Smart v. R.C. Moore, Inc.
| Decision Date | 15 December 2002 |
| Docket Number | CUM CV-01-264 |
| Parties | ROBERT A. SMART and MICHAEL LASKO Plaintiffs, v. R.C. MOORE, INC. and R.C. MOORE DISTRIBUTION SERVICES, INC., Defendants. |
| Court | Maine Superior Court |
The plaintiffs, Robert Smart and Michael Lasko, filed a motion for class certification in their claim against the defendants, R.C. Moore, Inc. ("R.C. Moore") and R.C. Moore Distribution Services, Inc. ("Moore Distribution"), to recover unpaid overtime wages. Upon reviewing the plaintiffs' motion, the defendants' opposition, and the relevant law, the plaintiffs' request for class certification will be denied.
The plaintiffs' underlying complaint seeks payment of overtime wages, under 26 M.R.S.A. § 664(3)[1], for truck drivers, employed by the defendants, who have worked over 40 hours per week, but were not paid overtime.
R.C Moore categorizes truck drivers in four ways: local drivers who drive exclusively in Maine; independent contractors, who are not employees of R.C. Moore; regional drivers, who drive outside of Maine; and over-the-road drivers, who drive long distances and can be out of Maine driving for days or longer at a time. Drivers employed by R.C. Moore are not confined by these categories during the course of their employment - i.e., a particular driver may work as a local driver some weeks, and a regional driver in others. The local drivers are paid overtime wages by R.C. Moore in compliance with the statute. Independent contractors, regional, and over-the-road drivers are not paid overtime wages. The defendants argue that the statute does not apply to regional and over-the-road drivers, and therefore overtime wages are not due. In addition, the defendants assert that because independent contractors are not their employees, the statute does not apply, and as a consequence, overtime wages are not due. The plaintiffs argue that, with respect to the regional and over-the-road drivers, even though much of the work occurred out-of-state, the employees reside in Maine, the employer operates from Maine, and a sufficient amount of the work is done in Maine and therefore overtime wages are due under 26 M.R.S.A. § 664.
The plaintiff's initially proposed the class as follows: all R.C. Moore, Inc. (RCMI) truck drivers (1) who reside in Maine and (2) who work out of the company's Scarborough, Maine facility.[2]
In order for a class action to be certified, the requirements of M.R. Civ. P. 23(a) must be satisfied, and one of the three requirements set out under M.R. Civ. P. 23(b) must also be satisfied. The plaintiffs claim to have satisfied the requirements of M.R. Civ. P. 23(b)(3).[3] Class certification dramatically affects the litigation by increasing the stakes for the defendants, increasing the number of unmeritorious claims, inflating potential damage awards, and creating insurmountable pressure on defendants to settle. Melnick v. Microsoft Corp., 2001 WL 1012261, at *16 (Me. Super Ct., Cum. Cty.), citing Millett v. Atlantic Richfield Co., CV-98-555, at *44-45 (Me. Super. Ct., Cum. Cty. March 2, 2000). Thus, in order to warrant certification, the plaintiffs must demonstrate under a strict burden of proof that they have satisfied the requirements of Rule 23 Id.
Rule 23(a) of the Maine Rules of Civil Procedure provides:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (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) the claims or defenses of the representative parties are typical of the claims or defenses, and (4) the representative parties will fairly and adequately protect the interests of the class.
A. Numerosity
The number of potential class members alone does not dictate whether the class is sufficiently numerous that joinder is impracticable. Gaines v. Boston Herald, 998 F.Supp. 91, 116 (D.Mass. 1998), citing Andrews v. Bechtel Power Corp., 780 F.2d 124, 131 (1st Cir. 1985). Additional factors impacting the practicability of joinder include: (1) whether the class members live in the same geographic area, (2) whether they can be easily identified, (3) the nature of the action, and (4) the size of each potential member's claim. Howard's Rexall Stores, Inc. v. Aetna U.S. Healthcare, Inc., 2001 WL 501055, at *6 (D.Me.). A determination that the proposed class members "are not located in the same geographic portion of the state [would] support[] a finding that the numerosity requirement is satisfied." Weld v. CVS Pharmacy, Inc., 1999 WL 1565175, at *4 (Mass. Super. Ct.). Where joinder is impracticable, a class of 50 to 60 members has been determined to be sufficiently numerous to warrant class certification. Id.
