Gortat et al v. Capala Brothers, Inc. et al
Filing
272
ORDER denying 263 . For all of the foregoing reasons, defendants' motion to decertify the class is hereby DENIED and their motion for entry of judgment on attorney's fees and costs is hereby DENIED without prejudice to renewal. Ordered by Senior Judge I. Leo Glasser on 4/3/2012.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MIROSLAW GORTAT, et al.
MEMORANDUM AND ORDER
Plaintiffs,
07 Civ. 3629 (ILG) (SMG)
-v.CAPALA BROTHERS, INC., et al.
Defendants.
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GLASSER, Senior United States District Judge:
Before the Court is the motion of defendants Capala Brothers, Inc. (“Capala
Bros.”) and individual defendants Pawel and Robert Capala (collectively “defendants”)
to decertify the class certified by the Court on April 9, 2010 for lack of numerosity and to
obtain entry of judgment for certain attorney’s fees and costs. For the reasons set forth
below, defendants’ motion to decertify the class is hereby DENIED, and their motion for
entry of judgment on attorney’s fees and costs is hereby DENIED without prejudice to
renewal.
I. BACKGROUND
The factual background and procedural history to this action is set out more fully
in a number of the Court’s previous decisions, familiarity with which is assumed.1 In
short, plaintiffs are laborers and foremen formerly employed by Capala Bros., a
construction services company, who seek to recover on behalf of themselves and others
See, e.g., Gortat v. Capala Bros., Inc., No. 07 Civ. 3629 (ILG) (SMG), 2011 WL
6945186, at *1-2 (E.D.N.Y. Dec. 30, 2011) (“Gortat V”); Gortat v. Capala Bros., Inc., No.
07 Civ. 3629 (ILG) (SMG), 2011 WL 2133769, at *1 (E.D.N.Y. Mar. 27, 2011) (“Gortat
IV”); Gortat v. Capala Bros., Inc., No. 07 Civ. 3629 (ILG) (SMG), 2010 WL 1423018, at
*1 (E.D.N.Y. Apr. 9, 2010) (“Gortat III”); Gortat v. Capala Bros., Inc., 257 F.R.D. 353,
355-57 (E.D.N.Y. 2009) (“Gortat II”); Gortat v. Capala Bros., Inc., 585 F. Supp. 2d 372,
376-77 (E.D.N.Y. 2008) (“Gortat I”).
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similarly situated unpaid wages arising out of defendants’ alleged failure to comply with,
among other things, the (1) New York Labor Law, N.Y. Lab. Law § 650 et seq. (“NYLL”);
(2) Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”); and (3) Portal-to-Portal
Act, 29 U.S.C. § 254(a)(1)-(2).
On January 15, 2009, plaintiffs moved to certify as a class pursuant to Fed. R.
Civ. P. 23(b)(3) all laborers and foremen employed by Capala Brothers during the six
years preceding August 29, 2007, the date of the initiation of this action. Defendants
moved to dismiss the class action, contending that the class was insufficiently numerous
and that the representative parties do not adequately protect the interests of the class.
Gortat II, 257 F.R.D. at 361. The Court on May 5, 2009 rejected these contentions and
denied defendants’ motion. Id. at 365.
On April 9, 2010, the Court certified the class, concluding that plaintiffs had
satisfied all of Fed. R. Civ. P. 23(a) prerequisites, including numerosity. Gortat III, 2010
WL 1423018, at *2-3.2 After plaintiffs circulated the notice of pendency, 23 members
timely opted-out of the class, and the Court subsequently allowed three others to optout after the deadline to do so passed. See Notice of Exclusion filed Aug. 3, 2010 (Dkt.
No. 207); Gortat V, 2011 WL 6945186, at *12. On May 27, 2011, the Court, on
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The class is specifically defined as follows:
All persons employed by Defendants as roofers, bricklayers, masons,
building laborers, drivers, foremen and other manual workers with the
same or similar duties during the six years immediately preceding the
initiation of this action up to the date of this decision who are asserting
claims under the New York State Labor Law for unpaid minimum wages or
overtime premium wages.
