Rikard v. U.S. Auto Protection, LLC et al
MEMORANDUM AND ORDER re: 315 ORDERED that Defendants' Rule 42(b) Motion to Bifurcate Trial (ECF No. 315) is GRANTED.. Signed by District Judge Jean C. Hamilton on 10/8/13. (CEL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
LATEASE RIKARD, individually and
on behalf of others similarly situated,
U.S. AUTO PROTECTION, LLC, et al.,
Case No. 4:11CV1580 JCH
MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Rule 42(b) Motion to Bifurcate Trial, filed
July 3, 2013. (ECF No. 315). The motion is fully briefed and ready for disposition.
Defendants U.S. Auto Protection, LLC, and U.S. Auto Warranty, LLC were Missouri limited
liability companies. (Plaintiffs’ Second Amended Complaint (“Complaint” or “Compl.”), ¶¶ 8-9).
According to Plaintiffs, Defendants Ray Vinson, Jr., Shawn Vinson, and Matthew McLain were
officers or members of the Defendant businesses, and possessed control over the hiring and firing
practices, pay practices, and overall operational functions of the entities. (Id., ¶¶ 10-12).
From approximately January through May, 2011, named Plaintiff Latease Rikard was one
of many sales representatives employed by the Defendant companies at their call center in
(Compl., ¶¶ 1, 5).
Plaintiffs maintain Defendants employed sales
representatives to “pre-screen” and “close” telephone sales of vehicle service contracts, which were
essentially extended automobile warranties.1 (Id., ¶¶ 1, 17). According to Plaintiffs, Defendants did
Plaintiff Rikard worked as both a pre-screener and a closer at various times during her
employment with the Defendant entities in 2011. (Compl., ¶ 5).
not pay their sales representatives based on the number of hours they worked per week, but instead
utilized a commission-based pay scheme, with a weekly or monthly minimum payment. (Id., ¶ 17).
Plaintiffs further state that sales representatives were not required to track or record the hours they
worked in any way, and that the Defendant companies had no system in place for doing so. (Id., ¶
Plaintiffs allege sales representatives frequently worked in excess of 40 hours in a given
workweek, as they often were required to work before and/or after their designated shifts, through
some lunch periods, and on certain Saturdays. (Compl., ¶ 19). Plaintiffs assert Defendants refused
to pay the proper overtime pay of one-and-a-half times the regular hourly rate of pay for this excess
work, and that this deliberate failure on the parts of Defendants violated the Fair Labor Standards
Act (“FLSA”) and Missouri law. (Id., ¶¶ 20, 21).2 Based on this alleged wrongdoing, Plaintiffs filed
their Complaint on April 20, 2012, asserting claims for violations of the FLSA (Count I) and the
Missouri Minimum Wage Law (Count II), and unjust enrichment (Count III).
Subsequent to filing their Complaint, Plaintiffs timely petitioned the Court for an order
granting conditional certification of the case as a collective action under § 216(b) of the FLSA, and
authorizing them to send notice to all current and former sales representatives who had worked for
Defendants in the last three years. In an Order entered December 23, 2011, the Court conditionally
certified the class for purposes of Count I of the Complaint3, and tailored the possible class of opt-in
Plaintiffs to “include only those persons that worked for Defendants as sales representatives . . . from
Plaintiffs further maintain Defendants’ failure accurately to record all time worked by
their sales representatives violated the FLSA and Missouri law. (Compl., ¶ 22).
Although the Court’s December 23, 2011, Order was directed to Plaintiffs’ First
Amended Complaint, the only change in the Second Amended Complaint was the addition of
individual Defendants Brian Schatzberg, Paul Benenati, Josh Markert, and Ben Deverger, each of
whom has since been dismissed or settled. (See ECF Nos. 160, 161, 171, 339).
September 13, 2008[,] to September 13, 2011.” (ECF No. 37, P. 11).4 In conditionally certifying
the class, the Court found that Plaintiffs had submitted allegations sufficient to clear the relatively
low hurdle of showing that potential class members were co-victims of Defendants’ pay practices.
(Id., P. 8). The Court also determined that a three-year statute of limitations was appropriate for the
FLSA claim, stating that “Plaintiffs . . . produced sufficient evidence that Defendants either knew
or showed reckless disregard for the matter of whether its [sic] conduct was prohibited by statute.”
