Garcia v. E.J. Amusements of N.H., Inc.

• Citation: 98 F.Supp.3d 277
• Decision Date: 13 April 2015
• Docket Number: Civil Action No. 13–12536–PBS.
• Parties: Jorge GARCIA, Zachary Duclos, George Kent, and Jennifer Miller, on behalf of themselves and all others similarly situated, Plaintiffs, v. E.J. AMUSEMENTS OF NEW HAMPSHIRE, INC. d/b/a Fiesta Shows; Fiesta Shows, Inc. d/b/a Fiesta Shows; ATSEIF Festival Mobile, Inc. d/b/a Fiesta Shows; Eugene Dean III; Eugene Dean ; Linda Chagros; Norma Dean ; and Mary Dean, Defendants.
• Court: U.S. District Court — District of Massachusetts

98 F.Supp.3d 277

Jorge GARCIA, Zachary Duclos, George Kent, and Jennifer Miller, on behalf of themselves and all others similarly situated, Plaintiffs

v.E.J. AMUSEMENTS OF NEW HAMPSHIRE, INC. d/b/a Fiesta Shows; Fiesta Shows, Inc. d/b/a Fiesta Shows; ATSEIF Festival Mobile, Inc. d/b/a Fiesta Shows; Eugene Dean III; Eugene Dean ; Linda Chagros; Norma Dean ; and Mary Dean, Defendants.

Civil Action No. 13–12536–PBS.

United States District Court, D. Massachusetts.

Signed April 13, 2015.

Matthew W. Thomson, Shannon E. Liss–Riordan, Lichten & Liss–Riordan, P.C., John W. Davis, Davis & Davis, P.C., Boston, MA, for Plaintiffs.

Anthony S. Califano, Arthur G. Telegen, Barry J. Miller, Lauren S. Wachsman, Seyfarth Shaw, LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

SARIS, Chief Judge.

Plaintiff Jorge Garcia¹ brings this proposed class action against Fiesta Shows,² a company that provides rides and attractions to fairs and carnivals throughout New England. Garcia alleges that Fiesta Shows violated minimum wage and overtime laws in Massachusetts and New Hampshire (Counts 1–2, 4–5); breached contracts requiring the payment of prevailing wages set by the U.S. Department of Labor (Count 8); and unlawfully forced foreign guest workers to pay pre-employment expenses like travel and costs for obtaining a visa (Counts 3, 6). Additionally, Garcia has alleged a common law claim for unjust enrichment. (Count 7).

Garcia now seeks to certify a class of current and former employees of Fiesta Shows for purposes of litigating his minimum wage and overtime claims under Massachusetts and New Hampshire law (Counts 1–2, 4–5).³ Fiesta Shows opposes the motion and has filed a cross-motion to deny class certification. For the following reasons, Plaintiff's Motion for Class Certification (Docket No. 166) is ALLOWED. Defendants' Motion to Deny Class Certification (Docket No. 157) is DENIED.⁴

I. LEGAL STANDARDS FOR CLASS CERTIFICATION

At the outset, the Court must determine the proper legal standard to be applied to Garcia's motion for class certification. The First Circuit has stated that the Federal Rules of Civil Procedure apply in federal court as long as they (1) are valid under the Constitution and (2) do not “abridge, enlarge or modify any substantive right.” Morel v. DaimlerChrysler AG, 565 F.3d 20, 24 (1st Cir.2009) (quoting the Rules Enabling Act, 28 U.S.C. § 2072(b) ); see also Hoyos v. Telecorp Commc'ns, Inc., 488 F.3d 1, 5 (1st Cir.2007) (“[A] federal court sitting in diversity ... must apply state substantive law, but a federal court applies federal rules of procedure to its proceedings.”). For this reason, federal courts ordinarily apply Federal Rule of Civil Procedure 23 when adjudicating class certification motions. See In re Nexium Antitrust Litig., 777 F.3d 9, 17–18 (1st Cir.2015) ; Greif v. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 258 F.Supp.2d 157, 161 (E.D.N.Y.2003) (agreeing that “all class actions in federal courts are governed by Rule 23 ” (emphasis added)). Rule 23 has also generally applied when federal courts are sitting in diversity and applying state substantive law. See Matamoros v. Starbucks Corp., 699 F.3d 129, 139 (1st Cir.2012) (applying Rule 23 to class action alleging violations of the Massachusetts Tips Act); Manning v. Boston Med. Ctr. Corp., 725 F.3d 34, 58–59 (1st Cir.2013) (applying Rule 23 to class action alleging Massachusetts common law claims).

Both parties, however, urge the Court to set aside Rule 23 for at least some of the claims. Garcia argues that a “more lenient” standard applies to his claims under Massachusetts law. Meanwhile, Fiesta Shows argues that New Hampshire law does not allow class certification for wage and hour claims at all. Both of these arguments fail.

A. Massachusetts Wage and Overtime Claims

The Massachusetts wage and hour statute states that a plaintiff may bring a lawsuit on behalf of “himself and for others similarly situated.” Mass. Gen. Laws c. 149, § 150, c. 151, §§ 1B, 20. Garcia's request for a “more lenient” standard is based on the Supreme Judicial Court's recent statement that the Massachusetts wage statute “specifically provides for a substantive right to bring a class proceeding.” Machado v. System4 LLC, 465 Mass. 508, 989 N.E.2d 464, 470 (2013). As a result, Garcia argues that the “traditional technicalities” of Rule 23 should not apply here because they might interfere with his substantive right to bring a class action in Massachusetts.