Gortat III, 2010 WL 1423018, at *8.
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defendants’ motion, also removed 51 members from the class after the members signed
forms releasing defendants from liability. Gortat IV, 2011 WL 2133769, at *1-2.
In light of the number of members who had either opted-out or signed releases,
defendants on January 19, 2012 moved to decertify the class, contending the class no
longer meets the numerosity requirements of Fed. R. Civ. P. 22(a)(1). Declaration of
Felipe Orner dated Jan. 19, 2012 at 3-12 (“Defs.’ Mem.”) (Dkt. No. 263).3 Plaintiffs filed
their submissions in opposition to the motion on February 10, 2012. Declaration of
Robert Wisniewski dated Feb. 10, 2012 (“Wisniewski Decl.”) (Dkt. No. 264). On
February 16, 2012, defendants filed their reply. Reply Memorandum in Support of
Motion to Decertify dated Feb. 16, 2012 (Dkt. No. 267). Also on that date, the Court
held a final pre-trial conference and set a trial date of May 7, 2012.
II. DISCUSSION
A. Joinder of all Members Remains Impracticable
“[A] district court may decertify a class if it appears that the requirements of Rule
23 are not in fact met.” Sirota v. Solitron Devices, Inc., 673 F.2d 566, 572 (2d Cir. 1982).
Fed. R. Civ. P. 23(c)(1)(c) explicitly provides that “[a]n order that grants or denies class
certification may be altered or amended before final judgment.” Accordingly, “[e]ven
after a certification order is entered, the judge remains free to modify it in light of
subsequent developments in the litigation. For such an order . . . is inherently
tentative.” Gen. Tel. Co. of the S.W. v. Falcon, 457 U.S. 147, 160, 102 S. Ct. 2364, 72 L.
Ed. 2d 740 (1982); see also Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc.,
502 F.3d 91, 104, n.9 (2d Cir. 2007) (a district court that has certified a class under Rule
The Orner Declaration is replete with legal argument better suited for a
memorandum of law, which defendants, in violation of Local Civil Rule 7.1, have not
submitted.
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23 “can always alter, or indeed revoke, class certification at any time before final
judgment is entered should a change in circumstances” render a class action no longer
appropriate). Even assuming, as defendants contend, that plaintiffs bear the burden of
demonstrating that Rule 23’s requirements continue to be met,4 “‘the Court may not
disturb its prior [certification] findings absent some significant intervening event, or a
showing of compelling reasons to reexamine the question.’” Jermyn v. Best Buy Stores,
L.P., 276 F.R.D. 167, 169 (S.D.N.Y. 2011) (quoting Doe, 192 F.R.D. at 136-37).
“‘Compelling reasons’ for reexamination ‘include an intervening change of controlling
law, the availability of new evidence, or the need to correct a clear error or prevent
manifest injustice.’” Doe, 192 F.R.D. at 136-37 (quoting Wilder v. Bernstein, 645 F.
Supp. 1292, 1310 (S.D.N.Y. 1988)) (internal quotation marks omitted).
Courts assessing a motion to decertify a previously certified class should also
consider the stage of the litigation and whether an “‘eve-of-trial decertification could
adversely and unfairly prejudice class members, who may be unable to protect their own
interests.’” Id. (quoting Langley v. Coughlin, 715 F. Supp. 522, 552 (S.D.N.Y. 1989)); see
also Woe v. Cuomo, 729 F.2d 96, 107 (2d Cir. 1984) (finding abuse of discretion where
district court decertified the class after granting summary judgment in part and
expressing concern about “possible prejudice to members of a class” who, as a result of
“[A]t least one district court has concluded that the burden of persuasion
remains throughout the litigation with the party desiring to maintain certification.” Doe
v. Karadzic, 192 F.R.D. 133, 136-137 (S.D.N.Y. 2000) (citing Smith v. Armstrong, 968 F.
