certification, Plaintiffs must also
establish that the action may be maintained under Fed.R.Civ.P. 23(b)(1),(2) or (3). See
Fed.R.Civ.P. 23(b); Smilow v. Southwestern Bell Mobile Systems, Inc., 323 F.3d 32, 38 (2003).

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 In their reply brief, Plaintiffs seemingly dispute whether they failed to file their tax returns; instead, they
assert that they failed to turn them over in discovery because in their minds, they are not relevant to the claims they
have asserted. They then have the temerity to suggest that the Defendants’ arguments should be disregarded as
unsupported, because they can’t prove that that they did not file their tax returns. I have in other employment cases
found the tax returns of the representative plaintiffs to be highly relevant and discoverable. I am at a loss as to why a
plaintiff asserting a claim for failure to pay appropriate wages would take the position that such information is not
discoverable. I will address any potential ramification of the Plaintiffs failure to turn such information over to the
Defendants during discovery at a later date. That being said, I strongly suggest that Plaintiffs provide Defendants
with their tax returns and any information responsive to Defendants’ discovery requests regarding such information.

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Rule 23(b)(3) Certification
Plaintiffs assert that they have satisfied Rule 23(b)(3), which requires, in relevant part
that:
the Court find[] 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.
Id. The factors to be considered by the Court in making this finding include:
(A) the class members' interests 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 likely difficulties in managing a class action.
Id.
In order to establish predominance, Plaintiffs must show that the proposed class is
“‘sufficiently cohesive to warrant adjudication by representation.’” “While ‘the predominance
criterion is far more demanding’ than the commonality requirement, it presumes that individual
issues will exist. The heart of the predominance inquiry is whether the ‘uncommon questions,’
outweigh the commonalities. ‘Rule 23(b)(3) requires merely that common issues predominate,
not that all issues be common to the class.’ Put another way, there must be a ‘sufficient
constellation of common issues bind[ing] class members together....’” Donovan v. Philip Morris
USA, Inc., 268 F.R.D. 1, 28 (D. Mass. 2010)(internal citations and citation to quoted cases
omitted). In this case, common issues predominate, and Defendants to not contend otherwise.
Moreover, the proposed relief, in the form of monetary damages, is common to all class
members. There may be some individual issues (for example, the Plaintiffs failure to pay taxes or
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file tax returns), however, these uncommon issues do not outweigh the common ones.
Therefore, on the whole, common issues predominate.
“Superiority exists where ‘there is a real question whether the putative class members
could sensibly litigate on their own for these amounts of damages, especially with the prospect of
expert testimony required.’” Id., at 29 (citation to quoted case omitted). While class members
probably could litigate the claims on their own, as I have found for purposes of my Rule 23(a)
analysis, it is unlikely many of the class members would have the resources to do so. This is
especially true given that many of the class members worked for only limited periods of time and
are likely to recover a minimal amount so that pursuing individual claims would be impractical.
Contrary to Plaintiffs argument, I do not find that this is the type of case where the class
members would refrain from bringing suit because they fear retaliation—Defendants run a small
business and most of the class members no longer work for them. I do agree with the Plaintiffs
that it will be far more efficient for and economical, both to the class members and the Court, for
this matter to be pursued as a class action rather than a series of individual suits. Again,
Defendants do not contend otherwise. Accordingly, I find that this matter may be maintained as
a class action under Rule 23.5
Certification Under the FLSA
The FLSA provides in relevant part, that  
“[a]ny employer who violates the provisions of … section 207 [maximum
hours] of this title shall be liable to the employee or employees affected in the
amount … their unpaid overtime compensation … and in an additional equal
amount as liquidated damages … . An action to recover the liability prescribed …

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My finding that certification is appropriate under Rule 23 is grounded on a number of inferences and
assumptions based on the record as it presently stands. More specifically, I have found that the Plaintiffs have
established that joinder of all plaintiffs would be impracticable and therefore, the numerosity requirement has been
met. However, I caution the Plaintiffs that the finding that they have satisfied the Rule 23 requirements for class
certification is a very close call and if as the record develops, it becomes clear that there are fewer than the thirty
proposed class members, or that other inferences/assumptions made by the Court were wrong or unwarranted, I will
not hesitate to de-certify the class.

