Payne v. Tri-State Careflight, LLC

• Decision Date: 16 September 2019
• Docket Number: No. CIV 17-0796 JB/CG,No. CIV 14-1044 JB/KBM,CIV 14-1044 JB/KBM,CIV 17-0796 JB/CG
• Citation: Payne v. Tri-State Careflight, LLC, No. CIV 14-1044 JB/KBM, No. CIV 17-0796 JB/CG (D. N.M. Sep 16, 2019)
• Parties: WILLIAM D. PAYNE; NICOLE PAYNE; LESLIE B. BENSON; KEITH BASTIAN; JACQUELINE FERNANDEZ-QUEZADA; CASON N. HEARD; GREGORY OLDHAM AND SHERRY K. WELCH, on behalf of themselves and all others similarly situated, Plaintiffs, v. TRI-STATE CAREFLIGHT, LLC and BLAKE A. STAMPER, Defendants. Consolidated with: KRISTY BELL; DEBORAH BEREST; DANIEL BERGMAN; WILLIAM DALLAS BUNDRANT, JR; ROCKY H. BURROWS, II; CHASE CARTER; BRENDA CASAREZ; KARA CERVANTES; THOMAS CISLO; DAVID DANIELS; ADAM DOYLE; DARREN EEN; TOBY EICHER; LON ENOS; WALTER FABIAN; HAROLD JOSEPH FISHER; CHRISTINA FLEEMAN; LUKE FORSLUND; SALUSTIANO FRAGOSO; REHANNON GONZALES; KRISTEN GRADO; COURTNEY GUERRA; DARRIN HAMILTON; ALEXANDER HOWELL; DANIELLE IRVIN; ALLEN JACOBS; ALEX JONES; DONALD LUKE KEENAN; DANIEL KUHLER; SIMON LUCERO; RAPHAEL MAHAIM; NATHAN MAPLESDEN; ORLANDO MARQUEZ; CINDY D. MAXWELL; JENNIFER MAZZANTI; BETHANY MCCANDLESS; WILLIAM J. MCCONNELL; DAN MEEHAN; KEVIN NAPP; JAMES O'CONNOR; KATHY ONSUREZ-WILSON; ERIC PARKER; JASON PERRY; AMANDA PETERSEN; BRENT PLACE; JIMMY RONALD PRIMM, JR; PHILIP QUBAIN; PAUL RATIGAN; JOSEPH ROOT; DARON RUCKMAN; FREDERIC RUEBUSH; JENNIFER SALAVERRY; LAUREN SALAZAR; PAUL SERINO; CHRISTIAN SPEAKMAN; DANIEL ST. PETERS; IAN STEPHENS; USVALDO R. TRUJILLO; PAUL VACULA; GRACIELA VILLALOBOS; ERIC VOGT; GREG WALSH; TYLER WILKINS; VIRGINIA WILLIAMS; SARA YURKOVICH; TERRY ZACHARIAS and MICHAEL ZULASKI, Plaintiffs, v. TRI-STATE CAREFLIGHT, LLC and BLAKE A. STAMPER, Defendants.
• Court: U.S. District Court — District of New Mexico

WILLIAM D. PAYNE; NICOLE PAYNE; LESLIE B. BENSON; KEITH BASTIAN;

JACQUELINE FERNANDEZ-QUEZADA; CASON N. HEARD;

GREGORY OLDHAM AND SHERRY K. WELCH, on behalf of themselves and all others similarly situated, Plaintiffs, v. TRI-STATE CAREFLIGHT, LLC and BLAKE A. STAMPER, Defendants.

Consolidated with:

KRISTY BELL; DEBORAH BEREST;

DANIEL BERGMAN; WILLIAM DALLAS BUNDRANT, JR;

ROCKY H. BURROWS, II; CHASE CARTER; BRENDA CASAREZ;

KARA CERVANTES; THOMAS CISLO; DAVID DANIELS;

ADAM DOYLE; DARREN EEN; TOBY EICHER; LON ENOS; WALTER FABIAN;

HAROLD JOSEPH FISHER; CHRISTINA FLEEMAN; LUKE FORSLUND;

SALUSTIANO FRAGOSO; REHANNON GONZALES; KRISTEN GRADO; COURTNEY GUERRA;

DARRIN HAMILTON; ALEXANDER HOWELL; DANIELLE IRVIN; ALLEN JACOBS;

ALEX JONES; DONALD LUKE KEENAN; DANIEL KUHLER;

SIMON LUCERO; RAPHAEL MAHAIM; NATHAN MAPLESDEN; ORLANDO MARQUEZ;

CINDY D. MAXWELL; JENNIFER MAZZANTI;

