BAHENA et al v. MOUNTAIRE FARMS, INC.

Filing 65

ORDER granting in part 45 Motion to Certify Class and 47 Motion to Certify Class. Counsel should refer to Order for critical information. Signed by District Judge Terrence W. Boyle on 6/8/2011. (Tripp, S.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

SOUTHERN DIVISION

No. 7:09-CV-190-BO

MARIO P. ROMERO, MICAELA SOTO
DURAN, and EULALIO GUTIERREZ,
on behalf of themselves and
all others similarly situated
Plaintiffs,

)
)
)

o

)
)
)
)
)

vs.
MOUNTAIRE FARMS, INC.,
Defendant.

R D E R

)
)

This matter is before the Court on Plaintiffs'

Motion To

Certify Class Pursuant to the Fair Labor Standards Act [DE 45] and
on Plaintiffs' Motion To Certify Class Pursuant to Rule 23 of the
Federal
Farms,

Rules
Inc.

of

Civil

Procedure

("Mountaire")

has

[DE 47].

responded

Defendant Mountaire
to

both

Motions

and

Plaintiffs have replied. These matters are ripe for adjudication.
As set forth below, Plaintiffs' Motions are GRANTED IN PART on the
terms set forth in this Order.
I.

BACKGROUND

This is an action under the Fair Labor Standards Act ("FLSA"),
29 U.S.C.

§§

201 et seq., and the North Carolina Wage and Hour Act

("NCWHA"), N.C. GEN. STAT.

§§

95-25.1 et seq.

Plaintiffs, and the

classes they propose to represent, are current and former employees
of

Mountaire

Farms

of

North

facility in Lumber Bridge,

Carolina,

Inc.

North Carolina.

work or previously worked on a

at

the

Mountaire

Plaintiffs currently

chicken processing line at the

Lumber

Bridge

cutting,

facility,

de-boning,

performing

tasks

cleaning, packaging,

like

slaughtering,

and otherwise preparing

chicken for human consumption.
Plaintiffs

claim

that

during

the

proposed

class

period,

Mountaire utilized a "Line Time" compensation system (also known as
a "Gang Time" system). Plaintiffs allege that under the Line Time
system,

employees are required to arrive at work before

their

"line" time or "gang" time begins to obtain and put on protective
and sanitary equipment and to walk to their place on the chicken
processing

line.

Plaintiffs

allege

that

Mountaire

failed

to

compensate Plaintiffs and members of the proposed class for the
time

they spent donning and doffing,

1

cleaning,

and sani tizing

their safety and sanitary equipment and gear, waiting for the line
to begin,

and walking to and from the worksite on or near the

processing floor.

Plaintiffs argue that Mountaire's compensation

practices violate both the FLSA and the NCWHA.
Plaintiffs

further allege

that members

of

the

class

they

propose to represent at the Mountaire plant must wear, pursuant to
state
(PPE)

and
.2

federal

law,

certain

personal

protective

equipment

Plaintiffs allege that Mountaire has a custom or policy of

l\\DOnning and doffing" refers to the time spent by employees
changing into and out of uniforms or protective gear required by
the employer and the time spent walking between changing areas
and employee work stations.
2"PPE" is a term of art under OSHA regulations. It covers
bump caps, earplugs, metal mesh gloves and safety glasses. See
2

29

deducting the cost of this personal protective equipment and other
items of clothing made available to Mountaire employees from the
employees'

wages.

Plaintiffs contend that Moutnaire's deduction

policy violates state and federal wage laws.
Plaintiffs seek class certification of their state law claims
under

Rule

23

of

the

Federal

Rules

of

Civil

Procedure

conditional certification of their FLSA claims as a
action under 29 U.S.C.
Plaintiffs'
dispute
Mountaire

§

does

certification

request

collective

216(b). Mountaire opposes certification of

state law claims under Rule 23.

conditional

and

that

the

under

Mountaire does not
§

216(b);

however,

Court narrow Plaintiffs'

FLSA

proposed class.
II.
A.

DISCUSSION.

Motion for Certification As FLSA Collective Action [DE 45]
1.

The FLSA Certification Procedure

The FLSA allows employees to maintain an action against an
employer for unpaid minimum wages and overtime pay on behalf of
themselves and all others similarly situated. 29 U.S.C.

§

216(b).

An employee who desires to participate in an FLSA collective action
must "give[] his consent in writing to become .

. a party .

. " Id. There are two requirements for the certification of an FLSA

collective action. First, the members of the proposed class must be

C.F.R. § 1910.132(a) (defining PPE as equipment that protects
eyes, face, head, and extremities)
3

"similarly

situated."

Growers Ass'n,

Inc.,

Id.

i

see

also

338 F. Supp.

De

2d.

Luna-Guerrero

649,

654

v.

(E.D.N.C.

N.

C.

2004).

Second, the class members must "opt-in" by filing their consent to
suit. 3 Id.
Putative class members are "similarly situated" for purposes
of

§

2l6(b)

if they "raise a similar legal issue as to coverage,

exemption, or nonpayment of minimum wages or overtime arising from
at least a manageably similar factual setting with respect to their
job requirements and pay provisions . . . . " De Luna-Guerrero, 338
F. Supp. 2d at 654 (citations omitted). However, "'their situations
need not be identical.
wages

actually

due

Differences as to time actually worked,

and

hours

involved

are,

of

course,

not

significant to this determination. ,,, Id.
Certification of an FLSA collective action is typically a
two-stage

process.

First,

the

court

makes

a

preliminary

determination whether to conditionally certify the class based upon
the limited record before the court. The standard for conditional
certification is fairly lenient and requires "'nothing more than
substantial

allegations

that

together the victims of a
Thiessen v.

Gen.

Elec.

the

putative

single decision,

Capital Corp.,

class

members

policy,

267 F.3d 1095,

were

or plan.'"
1102

(10th

3 This procedure is different from the procedure utilized for
class actions under Federal Rule of Civil Procedure 23(b) (3),
where potential plaintiffs are bound by the judgment unless they
opt-out. See infra, §2.D.

4

Cir. 2001)

(quoting Vaszlavik v. Storage Tech.