Garcia's argument stumbles at the starting gate because he does not explain how Rule 23 conflicts with the “more lenient” standard he proposes under Massachusetts law. Garcia suggests that Rule 23 might interfere with his substantive right to proceed as a class. But he does not explain how a class certification analysis under Massachusetts law would proceed any differently from a Rule 23 analysis. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (“It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones.”).

Nor do the cases cited by Garcia shed any light on what a “more lenient” standard would look like here. See Machado, 989 N.E.2d at 470 (holding that the Federal Arbitration Act requires enforcement of class action waivers in arbitration clauses even when Massachusetts law provides for a “substantive right” to bring a class proceeding); Sebago v. Tutunjian, 85 Mass.App.Ct. 1119, 7 N.E.3d 1122, 2014 WL 1874858 at *2 n. 6 (Mass.App.Ct. May 12, 2014) (unpublished) (citing to Mass. R. Civ. P. 23, which is similar in all relevant aspects to its federal counterpart); see also Salvas v. Wal–Mart Stores, Inc., 452 Mass. 337, 893 N.E.2d 1187, 1207–10 (2008) (applying Mass. R. Civ. P. 23 to a class based on wage and hours claims). If anything, Sebago and Salvas suggest that the Court should apply Fed.R.Civ.P. 23 in the same way that Massachusetts courts apply Mass. R. Civ. P. 23 to classes based on wage claims.

Garcia also cites to cases where Massachusetts courts have recognized a lower threshold for class certification under the Massachusetts Consumer Protection Act, Mass. Gen. Laws c. 93A (Chapter 93A), instead of Mass. R. Civ. P. 23. See Aspinall v. Philip Morris Cos., 442 Mass. 381, 813 N.E.2d 476, 485 (2004) ; Fletcher v. Cape Cod Gas Co., 394 Mass. 595, 477 N.E.2d 116, 122–23 (1985). But Garcia's attempt at analogizing Chapter 93A claims to wage and overtime claims is like comparing cotton candy to corn dogs. Chapter 93A class actions are subject to a less stringent standard because the “statutory language in c. 93A § 9(2) differs in significant respects from Mass. R. Civ. P. 23.” Aspinall, 813 N.E.2d at 484. A plaintiff may bring a Chapter 93A class action on behalf of “other similarly injured and situated persons”:

if the use or employment of the unfair or deceptive act or practice has caused similar injury to numerous other persons similarly situated and if the court finds in a preliminary hearing that he adequately and fairly represents such other persons

Mass. Gen. Laws c. 93A § 9(2). In Aspinall, the Court observed that these requirements are significantly less demanding than Mass. R. Civ. P. 23, which also requires a finding that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) common questions predominate over individual questions; and (4) a class action is superior to other available methods for the fair and efficient adjudication of the controversy. 813 N.E.2d at 484. As a result, the Court found that the more lenient requirements for class certification under Chapter 93A superseded Mass. R. Civ. P. 23. Meanwhile, the Massachusetts Wage Statute merely states that a plaintiff may bring a lawsuit on behalf of those who are “similarly situated.” Mass. Gen. Laws c. 151 §§ 1B, 20. It says nothing more about the legal standards for class certification of wage claims. As a result, there is no reason to think that Massachusetts law would require class certification for wage and hour claims to be treated similarly to certification under Chapter 93A. Instead, the Court will proceed with a conventional class certification analysis under Fed.R.Civ.P. 23.

B. New Hampshire Wage and Overtime Claims

Fiesta Shows's attempts to displace Rule 23 based on an alleged conflict with New Hampshire law “fair” no better. N.H.Rev.Stat. § 275:53(I) states:

Action by an employee to recover unpaid wages and/or liquidated damages may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves, or such employee or employees may designate an agent or representative to maintain such action.

Fiesta Shows emphasizes that this language only explicitly authorizes actions by employees who (1) sue on their own behalf; or (2) designate an agent or representative to sue. The language does not mention class actions or employees who sue on behalf of others “similarly situated.” Compare Mass. Gen. Laws c. 151 §§ 1B, 20. Fiesta Shows interprets this silence on class actions as a bar on class certification of wage claims. But this argument has now been rejected at least twice by courts interpreting § 275:53(I) in multi-district litigation. See In re FedEx Ground Package Sys., Inc., Emp. Practices Litig., 283 F.R.D. 427, 470 (N.D.Ind.2012) ; Teoba v. Trugreen Landcare LLC, 769 F.Supp.2d 175, 187–88 (W.D.N.Y.2011). But see Trezvant v. Fid. Emp'r Servs. Corp., 434 F.Supp.2d 40, 57 (D.Mass.2006) (Young, J.) (stating in dicta that the “wording of the statute and the lack of class action employee wage lawsuits in New Hampshire leaves a significant degree of doubt as to whether class actions are allowed”). Both of these courts have observed that § 275:53 contains no express prohibition on class actions. FedEx, 283 F.R.D. at 470 ; Teoba, 769 F.Supp.2d at 188. Instead, the statute merely...