Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dziennik v. Sealift

May 29, 2007

SYLVESTER DZIENNIK, MIECZYSLAW KIERSZTYN, FERDYNAND KOBIEROWSKI, INDIVIDUALLY AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED, PLAINTIFFS,
v.
SEALIFT, INC., FORTUNE MARITIME, INC., SAGAMORE SHIPPING, INC., VICTORY MARITIME, INC., DEFENDANTS.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge

MEMORANDUM AND ORDER GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

The named plaintiffs, each a citizen of Poland, worked as seafarers aboard U.S. flag vessels under the control of one or more of the defendants. On October 3, 2005, plaintiffs filed the instant class action, seeking recovery of unpaid wages, overtime wages, and statutory penalties under employment contracts and federal maritime law, specifically 46 U.S.C. §§ 10313 and 11107. Presently before the court is plaintiffs' motion for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs seek to certify a class of 209 seafaring employees, 113 of whom are Polish citizens and 96 of whom are Filipino citizens, who work (or previously worked) on vessels owned by defendants at any time since January 1, 1999. Defendants oppose class certification on the grounds that plaintiff cannot fulfill the "typicality" requirement under Rule 23(a)(3), the "adequacy" requirement under Rule 23(a)(4), or the "predominance" and "superiority" requirements under Rule 23(b)(3). For the reasons set forth below, plaintiffs' motion is granted and the proposed class is certified pursuant toRule 23(b)(3).

Background

The named plaintiffs assert three causes of action: (1) breach of "contracts of employment, including but not limited to Collective Bargaining Agreements between Defendants and/or its [sic] agents and the Seafarers International Union and the American Maritime Officers Union" for failure to pay "full wages due or otherwise owed"; (2) violation of 46 U.S.C. § 11107, through the engagement of seamen "contrary to a law of the United States"; and (3) violation of 46 U.S.C. § 10313(f) and (g) for "refusal and neglect to pay the seafarers their full balance of wages due [including overtime wages] without sufficient cause."*fn1 (Compl. ¶¶ 19--22.) On or about December 8, 2005, defendants moved to dismiss plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). After a conference with the court on December 22, 2005, defendants voluntarily withdrew their motion to dismiss without prejudice to file a new motion following the completion of limited expedited discovery concerning the legal bases for plaintiffs' class claims. On January 20, 2006, defendants filed a second motion to dismiss the class action complaint pursuant to Rule 12(b)(6). On July 10, 2006, before the court had reached a decision on defendants' motion to dismiss, plaintiffs moved for class certification pursuant to Rule 23.

On August 30, 2006, the court granted defendants' motion to dismiss with respect to the breach of the collective bargaining agreement claim but denied the motion with respect to plaintiffs' claims for breach of employment contract and violations of 46 U.S.C. §§ 10313 and 11107. The court also dismissed the action as to defendants Sealift Chemicals, Inc., Sealift Tankships, Inc., Remington Shipping, Inc., and Wilson Shipping, Inc. because plaintiffs lacked standing as to them.

Although the facts underlying this dispute were detailed in the court's August 30, 2006 decision, the relevant and undisputed facts are worth repeating here because the court must engage in a fact-intensive inquiry in order to determine the instant motion.

Plaintiffs, Sylvester Dziennik, Mieczyslaw Kiersztyn, and Ferdynand Kobierowski (collectively, "plaintiffs" or "named plaintiffs"), are Polish citizens who worked at various times aboard one or more seagoing vessels owned by one or more of the defendants. Plaintiff Dziennik worked aboard the M/V ASCENSION (owned by Sagamore Shipping, Inc.) during 2000 and 2001, and aboard the S/S CLEVELAND (owned by Victory Maritime, Inc.) during 2000. Plaintiff Kiersztyn worked aboard the M/V ADVANTAGE (owned by Fortune Maritime, Inc.) during 2003. Plaintiff Kobierowski worked aboard the M/V ADVANTAGE during 2001 to 2004. Plaintiffs allege that defendant Sealift, Inc. is also the owner, manager and operator of the M/V ASCENSION, S/S CLEVELAND, and M/V ADVANTAGE, as well as of other vessels named in the complaint.*fn2

