Lorenzo v. Prime Communications, L.P.

Filing 94

ORDER granting 43 Motion to Certify Class as set out in order; adopting Report and Recommendations regarding 74 Memorandum and Recommendations. Additionally, defendant's appeal of the order granting conditional certification 82 is DENIED. The clerk is directed to refer this matter to Judge Swank for entry of a scheduling order. Counsel should read this order in its entirety for critical information. Signed by Senior Judge Malcolm J. Howard on 3/24/2014. (Rudd, D.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:12-CV-69-H

ROSE LORENZO, on behalf of
herself and all others
similarly situated,
Plaintiff,

v.
ORDER

PRIME COMMUNICATIONS, L.P., a
Texas General Partnership,
Defendant.

This matter is before the court on the following:
( 1)

Plaintiff's
motion
to
certify
class
under
Rule
23.
Defendant responded, and plaintiff replied.
United States
Magistrate Judge Kimberly A. Swank filed a memorandum and
recommendation (M&R) recommending that this court grant the
motion to certify on January 15, 2014.
Defendant filed
objections to the M&R, and plaintiff responded to the
objections.

( 2)

Defendant's appeal of the Order of Magistrate Judge Swank
conditionally certifying a collective action under 29
U.S.C. § 216(b).
Plaintiff has responded to the appeal.

These matters are ripe for adjudication.

1

1

Also
before
the
court
are
defendant's
motion
for
reconsideration of this court's order denying defendant's motion
to compel arbitration, defendant's motion to dismiss certain
opt-in plaintiffs, plaintiff's motion to toll the statute of
limitations, and plaintiff's motion to compel.
These matters
shall be ruled on in due course.

REVIEW OF M&R

Pursuant
Procedure,
the

to

Rule

72(b)

of

the

Federal

Rules

of

Civil

a district judge "must determine de novo any part of

magistrate

objected to."

judge's

disposition

that

has

been

properly

See also Local Civil Rule 72.4, EDNC.

Defendant objects to the M&R recommending certification of
( 1)

the Rule 23 class for the following reasons:
has

been

class

discovered

that

representative;

would

(2)

disqualify

the

issue

of

Rose

new evidence
Lorenzo

"chargebacks"

as
is

a
so

highly individualized that a class action is not an appropriate
method for investigation or resolution of those claims;
the

evidence

Prime's

before

this

court

does

not

support

a

chargeback policy violated any provision

Carolina Wage and Hour Act,

N.C.

Gen.

Stat.

§§

and

(3)

claim that

of

the

North

95-25.1 to 95-

25.25 ("NCWHA").
Defendant's

first

objection

is

based on the

premise

"if" the court were to grant its motion to reconsider,
should also "reverse" the Rule 23 certification.
were to grant the motion to reconsider,

that

then it

If this court

then defendant would be

free to move for relief appropriate under the circumstances.
As

to

chargebacks,

defendant's
the

court

second
has

and

third

carefully

2

objections

considered

regarding

defendant's

arguments

and

finds

considered

the

that

were

they

affected

nature
not

See

in

M&R

conduct

regarding

NCWHA.

See M&R 10

of

chargebacks

individualized

employees

Carolina.

The M&R carefully

the M&R to be proper.

but

this

as

Furthermore,

chargebacks

could

case,

a

twenty-five

about

9-10.

in

found

matter

of

policy

stores

in

North

this

violate

and

same

course

provisions

of

of
the

(listing examples of potential NCWHA claims).

Therefore, defendant's objections are without merit.
A full and careful review of the M&R and other documents of
record

convinces

the

court

that

the

recommendation

of

the

magistrate judge is, in all respects, in accordance with the law
and should be approved.
Accordingly,

the

court

adopts

the

recommendation

of

the

magistrate judge as its own; and for the reasons stated therein,
the defendant's motion to certify the class pursuant to Rule 23
is GRANTED.
APPEAL

Defendant
granting

court

FLSA.

will

the

appeals

conditional

pursuant to
the

also

certification

Judge's

Order

collective

action

Magistrate
of

the

Upon appeal of a Magistrate Judge's Order,

consider

timely

3

objections

and

"modify

or

set

aside

any part

of

contrary to law.u
Defendant

the

order

that

is

clearly

erroneous

or

is

Fed. R. Civ. P. 72(a)
specifically

challenges

finding

the

that

plaintiff "has come forth with evidence to suggestu that she and
other store managers were "victims of a single decision,
or plan,u
Further,

(Order at 5)

policy

as incorrect both legally and factually.

defendant argues that plaintiff is not a member of the

class

she

seeks

to

work

the

represent,

requisite

hours

claiming that plaintiff did not

or

perform

Additionally, defendant argues,

the

of

a

long

acknowledgement.
magistrate

The

judge's

lost
court

ruling,

required.

once again, the plaintiff should

be disqualified as a class representative,
production

duties

and

illegible

finds
as

based on its recent

no

the

Employee

reason

to

granting

set
of

Handbook
aside

the

conditional

certification is not clearly erroneous or contrary to law.
CONCLUSION

For

the

foregoing

reasons,

the

court

recommendation of the magistrate judge as its own
for

the

reasons

stated

therein,

the

certify the class pursuant to Rule 23

[DE #43]

the

[DE #74]; and

defendant's

motion

is GRANTED.

court hereby certifies the Rule 23 class as follows:

4

adopts

to
The

All natural persons employed by Prime Communications, L.P.,
in retail stores and kiosks in the State of North Carolina from
February 18, 2010 to present who were paid commissions or
bonuses based on sales.
The
court,

parties

by April

opt-out

and

are

DIRECTED to

15,

2014,

opt-in

forms,

a

confer

and

to

submit

proposed

notice

well

proposed procedures

as

as

with

distributing notice as to the putative plaintiffs.
shall be a joint notice,
collective
shall

action

also

the

the

appropriate
for

Said notice

including notice to both the potential

members

include

to

and

the

revisions

Rule
to

23
the

class

members

collective

and

action

portion of the notice as ordered by Judge Swank's order of March
20, 2014.
Additionally,

defendant's

appeal

of

the

order

granting

conditional certification is DENIED [DE #82].
The clerk is directed to refer this matter to Judge Swank
for entry of a scheduling order.
This

2y

;u.
day of March 2014.

Senior United States District Judge
At Greenville, NC
#26

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