Ruiz v. Citibank, N.A.
Filing
227
OPINION AND ORDER re: (222 in 1:10-cv-05950-KPF-RLE) MOTION for Reconsideration re; (219) Memorandum & Opinion filed by Digna Ruiz, Dara SW Ho: For the reasons set forth in this Opinion, Plaintiffs' motion for reconsi deration is DENIED. The Clerk of Court is directed to terminate Docket Entry 222. The remaining parties are directed to appear before the Court for a status conference on August 18, 2015, at 10:00 a.m., in Courtroom 618 of the Thurgood Marshall Courthouse, 40 Foley Square, New York, New York 10007. (Signed by Judge Katherine Polk Failla on 8/4/2015) (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DIGNA RUIZ, on behalf of herself and all :
:
others similarly situated,
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Plaintiff,
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v.
:
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CITIBANK, N.A.,
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Defendant. :
:
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FREDRICK WINFIELD, et al.,
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Plaintiffs,
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:
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v.
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CITIBANK, N.A.,
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Defendant. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: August 4, 2015
______________
10 Civ. 5950 (KPF)(RLE)
OPINION AND ORDER
10 Civ. 7304 (KPF)(RLE)
KATHERINE POLK FAILLA, District Judge:
By Opinion and Order dated March 19, 2015, the Court denied Plaintiffs’
motion to certify three statewide classes under state overtime wage laws and
granted Defendant’s motion to decertify a conditionally certified nationwide
collective action under the Fair Labor Standards Act (the “FLSA”). 1 Ruiz v.
1
Familiarity with the facts detailed, and conclusions reached, in the Court’s March 19,
2015 Opinion and Order is assumed. Except where indicated otherwise, docket entry
numbers refer to the Ruiz Action, No. 10 Civ. 5950, rather than the Winfield Action,
No. 10 Civ. 7304. Plaintiffs’ supporting memorandum is referred to as “Pl. Recon. Br.”
(Dkt. #222); Defendant’s opposing memorandum is referred to as “Def. Recon. Opp.”
Citibank, N.A. (“Ruiz I”), — F. Supp. 3d —, 2015 WL 1254820 (S.D.N.Y.
Mar. 19, 2015). Plaintiffs have moved for reconsideration of that decision
pursuant to Rule 6.3 of the Local Rules for the Southern and Eastern Districts
of New York. For the reasons set forth in the remainder of this Opinion, the
motion is denied.
APPLICABLE LAW
“The decision to grant or deny a motion for reconsideration is within the
sound discretion of the district court.” In re Optimal U.S. Litig., 813 F. Supp.
2d 383, 403 n.6 (S.D.N.Y. 2011) (quoting Patterson v. United States, No. 04 Civ.
3140 (WHP), 2006 WL 2067036, at *1 (S.D.N.Y. July 26, 2006)). Under Local
Rule 6.3, the moving party must “point to controlling decisions or data that the
court overlooked — matters, in other words, that might reasonably be expected
to alter the conclusion reached by the court.” Shrader v. CSX Transp. Inc., 70
F.3d 255, 256-57 (2d Cir. 1995) (internal citations omitted) (noting that the
standard for granting motions for reconsideration is “strict”). “A motion for
reconsideration may not be used to advance new facts, issues or arguments
not previously presented to the Court, nor may it be used as a vehicle for
(Dkt. #225); and Plaintiffs’ memorandum in reply is referred to as “Pl. Recon. Reply”
(Dkt. #226).
The parties’ materials submitted in connection with their prior motions for certification
and decertification are referred to as in the prior Opinion: the parties’ declarations are
cited as “[Name] Decl.”; deposition testimony is cited as “[Name] Dep.”; Defendant’s
opening brief in support of the motion for decertification is referred to as “Def. Decert.
Br.” (Dkt. #179); Plaintiffs’ opposition as “Pl. Decert. Opp.” (Dkt. #188); and Defendant’s
reply brief as “Def. Decert. Reply” (Dkt. #200). Plaintiffs’ opening brief in support of the
motion for certification is referred to as “Pl. Cert. Br.”; Defendant’s opposition as “Def.
