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Vargas v. Howard

United States District Court, S.D. New York

January 10, 2018

JUAN VARGAS, individually and on behalf of all others similarly situated, Plaintiffs,


          Gregory H. woods United States District Judge


         Defendant 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.


         Call-A-Head 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.

         Mr. 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.


         On June 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 ¶¶ 153-61.

         Plaintiffs 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.

         Plaintiffs 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.' Reply”).


         “A 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.

         “Rule 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).

         “The 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 (S.D.N.Y. 2001)).

         V. DISCUSSION

         A. The Proposed Class Satisfies the Numerosity Requirement

         Plaintiffs 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 ...

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