Supp. 50, 53 (D. Conn. 1997)). However, other courts in this circuit have concluded that
where, as here, a defendant moves to decertify a class, the defendant is required to meet
the “‘heavy burden’ of proving the necessity of taking such a ‘drastic’ step.” See, e.g., J.S.
v. Attica Central Schools, No. 00 Civ. 513S, 2011 WL 4498369, at *6 (W.D.N.Y. Sept. 27,
2011) (quoting In re Vivendi Universal, S.A. Sec. Litig., No. 02 Civ. 5571 (RJH)(HBP),
2009 WL 855799, at *3 (S.D.N.Y. Mar. 31, 2009)); see also Gordon v. Hunt, 117 F.R.D.
58, 61 (S.D.N.Y. 1987)).
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decertification, were unable to take steps to protect their rights); Easterling v. Conn.
Dept. of Corr., 278 F.R.D. 41, 42 (D. Conn. 2011) (“A court should be wary of revoking a
certification order completely at a late stage in the litigation process.”).
Defendants appear to argue that the decrease in the number of class members
because of opt-outs and the signing of releases constitutes “compelling circumstances”
warranting decertification and largely reprise arguments that the Court has previously
considered and rejected. Defs.’ Mem. at 3-12.5 Specifically, defendants maintain that
decertification is necessary because the size of the class—which they state is 28—is no
longer “so numerous that joinder of all members is impracticable” under Fed. R Civ. P.
22(a)(1). Defs.’ Mem. at 5-6. The Court disagrees.
Even if the Court accepts defendants’ argument that the size of the potential class
is 28 members,6 decertification is nevertheless still unwarranted. Fed. R. Civ. P.
Defendants cite no authority for this proposition; it appears, however, that if a
sufficiently large number of members opt-out of a class, the class may be subject to
decertification. See, e.g., Meijer, Inc. v. Warner Chilcott Holdings Co. III, Ltd., 246
F.R.D. 293, 307 n.15 (D.D.C. 2007) (“The Court notes that if a significant number of
direct purchasers opt out of the proposed class or it becomes apparent that the class is,
in fact, substantially smaller than thirty, the Court may alter, amend, or decertify the
class pursuant to Rule 23(c)(1)(C).” (citing Alvarado Partners, L.P. v. Mehta, 130 F.R.D.
673, 675 (D. Colo. 1990)); Lubin v. Sybedon Corp., 688 F. Supp. 1425, 1460 (S.D. Cal.
1988) (noting, in dicta, that “if too many class members exercised their opt-out right,
the court could decertify the class at that time”); see also 1 Herbert B. Newberg,
Newberg on Class Actions: A Manual for Group Litigation at Federal and State Levels §
3.12 (“[A] court always has the option to decertify the class if it is later found that the
class does not in fact meet the numerosity requirement.”).
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The parties cavil over the size of the class; plaintiffs state that 43 members
remain in the class, see Wisniewski Decl. ¶ 8, while defendants state that “the class . . .
members remaining aggregate only 28,” Defs.’ Mem. ¶ 12. Defendants also appear to
contend that the number of class members is actually only 5, id., but defendants’
calculation leaves out the named plaintiffs and members who have neither opted-out of
the class nor signed releases but instead who merely elected not to join the FLSA
collective action.
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23(a)(1) requires that a class be “so numerous that joinder of all members is
impracticable.” The Court has broad discretion to determine whether joinder of all
members is impracticable, and in making its determination, must take into account
more than simply the number of members. See, e.g., Gen. Tel. Co. of the N.W. v. Equal
Emp’t Opportunity Comm’n, 446 U.S. 318, 330, 100 S. Ct. 1698, 64 L. Ed. 2d 319 (1980)
(numerosity requirement “imposes no absolute limitations,” but instead “requires
examination of the specific facts of each case” and noting in dicta that “[w]hen judged by
the size of the putative class in various cases in which certification has been denied, [15
class members] would be too small to meet the numerosity requirement”). It is true that
courts will generally find that the “‘numerosity’ requirement has been satisfied when the
class comprises 40 or more members and will find that it has not been satisfied when
the class comprises 21 or fewer.” Ansari v. N.Y. Univ., 179 F.R.D. 112, 114 (S.D.N.Y.