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may be maintained against any employer … in any Federal or State court of
competent jurisdiction by any one or more employees for and in behalf of himself
or themselves and other employees similarly situated. No employee shall be a
party plaintiff to any such action unless he gives his consent in writing to become
such a party and such consent is filed in the court in which such action is brought.
29 U.S.C. § 216(b) (“Section 216”) . Thus, the FLSA permits an employee to bring suit against
an employer on his own behalf and on behalf of other “similarly situated” employees. In order to
maintain such a collective action, the putative class members must be “similarly situated” to each
other. To determine whether putative class members are similarly situated, federal courts have
adopted a two-tiered approach: “First, at the ‘notice stage’, the Court relies upon the pleadings
and affidavits to determine, under a “fairly lenient standard”, whether the putative class members
‘were subject to a single decision, policy, or plan that violated the law’ ”. See Burns v. City of
Holyoke, 881 F.Supp.2d 232, 234 (D.Mass. 2012)(citation to quoted case omitted); see also
Cunha v. Avis Budget Car Rental, LLC, --F.Supp.3d--, 2016 WL 6304432 (D.Mass. Oct. 26,
2016). Although the determination is made using a fairly lenient standard, the standard is not
“invisible”. See Houston v. URS Corp., 591 F.Supp.2d 827, 831 (E.D.Va.2008) (citations
omitted). Rather, “as a matter of sound case management” and to avoid “a frivolous fishing
expedition at the employer’s expense”, courts should generally require the party moving for
conditional certification to make “a preliminary factual showing that there actually exists a
similarly situated group of potential plaintiffs.” Melendez Cintron v. Hershey Puerto Rico, Inc.,
363 F.Supp.2d 10, 18 (D.P.R.2005). At a minimum, the plaintiff must “put forth some evidence
that the legal claims and factual characteristics of the class in [the] case are similar.” Trezvant v.
Fidelity Emp’r Servs. Corp., 434 F.Supp.2d 40, 44 (D.Mass.2006) (citing Kane, 138 F.Supp.2d
at 215); Burns v. City of Holyoke, 881 F. Supp. 2d 232, 234-35 (D. Mass. 2012). If the Court
finds that the plaintiff has met this minimal showing, conditional certification is granted and the
parties undertake to conduct limited discovery. The second step of the analysis occurs after
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discovery is complete—at that time, the employer may then file a motion with the Court seeking
de-certification. See Burns, 881 F.Supp.2d at 234. The Court makes that determination based on
a number of factors, including: “factual and employment settings of the individual[ ] plaintiffs,
the different defenses to which the plaintiffs may be subject on an individual basis, [and] the
degree of fairness and procedural impact of certifying the action as a collective action.” Prescott
v. Prudential Ins. Co., 729 F. Supp. 2d 357, 364–65 (D. Me. 2010). If the court determines
based on the more extensive factual record that that the plaintiffs are not similarly situated, then
the collective action may be de-certified and the opt-in plaintiffs dismissed without prejudice.
In this case, Plaintiffs assert that discovery is complete and therefore, the Court should
forgo the usual two-step process and grant final collective class certification. Although it is not
the usual case, “courts sometimes do skip the first stage of the certification process when
extensive discovery has taken place.” Prescott, 729 F.Supp.2d at 366. Whether to skip the first
step of the analysis and proceed to final certification is a close call. First, this case is still in its
early stages. Additionally, since it remains unclear how many proposed class members will want
to participate in this suit and, as evidenced by the Court’s concerns in connection with the Rule
23(a) analysis, the record as to the nature and extent of the services performed by the proposed
collective action plaintiffs remains murky. Given the modest size of the proposed collective
class, the number and type of employees who elect to join the suit may inform the court’s
analysis regarding whether final certification is appropriate. See Leuthold v. Destination
America, Inc., 224 F.R.D. 462, 468 (DC.Cal. 2004). The Court is also mindful of the fact that in
the parties’ joint statement, Plaintiffs indicated that after the close of discovery, they would file a
motion with the Court seeking conditional certification and acknowledged that there may be
additional discovery regarding class certification. See Joint Local Rule 16.1 Scheduling

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Statement (Docket No. 18). Under the circumstances, the Court finds that it is appropriate to
proceed under the conditional certification two-stage procedure. Cf.  Prescott, 729 F.Supp.2d at
366-67.
Under the first stage “lenient’ standard, I find that Plaintiffs have sufficiently met their
burden of establishing that there “actually exists a similarly situated group of potential
plaintiffs,” such that conditional certification of the class is warranted. Accordingly, notice of
the pendency of this action to proposed class members is authorized. After the notices have been
issued, the parties may seek leave of court to conduct any additional discovery which may be
warranted. Thereafter, the action will proceed to the de-certification/final certification stage.
Certification and Conditional Certification Procedure
1. As to the Rule 23 Certification, on or before March 14 2017, the Plaintiff shall provide
the Court with a proposed class certification Order defining the class, the class claims, issues, or
defenses, and appointing class counsel under Fed.R.Civ.P. 23(g). The Plaintiffs shall also file a
proposed form of notice in accordance with Fed.R.Civ.P. 23(c)(2)(B). If Defendants object to
the proposed Order and/or form of notice, they shall file their own proposed Order/form of notice
by March 21, 2017.
2. As to the FLSA conditional certification, on or before March 14, 2107, the Plaintiff
shall file a proposed notice that sets forth the definition of the group in the collective action, the
process for opting in and the date by which a prospective class member must opt in and any other
relevant information regarding available legal rights and remedies. If Defendants object to the
proposed form of notice, they shall file their own proposed form of notice by March 21, 2017.6

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Notwithstanding the procedure outlined by the Court, the parties are encouraged to confer and file a joint
proposed Order and form of notice under Rule 23 and joint proposed notice under the FLSA on or before March 7,

2017.

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3. The Defendants are ordered to produce to the Plaintiff by March 15, 2017, the list of
names and current or last known mailing and e-mail addresses and telephone numbers of the
employees that may belong to the collective action.
Conclusion
Plaintiff’s Motion For Class Certification Pursuant To Fed.R.Civ.P. 23, Collective Action
Certification Pursuant To 29 U.S.C. §216(b)(Docket No. 20) is granted, as provided herein.

SO ORDERED.

/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE

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