175 F.R.D.

Corp.,

672, 678 (D. Colo. 1997)). If the class is conditionally certified,
the court typically authorizes plaintiffs' counsel to provide the
putative class members with notice of the lawsuit and their right
to opt-in. Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1218
(11th Cir. 2001).
The second determination comes later, usually after discovery
is

complete,

and

is

typically

precipitated

by

a

motion

for

"decertification" by the defendant. At this stage, there is a more
developed factual record on which the court can base its decision.
The court must again make a factual determination as to whether the
opt-in plaintiffs are similarly situated;

however,

the scrutiny

applied in the second stage is more rigorous than that of the
notice stage.

If

the court determines

that

the plaintiffs are

similarly situated, the collective action may proceed. However, if
the claimants are not similarly situated, the court decertifies the
class,

and

the

claims

without prejudice. Id.;

of

the

opt-in plaintiffs

are

see also Jimenez-Orozco v.

dismissed

Baker Roofing

Co., No. 5:05-CV-34-FL, 2007 WL 4568972, at *6 (E.D.N.C. Dec. 21,

2007) .
2.

Plaintiffs' Proposed Class

Plaintiffs initially defined the class for which they seek
conditional certification under

§

216(b) as follows:

ALL CURRENT AND/OR FORMER PRODUCTION EMPLOYEES WHO WORKED AT
MOUNTAIRE'S LUMBER BRIDGE CHICKEN PROCESSING PLANT AT ANY
5

PERIOD OF TIME FROM OCTOBER 2, 2007 TO THE PRESENT AND WERE
PAID ON A "GANG" OR "SCHEDULED" TIME BASIS.
AND/OR
ALL CURRENT AND/OR FORMER EMPLOYEES WHO WORKED AT MOUNTAIRE'S
LUMBER BRIDGE CHICKEN PROCESSING PLANT AT ANY PERIOD OF TIME
FROM OCTOBER 2, 2007, TO THE PRESENT FROM WHOSE DEDUCTIONS FOR
ONE OR MORE REPLACEMENT ITEM(S) OF PERSONAL PROTECTIVE
EQUIPMENT WAS MADE WITHOUT ANY ADVANCE NOTICE OF THE INTENT TO
MAKE SUCH A WAGE DEDUCTION AND WITHOUT THE EMPLOYEE'S WRITTEN
AUTHORIZATION. 4
(PI.'s Mot. Conditional Certification of a Collective Action)

[DE

46-3] .
a.

Mountaire's Arguments Against Certification

Mountaire took issue with the proposed class definition, and
argued that the Plaintiffs' FLSA class definition was overly broad
and

poorly

defined.

First,

Mountaire

noted

that

the

term

"production" is an over-inclusive term "that encompasses a range of
jobs far broader than Plaintiffs' evidence would support."

(Def.'s

Mem. Opp. PIs.' Mot. Conditional Certification at 4.) For instance,

4 It is unclear whether Plaintiffs propose 2 October 2006 or
2 October 2007 as the starting date of the FLSA class period.
Plaintiffs' Amended Complaint refers to both dates. Compare
Amended Compl. ~ ~ 4, 7, 33, 57 (listing 2 October 2006 as
proposed start date) with id. at ~~ 37, 45, (listing 2 October
2007 as proposed class start date). This inconsistency continues
throughout Plaintiffs' memoranda and supporting filings. The
Court notes that the statute of limitations for Plaintiffs'
claims under the NCWHA is two years. See N.C. GEN. STAT. §
95-25.22(f). With regard to the FLSA claims, the statute of
limitations is two years, except that a cause of action arising
out of a willful violation may be brought within three years
after the cause of action accrued. See 29 U.S.C. § 25S(a).
Accordingly, the starting date for the class period must be
clarified prior to the mailing of the class notice.

6

box

constructors

and

forklift

operators

are

fairly

termed

"production employees," but those jobs are distinct from and not
similarly situated with the named Plaintiffs who actually worked in
the debone department on the production line.
Second, Mountaire contended the proposed class was overboard
insofar as it was composed of employees paid on "Gang Or Scheduled
Time." Apparently,

"Gang Time"

(also referred to as "Line Time")

and "Scheduled Time" are two distinct pay systems. Gang or Line
Time begins at a fixed time and ends at variable times depending on
the

amount

of

product

flowing

through

the

plant

that

day.

"Scheduled Time" employees, in contrast, have pre-determined start
and end times. Since all of the named Plaintiffs were paid on Gang
Time, Mountaire contended, they could not be viewed as similarly
situated with those employees paid on Scheduled Time. Accordingly,
Mountaire contended,

in order to ensure that the members of the

proposed FLSA class are

similarly situated,

the

class must be

defined to include only those parties paid on Gang or Line time.
Third, Mountaire argued that the class should be narrowed so
that claims for donning, doffing, walking, and washing before and
after meals were excluded from coverage. Mountaire contended the
Fourth Circuit forbade such mealtime-related claims in Sepulveda v.
Allen

Family Foods,

denied,

Inc.,

591 F. 3d 209

(4th Cir.

2009),

cert.

131 S.Ct. 187 (2010).

Finally, Mountaire contended that judicial economy would be

7

best served by including in the notice of class certification a
request that responders provide "their dates of their employment
with Defendant, their social security number used when employed by
Defendant" and that responders further "identify the department(s)
and the shift(s) to which they were assigned."
b.

Plaintiffs' Amended Class Definition

The Plaintiffs responded to Mountaire's alleged deficiencies
in

the

class

definition

by

amending

their

proposed

notice.