1998) (citations omitted); see also Newberg § 3.12.7
Defendants have no legal or factual basis on which to omit these individuals from
the class. The named plaintiffs—the class representatives—are obviously members of
the class. Fed. R. Civ. P. 23(a) (“One or more members of a class may sue or be sued as
representative parties on behalf of all members if . . . .”); Falcon, 457 U.S. 147 at 156
(“[W]e have repeatedly held that a class representative must be part of the class and
possess the same interest and suffer the same injury as the class members.” (internal
quotation marks and citations omitted)). So too are the members who elected not to
join the FLSA collective action. The Court cannot assume that because these individuals
chose not to opt-in to the FLSA collective action, they also desired to opt-out of the class
action. Indeed, some of these individuals may not have opted-in to the collective action
simply because they worked for Capala Bros. before January 15, 2006 and thus had no
FLSA claim. See Notice of Class Action at 2 (“[I]f you worked for Defendants during any
time between January 15, 2006 and the present, federal law provides that you may be
able to collect an additional 100% of your damages, . . . .”).
In this Circuit, numerosity is generally presumed when the proposed class
would have at least 40 members. Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473,
483 (2d Cir. 1995).
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This Circuit has stressed, however, that “[d]etermination of practicability
depends on all the circumstances surrounding a case, not on mere numbers.” Robidoux
v. Celani, 987 F.2d 931, 936 (2d Cir. 1993). Accordingly, the relevant considerations a
court may consider include: (1) judicial economy arising from the avoidance of a
multiplicity of actions; (2) geographic dispersion of class members; (3) financial
resources of class members; (4) the ability of claimants to institute individual suits; and
(5) requests for prospective injunctive relief which would involve future class members.
Id. at 936 (citations omitted); see also Odom v. Hazen Transport, Inc., 275 F.R.D. 400,
407 (W.D.N.Y. 2011) (certifying class of 16 truckers in FLSA action where members
lacked financial resources to bring suit and, in light of the small recoveries that many of
them could reasonably expect, it was unlikely that they would choose to bear the costs of
individual lawsuits); Frank v. Eastman Kodak Co., 228 F.R.D. 174, 181 (W.D.N.Y. 2005)
(certifying class of 28 employees in FLSA action where small potential recoveries by
plaintiffs made individual suits unlikely); Meyer v. Stevenson, Bishop, McCredie, Inc.,
No. 74 Civ. 5274, 1976 WL 788, at *2-3 (S.D.N.Y. May 11, 1976) (certifying class of 30).
The Court previously considered a number of these factors in its May 5, 2009
decision and concluded that notwithstanding the “class members are not dispersed
across a wide geographic area, these factors on balance suggest that joinder would be
impracticable.” Gortat II, 257 F.R.D. at 363. The same is true today. “[T]he Court
infers, as it may, that many if not most of the purported class members are persons with
inadequate resources to exercise their rights by prosecuting their own claims.” Id.
(citing Cortigiano v. Oceanview Manor Home for Adults, 227 F.R.D. 194, 203 (E.D.N.Y.
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2005).8 Indeed, the class members are immigrant laborers who speak little English.
