DeBoissiere v. American Modification Agency et al

Filing 31

MEMORANDUM AND ORDER denying 23 Motion to Certify Class. Plaintiffs' motion to certify a New York state law class action under Rule 23 is DENIED WITHOUT PREJUDICE. Plaintiffs have leave to re-file their motion to adduce evidence concerning the adequacy of representation factor. So Ordered by Judge Joanna Seybert on 5/5/10. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------X MARICELA DEBOISSIERE, individually and on Behalf of all Others Similarly Situated, Plaintiffs, - against AMERICAN MODIFICATION AGENCY, AMERIMOD INC., SALVATORE PANE, JR., Defendants. -----------------------------------X APPEARANCES: For Plaintiffs: Erik Harald Langeland, Esq. Erik H. Langeland, P.C. 500 Fifth Avenue, Ste. 1610 New York, NY 10110 No appearances. MEMORANDUM & ORDER 09-CV-2316 (JS)(MLO)

For Defendants:

SEYBERT, District Judge: On June 1, 2009, Plaintiff Maricela Deboissiere, on behalf of others similarly situated, sued Defendants, alleging that Defendants violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et. seq., and applicable New York law by

failing to pay their loan modification advisors minimum wages and overtime. Plaintiffs now move to certify their New York Defendants have filed have appear not, yet in to this answer case. the

state law claims under FED. R. CIV. P. 23. no opposition papers and, or in fact,

Plaintiffs' Defendants'

Complaint failure to

otherwise does

appear

however,

negate

Court's

responsibility

to

sua

sponte

consider

whether

class

certification is appropriate.

Having done so, the Court DENIES

Plaintiffs' motion for class certification WITHOUT PREJUDICE. BACKGROUND Defendants employed the named Plaintiff, and others similarly situated, to work as loan modification advisers in New York. Pl. Exs. A, B. In this role, Plaintiffs sold loan Pl. Exs. B-F at ¶ 5.

modifications to customers.

Defendants paid Plaintiffs on a commission only basis. Pls. Exs. B-D at ¶¶ 6, 9. loan modification not even during Thus, if Plaintiffs failed to sell a a pay period, Pls. Defendants Exs. B-F paid at them ¶ 6.

nothing,

minimum

wage.

Likewise, Defendants did not pay Plaintiffs time and a half for working more than 40 hours a week. Pls. Exs. B-F at ¶ 8. Pls.

Indeed, Defendants did not even record Plaintiffs' hours. Exs. B-F at ¶ 10. This action followed. DISCUSSION I. Applicable Legal Standards

To certify a class, Plaintiffs must establish, by a preponderance of the evidence, that: (1) the class is so

numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the 2

claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. See FED. R. CIV. P. 23; Teamsters Local 445 Freight Div.

Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008) (imposing a preponderance of the evidence standard). In

addition, Plaintiffs must establish, by a preponderance of the evidence, that one of Rule 23(b)'s requirements have been met. Teamsters Local 445 Freight Div. Pension Fund, 546 F.3d at 202. Here, Plaintiffs seek certification under Rule 23(b)(3),

requiring them to show that: (1) common questions "predominate" over individual questions; and that (2) "a class action is

superior to other available methods for fairly and efficiently adjudicating the controversy." Given Plaintiffs' burden, the Court must "receive

enough evidence, by affidavits, documents, or testimony, to be satisfied that each Rule 23 requirement has been met." 204 (internal quotations and citations omitted). II. Numerosity Plaintiffs have put forth sufficient evidence to Id. at

indicate that the proposed class consists of at least 50 loan modification officers. establish numerosity. Pls. Exs. B-D. This is sufficient to

See Consolidated Rail Corp. v. Town of

Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (numerosity presumed at 40 members). 3

III. Commonality Plaintiffs indicate that class have put forth claims sufficient share many evidence common to

members' whether York's

legal pay

questions, plan

including New

Defendants' and loan and hour

commission-only laws and

violated

wage

whether as

Defendants exempt

misclassified New York's

their wage

modification laws.

advisors In

from

hour

addition,

Plaintiffs have put forth sufficient evidence showing that class members' claims share many common factual questions, including whether Defendants paid minimum wages, whether Defendants

expected them to work more than 40 hours a week, and whether Defendants paid them overtime wages when they worked more than 40 hours a week. Court finds Given these common issues, among others, the Plaintiffs generally, have met the v. Dist. commonality Dreiser LEXIS Loop 86138 v.

that See, Corp., 24,

requirement. Supermarket (S.D.N.Y.