Cert. Opp.” (Dkt. #190); Plaintiffs’ reply as “Pl. Cert. Reply” (Dkt. #197); Defendant’s
sur-reply as “Def. Cert. Sur-Reply” (Dkt. #204); and Plaintiffs’ sur-sur-reply as “Pl. Cert.
Sur-Sur-Reply” (Dkt. #209).
2
relitigating issues already decided by the Court.” Davidson v. Scully, 172 F.
Supp. 2d 458, 462 (S.D.N.Y. 2001) (citing Shrader, 70 F.3d at 257). Such a
motion should not be made to “reflexively [] reargue those issues already
considered when a party does not like the way the original motion was
resolved.” In re Optimal U.S. Litig., 813 F. Supp. 2d at 387 (quoting Makas v.
Orlando, No. 06 Civ. 14305 (DAB) (AJP), 2008 WL 2139131, at *1 (S.D.N.Y.
May 19, 2008) (internal quotation marks omitted)). Above all,
“[r]econsideration of a court’s previous order is an ‘extraordinary remedy to be
employed sparingly in the interests of finality and conservation of scarce
judicial resources.’” Parrish v. Sollecito, 253 F. Supp. 2d 713, 715 (S.D.N.Y.
2003) (quoting In re Health Mgmt. Sys. Inc. Secs. Litig., 113 F. Supp. 2d 613,
614 (S.D.N.Y. 2000)).
DISCUSSION
Plaintiffs identify six grounds for reconsideration: (i) the Court improperly
looked for nationwide evidence of a common pattern or practice of denial of
overtime, rather than a pattern or practice limited to New York and Illinois;
(ii) the Court accordingly overlooked evidence demonstrating such a pattern or
practice in New York and Illinois; 2 (iii) the Court incorrectly applied a trial
standard of proof to the class certification question; (iv) the Court improperly
applied the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.
2
Plaintiffs originally moved to certify classes in New York, Illinois, and the District of
Columbia. (Pl. Cert. Br. 1). Plaintiffs do not seek reconsideration of the Court’s denial
of certification of the District of Columbia class, which rested upon the additional
ground of lack of numerosity. (Pl. Recon. Br. 1 n.3; Ruiz I, 2015 WL 1254820, at *14).
3
Ct. 2541 (2011), to Plaintiffs’ wage and hour claims; (v) the Court overlooked
the Mt. Clemens doctrine in determining the susceptibility of damages to
classwide proof; and (vi) the Court overlooked its ability to modify the class
definition and create subclasses instead of denying certification altogether.
None of these claims is properly the subject of a motion for reconsideration;
rather, Plaintiffs seek reflexively to reargue issues already considered and
decided against them in Ruiz I. Nevertheless, the Court addresses each
argument in turn.
A.
The Court Did Not Improperly Look to Nationwide Rather than
Statewide Evidence
Plaintiffs argue that the Court improperly required that Plaintiffs show a
common nationwide pattern or practice of Citibank, rather than statewide
patterns or practices within New York and Illinois. (Pl. Recon. Br. 4-7).
Plaintiffs’ argument significantly mischaracterizes the Court’s opinion in Ruiz I.
The Court did not “erroneously conflate[]” Plaintiffs’ opposition to
decertification of the nationwide FLSA class with their motion to certify the
state classes (Pl. Recon. Br. 4); rather, examining and citing exclusively
Plaintiffs’ briefs in support of their certification motion, the Court found that
“rather than prove a common policy or practice within each relevant state,
Plaintiffs seek to demonstrate a nationwide policy that can be imputed to each
state.” Ruiz I, 2015 WL 1254820, at *6 n.8 (citing Pl. Cert. Br. 2 (“The directive
against overtime expense came from top management and thus was common to
[personal bankers] nationwide.”), 5 (“[Personal bankers] across the country
testified that they were subject to this disciplinary procedure[.]”), 11 (“Branch
4
managers delivered and strictly enforced the national ‘no overtime’ directive
from management.”), 11 (citing evidence from Florida and California), 13
(Texas)).
