United States District Court, S.D. New York
JUAN VARGAS, individually and on behalf of all others similarly situated, Plaintiffs,
CHARLES W. HOWARD and CALL-A-HEAD CORP., Defendants.
MEMORANDUM OPINION AND ORDER
Gregory H. woods United States District Judge
Call-A-Head Corp. (“Call-A-Head”) is a portable
toilet rental and service company. The company's portable
toilet service technicians (“PTSTs”) performed
manual labor cleaning portable toilets at worksites in New
York City, Westchester, and Long Island. As if their job
cleaning toilets was not challenging enough on its own, the
plaintiffs here allege that the defendants forced them to
work overtime hours for which they were not paid, in
violation of both federal and state labor laws. The Court
previously granted conditional certification of a collective
action pursuant to the Fair Labor Standards Act
(“FLSA”), and the plaintiffs now move for class
certification of their New York Labor Law
(“NYLL”) claims pursuant to Federal Rule of Civil
Procedure 23. Because the statutory prerequisites for class
certification are readily satisfied here, the plaintiffs'
motion for class certification is GRANTED.
is a portable toilet delivery and sanitation business. Dkt.
No. 32, First Am. Compl. (“Compl.”) ¶ 1. It
conducts its business throughout New York City and the
surrounding area. Much of the business' work is performed
by its squadron of PTSTs, whose responsibilities include
delivering, picking up, and cleaning portable toilets. Compl.
¶ 26. Defendant Charles W. Howard is the president,
chairman, and chief executive officer of Call-A-Head. He is a
hands-on manager and controls the schedules and pay of the
company's PTSTs. Compl. ¶ 13.
Vargas, together with the ninety-six additional PTSTs who
have opted into this suit (“Plaintiffs”),
describe a long litany of illegal policies and practices that
resulted in the PTSTs not being paid overtime as required by
law. It is not necessary to review them all in detail here.
Some examples of these common practices suffice. For
instance, Defendants are alleged to have paid PTSTs only for
the first ten hours worked per day, although they were
regularly required to work between twelve and fifteen hours
every day. Compl. ¶ 37. In addition, Plaintiffs allege
that Defendant Howard instructed PTSTs to only record their
time Monday through Thursday, despite often requiring Friday
and weekend work. Compl. ¶¶ 32-34. Plaintiffs
further allege that Defendants failed to provide each of its
employees with an annual notice pursuant to the Wage Theft
Prevention Act (“WTPA”), as they were required to
do since law took effect in 2011. Compl. ¶¶ 40-41.
30, 2015, Mr. Vargas brought this lawsuit against Defendants
Call-A-Head and Charles Howard. He amended his complaint in
August 2015. Dkt. No. 32. Defendants answered the amended
complaint and asserted counterclaims against Mr. Vargas and
“all other opt-in Plaintiffs” for breach of
fiduciary duty and conversion, alleging that the employees
“would steal time” from Defendants by not
performing work while driving and by “idling on [their]
route, ” effectively, in Defendants' view, stealing
their gasoline. Dkt. No. 60 (“Answer”)
¶¶ 145, 151. Defendants also asserted a
counterclaim against Mr. Vargas for defamation because of
statements made by him to a newspaper. Answer ¶¶
moved the Court to conditionally certify this action as a
FLSA collective action on behalf of a class of current and
former non-exempt employees who worked for Defendants since
June 30, 2009. On February 1, 2016, the Court granted
Plaintiffs' motion for conditional certification, and
authorized the mailing of a notice of pendency to potential
class members. Dkt. No. 100. Since then, ninety-six current
and former PTSTs have opted in to the FLSA collective action.
filed their motion for class certification on March 22, 2017,
seeking to certify a class of PTSTs dating back to 2009. Dkt.
No. 201 (“Pls.' Mot.”). Plaintiffs also seek
to certify a subclass of all members employed after April 9,
2011, when the WTPA's notification requirement came into
effect (the “WTPA subclass”). Defendants filed
their opposition on April 27, 2017. Dkt. No. 224
(“Defs.' Opp'n”). Plaintiffs filed their
reply on May 12, 2017. Dkt. No. 237 (“Pls.'
plaintiff seeking certification of a Rule 23(b)(3) class
action bears the burden of satisfying the requirements of
Rule 23(a)-numerosity, commonality, typicality, and adequacy
of representation-as well as Rule 23(b)(3)'s
requirements: (1) that ‘the questions of law or fact
common to class members predominate over any questions
affecting only individual members' (the
‘predominance' requirement); and (2) that ‘a
class action is superior to other available methods for
fairly and efficiently adjudicating the controversy' (the
‘superiority' requirement).” In re
Petrobras Sec., 862 F.3d 250, 260 (2d Cir. 2017)
(quoting Fed.R.Civ.P. 23(a) and (b)(3)). In addition to the
express requirements of Rule 23, the Second Circuit has
recognized an implied requirement that the class be
ascertainable, that is, “defined using objective
criteria that establish a membership with definite
boundaries.” Id. at 264.
23 does not set forth a mere pleading standard.”
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350
(2011). “The party seeking class certification bears
the burden of establishing by a preponderance of the evidence
that each of Rule 23's requirements have been met.”
Johnson v. Nextel Commc'ns Inc., 780 F.3d 128,
137 (2d Cir. 2015); see also In re Am. Int'l. Grp.,
Inc. Sec. Litig., 689 F.3d 229, 237-38 (2d Cir. 2012)
(“The party seeking class certification must
affirmatively demonstrate . . . compliance with the Rule, and
a district court may only certify a class if it is satisfied,
after a rigorous analysis, that the requirements of Rule 23
are met.”) (citation and internal quotation marks
omitted). “The ultimate question is not whether the
plaintiffs have stated a cause of action or will prevail on
the merits but whether they have met the requirements of Rule
23.” Gortat v. Capala Bros., 257 F.R.D. 353,
362 (E.D.N.Y. 2009) (citing Cortigiano v. Oceanview Manor
Home for Adults, 227 F.R.D. 194, 203 (E.D.N.Y. 2005)).
The same standards apply to the certification of subclasses:
“a court must assure itself that each subclass
independently meets the requirements of Rule 23.”
Ramirez v. Riverbay Corp., 39 F.Supp.3d 354, 362
(S.D.N.Y. 2014) (citations omitted).
Second Circuit has emphasized that Rule 23 should be given
liberal rather than restrictive construction, and it seems
beyond peradventure that the Second Circuit's general
preference is for granting rather than denying class
certification.” Espinoza v. 953 Assocs. LLC,
280 F.R.D. 113, 124 (S.D.N.Y. 2011) (quoting Gortat,
257 F.R.D. at 361). “Courts have wide discretion in
determining whether to certify a class, and where a
collective action under the FLSA that is based on the same
set of facts has been approved, there is an inclination to
grant class certification of state labor law claims.”
Lee v. ABC Carpet & Home, 236 F.R.D. 193,
202-203 (S.D.N.Y. 2006) (citing Ansoumana v.
Gristede's Operating Corp., 201 F.R.D. 81, 96
The Proposed Class Satisfies the Numerosity
must show that “the class is so numerous that joinder
of all members is impracticable.” Fed.R.Civ.P.
23(a)(1). Courts in this Circuit presume that the numerosity
requirement has been met when the putative class has at least
forty members. See Consol. Rail Corp. v. Town of ...