Through discovery, the parties have provided (1) a list of Polish seafarers employed aboard Sealift, Inc. vessels, along with standard employment contracts for the Polish seamen, (2) a list of Filipino seafarers employed aboard Sealift, Inc. vessels, along with standard employment contracts for the Filipino seamen, and the Philippines Overseas Employment Administration Contract of Employment, (3) numerous passenger crew lists, along with a summary providing the name of the vessel, the nationalities of the crew members on board, and the date and the port name, (4) plaintiffs' responses to defendants' contention interrogatories, and (5) the deposition transcripts of plaintiff Dziennik, plaintiff Kiersztyn, and plaintiff Kobierowski. (Mellusi Decl. Exs. 1-4; O'Neill Decl. Exs. A-D.)

Discussion

I. Standards for Class Certification

Plaintiffs bear the burden of proof with respect to a motion for class certification. The first step requires plaintiffs to show that the four criteria of Federal Rule of Civil Procedure 23(a) are satisfied: (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 of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a); In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 132-33 (2d Cir. 2001), cert. denied, 536 U.S. 917, 122 S.Ct. 2382, 153 L.Ed. 2d 201 (2002). Once the Rule 23(a) criteria are established, plaintiffs must then demonstrate that they are entitled to certification in at least one of the Rule 23(b) categories. In the present case, plaintiffs seek certification under Rule 23(b)(3), which permits class certification "if the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed. R. Civ. P. 23(b)(3).

When considering a motion for class certification, the court must accept the allegations in the complaint as true. Hirschfeld v. Stone, 193 F.R.D. 175, 182 (S.D.N.Y. 2000). The court may also consider materials beyond the pleadings. Daniels v. City of New York, 198 F.R.D. 409, 413 n. 5 (S.D.N.Y. 2001). However, a court may not examine the merits of the case in a motion for class certification; Rule 23 should be given "broad, rather than restrictive interpretation." Adames v. Mitsubishi Bank, Ltd., 133 F.R.D. 82, 88 (E.D.N.Y. 1989); see also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed. 2d 732 (1974) ("We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action."). "It is often proper to view the class action liberally at the early stages of the litigation since the class can always be modified or divided as issues are later refined for trials." Adames, 133 F.R.D. at 88 (citing Woe by Woe v. Cuomo, 729 F.2d 96, 107 (2d Cir. 1984)).

II. Rule 23(a) Requirements

A. Numerosity

Here, defendants do not dispute that the proposed class of 209 seafaring employees, 113 of whom are Polish citizens and 96 of whom are Filipino citizens, who work (or previously worked) on vessels owned by defendants at any time since January 1, 1999 is sufficiently numerous or that joinder would be impractical. Indeed, the Second Circuit has recognized that "numerosity is presumed at a level of 40 members." Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). As such, plaintiffs satisfy the numerosity requirement.

B. Commonality

"The commonality and typicality requirements tend to merge into one another, so that similar considerations animate analysis of Rules 23(a)(2) and (3)." Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997). "The crux of both requirements is to ensure that 'maintenance of a class action is economical and [that] the named plaintiff[s'] claim[s] and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Id. (quoting General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157 n. 13, 120 S.Ct. 2364, 72 L.Ed. 2d 740 (1982)). The commonality requirement will be met if the named plaintiffs share a common question of law or fact with the grievances of the prospective class. See In re Agent Orange Prod. Liab. Litig., 818 F.2d 145, 166-67 (2d Cir. 1987). "This does not mean that all issues must be identical as to each member, but it does require that plaintiffs identify some unifying thread among the members' claims that warrant class treatment." Kamean v. Local 363, Int'l Bhd. of Teamsters, 109 F.R.D. 391, 394 (S.D.N.Y. 1986), appeal dismissed, 833 F.2d 1002 (2d Cir. 1986), cert. denied, 48 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.