Throughout Plaintiffs’ briefing in support of certification, they
indiscriminately intermingled the testimony of New York and Illinois personal
bankers and managers with the testimony of Citibank employees in other
states. (See, e.g., Pl. Cert. Br. 5 n.13 (citing testimony of personal bankers
from California, Florida, New Jersey, Texas, and Virginia), 5 n.14 (California
three times, Florida twice, Maryland, New York six times, Texas)), 6 (citing “one
Los Angeles area director”), 8-9 (citing multiple New York area directors,
Citibank’s Illinois President, an Illinois area director, a director for Citibank’s
West Region, a Los Angeles area director, and a Texas area director), 11 (“Other
[Personal Bankers] from Florida, New York, Illinois and California testified
similarly.”), 13-14 (citing Illinois, California, New York, and Texas branch
managers)). In fact, in arguing for commonality, Plaintiffs specifically
highlighted the “geographical disparity” of the sample of Opt-In Plaintiffs from
which they drew their evidence, arguing that the “strikingly consistent” nature
of the sample Opt-Ins’ testimony helped demonstrate the existence of
centralized, nationwide policies. (Pl. Cert. Br. 22).
Plaintiffs additionally attempt to demonstrate a conflict between Ruiz I
and two prior orders issued in the case. First, they argue that it was unduly
prejudicial to find insufficient the evidence from the sample group of Opt-In
Plaintiffs after the limitation of discovery to that group was already approved by
5
Magistrate Judge Ronald L. Ellis. (Pl. Recon. Br. 4 n.4). Yet Magistrate Judge
Ellis was granting Plaintiffs’ request to limit the scope of discovery, and in
doing so he in no way prejudged the outcome of the motion for class
certification. (Dkt. #123). In any event, what was more important to the Court,
as is clear from Ruiz I, was the lack of uniformity within the sample group:
“Moreover, even if this number of anecdotal accounts were sufficiently large to
confidently be extrapolated to the class as a whole, the contradictions and
heterogeneity within the group suggest the lack of a common answer.” Ruiz I,
2015 WL 1254820, at *9 (emphasis in original).
Second, Plaintiffs argue that Judge John G. Koeltl’s decision
conditionally certifying the FLSA collective action “set the law of the case …
rejecting Defendant’s arguments that its facially lawful policies precluded
conditional certification.” (Pl. Decert. Br. 6). The Court extensively discussed
the differences between Judge Koeltl’s inquiry at the conditional certification
stage and the Court’s inquiry when adjudicating the motion to decertify the
FLSA collective action; it noted in particular the more stringent standard at
this second stage (to say nothing of the still higher burden under Rule 23 3), as
well as the substantial evidence that Citibank had accumulated during
3
Plaintiffs argue that the Court overlooked another court’s favorable impression of the
evidence presented in this case at the conditional certification stage. (Pl. Recon. Br. 11
n.22 (citing Fernandez v. Wells Fargo Bank, N.A., Nos. 12 Civ. 7193 (PKC), 12 Civ. 7194
(PKC), 2013 WL 4540521 (S.D.N.Y. Aug. 28, 2013)). Yet Judge P. Kevin Castel was
distinguishing the instant case, where Plaintiffs had made the “modest factual showing”
necessary to conditionally certify a collective action under the FLSA, from Fernandez,
where they had not. 2013 WL 4540521, at *17. Neither finding suggests, let alone
compels the Court to accept, that Plaintiffs have met the Rule 23 requirements for class
certification.
6
discovery to undercut Plaintiffs’ narrative of a uniform national policy. Ruiz I,
2015 WL 1254820, at *15-16. The Court did not find that Citibank’s facially
lawful policies precluded class certification; rather, class certification was
barred by Plaintiffs’ failure to demonstrate by a preponderance of the evidence
“a common plan or scheme to subvert these policies,” or to “demonstrate[e] that
appropriate policies have reliably translated themselves into inappropriate
managerial behavior across the width and breadth of the class.” Id. at *12.
B.