Plaintiffs' amended notice defines the class for which they seek
conditional certification as follows:
ALL CURRENT AND/OR FORMER EMPLOYEES OF MOUNTAIRE FARMS WHO
HAVE HELD NON-EXEMPT POSITIONS WORKING ON THE POULTRY
PROCESSING LINE IN MOUNTAIRE FARM, INC.'S POULTRY PROCESSING
PLANT IN LUMBER BRIDGE, NORTH CAROLINA, WHO DON, DOFF, WASH OR
SANITIZE ANY SANITARY AND PROTECTIVE CLOTHING, EQUIPMENT AND
GEAR; WHO ENGAGED IN WALKING AND WAITING TIME ASSOCIATED WITH
THESE TASKS AT ANY TIME FROM OCTOBER 2, 2006 THROUGH THE
DEADLINE FOR THE OPT-IN PERIOD; WHO WERE PAID ON A LINE TIME
OR "GANG" BASIS; AND WHO WERE NOT FULLY COMPENSATED FOR ALL
HOURS WORKED.
AND/OR
ALL CURRENT AND/OR FORMER EMPLOYEES WHO WORKED AT MOUNTAIRE'S
LUMBER BRIDGE POULTRY PROCESSING PLANT AT ANY PERIOD OF TIME
FROM OCTOBER 2, 2006, TO THE PRESENT FROM WHOM DEDUCTIONS FOR
ONE OR MORE REPLACEMENT ITEMS (S) OF PERSONAL PROTECTIVE
EQUIPMENT WERE MADE WITHOUT ANY ADVANCE NOTICE OF THE INTENT
TO MAKE SUCH A WAGE DEDUCTION AND WITHOUT THE EMPLOYEE'S
WRITTEN AUTHORIZATION.
(PIs.' Proposed Amended Notice p. 2)
Because

the

named

Plaintiffs

[DE 55-2].
are

former

processing

line

employees who were paid on a Line Time basis at Mountaire's Lumber
Bridge facility, the Court agrees with Mountaire and finds that the
8

proposed class should be narrowed to processing line employees who
are or were paid on a Line Time or Gang Time basis. See McLaurin v.
Inc.,271 F.R.D. 465, 470 (E.D.N.C. Nov. 10, 2010)

Prestage Foods,

(limiting class to "processing line" employees who were paid "on a
line

time or gang

appropriately
explicit

the

processing

time basis).

limits

the

breadth of

limitation of

line

employees

The

Plaintiffs'
the

the class
who

worked

to
at

class

amended notice
and makes

current

and/or

Mountaire's

more

former
chicken

processing plant in Lumber Bridge, North Carolina, who don, doff,
wash, or sanitize any sanitary and protective clothing, equipment,
and gear, and who engaged in walking and waiting time associated
with those tasks.
The Court also agrees with Mountaire that additional narrowing
of

the

proposed

class

is

required under

the

Fourth

Circuit' s

holding in Allen Family Foods. Because the Allen Family Foods Court
definitively rejected claims based on allegedly unpaid time that an
employee spends donning and doffing before and after unpaid meal
periods, the Court finds that Plaintiffs' claims must be limited to
pre-and post-shift donning and doffing only. 5 All claims related to

5 Pl a intiffs urge the Court to disregard the Allen Family
Foods holding and include their claims for donning and doffing
during meal times in this case. Plaintiffs argue that the Fourth
Circuit's holding on donning and doffing during meal time was
only briefly mentioned in a footnote, lacked sufficient analysis,
and relied incorrectly on the U.S. Department of Labor's
regulation at 29 C.F.R. § 785.19 (Pl.'s Reply In Support Mot. To
Certify Class. at 6) [DE 55]. Although the relevant portion of
the Allen Family Foods' decision was in fact announced in a

9

pre-meal and post-meal donning and doffing are hereby dismissed.
Allen Family Foods, 591 F.3d at 217 n.4.

c.

The Approved FLSA Collective Action Class
Definition

In light of the foregoing,

the Court adopts the Plaintiffs'

amended notice of conditional certification with one limitation to
comport with the Fourth Circuit's holding in Allen Family Foods.
The Court

will

approve

the

following

notice

of

conditional

certification for the FLSA class:
ALL CURRENT AND/OR FORMER EMPLOYEES OF MOUNTAIRE FARMS WHO
HAVE HELD NON-EXEMPT POSITIONS WORKING ON THE POULTRY
PROCESSING LINE IN MOUNTAIRE FARM, INC.'S POULTRY PROCESSING
PLANT IN LUMBER BRIDGE, NORTH CAROLINA, WHO DON, DOFF, WASH OR
SANITIZE ANY SANITARY AND PROTECTIVE CLOTHING, EQUIPMENT AND
GEAR BEFORE AND/OR AFTER THEIR SHIFTS; WHO ENGAGED IN WALKING
AND WAITING TIME ASSOCIATED WITH THESE TASKS AT ANY TIME FROM
OCTOBER 2, 2007 THROUGH THE DEADLINE FOR THE OPT-IN PERIOD;
WHO WERE PAID ON A LINE TIME OR "GANG" BASIS; AND WHO WERE NOT
FULLY COMPENSATED FOR ALL HOURS WORKED.
AND/OR
ALL CURRENT AND/OR FORMER EMPLOYEES WHO WORKED AT MOUNTAIRE'S
LUMBER BRIDGE POULTRY PROCESSING PLANT AT ANY PERIOD OF TIME
FROM OCTOBER 2, 2007, TO THE PRESENT FROM WHOM DEDUCTIONS FOR
ONE OR MORE REPLACEMENT ITEMS (S) OF PERSONAL PROTECTIVE
EQUIPMENT WERE MADE WITHOUT ANY ADVANCE NOTICE OF THE INTENT
TO MAKE SUCH A WAGE DEDUCTION AND WITHOUT THE EMPLOYEE I S

footnote, it nevertheless binds this Court because it is a
"determination of a matter of law pivotal to . . . the decision."
Figg v. Schroeder, 312 F.625, 643 n.14 (4th Cir. 2002) (citing
Black's Law Dictionary (7th ed. 1999)). The Court finds that this
case and the case that was before the Fourth Circuit in Allen
Family Foods are not distinguishable. There is no basis,
therefore, to depart from Allen Family Foods' holding. Any
grievances Plaintiffs have with the appellate court's treatment
of their claims related to meal time compensation are properly
addressed to the Fourth Circuit itself.
10

WRITTEN AUTHORIZATION.
d.

Mountaire's Request For Identifying Information

Mountaire's request that putative class members provide their
dates of employment, their social security numbers, and the name of
the department and shift to which they were assigned is denied.
Mountaire claims that the requested information will help expedite
the proceedings since in counsel's experience,

"in many cases the

names used by employees and their actual name varies and the social
security number is used to find the opt-in plaintiffs' payroll and
time records." (Def.'s Resp. Mot. Conditional Certification at 10,
n.1.) Mountaire's argument is unavailing. The Court is unaware of
any other cases where such a

request has been granted.

