Enriquez v. Cherry Hill Market corp et al

Filing 75

MEMORANDUM & ORDER: Plaintiff's motion 68 for reconsideration is DEINED. Ordered by Judge Frederic Block on 6/25/2014. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JOSE ENRIQUEZ, individually and on
behalf of other persons similarly situated
who were employed by CHERRY HILL
MARKET CORP. and/or CHERRY
HILL GOURMET, INC. and/or DAVID
ISAEV or any other entities affiliated
with or controlled by CHERRY HILL
MARKET CORP. and/or CHERRY
HILL GOURMET, INC. and DAVID
ISAEV,

MEMORANDUM AND ORDER
Case No. 10-CV-5616 (FB) (MDG)

Plaintiffs,
-againstCHERRY HILL MARKET CORP. and
CHERRY HILL GOURMET, INC. and
DAVID ISAEV and/or any other entities
affiliated with or controlled by
CHERRY HILL MARKET CORP.
and/or CHERRY HILL GOURMET,
INC. and/or DAVID ISAEV,
Defendants.
-----------------------------------------------x
Appearances:
For the Plaintiffs:
LADONNA LUSHER, ESQ.
Virginia and Ambinder, LLP
111 Broadway, Suite 1403
New York, NY 10006

For the Defendants:
MICHAEL J. MAURO, ESQ.
Milman Labuda Law Group, PLLC
3000 Marcus Avenue, Suite 3W8
Lake Success, NY 11042

BLOCK, Senior District Judge:
José Enriquez moves for reconsideration of the Court’s prior

memorandum and order denying his motion to certify his state-law wage and hour
claims as a class action. See Enriquez v. Cherry Hill Market Corp., ___ F. Supp. 2d
___, 2013 WL 5437038 (E.D.N.Y. Sept. 30, 2013). He argues that the Court
misapprehended the effect of Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011),
on the availability of the class-action mechanism in wage-and-hour cases.
As explained in the prior memorandum and order, a class action “must depend
upon a common contention . . . of such a nature that it 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.” Enriquez, ___
F. Supp. 2d ____, 2013 WL 5437038, at *3 (quoting Dukes, 131 S. Ct. at 2551). The
Supreme Court described such a contention as the “glue” holding class members’
claims together; without it, “it will be impossible to say that examination of all the
class members' claims for relief will produce a common answer to the crucial question
why was I disfavored.” Dukes, 131 S. Ct. at 2552.
Dukes is widely understood as reinvigorating the notion that class actions are
the exception, rather than the rule. See also American Express Co. v. Italian Colors
Rest., 133 S. Ct. 2304, 2310 (2013) (“[Federal Rule of Civil Procedure 23] imposes
stringent requirements for certification that in practice exclude most claims.”). That
said, district courts in this circuit are divided as to whether claims alleging widespread
underpayment of wages fits within the exception. Compare, e.g., Morris v. Affinity
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Health Plan, Inc., 859 F. Supp. 2d 611, 616 (S.D.N.Y. 2012), with Briceno v. USI
Serv. Group, Inc., 2012 WL 4511626, at *6 n.5 (E.D.N.Y. 2012).
In part, the divide is simply a reflection of the reality that not all wage-and-hour
cases are the same. In some, the claim is that an employer has classified a category
of employees as exempt; as explained in the prior memorandum and order, the Court
agrees that the legality of such a classification policy is susceptible of classwide
resolution. See Enriquez, ___ F. Supp. 2d ___, 2013 WL 5437038, at *4 (citing
Cuevas v. Citizens Fin. Group, Inc., 2013 WL 2321426 (2d Cir. May 29, 2013)).
Indeed, several courts have described an alleged classification policy as the “glue”
required by Dukes. See Scott v. Chipotle Mexican Grill, Inc., ___ F. Supp. 2d ___,
2014 WL 2600034, at *3 (S.D.N.Y. June 6, 2014); Pippins v. KPMG LLP, 2012 WL
19379, at *7 (S.D.N.Y. Jan. 3, 2012).
In other cases—including this one—the claim is that an employer has
systematically failed to pay employees the legally mandated wage for all hours
worked. At least one district court has certified such a case as a class action, finding
that the employer’s “overtime policy ‘is the “glue” that the Supreme Court found
lacking in Dukes.’” Jackson v. Bloomberg, L.P., ___ F.R.D. ___, 2014 WL 1088001,
at *9 (S.D.N.Y. Mar. 19, 2014) (quoting Pippins, 2012 WL 19379, at *7). In the
Court’s view, however, that holding runs afoul of Dukes’s clear pronouncement that
“[c]ommonality requires the plaintiff to demonstrate that the class members have
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suffered the same injury,” and that “[t]his does not mean merely that they have all
suffered a violation of the same provision of law.” 131 S. Ct. at 2551 (internal
quotation marks and citation omitted). In other words, alleging that systematic
underpayment of wages amounts to a “policy” of noncompliance with the wage-andhour laws does not establish commonality if demonstrating such noncompliance
requires, as it would in this case, an inquiry into the total pay and total hours worked
for each employee.
Other district courts have reasoned that differences in total pay and hours
worked “go to the damages that each employee is owed, not to the common question
of Defendants’ liability,” Espinoza v. 953 Assocs. LLC, 280 F.R.D. 113, 130
(S.D.N.Y. 2011), and have therefore certified “liability-only” classes under Federal
Rule of Civil Procedure 23(c)(4). See, e.g., Jacob v. Duane Reade, Inc., 293 F.R.D.
578, 593 (S.D.N.Y. 2013). In Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), the
Supreme Court cautioned against certifying classes in which “[q]uestions of individual
damage calculations will inevitably overwhelm questions common to the class.” Id.
at 1433. How Comcast impacts liability-only classes under Rule 23(c)(4) remains a
subject of debate. See, e.g., Jacob, 293 F.R.D. at 593 (noting the debate, but
“declin[ing] to read Comcast as disallowing certification as to certain issues, such as
liability”). But even assuming that a liability-only class is appropriate in some cases,
it is not appropriate in this one because the individualized inquiry necessary to
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establish the amount of each employee’s damages is the same individualized inquiry
necessary to establish the employer’s liability to that employee.
In sum, the Court is satisfied that it correctly applied Dukes to the facts of this
case. Accordingly, the motion for reconsideration is denied.
SO ORDERED.

/S/ Frederic Block____________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
June 25, 2014

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