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
5
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