Because

putative class members here should not be made to feel that they
must take some type of action before determining their eligibility
to participate in the action, the Court denies Mountaire's request
for further identifying information.
e.

The Approved Class Satisfies The FLSA's
Conditional Certification Standard

Considering the approved class

(as more narrowly defined to

include only production line employees who were or are paid on a
line

time

or

gang

time

basis

and

excluding

those

employees

asserting claims for uncompensated meal time), the Court finds that
the members of the class are so similarly situated as to warrant
conditional certification of a collective action pursuant to 29
U.S.C.

§

216(b). The named Plaintiffs and the other members of the
11

proposed class were or are all employed by Mountaire at the Lumber
Bridge facility.
department,

Although all may not have worked in the same

the proposed class members have all

worked on the

production line. They complain that Mountaire's Gang Time or Line
Time

compensation

system along

with Mountaire' s

policy have deprived them of wages

PPE

deduction

to which they were

or are

entitled under the FLSA. The putative class members and the named
Plaintiffs seek substantially the same form of relief. In essence,
they claim they are "together the victims of a single decision,
policy or plan."

Thiessen,

267 F. 3d at 1102.

Thus,

Plaintiffs'

Motion To Certify Class Pursuant to the Fair Labor Standards Act is
granted in so far as it complies with this Order.
B.

Preemption of Plaintiffs' NCWHA Claims
Plaintiffs

seek class certification for certain state law

claims arising under the NCWHA pursuant to Federal Rule of Civil
Procedure 23.

Mountaire urges the Court to dismiss Plaintiffs'

state law claims for unpaid wages and overtime arising under N.C.
GEN. STAT.

§95-25.6-the "payday statute."6 Mountaire avers,

inter

alia, that these state law claims are "largely preempted" by the

6

N. C . GEN. STAT. § 95-25.6 provides that:

" [e]very employer shall pay every employee all wages and tips
accruing to the employee on the regular payday. Pay periods
may be daily, weekly, bi-weekly, semi-monthly, or monthly.
Wages based upon bonuses, commissions, or other forms of
calculation may be paid as infrequently as annually if
prescribed in advance."
12

FLSA. Mountaire argues that Plaintiffs have a viable claim under
the payday statute only for that period of time when the North
Carolina minimum wage of $6.15 per hour exceeded the then-mandated
federal

minimum wage

of

$5.15

or

$5.85

per

hour.

Mountaire' s

contentions are not entirely correct.
The Amended Complaint alleges, inter alia, that:
Mountaire Farms violated the NCWHA by failing to pay its
employees (1) wages, when due, for all hours worked at the
regular rate (which exceeded the minimum wage rate under the
FLSA)i
(2) wages at North Carolina's minimum wage rate of
$6.15 per hour (which exceeded the FLSA minimum wage rate of
$5.15 and $5.85 per hour for the applicable periods of time)
(from January 1, 2007 until July 24, 2008, the NCWHA
guaranteed an hourly rate higher than that provided by federal
law) i and (3) overtime wages of one and one-half times their
regular hourly rate which is a part of the employees' accrued
and earned wages and should have been paid when due on the
employee's regular payday.
(Amended Compl.

~

46)

(emphasis added.) The second of these claims

is expressly authorized by the FLSA's savings clause:
No provision of this chapter or of any order thereunder shall
excuse noncompliance with any Federal or State law or
municipal ordinance establishing a minimum wage higher than
the minimum wage established under this chapter or a maximum
work week lower than the maximum work week established under
this chapter .
29 U.S.C.

§

218(a). This second claim is limited, however, to the

recovery of minimum and overtime wages accrued during the 9-month
period when

North

Carolina's

minimum

wage

exceeded

the

then-

prevailing federal minimum wage. Martinez-Hernandez v. Butterball,
2011 WL 1211772 (E.D.N.C. March 30, 2011). Outside of this 9-month
period, the FLSA provides Plaintiffs' exclusive remedy and preempts

13

these particular wage claims. Id.
Plaintiffs'

remaining payday claims

are not

so temporally

limited, however, because those claims are separate and distinct
from Plaintiffs'

FLSA claims. The first and third payday claims

invoke neither the minimum wage nor the overtime provisions of the
FLSA.

As such,

Anderson v.
Thus,

these claims are not preempted by the FLSA.

Sara Lee Corp.,

508

F.3d 181,

194

See

(4th Cir.2007).

Plaintiffs' minimum wage claims under the NCWHA are viable

only as to 9-month period beginning October 2, 2007 and ending July
23, 2008, but Plaintiffs third and first payday claims-claims for
regular hourly wages and overtime-are neither preempted by the FLSA
nor temporally limited in scope.
C.

Supplemental Jurisdiction
As noted, supra, in addition to their claims under the FLSA,

Plaintiffs assert state law claims for (1) improper wage deductions
for personal protective equipment under the NCWHA and (2)
under N. C.

GEN.

STAT.

§

95 -25.6

for unpaid wages

claims

and overtime.

Before turning to the requirements of class certification of these
claims

under Rule

argument

that

23,

this

it
Court

is

necessary
should

not

to

address

exercise

Mountaire' s
supplemental

jurisdiction over Plaintiffs' state law claims.
This court has original jurisdiction over Plaintiffs'
claims under 28 U.S.C.

§

question.

§

28

U.S.C.

FLSA

1331 because those claims raise a federal
1331.

This

14

Court

may

also

exercise

jurisdiction over the state law claims under 28 U.S.C.

§

1367(a) if

those state law claims form part of the same case or controversy.
Non-federal claims are part of the same "case" as federal claims
when they "derive from a common nucleus of operative fact." United
Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966).

The Court finds that Plaintiffs' state law claims under the
NCWHA share a common nucleus of operative fact with the claims
raised under the FLSA. The alleged violations of the NCWHA and the
FLSA are based on the same conduct of Mountaire with regard to many
of

the same employees occurring over a
271

McLaurin,

F.R.D.

465

(E.D.N.C.

Nov.

common period of
10,

2010);

time.

Salazar v.

Agriprocessors, Inc., 527 F. Supp. 2d 873, 880 (N. D. Iowa 2007).