The Evidence Does Not Demonstrate Commonality or Predominance
Within New York and Illinois
Plaintiffs seek now to do what they never did in arguing for certification:
amass the evidence within New York and Illinois to demonstrate commonality
within the bounds of the proposed Rule 23 classes. (Pl. Recon. Br. 7-11). Yet
Plaintiffs are incorrect to state that the Court “did not reach the question of
whether the relevant evidence in those states supported a finding of the
plausible existence of a pattern or practice of overtime violations in those
states” (id. at 7):
If Plaintiffs seek to prove uniformity of experience solely
within the three state classes, only 15 of these 31
plaintiffs worked at branches in New York (11), Illinois
(3), or the District of Columbia (1); thus, the 15 relevant
anecdotal accounts represent only one in 156 class
members (or, more precisely, one in 182 for New York,
one in 110 for Illinois, and one in 16 for the District of
Columbia). This sort of scattershot evidence does not
meet the requirements of Rule 23 as envisioned in
Dukes.
Ruiz I, 2015 WL 1254820, at *9 (internal citations and footnote omitted). The
Court thus already found the testimony of eleven New York personal bankers
7
and three Illinois personal bankers insufficient to demonstrate commonality
across a class of over 2,000 New York personal bankers and 330 Illinois
personal bankers.
Furthermore, as the Court found for Plaintiffs’ evidence generally,
variation within the sample of Opt-In Plaintiffs is independently fatal. For
example, Plaintiffs point to the testimony of, among others, New York personal
bankers Drago, Ho, and Pikulin. (See Pl. Recon. Br. 9). Yet the Court
previously identified those personal bankers’ testimony as significantly
undercutting Plaintiffs’ claim of common pressures to work unpaid overtime.
Ruiz I, 2015 WL 1254820, at *9 (citing Drago Dep. 57 (testifying to different
practices with regard to overtime at different branches), 167-68 (no written
warning for repeatedly missing sales targets); Ho Dep. 82-83 (testifying that
Citibank sent her on several all-expenses-paid trips for her sales performance),
148 (“[I]n Jackson Heights branch it is always busy.... You won’t think about
you won’t meet your [sales] goal. I never think about that because it is so
busy. It is so easy to meet the goal.”), 160-62 (testifying that she made her
performance goals in 79 of 87 months, at times met multiples of her goal, and
received tens of thousands of dollars in performance bonuses over her seven
years at Citibank); Pikulin Dep. 98, 127-28 (recalling being told to record all
time worked, and unable to remember any instance of not recording all time or
being paid for all time)). Other New York and Illinois personal bankers’
depositions further undercut Plaintiffs’ argument that a common practice
pervaded the branches within those states. (See Drews Dep. 81 (Illinois
8
personal banker stating that he could meet or exceed his sales goals while
working under 40 hours per week, and did not need to work more than 40
hours), 126 (stating that he was expected to record any overtime worked, and
manage his hours in advance so that he did not accrue overtime); Hurler Dep.
110 (New York personal banker stating that he could not recall ever meeting
his sales goals), 252 (stating that he could not recall ever receiving discipline
for failing to meet his sales goals)).
Plaintiffs also now isolate the emails from branch and area managers
within New York and Illinois that they believe demonstrate a de facto policy of
denying overtime compensation. (Pl. Recon. Br. 8). Yet these same
fragmentary email excerpts were presented to the Court when briefing Ruiz I.
The Court identified a number of deficiencies in this evidence:
Plaintiffs’ evidence of such a de facto policy consists of
inferences drawn from a comparatively miniscule
quantity of emails among branch and area managers[.]
As previously noted, many of the emails contain explicit
admonitions that any overtime incurred must be paid.
Those
emails
that
lack
such
admonitions
overwhelmingly maintain their focus on minimizing the
amount of overtime worked, rather than declining to
pay for overtime already accrued.
Ruiz I, 2015 WL 1254820, at *10 (footnotes omitted). That a portion of the
email evidence comes from New York and Illinois — and not, the Court notes,
any of the more damning emails suggesting a desire not to compensate
previously incurred overtime — does not ameliorate the inability of such
evidence to provide common answers to common questions that are capable of
driving the resolution of the litigation.
