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Deboissiere v. American Modification Agency

October 22, 2010

MARICELA DEBOISSIERE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
AMERICAN MODIFICATION AGENCY, AMERIMOD INC., SALVATORE PANE, JR., DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM & ORDER

On June 1, 2009, Plaintiff Maricela Deboissiere, on behalf of others similarly situated, sued Defendants, alleging that Defendants violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et. seq., and applicable New York law by failing to pay their loan modification advisors minimum wages and overtime. Plaintiffs moved to certify their New York state law claims under FED. R. CIV. P. 23, but, on May 5, 2010, the Court denied Plaintiffs' class certification motion. The Court found that, although Plaintiffs had sufficiently shown numerosity, commonality, and typicality, Plaintiffs had failed to adduce sufficient evidence concerning the adequacy of representation factor. The Court therefore did not reach the predominance and superiority prongs of the class certification inquiry. Plaintiffs have now moved again for class certification. Defendants have filed no opposition papers and, in fact, have yet to answer Plaintiffs' Complaint or otherwise appear in this case. Nevertheless, the Court must sua sponte inquire if Plaintiffs have met their class certification burden. Having done so, the Court DENIES Plaintiffs' renewed class certification motion.

BACKGROUND

Defendants employed the named Plaintiff, and others similarly situated, to work as loan modification advisers in New York. Pl. Exs. A, B. In this role, Plaintiffs sold loan modifications to customers. Pl. Exs. B-F at ¶ 5.

Defendants paid Plaintiffs on a commission only basis. Pls. Exs. B-D at ¶¶ 6, 9. Thus, if Plaintiffs failed to sell a loan modification during a pay period, Defendants paid them nothing, not even minimum wage. Pls. Exs. B-F at ¶ 6. Likewise, Defendants did not pay Plaintiffs time and a half for working more than 40 hours a week. Pls. Exs. B-F at ¶ 8. Indeed, Defendants did not even record Plaintiffs' hours. Pls. Exs. B-F at ¶ 10.

This action followed.

DISCUSSION

I. Applicable Legal Standards

To certify a class, Plaintiffs must establish, by a preponderance of the evidence, 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) 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. See FED. R. CIV. P. 23; Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008) (imposing a preponderance of the evidence standard). In addition, Plaintiffs must establish, by a preponderance of the evidence, that the relevant Rule 23(b) requirements have been met. Teamsters Local 445 Freight Div. Pension Fund, 546 F.3d at 202. Here, Plaintiffs seek certification under Rule 23(b)(3), requiring them to show that: (1) common questions "predominate" over individual questions; and that (2) "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy."

Given Plaintiffs' burden, the Court must "receive enough evidence, by affidavits, documents, or testimony, to be satisfied that each Rule 23 requirement has been met." Id. at 204 (internal quotations and citations omitted).

II. Numerosity, Commonality, and Typicality

For the same reasons as its original opinion, the Court finds that Plaintiffs have met the numerosity, commonality, and typicality factors. See Deboissiere v. American Modification Agency, 09-CV-2316, 2010 WL 1849265, at *2, 2010 U.S. Dist. LEXIS 44385, at *5-6 (E.D.N.Y. 2010).

III. Adequacy of ...


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