BETHANY MCCANDLESS; WILLIAM J. MCCONNELL;

DAN MEEHAN; KEVIN NAPP; JAMES O'CONNOR; KATHY ONSUREZ-WILSON; ERIC PARKER;

JASON PERRY; AMANDA PETERSEN; BRENT PLACE; JIMMY RONALD PRIMM, JR;

PHILIP QUBAIN; PAUL RATIGAN; JOSEPH ROOT;

DARON RUCKMAN; FREDERIC RUEBUSH; JENNIFER SALAVERRY;

LAUREN SALAZAR; PAUL SERINO; CHRISTIAN SPEAKMAN;

DANIEL ST. PETERS; IAN STEPHENS; USVALDO R. TRUJILLO; PAUL VACULA;

GRACIELA VILLALOBOS; ERIC VOGT; GREG WALSH; TYLER WILKINS;

VIRGINIA WILLIAMS; SARA YURKOVICH; TERRY ZACHARIASand MICHAEL ZULASKI, Plaintiffs, v. TRI-STATE CAREFLIGHT, LLC and BLAKE A. STAMPER, Defendants.

No. CIV 14-1044 JB/KBM

No. CIV 17-0796 JB/CG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

September 16, 2019

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Plaintiffs' Motion for Class Certification & Supporting Memorandum, filed November 6, 2018(Doc. 220¹)("Motion").The Court held a hearing on January 24, 2019.SeeClerk's Minutesat 1, filedJanuary 24, 2019(Doc. 226).The primary issue is whether the Court should grant class certification pursuant to rule 23(b)(3) of the Federal Rules of Civil Procedure for the Plaintiffs'² two classes: (i) a class of flight nurses, flightparamedics, and pilots that brings a New Mexico Minimum Wage Act, N.M. Stat. Ann. §§ 50-4-19 to 50-4-30("NMMWA"), claim; and (ii) a class of pilots that brings a New Mexico common-law unjust enrichment claim.The Court grants in part and denies in part the Motion.

The Court will deny the request that it certify the proposed NMMWA class, because the Court concludes that the class does not satisfy rule 23(a)'s commonality, typicality, or adequacy requirements, or rule 23(b)(3)'s predominance and superiority requirements.To determine the Defendants' liability to a NMMWA class, the Court would have to classify each individual class member as exempt or non-exempt from the statute, which defeats commonality.Furthermore, class representatives' differing statuses as exempt or non-exempt result in conflicting interests, which defeats typicality.Even if the Court finds all class members non-exempt, only certain class representatives will have any interest in litigating the exemption issue, defeating adequacy.

The Court will certify the proposed unjust enrichment class to the extent that the Plaintiffs argue that the Defendants could not set the pilots' daily rate to account for hours worked over twelve hours a day given the pilots' twelve-hour shifts, because the Court concludes that this class satisfies all of rule 23's requirements.The Court will use the Plaintiffs' four designated class representatives for the certified unjust enrichment class.The other Plaintiffs in the unjust enrichment class will remain named Plaintiffs in this case for the NMMWA claim's purposes.Because the Defendants do not dispute Moody & Stanford, P.C.'s adequacy as class counsel, seeDefendants' Response to Plaintiffs' Motion for Class Certificationat 36, filed onDecember 6,2018(Doc. 223)("Response"), the Court appoints the firm class counsel.The Court will not order that a notice in the form of the Notice of Class Action Lawsuit, filed November 6, 2018(Doc. 220-18), which provides notice of both proposed classes, be sent to all class members, but will order that the Plaintiffs prepare a notice of the certified unjust enrichment class to be sent to all class members.

FINDINGS OF FACT

Both the Plaintiffs and the Defendants have submitted briefings on the Plaintiffs' Motion.See Motion; Response; and Plaintiffs' Reply To Motion for Class Certification, filed on January 11, 2019(Doc. 224)("Reply").The Court has carefully considered all factual assertions, accepts some of them, rejects others, and finds some facts that no party brought to its attention.³The Court also liberally judicially notices background facts.SeeFed. R. Evid. 201.All of these findings of fact are authoritative only on the question of class certification, and the parties may relitigate any of them at the merits stage.SeeAbbott v. Lockheed Martin Corp., 725 F.3d 803, 810(7th Cir.2013);In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 313(3d Cir.2008);Gariety v. Grant Thornton, LLP, 368 F.3d 356, 366(4th Cir.2004);Anderson Living Tr. v. WPX Energy Prod.,LLC, 306 F.R.D. 312, 320(D.N.M.2015), adhered to on reconsideration, 312 F.R.D. 620(D.N.M.2015)(Browning, J.).The Court applied the Federal Rules of Evidence at the class certification hearing, ruled on several evidentiary objections, and considered only admissible evidence in finding these facts.