Because the numerosity requirement of the rule directly relates to the practicability of joinder, there is no particular absolute minimum or maximum number of parties that satisfies the numerosity requirement. Rather, the number of class members is considered as it impacts upon the impracticability of joinder. Here, the estimate of class members ranges from 48 to 175.[4] The plaintiffs have not provided information as to whether the class members live in the same geographic area. The potential class members would be identifiable from the employment records kept by the defendants.
The size of the potential claims would vary, but some might be small, which ordinarily would weigh in favor of class certification. However, in this case the statute provides for costs, attorney fees and a doubling of damages, 26 M.R.S.A. § 670, which indicates that potential class members would have incentive to file an individual claim, and would not be dissuaded from filing suit based on a small potential recovery. This is an action for unpaid wages, and as such is dependent - in the context of both liability and the amount of damages - on a review of individual employee time records for each week to determine whether the number of hours worked exceeds forty hours. Accordingly, based on the information before the court at this time, joinder does not appear to be impracticable. Although not a determinative factor, the court concludes that the issue of numerosity weighs against class certification.
B. Common Issues of Law or Fact
This element is met if the plaintiffs' grievances share a common question of law or of fact. Millett, CV-98-555, at *14. Here, there is at least one common issue of law - whether the overtime statute is applicable to truck drivers who transport goods from Maine to other states. Consequently, this element weighs in favor of granting class certification.
C. Typicality
Typicality is "intended to assess whether the action can be efficiently maintained as a class and whether the named plaintiffs have incentives that align with those of absent class members so as to assure that the absentees' interests will be fairly represented." Millett, CV-98-555, at *15, quoting Baby Neal ex rel Kanter v. Casey, 43 F.3d 48, 57 (3d Cir. 1994). "[F]actual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory." Id. at *16, quoting Barnes v. American Tobacco Co., 161 F.3d 127, 141 (3d Cir. 1998). Here the plaintiffs claim that the defendants have failed to pay overtime wages to truck drivers who travel out of state, and they are former employees of the defendants who, when employed by the defendants, traveled out of state and were not paid overtime wages. The plaintiffs' claims are typical of the class.
D. Adequacy of Representation
In order to satisfy this element, "[t]he plaintiffs must show that (1) the representatives are able and willing to prosecute the action completely and vigorously and (2) each representative's interests are sufficiently similar to those of the class that it is unlikely that their goals and viewpoints will diverge." Melnick, 2001 WL 1012261, at *1 (citation and quotation omitted).
Here the class, as originally described, would not satisfy this element.[5] First, plaintiffs have already conceded that the independent contractors and local drivers should not be included in the class because the independent contractors are not covered by the wage law and the local drivers already receive overtime pay. Furthermore, plaintiff Smart was predominantly a regional driver, which means he spent an average of 10 or so hours a week working in Maine. Plaintiff Lasko apparently acted as a local driver, regional driver, and over-the-road driver during his checkered employment history with RCMI. The court can easily foresee a situation in which the interests of the over-the-road drivers, who work an average of 2 to 3 hours per week in Maine, diverge from the regional drivers - for instance, if the determinative issue of the applicability of the Maine wage laws becomes the percentage of time each employee works in Maine. See e.g., Newton v. Merril Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 185 (3d Cir. 2001) ( that representative was not in conflict with class members where each member would need to prove the same securities scheme; court ultimately denied class certification because of the factual differences between class members - e.g., what trade at what price). This concern is not resolved by appointing a new class representative. Rather, at a minimum, the class should be redefined, as conceded by plaintiffs - to "all truck drivers employed by R.C. Moore, Inc. since May 1995 (except local drivers paid hourly; owner operators; and over-the-road drivers whose...
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