Thus, the Court is authorized to exercise supplemental jurisdiction
under

1367(a) over Plaintiffs' NCWHA claims.

§

However,

the

Court's

authorized under 28 U.S.C.
U.S.C.
U. S.

§

supplemental
§

1367(a),

jurisdiction,

which

is

is discretionary under 28

1367(c). City of Chicago v. Int'l ColI. of Surgeons, 522

156,

172

(1997)

("pendent

jurisdiction

is

a

doctrine

of

discretion, not of plaintiff's right") (citation omitted) (internal
quotation marks omitted). A district court may properly decline to
exercise supplemental jurisdiction over a claim under 28 U.S.C.

§

1367 (a) if:
(1)

the claim raises a novel or complex issue of State law,

(2)

the claim substantially predominates over the claim or
claims over which the district court has original
15

jurisdiction,
(3)
(4)
28

the district court has dismissed all claims over which it
has original jurisdiction, or
in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.

U.S.C.

§

1367 (c) .

In

determining

whether

to

exercise

supplemental jurisdiction, courts are to consider the "'principles
of economy, convenience,
pendent

fairness,

jurisdiction doctrine. "'

and comity which underlie the
522

City of Chicago,

U.S.

at

172-73 (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357
(1988)).
The Court finds that jurisdiction will not be declined under
28

U.S.C.

§

1367(c)(I)-(3).

Plaintiffs'

deductions and claims for regular,

claims

minimum,

for

improper

and overtime wages

involve standard allegations that do not raise a novel or complex
issue of North Carolina law. The federal claims, moreover, on which
original jurisdiction rests have not been dismissed. Nor will the
state law claims "substantially predominate" over the FLSA claims
"in terms of proof .

the scope of the issues raised, or .

the comprehensiveness of the remedy sought .
Workers,

claims

."

Uni ted Mine

383 U.S. at 726. While the class action on the state law
could involve many more plaintiffs

action on the FLSA claims,

than

the

collective

the substance and basis of the FLSA

claims and the state law claims are virtually indistinguishable.
Because

the

state

law

claims

"essentially

16

replicate

the

FLSA

claims [, ]"

the

state

law claims

"plainly do not

predominate."

Lindsay v. Gov't Employees Ins. Co., 448 F.3d 416, 425 (D.C. Cir.
2006) .
The closest question in this case is whether supplemental
jurisdiction should be declined under 28 U.S.C.
this

subsection,

circumstances'

a

"court

exist

and

may

consider

whether

§

1367 (c) (4) . Under

whether

'there

reasons for declining jurisdiction.

§

are

,,, Id.

'exceptional

other

compelling

(quoting 28 U.S.C.

1367 (c) (4) ) . Mountaire argues that such exceptional circumstances

are

present

in

supplemental

this

case,

jurisdiction

and

that

the

is

therefore

J.M.

Macias,

Court's

exercise

improper.

The

of

Court

disagrees.
Citing

to

Zelaya

v.

Inc.,

999

F.Supp.

778

(E.D.N.C. 1998), Mountaire argues that this Court should refuse to
exercise jurisdiction over Plaintiff's NCWHA claims.

In Zelaya,

Senior United States District Judge Earl W. Britt held that it was
inappropriate

to

exercise

supplemental

jurisdiction

over

the

employees' NCWHA claim because it involved a different and distinct
class of plaintiffs than the companion FLSA action.

Zelaya,

999

F.Supp. at 782-83. As a result, the state law claims were dismissed
without prejudice. Id. at 783. Mountaire urges this Court to follow
Zelaya

and

dismiss

Plaintiffs'

NCWHA

claims.

The

Court

finds

Mountaire's arguments unavailing, largely because the reasoning of
Zelaya has been called into doubt by the very Judge who announced

17

the Zelaya opinion.
Reversing course from his 1998 opinion in Zelaya, Senior Judge
Britt recently held in McLaurin v. Prestage Foods,

Inc. that:

[t] he jurisprudential landscape has changed significantly
since this court issued its decision in Zelaya twelve years
ago. In Zelaya, this court noted that the plaintiffs' FLSA and
state law wage claims were "not the type of claims expected to
be tried in one proceeding, as they would involve two
different and distinct sets of plaintiffs." This court also
noted that it was "not aware of any reported cases in which §
1367 (a) has been interpreted to allow [pendant plaintiff
jurisdiction.]" Since the decision in Zelaya, many other
courts, including ones in this district, have exercised
supplemental jurisdiction over state wage claims in actions
involving FLSA claims. These courts "downplay the issue of
congressional intent and emphasize that factors such as
judicial economy and efficiency strongly favor the exercise of
jurisdiction over Rule 23 class actions that involve identical
facts and highly similar legal theories."
McLaurin,

271 F.R.D. at 473

(citations omitted) .

This Court finds Judge Britt's analysis on this issue to be
persuasive.

This Court adopts Senior Judge Britt's reasoning in

McLaurin as its own, and finds that the weight of authority since
Zelaya supports the exercise of supplemental jurisdiction in this

case. The Court also finds that consolidating the state law claims
with the federal claims would be much more efficient than severing
the NCWHA claims at this point.

Retaining the state law claims

promotes judicial economy because it avoids the problem of parallel
lawsuits in state and federal court and avoids duplication of work
and the unjustifiable waste of judicial resources.

The FLSA and

state law claims are premised on the same facts and will succeed or
fail

together.

Additionally,

it is far more convenient for the
18

parties to have their factually similar claims resolved in one
forum,

despite the logistical problems that could materialize in

such a lawsuit. As a result, the Court will exercise supplemental
jurisdiction over the state law claims in this case.
D.

Motion for Rule 23 Certification [DE 47]
The Court now turns

to the

issue of

the

requirements

for

certifying a class pursuant to Rule 23 of the Federal Rules of
Civil Procedure.

Plaintiffs allege that Mountaire violated North

Carolina's "payday statute," N.C. GEN. STAT. § 95- 25.6, by failing
to pay its employees:
(1) wages, when due, for all hours worked at the regular rate
(which exceeded the minimum wage rate under the FLSA); (2)
wages at North Carolina's minimum wage rate of $6.15 per hour
(which exceeded the FLSA minimum wage rate of $5.15 and $5.85
per hour for the applicable periods of time) (from January 1,
2007 until JUly 24, 2008, the NCWHA guaranteed an hourly rate
higher than that provided by federal law); and (3) overtime
wages of one and one-half times their regular hourly rate
which is a part of the employees' accrued and earned wages and
should have been paid when due on the employees regular
payday.
(Ameded

Compl.