(Id., P. 10). In an Order entered October 4, 2013, the Court denied Defendants’ Motion to Decertify
Plaintiff’s FLSA Claim as a Collective Action, concluding that members of the conditionally
certified class were sufficiently similarly situated to allow at least the liability phase of the case to
proceed to trial collectively. (ECF No. 400).
On November 30, 2012, the Court certified a Rule 23(b)(3) class for Counts II and III of
Plaintiffs’ Complaint. (ECF No. 213). The class consists of all individuals who were employed by
Defendants as non-supervisory call center employees at any time during the relevant statute of
limitations. In deciding to certify the class, the Court recognized that the decision was a close one.
It therefore reserved the right to bifurcate the issues of liability and damages, “in order to avoid a
series of ‘mini-trials’ on each individual Plaintiff’s hours worked and compensation paid.” (Id., P.
As noted above, on July 3, 2013, Defendants filed the instant Rule 42(b) Motion to Bifurcate
Trial, requesting that the Court bifurcate the liability and damages phases of trial. (ECF No. 315).
Defendants request such a ruling to allow for certification to be reviewed again at the remedial stage,
In a subsequent Order entered January 19, 2012, the Court reconsidered the
aforementioned timeframe and decided that “the conditionally certified class shall include only
those persons that worked for Defendants as sales representatives . . . from December 14, 2008[,]
to December 14, 2011.” (ECF No. 41, P. 2).
“in order to determine whether the litigation should continue as a group action, whether subclasses
should be established, or whether the action should be dismantled into individual trials.” (Id., P. 2
(internal quotation marks and citation omitted)).5
Federal Rule of Civil Procedure 42(b) provides that, “[f]or convenience, to avoid prejudice,
or to expedite and economize, the court may order a separate trial of one or more separate issues,
claims, crossclaims, counterclaims, or third party claims.” Fed.R.Civ.P. 42(b). “Rule 42(b) confers
broad discretion on the district court in this area, permitting bifurcation under many circumstances,
including in furtherance of convenience.” Romero v. Florida Power & Light Co., 2012 WL
1970125, at *2 (M.D. Fla. Jun. 1, 2012) (internal quotation marks and citation omitted). Courts have
bifurcated consideration of liability and damages issues in actions for overtime compensation under
the FLSA. See, e.g., Lamon v. City of Shawnee, 1990 WL 120831, at *1 (D. Kan. Jul. 10, 1990);
Thiebes v. Wal-Mart Stores, Inc., 2004 WL 1688544, at *1 (D. Or. Jul. 26, 2004).
Upon consideration, the Court finds bifurcation of the issues of liability and damages is
appropriate in this case. Romero, 2012 WL 1970125, at *6. For liability, sufficiently generalized
evidence may exist with respect to Defendants’ alleged policy of encouraging and/or requiring
Plaintiffs to work beyond their shifts in order to meet established sales goals. Id. Evidence
regarding damages likely will be more individualized, however, as Defendants have submitted
significant evidence tending to show that hours and compensation schemes varied from week to
week, and from Plaintiff to Plaintiff.6 Under these circumstances, it is unclear whether representative
Defendants believe separate damages trials would be necessary, “to facilitate
individualized inquiries into the number of uncompensated overtime hours plaintiffs have
worked and the applicable overtime rate.” (ECF No. 315, P. 2 (citation omitted)).
These variations may give rise to individualized damages defenses on Defendants’ part.
testimony exists, sufficient to permit just and reasonable inferences as to damages suffered by nontestifying employees without doing injustice to Defendants.
In light of the foregoing, the Court will grant Defendants’ Rule 42(b) Motion to Bifurcate
Trial. See Romero, 2012 WL 1970125, at *7 (“If Plaintiffs prevail on liability, the calculation of
damages in this action will be a complicated process....The Court [finds] that it is neither efficient
nor convenient to undertake damage calculations unless and until Plaintiffs have prevailed on the
issue of liability.”).
IT IS HEREBY ORDERED that Defendants’ Rule 42(b) Motion to Bifurcate Trial (ECF
No. 315) is GRANTED.
Dated this 8th day of October, 2013.
/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE
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