The opinion of the court was delivered by: Michael B. Mukasey, U.S.D.J.
In a class action complaint, plaintiff Carlo Novella sued defendants Westchester County and New York Carpenters' Pension Fund ("the Fund") and its Board of Trustees on the ground that they refused to award him a pension in the amount to which he was entitled under the Westchester Fund's pension plan ("the Plan"). Novella was awarded summary judgment on his claim that by using two different benefit rates to calculate the amount of his pension, defendants violated the terms of the Plan. His other claims were dismissed as either moot or unexhausted. Pursuant to Fed. R. Civ. P. 23, Novella moved for class certification and, on December 29, 2004, this court determined that the class consisted of only disability pensioners under the Plan, their beneficiaries, and estates. It was further determined that such a class meets the Fed. R. Civ. P. Rule 23 requirements for commonality, typicality, and adequacy of representation, as well as the Fed. R. Civ. P. Rule 23(b)(1) requirement that the defendant must, by law or necessity, treat all members of the class alike. However, the determination of whether the numerosity requirement of Fed. R. Civ. P. Rule 23 was met was reserved until the parties resolved a discovery dispute. That dispute has been resolved and for the reasons explained below it appears that the proposed class of disability pensioners under the Plan meets the numerosity requirement. Therefore, the case will proceed as a class action.
Detailed accounts of the underlying dispute appear in this court's Opinion and Order dated August 4, 2004 and Opinion and Order dated December 29, 2004. See Novella v. Westchester County, New York Carpenters' Pension Fund, Bd. of Trustees of Westchester County, New York Carpenters' Pension Fund, No. 02 civ. 2192, 2004 WL 1752820 (S.D.N.Y. Aug. 4, 2004); Novella v. Westchester County, New York Carpenters' Pension Fund, Bd. of Trustees of Westchester County, New York Carpenters' Pension Fund, No. 02 civ. 2192, 2004 WL 3035405 (S.D.N.Y. Dec. 29, 2004). In summary, Novella worked as a carpenter in Westchester County and New York City from 1962 through 1995 and was a participant in the Plan. (Id. at *1) Plan participants earn pension credits based on hours of service in jobs covered by the Plan. (Id.) Novella earned pension credits during two periods: 1962 through 1981 and 1987 through 1995. (Id.) He earned no pension credits from 1982 through 1986 because he worked during that period in jobs covered by a different pension plan. (Id.)
In 1995, Novella suffered a disabling accident at work. (Id.) He applied for Early Retirement Pension under the Plan, which was converted later to Disability Pension. (Id.) In calculating Novella's pension credits for the 1962-81 period, defendants "froze" the benefit rate in effect at the time Novella discontinued work covered by the Plan. (Id.) In calculating pension credits for the 1987-95 period, defendants applied the benefit rate then in effect, which was higher than the rate for the 1962-81 period. (Id.) By applying two different benefit rates in calculating Novella's Disability Pension, defendants claimed to be following Section 3.07 of the Plan, which pertains to Deferred Pensions. Novella sued, claiming that defendants' application of the two benefit rates violated the terms of the Plan or, in the one instance when the practice was consistent with the Plan, that the Plan violated the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 (2000), et seq.
Novella was granted summary judgment on his Sixth Claim for Relief, specifically that defendants' application of two benefit rates to pension credits earned by Novella -- or treating his Disability Pension like a Deferred Pension -- was an arbitrary and capricious interpretation of the Plan. Novella, 2004 WL 175280, at * 3. Novella's Third, Fourth, Fifth, and Seventh Claims for Relief, which alleged that the Plan violated various ERISA provisions if the Plan allowed defendants to apply two benefit rates to his pension, were dismissed as moot. Id. at *5. Novella's First and Second Claims, which arise from defendants' refusal to credit him with hours of service and pension credits during the time he received workers' compensation benefits, were dismissed without prejudice because Novella failed to inform Plan administrators that he received workers' compensation benefits and to ask for pension credits on that basis. See 2004 WL 1752820, at *7.
Novella filed a motion for class certification and this court determined that the class to be certified consisted of disability pensioners who were affected by defendants' practice of "freezing" pre-interruption pension benefit rates and thereby applying multiple benefit rates to determine pension credits. 2004 WL 303405 at *4-5. This court further determined that such a class meets all of the requirements of Fed. R. Civ. P. Rule 23(a) and Rule 23(b)(1) other than numerosity, which was to "be decided at a hearing to resolve the issue of numerosity as to the 'alternative' proposal class of Disability Pensioners." Id. at *7-8.
During a conference on February 16, 2005, this court ordered defendants to review their files and determine the number of people who were awarded a disability pension after January 1, 1976 that was calculated using two rates based upon a break in service. On April 21, 2005, defendants advised this court and plaintiff that 24 disability pensions were calculated using two rates based upon a break in service under the Plan after January 1, 1976. (Pauk Aff. Ex. 23)
This court has subject matter jurisdiction pursuant to 29 U.S.C. § 1132 and 28 U.S.C. § 1331.
Fed. R. Civ. P. Rule 23(a) establishes four prerequisites for class certification: (1) the class is so numerous that joinder 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 of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. These four requirements are commonly referred to as (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. The burden of proving each of the requisite elements of Rule 23 is on the party seeking certification; failure to prove any element precludes certification. See Amchem Prod., Inc. v. Windsor, 521 U.S. 591 (1997). Here, only numerosity is disputed.
The numerosity requirement is satisfied when the class is so numerous that joinder of all members is impractical. Generally, "courts will find that the 'numerosity' requirement has been satisfied when the class comprises 40 or more members and will find that it has not been satisfied when the class comprises 21 or fewer." Ansari v. New York Univ., 179 F.R.D. 112, 114 (S.D.N.Y. 1998). Novella argues that the proposed class consists of 24 members; ...