~

46.)

Plaintiffs

violation of N.C. GEN. STAT.
13 NCAC 12.0305 (g)
item(s)

for

§§

further

allege

Mountaire's

95-25.6, 95-25.7, 95-25.8(a) (2) and

"deductions for one or more replacement

of personal protective equipment

made without any

.

advance written notice of the intent to make such wage deduction in
the manner required by the NCWHA" (Amended Compl. ~ 37.) Plaintiffs
define

the

class

they

seek

to

represent

follows:

19

for

these

claims

as

All current and/or former production employees who worked at
Mountaire's Lumber Bridge chicken processing plant at any
period of time from October 2, 2007 to the present and were
paid on a "GANG" or "SCHEDULED" time basis.
All current and/or former employees who worked at Mountaire's
Lumber Bridge chicken processing plant at any period of time
from October 2, 2007, to the present from whose deductions for
one or more replacement item(s) of personal protective
equipment was made without any advance notice of the intent to
make such a wage deduction and without the employee's written
authorization.
(Pl.'s Mem. Supp. Mot. to Certify Class Pursuant to Rule 23, Ex. 1)
[DE 48-2] .
The Court must decide whether the claims of the classes so
defined

are

pursuable

as

a

Rule

23

class

action.

with

some

adjustments, the Court finds that they are.
To

fulfill

the

plaintiffs must
Federal

Rules

requirements

first

of

Civil

for

show compliance
Procedure,

class

certification,

with Rule

which applies

23 (a)
to

of

all

the

class

actions. Once plaintiffs have met the requirements of Rule 23(a),
they must show that class certification is proper under one of the
subdivisions of Rule 23(b). Amchem Prods.,

Inc.

U.S.

109

591,

614

(1997)

i

Haywood

v.

Barnes,

v.

Windsor,

F.R.D.

568,

521

575

(E.D.N.C. 1986). The party seeking class certification bears the
burden of proof. E. g., Lienhart v. Dryvit Sys., Inc., 255 F. 3d 138,
146 (4th Cir. 2001).
To be certified as a class action under Rule 23,
must meet four threshold requirements:
numerous

that

joinder

of

all
20

(1)

members

an action

the class must be so
is

impractical

(the

"numerosity" requirement);

(2)

there must be questions of law or

fact common to the class (the "commonality" requirement);

(3) the

representative parties' claims must be typical of the claims of the
class

(the "typicality" requirement); and (4)

the representative

parties must be able to fairly and adequately protect the interests
of the class (the "adequacy-of-representation" requirement). Fed.
R. Civ. P. 23(a).
1.

Rule 23(a) Requirements
a.

Numerosity Requirement

Numerosity
joinder

of

all

requires
members

that
is

"the

class

is

impracticable [.]"

so

numerous

Fed.

R.

that

Civ.

P.

23 (a) (1) . Although there is no numerical minimum for satisfying the
numerosity requirement, courts have acknowledged that a class with
as few as 18 class members satisfies the numerosity requirement.
See McLaurin, 271 F.R.D. at 475 ("Given that the Fourth Circuit has
held that a class of eighteen (18) people alone is sufficient to
satisfy the numerosity requirement, the court rejects Prestage's
arguments and concludes that the numerosity requirement has been
met.")
Here,

the Plaintiffs predict a class of approximately 2,000

members. A class of this size and dimension easily satisfies the
numerosity

requirement

of

Gristede's Operating Corp.,
(holding

that

numerosity

Rule

23 (a) (1).

201 F.R.D. 81,
requirement

21

See

85-86
had

Ansoumana

v.

(S.D.N.Y. 2001)

been

met

where

approximately 1,000 members of the class were production workers
and would not be likely to file individual suits due to lack of
financial resources, access to lawyers, fear of reprisals, and the
transient nature of the work) .
b.

Commonality and Typicality Requirements

The requirements for typicality and commonality often merge.
See Kidwell v. Transp. Commc'ns Int'l Union, 946 F.2d 283, 305 (4th

Cir.

1991).

~\The

threshold

requirements

of

commonality

and

typicality are not high; Rule 23(a) requires only that resolution
of the common questions affect all or a substantial number of the
class members.'H Brown v. Nucor Corp., 576 F.3d 149, 153 (4th Cir.
2009)

(quoting Shipes v.

Trinity Indus.,

987 F.2d 311,

316

(5th

Cir. 1993)). A plaintiff's claim is typical if it arises from the
same event, practice, or course of conduct that gives rise to the
claims of other class members,

and if the plaintiff's claim is

based on the same legal theory as those of the other members. See
Haywood,

109

requirements

F.R.D.
may

be

at

578.

The

satisfied

commonality

even

if

and

there

typicality

are

factual

distinctions between the claims of the named plaintiffs and those
of

the other class members.

Muffler Shops,

See

Broussard v.

Inc., 155 F.3d 331, 344

Meineke

(4th Cir. 1998)

Discount

(~We

...

do not suggest that the commonality and typicality elements of Rule
23 require that members of the class have identical factual and
legal claims in all respects. H); see also Haywood,

22

109 F.R.D. at

578.

Here,

Mountaire contends that with respect to the improper

deduction claims,
Plaintiffs'

claims

commonality is
are

based

lacking.

on

Mountaire avers

individual

deviations

that
from

Mountaire's policy, rather than any systematic or institutionalized
flaw in the policy. Mountaire concedes that it requires various
types of PPE for the processing of chicken; it does so because much
of that equipment is mandated by OSHA and USDA regulations

(in

addition to certain items that are necessary due to the nature of
the job)

(Resp. 9-10.) Mountaire contends, however, that because it

provides employees with required PPE at no cost at the beginning of
the

employees'

employment

and

during

practice does not violate any law.

periodic

intervals,

its

(Def.'s Resp. at 9.)

