LEE SIEGEL, individually and on behalf of others similarly situated, Plaintiff,
BLOOMBERG L.P., Defendant.
Dan Getman, Lesley Tse, Getman Sweeney, PLLC, New Paltz, NY, for Plaintiff.
Thomas H. Golden, Deirdre N. Hykal, Colleen M. O'Brien, Jill K. Grant, Willkie Farr & Gallagher LLP, New York, NY, for Defendant.
OPINION & ORDER
DENISE COTE, District Judge.
Plaintiff Lee Siegel ("Siegel") brings this case as a collective action alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 206 et seq., and the New York Labor Law ("NYLL"), Art. 19 § 650 et seq., against defendant Bloomberg L.P. ("Bloomberg"). On May 20, 2013, Siegel moved for conditional certification of this action as an FLSA collective action,  and for class certification of his NYLL claims pursuant to Rules 23(a) and 23(b)(3), Fed. R. Civ. P.
Siegel seeks to certify a class consisting of all Service Desk Representatives who are or were employed by Bloomberg ("Bloomberg SDRs") and who were not paid overtime at the rate of time-and-one-half for all hours worked over forty in one or more weeks. Bloomberg SDRs are PC support staff members who provide technical support for defendant's employees. Siegel worked at Bloomberg from January 1998 until June 26, 2012. He worked as a Bloomberg SDR from September 2010.
The motion was fully submitted on June 21. For the reasons that follow, Siegel's motion to certify a class is denied. His request to send notice of the FLSA action is granted.
A. Rule 23 Class Certification
"A district court may only certify a class if it determines that each Rule 23 requirement is met." Levitt v. J.P. Morgan Secs., Inc. , 710 F.3d 454, 464 (2d Cir. 2013). Thus, the plaintiff will be able to sue as a representative of a class
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 of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Rule 23(a), Fed. R. Civ. P.
If the Rule 23(a) criteria are satisfied, an action may be maintained as a class action only if it also qualifies under at least one of the categories provided in Rule 23(b). Rule 23(b), Fed. R. Civ. P.; Levitt , 710 F.3d at 464. In this case, Siegel seeks to certify a class under Rule 23(a) and 23(b)(3). Rule 23(b)(3) permits certification "if the questions of law or fact common to class members predominate over any questions affecting only individual members, and... a class litigation is superior to other available methods for fairly and efficiently adjudicating the controversy." Rule 23(b)(3), Fed. R. Civ. P.
"In evaluating a motion for class certification, the district court is required to make a definitive assessment of Rule 23 requirements, notwithstanding their overlap with merits issues, and must resolve material factual disputes relevant to each Rule 23 requirement." Levitt , 710 F.3d at 464-65 (citation omitted). "The Rule 23 requirements must be established by at least a preponderance of the evidence." Id. at 465 (citation omitted). In other words, the district judge must "receive enough evidence, by affidavits, documents, or testimony, to be satisfied that each Rule 23 requirement has been met." Teamsters Local 445 Freight Div. Pension Fund v. Bombardier, Inc. , 546 F.3d 196, 204 (2d Cir. 2008) (citation omitted). "The burden of proving compliance with all of the requirements of Rule 23 rests with the party moving for certification." Levitt , 710 F.3d at 465.
Here, there are too few Bloomberg SDRs to justify certification of a class. Rule 23(a) requires a plaintiff to show that the numerosity of the putative class makes joinder of all class members "impracticable." To satisfy this requirement, joinder need not be "impossible, " but "the difficulty or inconvenience of joining all members of the class [must] make use of the class action appropriate." Novella v. Westchester Cnty. , 661 F.3d 128, 143 (2d Cir. 2011) (citation omitted). Numerosity is presumed when a class consists of forty or more members. Consol. Rail Corp. v. Town of Hyde Park , 47 F.3d 473, 483 (2d Cir. 1995). Although courts do not require "evidence of exact class size or identity of class members to satisfy the numerosity requirement, " Robidoux v. Celani , 987 F.2d 931, 935 (2d Cir. 1993), a party seeking class certification must prove "there are in fact sufficiently numerous parties" to satisfy the Rule. Wal-Mart Stores, Inc. v. Dukes , 131 S.Ct. 2541, 2551 (2011). Siegel's putative class consists of all current and former Bloomberg SDRs who failed to receive overtime pay at a rate of time-and-one-half for hours worked over forty in one or more weeks. Siegel has presented no evidence as to how many Bloomberg SDRs actually worked overtime hours, but at most, thirty-three Bloomberg SDRs would be eligible to join this class action. This number is not sufficient to satisfy the numerosity requirement in this case. Cf. Davis v. Lenox Hill Hosp., No. 03 Civ. 3746 (DLC) , 2004 WL 1926086, at *5 (S.D.N.Y. Aug. 31, 2004) (potential class as high as 31 not sufficient).
Nor do other factors relevant to the practicability of joinder support certification of the proposed class in this case. Because a "[d]etermination of practicability depends on all the circumstances surrounding a case, " courts also look to considerations such as the "judicial economy arising from the avoidance of a multiplicity of actions, geographic dispersion of class members, financial resources of class members, [and] the ability of claimants to institute individual suits, " in determining whether the numerosity requirement has been met. Robidoux , 987 F.2d at 936. Courts are reminded, however, that "class action is an ...