9
C.
The Court Did Not Apply an Improper Standard of Proof or
Improperly Apply Dukes to Wage and Hour Claims
Plaintiffs’ related arguments that the Court applied too stringent a
standard at the class certification stage, or erred in applying Dukes at all, are
not proper subjects for a reconsideration motion. The Court extensively
discussed the impact of Dukes on certification of off-the-clock claims. See Ruiz
I, 2015 WL 1254820, at *5-7. As the Court acknowledged, in this context “[t]he
ramifications of Dukes are still being teased out by the courts,” id. at *6;
nevertheless, such uncertainty does not allow Plaintiffs to “reflexively [] reargue
those issues already considered when a party does not like the way the original
motion was resolved,” In re Optimal U.S. Litig., 813 F. Supp. 2d at 387.
In rearguing the issue, Plaintiffs continue to misunderstand the nature of
the burden they bear at class certification. The Court nowhere required
Plaintiffs to conclusively prove a pattern of wage violations; it merely held them
to their burden to establish commonality by a preponderance of the evidence,
as required by precedent predating Dukes. See Teamsters Local 445 Freight
Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008) (“Today,
we dispel any remaining confusion and hold that the preponderance of the
evidence standard applies to evidence proffered to establish Rule 23’s
requirements.”). Plaintiffs have decried the “rigorous analysis” required by
longstanding Supreme Court precedent, Gen. Tel. Co. of Sw. v. Falcon, 457 U.S.
147, 161 (1982), as too similar to the inquiry on the merits that would follow
certification (see Pl. Recon. Br. 12-13). Yet the Supreme Court has noted that
“[f]requently that ‘rigorous analysis’ will entail some overlap with the merits of
10
the plaintiff’s underlying claim,” Dukes, 131 S. Ct. at 2551, and the Second
Circuit has held that the burden at class certification “is not lessened by
overlap between a Rule 23 requirement and a merits issue, even a merits issue
that is identical with a Rule 23 requirement,” In re Initial Pub. Offerings Sec.
Litig., 471 F.3d 24, 41 (2d Cir. 2006).
Plaintiffs also misunderstand what is required by Rule 23(a)(2)’s stricture
that there be “questions of law or fact common to the class.” As in their
original briefing, Plaintiffs have identified a common question: “whether a
pattern or practice of overtime violations existed in New York and Illinois.” (Pl.
Recon. Br. 12 (emphasis removed); see also Pl. Cert. Br. 22). What Plaintiffs
have failed to do is demonstrate “the capacity of a classwide proceeding to
generate common answers apt to drive the resolution of the litigation.” Ruiz I,
2015 WL 1254820, at *7 (alteration in original) (quoting Dukes, 131 S. Ct. at
2551). “Quite obviously, the mere claim by employees of the same company
that they have suffered [a similar injury] gives no cause to believe that all their
claims can productively be litigated at once.” Dukes, 131 S. Ct. at 2551.
Plaintiffs have failed to show either a de facto policy to violate overtime laws or
a common practice arising in response to the entirely legal and appropriate
companywide formal policies. The common question, then, is not susceptible
to common answers, and accordingly Plaintiffs have not demonstrated that “the
state classes share common questions, susceptible to classwide proof, that
advance the litigation to a sufficient extent to justify ‘an exception to the usual
rule that litigation is conducted by and on behalf of the individual named
11
parties only.’” Ruiz I, 2015 WL 1254820, at *6 (quoting Califano v. Yamasaki,
442 U.S. 682, 700-01 (1979)).
D.
The Court Did Not Overlook the Mt. Clemens Doctrine
Plaintiffs argue that the Court overlooked the import of the Supreme
Court’s burden-shifting test set out in Anderson v. Mt. Clemens Pottery Co., 328
U.S. 680 (1946), which held that where an employer has kept inaccurate or
unclear records, the employee need only “prove[] that he has in fact performed
work for which he was improperly compensated and … produce[] sufficient
evidence to show the amount and extent of that work as a matter of just and
reasonable inference”; at that point, “[t]he burden then shifts to the employer
to come forward with evidence of the precise amount of work performed or with
evidence to negative the reasonableness of the inference to be drawn from the
employee’s evidence.” Id. at 687-88. (Pl. Recon. Br. 18-20).