But Plaintiffs have alleged and made a sufficient showing that
Mountaire,

as a matter of policy,

does not obtain any written

authorization from employees before a deduction is taken from their
wages.

Plaintiffs

allegations

are

sufficient

to

show

that

Mountaire's deduction practice is commonly employed in violation of
N.C. GEN. STAT.

§

95-25.8. Pursuant to that statute, an employer may

withhold any portion of an employee's wages in two situations:

(1)

when the employer is required or empowered to do so by state or
federal law; or (2) when the employer has a written authorization
from the employee.

Strickland v.

MICA Information Systems,

C-89-924-WS, 800 F.Supp.1320 (M.D.N.C. Feb. 28, 1992).

23

No.

Although there may be certain factual differences among the
individual class members, the class members' claims and the named
Plaintiffs'

claims

arise

from

the

same

course

of

conduct

(Mountaire's deduction policy), raise common questions of law and
fact

(whether

swiping

the

employee's

ID

card

satisfies

the

requirements of the NCWHA wage deduction provisions), and are based
on the same legal theories (violations of N.C.A.C. Tit. 13, Chpt.
12. 0305(g) and

§

95-25.8 of the NCWHA). Specifically, these common

issues include, inter alia:
(1)

whether the North Carolina law precludes Mountaire from
deducting employees' wages for the replacement of PPE as
a result of "on-the-job" normal wear and tear; and

(2)

whether Mountaire provided any advance written notice of
their intent to make a wage deduction for replacements
items of PPE in the manner required by the NCWHA.

The answers to these questions of law and fact

are common the

Plaintiffs and all other production workers at the Lumber Bridge
facility.
With respect to the NCWHA wage and overtime claims, the Court
finds that a limitation on the class similar to the one imposed on
the FLSA collective action is necessary. As so limited, the class
meets the commonality and typicality requirements of Rule 23(a).
The

putative

class

members

were

or

are

all

production

line

employees of Mountaire's Lumber Bridge processing plant who were
paid on a line time basis. Due to Mountaire's line time policy,
Plaintiffs allege that they have not been paid regular, minimum,
24

and overtime

wages

for

all

time

worked

as

required by North

Carolina's payday statute. Although there may be certain factual
differences among the individual class members, the class members'
claims arise from the same course of conduct (Mountaire's use of a
line

time

system),

(including,

raise

common

without limitation,

questions

of

law

and

fact

whether the time spent changing

into and out of protective gear and traveling to and from work
stations constitutes

"work"),

theory (violations of N. C.

and are based on the same legal

GEN.

STAT.

§

95 -25.6)

as those of the

named plaintiffs.
c.
The

final

representative
interests

Adequacy-of-Representation Requirement

of

requirement
parties

the

will

class."

of

Rule

fairly
Fed.

23 (a)

is

that

and adequately protect
R.

Civ.

P.

23(a) (4).

"the
the
This

requirement consists of two components. First, the class counsel
must be "qualified, experienced and generally able to conduct the
proposed litigation." Eisen v. Carlisle & Jacquelin, 391 F.2d 555,
562 (2d Cir. 1968), vacated on other grounds, 417 U.S. 156 (1974).
Mountaire

does

not

dispute

that

counsel

sufficient experience to represent a class,
that plaintiffs'

counsel possess

for

Plaintiffs

have

and the court finds

the necessary qualifications.

Second, the proposed class representatives must be members of the
class they purport to represent, and their interests must not be in
conflict with those of the other class members.

25

See Amchem,

521

U.S.

at 625-26.

The Court finds that there are no conflicts or

antagonistic interests of the named Plaintiffs to the interests of
any other production workers. The named Plaintiffs have the same
interests as all other production workers:

recovering the wages

earned for all uncompensated work time and full reimbursement for
allegedly illegal deductions taken from all affected employees'
wages. The Court finds that Plaintiffs have met the requirement of
adequacy of representation.
2.

Rule 23(b) Requirements

Having found that the prerequisites of Rule 23(a) are met, the
next inquiry is whether Plaintiffs' action also falls under any of
the three categories listed in Rule 23(b). Plaintiffs assert that
their state law wage claims are maintainable under Rule 23(b) (3).
Rule 23(b) (3) provides that a class action may be maintained
if Rule 23(a) is satisfied and if:
the court finds that the questions of law or fact common to
class members predominate over any questions affecting only
individual members, and that a class action is superior to
other
available
methods
for
fairly
and
efficiently
adjudicating the controversy.
Fed. R. Civ. P. 23 (b) (3). To be certified as a Rule 23 (b) (3) class
action,

plaintiffs

"superiority"

must

satisfy

components of

the

both
rule.

the

"predominance"

and

521 U. S.

615

Amchem,

at

(1997) .

a.

Predominance And Superiority Are Satisfied

Mountaire contends that predominance is lacking with respect

26

to the PPE deduction claims. Mountaire argues that these claims
cannot be litigated on a wholesale basis by class representatives.
Instead, Mountaire contends, these claims are merely individualized
assertions that Mountaire's policy of providing PPE without charge
and

providing

free

replacements

unless

an

item

was

lost

or

intentionally damaged was not applied to them. The individualized
nature of these claims, Mountaire concludes, precludes a finding of
predominance, and, also Rule 23 certification. The Court does not
agree.
The Court finds that the legal and factual issues common to
the putative class predominate over any individual issues of law or
fact. The common questions of fact in this litigation are, without
limitation:
(1)

Mountaire' s uniform course of conduct and alleged refusal
to pay its production workers for all work performed
before and after their line time vis-a-vis donning,
doffing, cleaning of safety and sanitary equipment and
clothing, as well as for the walking and waiting time
related to these tasks.

(2)

Mountaire's alleged failure to provide any advance
written notice of their intent to make a wage deduction
for replacement items of PPE in the manner required by
the NCWHAj and

(3)

assuming Mountaire has provided Plaintiffs and the class
they seek to represent advance notice of wage deductions,
whether the contents of that notice comply with the
requirements of NCWHA.