These individuals lack not only the financial resources to individually bring actions in
federal court but also the incentive to do so in light of the relatively small recoveries
many of them can reasonably expect to receive.9 See Amchem Prods., Inc. v. Windsor,
521 U.S. 591, 617, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997) (“The policy at the very core
of the class action mechanism is to overcome the problem that small recoveries do not
provide the incentive for any individual to bring a solo action prosecuting his or her
rights. A class action solves this problem by aggregating the relatively paltry potential
recoveries into something worth someone’s (usually an attorney’s) labor.” (citation and
internal quotation marks omitted)); In re Am. Exp. Merchants’ Litig., 667 F.3d 204, 214
(2d Cir. 2012) (“Supreme Court precedent recognizes that the class action device is the
only economically rational alternative when a large group of individuals or entities has
suffered an alleged wrong, but the damages due to any single individual or entity are too
small to justify bringing an individual action.”). Without the benefit of class
representation, it is thus unlikely they would be willing or able to incur the costs and
hardships involved with initiating separate litigations. See Odom, 275 F.R.D. at 407
(certifying class of 16 truckers in FLSA action and noting that “[t]he small recoveries
that many of the class members could reasonably expect to recover even if they
prevailed on the merits makes it unlikely that, absent the benefit of class representation,
In Cortigiano, this Court concluded on a motion for class certification that
joinder was impracticable, among other reasons, because the class members were
disabled, and had no “means to exercise their rights because of inadequate resources to
prosecute their own claims.” Cortigiano, 227 F.R.D. at 204-05.
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Indeed, many of the class members only worked for Capala Bros. for a relatively
short period of time. See Defs.’ Mem. Ex. A (listing certain Capala Bros.’ employees,
their hire dates and the dates of their last checks).
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they would choose to bear the costs of individual lawsuits”). Judicial economy also
continues to counsel against decertification. See Frank, 228 F.R.D. at 181 (“‘While 25 is
a small number . . . , it is a large number when compared to a single unit. I see no
necessity for encumbering the judicial process with 25 lawsuits, if one will do.’” (quoting
Phil. Elec. Co. v. Anaconda Am. Brass Co., 43 F.R.D. 452, 463 (E.D. Pa. 1968)).
One additional factor weighs against decertification: the stage of the litigation.
The information giving rise to defendants’ motion—the opt-outs and signing of releases
by class members—has been in defendants’ possession for well over a year. It was
nevertheless only until after the Court scheduled its final pre-trial conference and
shortly before the Court set a trial date of May 7, 2012, that defendants on January 19,
2012 made their motion for class decertification. Such an 11th hour motion is of the sort
that, if granted, would prejudice members of the class who have not taken independent
steps to protect their rights precisely because they were members of the class. See Woe,
729 F.2d at 107 (abuse of discretion for district court to decertify class at late juncture in
light of possible prejudice to class members); cf. Doe, 192 F.R.D. at 137 (decertification
motion granted, among other reasons, where litigation remained in “early stages” before
class notification sent and “any resulting prejudice to the parties arising from
decertification would be minimal”).
Defendants’ motion to decertify the class is thus denied.
B. Judgment for Attorney’s Fees is Denied Without Prejudice
On June 15, 2011 Judge Gold ordered plaintiffs’ counsel to “compensate
defendants for attorney’s fees and time incurred attending [a] conference” before Judge
Gold on that date after plaintiffs’ counsel failed to appear. Defendants now seek to have
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the Court enter judgment against plaintiffs and their counsel for these fees.10
Defendants’ application is denied without prejudice to renewal as defendants have failed
to provide the Court with an adequate basis to determine the reasonableness of the
requested fees. Any future request must contain documentation in support of the fees
claimed, including contemporaneous time records. See N.Y. State Ass’n for Retarded
Children, Inc. v. Carey, 711 F.2d 1136, 1147-48 (2d Cir. 1983).
III.
CONCLUSION
For all of the foregoing reasons, defendants’ motion to decertify the class is
hereby DENIED and their motion for entry of judgment on attorney’s fees and costs is
hereby DENIED without prejudice to renewal.
Dated:
Brooklyn, New York
April 3, 2012
/s/
I. Leo Glasser
Senior United States District Judge
Defendants do not state the total amount they seek. They include a bill sent to
plaintiffs’ counsel for $891.00, Defs.’ Mem. Ex. F, but also appear to contend that they
are entitled to additional compensation for having to research “cases referred to by
plaintiff’s [sic] legal counsel in the dispute of such costs and sanctions, for an additional
hour.” Defs.’ Mem. at 14. Defendants provide no legal or factual basis for this
additional compensation.
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