1.The Defendants.

1.DefendantsTri-State CareFlight, LLC, and Blake A. Stamper"owned and operated a medical transport service providing services in New Mexico, Colorado, and Arizona."Seconded Amended Class Action Complaint¶ 12, at 4, filedAugust 15, 2018(Doc. 202)("Complaint").

2.Tri-State CareFlight operates helicopters and fixed-wing aircraft at bases in Santa Fe, Taos, Truth or Consequences, Gallup, Tucumcari, Portales, Roswell, Artesia, Carlsbad, and Sandoval, in New Mexico.SeeDeposition of Tri-State CareFlight, LLC through Dayna Lokelani Mobley Blakeat 9:6-10:3(taken June 18, 2015), filedOctober 14, 2015(Doc. 61-1)("Tri-State Depo.").

3.Tri-State CareFlight defines its workweek as spanning from "12:00 a.m. on Saturday morning to 11:59 p.m. the following Friday evening."Motionat 2(citingDefendants' Objections and Answers to Plaintiff Kristy Bell's First Interrogatories, Interrogatory No. 4, at 2, filedNovember 6, 2018(Doc. 220-3)("Defs.'Answers to Bell's First Interrs."));seeTri-State Depoat 11:6-11.

4.Before January 19, 2016, the Defendants sometimes required employees to work overtime.SeeResponseat 29.

2.Tri-State CareFlight's Policy and Practices Regarding Flight Crew.

5.Tri-State CareFlight established an hourly rate for its flight paramedics and flightnurses, and paid its flight paramedics and flight nurses one and one-half times the hourly rate for hours worked in excess of ninety-six hours per two-week pay period.SeeTri-StateDepo. at 37:20-38:6.

6.Tri-State CareFlight's flight nurses and flight paramedics uniformly worked twenty-four or forty-eight hour shifts; Tri-State CareFlight expected these employees to work ninety-six hours in a two-week, fourteen-day, pay period, and it paid the flight nurses and flight paramedics overtime only for work over ninety-six hours in a two-week pay period.SeeTri-StateDepo. at 11:6-11(stating that flight nurses and flight paramedics work twenty-four or forty-eight hour shifts);id.at 15:14-21(stating that Tri-State CareFlight expected flight nurses and paramedics to work ninety-six hours in a two-week, fourteen-day, period);id.at 37:20-38:6(stating that since 2009, at least, Tri-State CareFlight pays flight nurses and flight paramedics for overtime only if they exceed ninety-six hours per pay period);Defendants' Answers to Plaintiffs' First Interrogatories, Interrogatory No. 3, at 2(executed March 30, 2015), filedSeptember 4, 2015("Doc. 48-2")("Defs. Answers to First Interrs.")(describing that flight nurses and flight paramedics who work more than ninety-six hours in a two-week pay period are paid overtime);Defs.' Answers to Bell's First Interrs., Interrogatory No. 4, at 2(stating that the pay period was for two weeks and that the workweek spanned from 12:00 a.m. on Saturday to 11:59 p.m. on Friday).

7.Tri-State CareFlight's scheduling of flight nurses and flight paramedics sometimes resulted in flight nurses and flight paramedics working more than forty hours in a single workweek but not receiving overtime compensation for hours in excess of forty hours per workweek.SeeMotionat 4(describing a situation in which a flight paramedic or flight nurse who worked three twenty-four hour shifts in one workweek would have "one workweek of seventy-two (72) hourswith no overtime compensation for the additional thirty-two (32) hours worked over forty (40) in that first week").

3.Tri-State CareFlight's Policy and Practices Regarding Pilots.

8.For every base except the base near Roswell, Tri-State CareFlight scheduled the pilots for seven days-on-and-seven-days-off shifts, and, for the Roswell bases, Tri-State CareFlight scheduled pilots for fourteen-days-on-and-fourteen-days-off shifts.See, e.g., Tri-StateDepo. at 24:2-21(stating that pilots work twelve-hour shifts with seven days on and seven days off);id.at 45:1-23(stating that pilots are paid overtime only for additional twelve-hour shifts and not for time worked over forty hours);Defendant's Answers to Plaintiffs' Second Interrogatories to Defendants, Interrogatory Nos. 13, at 1-2, filedNovember 6, 2018(Doc. 220-4)("Defs.'Answers to Second Interrs.")(describing that, except for pilots based at the Roswell base, pilots worked seven-days-on-and-seven-days-off, and that, at the Roswell base, pilots worked fourteen-days-on-and-fourteen-days-off shifts, and that pilots who worked more than seven days during their shifts received overtime pay).

9.A minimum of 138 pilots worked or would have been scheduled to work...