Opinion
SUCV2013-04439-B
03-29-2015
Claudio Brando et al. on behalf of themselves and all others similarly situated v. Jan-Pro Franchising International, Inc. No. 129957
Filed April 1, 2015
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS
DENNIS J. CURRAN, Associate Justice.
This case presents a very narrow question of law for the Court. Do two cases, one decided in Georgia, and the other decided in the federal district court for the District of Massachusetts, preclude Claudio Brando and Rommel Lima from asserting the present claims against Jan-Pro Franchising International, Inc.? For the following reasons, the present claims are not precluded and Jan-Pro's motion to dismiss is DENIED.
Both parties devote considerable time and energy discussing the merits of the case and the correctness of the federal district court's decision. Since Jan-Pro has brought a motion to dismiss on res judicata grounds, this Is not the appropriate time to address the former, and this being the Massachusetts Superior Court and not the First Circuit Court of Appeals, this is not the appropriate forum to address the latter. At this procedural juncture, the Court disregards all such argument.
BACKGROUND
Jan-Pro is a nationwide cleaning company that sells franchises to " master franchisers" who in turn enter into contracts to sell franchises to individual " unit franchisees." In 2007, Jan-Pro filed suit in the Georgia Superior Court seeking a declaration that one of its unit franchisees, Giovanni Depianti, was not an employee under G.L.c. 149, § 148B. The Georgia Superior Court determined that Mr. Depianti was Jan-Pro's employee, but the Court of Appeals of reversed the decision. See gen. Georgia Jan-Pro Franchising Int'l, Inc. v. Depianti , 310 Ga.App. 265, 712 S.E.2d 648 (2011), cert. denied, Depianti v. Jan-Pro Franchising Int'l, Inc. , (Ga. Feb. 6, 2012).
In 2008, while the original Georgia action was pending, Mr. Depianti and two others filed a purported class action lawsuit in the federal district court for the District of Massachusetts alleging that Mr. Depianti and all others similarly situated were misclassified as independent contractors by Jan-Pro but were actually employees. The federal district court heard summary judgment argument after the Georgia appellate decision, and certified questions to the Supreme Judicial Court regarding how to properly apply the standards found in G.L.c. 149, § 148B. At that time, counsel for the plaintiffs moved to amend the complaint to substitute in Mr. Brando and Mr. Lima as the named plaintiffs to avoid a possible procedural bar. After the Supreme Judicial Court answered the certified questions, the motion to amend was denied, and summary judgment was allowed in favor of Jan-Pro on the G.L.c. 149 claim. Depianti v. Jan-Pro Franchising Int'l, Inc. , 39 F.Supp. 3d 112, (D.Mass. 2014). No class was ever certified in the federal case.
Neither Mr. Brando nor Mr. Lima had any connection to the Georgia or federal cases until that point.
Between the time that the Supreme Judicial Court answered the federal district court's certified questions and the time that summary judgment entered against Mr. Depianti, Mr. Brando and Mr. Lima brought the present purported class action asserting misclassification under G.L.c. 149, § 148B, and resulting violations of the Wage Act, G.L.c. 149, § 148.
DISCUSSION
The law of res judicata is substantially the same in Massachusetts, Georgia and the federal courts, and each state requires identity of the parties or those in privity in both the earlier and later suit. See Heacock v. Heacock , 402 Mass. 21, 23, 520 N.E.2d 151 (1988); Porn v. National Grange Mut. Ins. Co. , 93 F.3d 31, 34 (1st Cir. 1996); Waldroup v. Greene County Hosp. Auth. , 265 Ga. 864, 866, 463 S.E.2d 5 (1995). There is no question that Mr. Brando and Mr. Lima were not parties to either of the earlier actions. The federal case was an attempted class action, and putative class members are not generally bound by judgments when the class has never been certified. Cf. United States v. East Baton Rouge Parish School Bd. , 594 F.2d 56, 58 (5th Cir. 1979); Gonzalez v. Banco Cent. Corp. , 27 F.3d 751, 763 (1st Cit. 1994); Bittinger v. Tecumseh Prods. Co. , 123 F.3d 877, 886-87 (6th Cir. 1997); Longval v. O'Toole , (Mass.Super.Ct. 2005) (Billings, J.) (holding that the Massachusetts class action rules require res judicata be applied more narrowly in Massachusetts than in the federal court class actions).
The federal district court judge's opinion regarding the broader effect of his decision as a " test case" is irrelevant, as the class was not certified.
It is particularly clear here that Mr. Brando and Mr. Lima are not in privity with Mr. Depianti as they were merely putative class members, and they attempted to join the federal action as named plaintiffs but were prevented from doing so by the federal district court. Gonzalez , 27 F.3d at 762-63 (plaintiffs not barred by res judicata where they were prevented by the court from joining earlier lawsuit, earlier lawsuit never certified as a class action, and plaintiffs filed suit during pendency of earlier lawsuit). Res judicata is " based on the idea that the party to be precluded has had the incentive and opportunity to litigate the matter fully in the first lawsuit, " Heacock , 402 Mass. at 24. Here, where Messrs. Brando and Lima were prevented from themselves litigating, and no one actually litigating officially represented their interests, their claims are not precluded.
There is no merit to Jan-Pro's judicial estoppel argument, as that doctrine explicitly requires the party being estopped to have " succeeded in persuading a court to accept its prior position." Otis v. Arbella Mut. Ins. Co. , 443 Mass. 634, 641, 824 N.E.2d 23 (2005), citing Alternative Sys. Concepts, Inc. v. Synopsys, Inc. , 374 F.3d 23, 33 (1st Cir. 2004). Even if it had merit, that counsel sought to substitute in Mr. Brando and Mr. Lima only reinforces that they were members of the putative class, but does not suggest that they were in privity, absent certification of that class.
ORDER
For these reasons, the defendant's motion to dismiss is Denied.