Frederick 2008 U.S.

06-CV-15341, 2008)

Oct.

(overtime

claims);

Brzychnalski

Unesco, Inc., 35 F. Supp. 2d 351, 354 (S.D.N.Y. 1999) (minimum wage claims). IV. Typicality Plaintiffs requirement because contend the that they meet the typicality DeBoissiere,

named

Plaintiff,

Ms.

asserts the same claims the class does: that she worked for Defendants as a loan modification advisor, was paid only in 4

commissions, routinely worked more than 40 hours a week, and did not receive overtime or the minimum wage. V. Adequacy of Representation A. Ms. DeBoissiere Plaintiffs declaration, representative. Ms. further argue is that, an based adequate on her class The Court agrees.

DeBoissiere

In this regard, Plaintiffs contend that Ms.

DeBoissiere's declaration "attest[s] to the pertinent facts of this case," and "indicates her willingness to participate as the class representative." declaration facts. (Pl. Ex. The Court disagrees. B) sufficiently Ms. DeBoissiere's to this case's

attests

But it says nothing about Ms. DeBoissiere's willingness Nor does it say

or ability to serve as a class representative.

anything about whether Ms. DeBoissiere possesses any "conflicts of interest" with the other class members. with Pl. Ex. B. present motion. Compare Pl. Br. 9

This lack of evidence is fatal to Plaintiffs' As discussed above, Plaintiffs bear the burden

of showing, by a preponderance of the evidence, that they have met Rule 23's requirements. Teamsters Local 445 Freight Div. Counsel's statements are not

Pension Fund, 546 F.3d at 202. evidence.

See, generally, Baptist v. Global Holding & Inv. Co.,

L.L.C., 04-CV-2365, 2007 U.S. Dist. LEXIS 49476, *18 (E.D.N.Y. July 9, 2007) (attorney argument is not evidence). And

Plaintiffs provide nothing else. 5

Thus, Plaintiffs have failed

to

establish,

by

a

preponderance

of

the

evidence,

that

Ms.

DeBoissiere would be an adequate representative. B. Plaintiffs' Counsel Plaintiffs also contend that their apparent counsel, Stephan Zouras, LLP and the Ms. Erik class. H. Langeland, P.C., would

adequately failure to

represent establish

Notwithstanding adequacy,

Plaintiffs' the Court The

DeBoissiere's

reaches this issue, as it goes to the same Rule 23 prong.

Court finds that Erik H. Langeland, P.C., would be adequate class counsel. The Court makes no such finding with respect to

Stephan Zouras, LLP for a simple reason: this firm has not yet filed a Notice of Appearance or otherwise formally appeared. Before the Court decides Stephan Zouras, LLP's adequacy to serve as class counsel under Rule 23, Stephan Zouras, LLP must first be counsel to some party or intervener. VI. Preponderance & Superiority Because the Court finds that Plaintiffs have not yet shown Ms. DeBoissiere's Plaintiffs adequacy have failed to to serve meet as their class burden

representative,

under Rule 23(a).

Thus, the Court declines to reach whether

Plaintiffs have met Rule 23(b)(3)'s requirements. CONCLUSION Plaintiffs' motion to certify a New York state law class action under Rule 23 6 is DENIED WITHOUT PREJUDICE.

Plaintiffs have leave to re-file their motion to adduce evidence concerning the adequacy of representation factor. SO ORDERED. /s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J. Dated: Central Islip, New York May 5, 2010

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