Plaintiffs are correct that, if they could prove that the classmembers
performed work for which they were improperly compensated (and thus that
Citibank had not kept accurate records), the Mt. Clemens doctrine might allow
each classmember to put forward the audit records as preliminary evidence of
excess hours worked. 4 Accordingly, the damages inquiries might not be quite
4
It is worth noting that courts have split over whether evidence similar to Citibank’s
audit logs does suffice to give rise to a just and reasonable inference of hours worked
under Mt. Clemens. Compare Stiller v. Costco Wholesale Corp., 298 F.R.D. 611, 629
(S.D. Cal. 2014) (finding insufficient “the approach used in Mt. Clemens” where Plaintiffs
sought to use cash register data to establish, “as a matter of just and reasonable
inference,” the average frequency and length of unpaid detention time), leave to appeal
denied (Aug. 22, 2014), with Nehmelman v. Penn Nat. Gaming, Inc., 822 F. Supp. 2d
745, 757 (N.D. Ill. 2011) (allowing conditional FLSA certification based upon time
cards).
12
as onerous as the Court assumed (though Defendants would still be entitled “to
come forward with evidence of the precise amount of work performed or with
evidence to negative the reasonableness of the inference to be drawn from the
employee’s evidence,” Mt. Clemens, 328 U.S. at 687-88). Yet as multiple courts
have found, Mt. Clemens’s “relaxed burden applies only to damages, not
liability — it does not help plaintiffs show that there was a violation under the
FLSA; it only allows them to prove damages by way of estimate, if they had
already established liability.” Gomez v. Tyson Foods, Inc., 295 F.R.D. 397, 400
(D. Neb. 2013); see also O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 602
(6th Cir. 2009) (“Mt. Clemens Pottery and its progeny do not lessen the
standard of proof for showing that a FLSA violation occurred. Rather, Mt.
Clemens Pottery gives a FLSA plaintiff an easier way to show what his or her
damages are.”); Stiller v. Costco Wholesale Corp., 298 F.R.D. 611, 629 (S.D. Cal.
2014) (“[W]hile the Mt. Clemens approach may offer a classwide basis of proving
damages, proving liability in this case first requires individuals to show they
performed uncompensated ‘work’ as a result of the Alleged Policy.”), leave to
appeal denied (Aug. 22, 2014).
The Court found, in discussing both commonality and predominance,
that Plaintiffs could not demonstrate liability on a classwide basis, a finding
that Mt. Clemens does nothing to alter. See, e.g., Babineau v. Fed. Exp. Corp.,
576 F.3d 1183, 1192 (11th Cir. 2009) (“[T]he district court reasonably
concluded that punch clock records do not provide common proof of any
uncompensated work during gap periods — particularly in light of employee
13
testimony regarding the various non-work-related activities that took place
during the gap periods and the various personal reasons that employees listed
for coming in early and staying late.”); id. at 1194 (“There is simply no way to
tell from the tracker data how long an employee worked during a break.
Furthermore, the concerns about the accuracy of the data suggest that the
data might not be sufficient to prove that an employee actually worked during a
break, and therefore, further individualized inquiries might be necessary.”); In
re Bank of Am. Wage & Hour Emp’t Litig., 286 F.R.D. 572, 588 (D. Kan. 2012)
(“[Transactional data] is not sufficiently reliable to show, on a classwide basis,
that violations occurred. Evidence of the Bank’s liability, then, would
necessarily vary from member to member.”).
E.
The Court Did Not Overlook Its Ability to Modify the Class
Plaintiffs argue that the Court could have “amended the [class]
definitions at its discretion” rather than denying certification altogether. (Pl.