The Court further finds that common questions of law also
predominate because the same operative facts underlying Mountaire' s
alleged refusal

to pay production workers
27

for

all

time

spent

donning, doffing, cleaning their personal protective equipment, and
walking and waiting associated with these tasks,

also form the

basis of Plaintiffs' NCWHA claims.
Regarding the superiority inquiry, the Court is to compare the
possible alternatives to a class action and determine if any is
superior to the proposed class action. The alternative to a class
action litigation in this case would be,

of course,

individual

lawsuits by each class member. Based on the relatively small amount
of individual wages claimed in this case, it does not appear that
the putative class members would have a great incentive or desire
to bring individual suits against Mountaire. Even if the putative
class members were inclined to pursue individual actions, there is
no doubt this would be more burdensome on the class members, and it
would likely be a less efficient use of judicial resources.
Additionally,

the Court has considered Rule 23(b) (3)'s four

non-exclusive factors pertinent to the predominance and superiority
determinations. The four factors are:
(A)

the class members' interests in individually controlling
the prosecution or defense of separate actions;

(B)

the extent and nature of any litigation concerning the
controversy already begun by or against class members;

(C)

the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; and

(D)

the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b) (3) (A)-(D). The Court finds that these factors
counsel in favor of certification.
28

With respect to the first factor, the Court does not foresee
a

great

interest

separately.

Such

among

individual

individualized

plaintiffs

lawsuits

would

in
be

proceeding
financially

burdensome and many plaintiffs may not have the means or ability to
prosecute

their

claims

separately.

On

the

other

hand,

the

advantages of determining the common issues by means of a class
action are evident, as all employees in the class could finalize
their

claims

in

one

proceeding

rather

than

in

hundreds

of

individual suits.
With respect to the second factor,

none of the parties have

indicated that there is any similar ongoing litigation by the class
members against Mountaire.
With respect to the third factor, Mountaire's Lumber Bridge,
North Carolina facility is located within this district, and there
is no reason why this Court would not be a desirable forum for the
litigation.
With respect to the fourth factor, the court does not foresee
significant problems of manageability. Although Plaintiffs believe
this class action would involve a minimum of 2,000 class members,
it is readily manageable, particularly when compared to classes in
other larger and more complicated cases that have been managed
successfully

through settlement or

Hancock

Life

Mut.

Ins.

Co.,

trial.

177 F.R.D.

54,

See

62

Duhaime

(D.

v.

Mass.

John

1997)

("class consists of persons or entities who have had an ownership

29

interest in one or more of approximately 1.8 million [insurance]
policies").

Given

the

possible

size

and

scope

of

this

class,

joinder and intervention are not possible or superior alternatives.
The

Court

finds

that

the

predominance

and

superiority

requirements have been met. This action is maintainable as a Rule
23(b) (3) class action.
III.

CONCLUSION

Based on the foregoing, IT IS HEREBY ORDERED that:
1.

Plaintiffs' Motions [DE 45,
terms set forth herein;

47]

are GRANTED IN PART on the

2.

The case shall proceed with respect to the NCWHA claims as a
class action under Federal Rule of Civil Procedure 23(b) (3)
and with respect to the FLSA claims as a collective action
under 29 U.S.C. § 216(b);

3.

The classes are defined as follows with respect to Plaintiffs'
FLSA claims and NCWHA claims:
ALL CURRENT AND/OR FORMER EMPLOYEES OF MOUNTAIRE FARMS WHO
HAVE HELD NON-EXEMPT POSITIONS WORKING ON THE POULTRY
PROCESSING LINE IN MOUNTAIRE FARM, INC.'S POULTRY PROCESSING
PLANT IN LUMBER BRIDGE, NORTH CAROLINA, WHO DON, DOFF, WASH OR
SANITIZE ANY SANITARY AND PROTECTIVE CLOTHING, EQUIPMENT AND
GEAR BEFORE AND/OR AFTER THEIR SHIFTS; WHO ENGAGED IN WALKING
AND WAITING TIME ASSOCIATED WITH THESE TASKS AT ANY TIME FROM
OCTOBER 2, 2007 7 THROUGH THE DEADLINE FOR THE OPT-IN PERIOD;
WHO WERE PAID ON A "LINE TIME" OR "GANG" BASIS; AND WHO WERE
NOT FULLY COMPENSATED FOR ALL HOURS WORKED.
AND/OR

7The Court has selected 2 October 2007 as the starting date
for the class period because this is the date used by Plaintiffs
in their proposed notice to the class. [DE 46-3]. However, as
previously noted, Plaintiffs' intent with respect to the
beginning date of the class is unclear. See supra § II.A.2., n.4.
If necessary, the parties should correct the starting date in the
revised proposed class notice.

30

ALL CURRENT AND/OR FORMER EMPLOYEES WHO WORKED AT MOUNTAIRE'S
LUMBER BRIDGE POULTRY PROCESSING PLANT AT ANY PERIOD OF TIME
FROM OCTOBER 2, 2007, TO THE PRESENT FROM WHOM DEDUCTIONS FOR
ONE OR MORE REPLACEMENT ITEMS (S) OF PERSONAL PROTECTIVE
EQUIPMENT WERE MADE WITHOUT ANY ADVANCE NOTICE OF THE INTENT
TO MAKE SUCH A WAGE DEDUCTION AND WITHOUT THE EMPLOYEE 'S
WRITTEN AUTHORIZATION.
4.

Plaintiffs' claims for unpaid minimum wages under the NCWHA
accruing before October 2, 2007 and after July 23, 2008 are
preempted by the FLSA and are hereby DISMISSED;

5.

Plaintiffs Mario P. Romero, Micaela Soto Duran, and Eulalio
Gutierrez are designated as the class representatives and the
attorneys of record for the said named Plaintiffs are
authorized to serve as counsel for the classes in this action;

6.

The court DIRECTS the parties to confer and to jointly submit,
within thirty (30) days of the date of this Order, a revised
proposed class notice
(including appropriate forms)
in
conformance with the Court's ruling set forth herein. The
parties shall submit English and Spanish versions of the class
notice and appropriate forms, with the Spanish translation
prepared by an individual certified as a Spanish-English
Federal Court Interpreter by the Administrative Office of the
United States Courts. Thereafter, the Court will undertake
approval of the proposed notice.
IT IS SO ORDERED, this

~ day of ~~4

, 2011.

~~w.~
T RRENCE W. BOYLE
UNITED STATES DISTRICT JU

31

E