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.)

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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 5

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