Recon. Br. 20). Plaintiffs, in their reply brief in support of certification, offered
two potential avenues by which defects in the proposed class might be
corrected: first, by bifurcating the case so that liability was determined on a
classwide basis and damages on an individualized basis (Pl. Cert. Reply 8-12),
and second, by striking from the class definition any class members who had
not improperly been denied overtime compensation (id. at 3 n.7).
Bifurcation can be an efficient method of resolving concerns over the
manageability of a class or collective action, but it requires that significant
common questions going to liability be resolvable on a classwide basis,
14
and — for a Rule 23(b)(3) class — that those common questions predominate
over the individualized injuries. Yet the Court found an absence of such
common questions giving rise to common answers. Ruiz I, 2014 WL 1254820,
at *7-12. Moreover, any such common answers would be swamped by the
individualized questions going not merely to damages, but also to liability. See
id. at *12 (noting “a significant number of necessarily individualized inquiries
into liability that confirms the impracticability of proceeding as a class, largely
concerning the questions of whether personal bankers worked unreported
overtime, at whose direction, and with whose knowledge”). 5 Individualized
questions of damages presented merely an additional hurdle to demonstrating
the predominance of classwide questions and the superiority of proceeding as a
class. Bifurcation thus would not solve the core defects of Plaintiffs’ proposed
class.
Nor, as the Court noted in Ruiz I, could the Court define a class by
excluding those members who were not improperly denied overtime. See 2015
WL 1254820, at *13. Such “fail-safe classes” present myriad problems,
including the risk that plaintiffs might effectively litigate their claims without
the risk of an adverse judgment: either they “win” and are in the class, which
by definition cannot lose its claim, or they “lose” and are outside the class, and
5
Plaintiffs further suggest, in their reply brief in support of reconsideration, bifurcating
for individualized determinations of defenses to liability as well. (Pl. Recon. Reply 10).
Such a proposal, in addition to heightening the predominance and superiority concerns
entailed by individualized damages inquiries, would still not remedy the absence of
evidence of a common pattern or practice, and thus the class would still fail to meet the
Rule 23(a)(2) requirement of commonality.
15
thus are not bound by an adverse decision. See generally William B.
Rubenstein, Newberg on Class Actions § 3:6 (5th ed. rev. 2015). Perhaps more
fundamentally, such a class definition would require an adjudication of the
merits of each individual’s claim to determine whether they are within the
class, squandering whatever efficiency gains might be had from mass litigation.
Finally, Plaintiffs did raise the possibility of the creation of subclasses in
their opposition to decertification of the FLSA collective action. (Pl. Decert.
Opp. 35). Yet the Court considered and rejected this possibility in Ruiz I:
[T]here is no apparent subdivision that would correct
the fatal flaws in Plaintiffs’ attempt to maintain a
collective action. As Citibank notes, looking at the 37
named Plaintiffs and Sample Opt-Ins who participated
in discovery, there is only a single branch manager who
oversaw more than one member of this group, having
supervised three different Sample Opt-Ins at varying
points in time. Though consideration of the full class of
436 opt-in plaintiffs would no doubt reveal additional
overlap, their employment would still have taken place
at hundreds of branches scattered across the country
under an even greater number of branch managers.
And even branch location might not suffice as a class
metric, given the potential individualized defenses to
liability. Given that the number of necessary
subclasses would likely approach the number of
plaintiffs, there are no apparent efficiencies to be gained
from proceeding collectively rather than by individual
suit.
2015 WL 1254820, at *17. Aside from urging the Court once more to find
common classwide questions of liability, Plaintiffs offer the Court no reason to
reconsider this reasoning or to doubt its equal applicability to the creation of
multitudinous subclasses within New York and Illinois.
16
CONCLUSION
For the reasons set forth in this Opinion, Plaintiffs’ motion for
reconsideration is DENIED. The Clerk of Court is directed to terminate Docket
Entry 222.
The remaining parties are directed to appear before the Court for a status
conference on August 18, 2015, at 10:00 a.m., in Courtroom 618 of the
Thurgood Marshall Courthouse, 40 Foley Square, New York, New York 10007.
SO ORDERED.
Dated:
August 4, 2015
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
17
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