Opinion
CIVIL ACTION NO. 3:06-94
03-24-2009
BETH ANN BROTHERS, on behalf of herself and all others similarly situated, Plaintiff, v. PORTAGE NATIONAL BANK, Defendant.
MEMORANDUM ORDER
This matter comes before the Court on Plaintiff Beth Ann Brothers' motion for class certification, or alternatively, remand to state court (Doc. No. 45). The issues to be decided are relatively straightforward: whether any of the claims in this action meet the requirements for class certification, and also whether certain claims should be remanded to state court. Upon careful review, the Court answers both questions in the negative: first, none of the claims within this action meet the relevant requirements for class certification; second, there is no compelling reason to remand any claims to state court. Therefore, for all of the forthcoming reasons, the Plaintiff's Motion will be denied. I. Background
Pursuant to Federal Rule of Civil Procedure 78(b), the Court has considered the parties' submissions and decided the matter without oral argument.
A. Introduction
Defendant Portage National Bank ("Portage Bank" or "bank") employed Brothers for two years as a Supervisor and Teller at bank locations in Cambria County. Doc. No. 6, ¶ 6 Brothers assisted customers with various banking transactions, and was compensated at an hourly rate. Id. ¶¶ 17-18. Brothers alleges that she and other bank workers often worked in excess of their scheduled weekly hours. Id. ¶ 19. Brothers also alleges that Portage Bank failed to properly compensate its employees for this additional work. Id. Brothers further alleges that Portage Bank instructed her that when filling out time sheets, she must understate the actual time worked. Id. ¶ 20.
B. Procedural History
On April 11, 2006 Plaintiff filed a Complaint in the Court of Common Pleas of Cambria County, Pennsylvania. Doc. No. 1, ex. 1. On behalf of Brothers herself, and other similarly situated individuals, this Complaint alleged claims under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. ("FLSA"), the Pennsylvania Minimum Wage Act, 43 Pa. Cons. Stat. § 333.101 et seq. ("PMWA"), and the Pennsylvania Wage Collection Law, 43 Pa. Cons. Stat. § 260.3 ("PWCL"). Doc. No. 1, ex. 1. On April 21, 2006, Portage Bank removed the action to this Court under 28 U.S.C. §1367. Doc. No. 1. On June 9, 2006, Portage Bank moved to dismiss the claims, or alternatively for a more definite statement. Doc. No. 4. Brothers amended her Complaint on June 29, 2006, and again on July 13, 2006. Doc. Nos. 5 and 6. Essentially, in addition to averments regarding potential class action status, Plaintiff's Second Amended Complaint set forth three claims, summarized concisely as follows:
Count I: that Portage Bank violated the FLSA by failing to pay Brothers and other employees compensation for working in excess of forty hours in a week;
Count II: that Portage Bank violated Pennsylvania law by not paying Brothers and other employees overtime wages for hours worked in excess of forty in a week; and
Count III: that Defendant violated Pennsylvania law by not paying Brothers any compensation whatsoever for hours worked, but not recorded.
Portage Bank then answered portions of the Second Amended Complaint, while seeking to dismiss other portions. Doc. Nos. 10 and 13. The parties filed numerous documents in support of and in opposition to this motion to dismiss. In a Memorandum Opinion and Order issued March 29, 2007, this Court granted portions of the Motion to Dismiss, while denying other portions. Doc. No. 32. The Court dismissed portions of the complaint where both federal and state law claims overlapped, meaning that the differing procedural regimes of Rule 23 and the FLSA would cause friction. The Court dismissed Brothers' state law claims that essentially mimicked FLSA claims.
As to the FLSA claims, the Court held that Brothers' pleadings met the light motion to dismiss standard and thus Plaintiff was entitled to file a motion for class certification. Because FLSA does not create liability for "gap-time wages", Brothers was permitted to pursue Count III, her Pennsylvania law claims for nonpayment for hours worked during a forty hour workweek as long as the requirements for supplemental jurisdiction were otherwise met. The Court found that the procedures dictated by Rule 23 and § 216(b) were only incompatible to the extent Plaintiffs' state law claims coincided with the FLSA action. Therefore, the Court dismissed Count II, which had alleged a claim under Pennsylvania law regarding non-payment of overtime wages; the Court found this claim overlapped too heavily with the FLSA claim. The Court further explained that Brothers may pursue class certification of her FLSA claims under the opt-in procedure set forth in 29 U.S.C. §216(b), and certification of her Pennsylvania claims for gap time wages under the opt-out procedures set forth in Rule 23. While somewhat ambiguous in the Court's order, and currently disputed by the parties, the language of the Court's Order seemed to lead the Plaintiffs to believe that the matter had received "conditional certification" that would allow limited discovery, followed by a second stage of more penetrating certification review. The Court also expressly held open the possibility of remanding the state law claims if, for instance, discovery revealed that the state-law claims predominate over the FLSA action. Doc. No. 32.
In sum, the claims remaining for eventual adjudication, and representing the present basis for consideration of class certification, are as follows:
Count I: Brothers asserts that Defendant "has violated 29 U.S.C. §§ 207(a) and 215(a)(2) by failing to pay Plaintiff and similarly situated employees. . . compensation required by the [FLSA] for work weeks in which the employees worked in excess of forty hours." Doc. No. 6, ¶ 28. Count I also alleges that Defendant "violated 29 U.S.C. §§ 211(c) and 215(a)(5) by deliberately failing to make, keep, and preserve true and accurate records of the daily and weekly hours worked by, and wages paid to Plaintiff and other similarly situated employees . . . ." Id. ¶ 31. This claim will be referred to as Plaintiff's overtime claim.
Count III : Brothers alleges that "Portage violated 43 P.S. § 260.3 by not paying Ms. Brothers and similarly situated employees . . . any compensation whatsoever for hours worked but not recorded in many work weeks while employed by Portage." Id. ¶ 39. "Ms. Brothers and similarly situated employees of Portage, were entitled to be paid compensation at their contractual hourly rates . . . ." Id. ¶ 38. This claim will be referred to as Plaintiff's gap-time claim.
C. Facts Relevant to the Motion under Adjudication
Brothers alleges that she, and other similarly situated bank workers, were required to perform unpaid work before clocking in the morning, during lunch, at the end of the work day, and at home. Doc. No. 43, p. 4. According to Brothers' allegations, she was instructed by her manager to be present at 8:15 a.m., but did not begin recording time until between 8:30 and 8:37. Id. at 4. However, other bank employees state in sworn documents that the time period from arrival to clocking in was very small, and that they were not instructed to wait until a set time to clock in. See Doc. No. 48, pp. 20-22; see also Doc. No. 43, p. 6. As a factual finding, the Court notes that Plaintiff's brief occasionally sets forth suspect summations of the deposition testimony. For instance, Plaintiff's brief avers that Brothers, Sally Burke and Irene Minor "all testified that they were required to report to work fifteen minutes before they clocked in . . . ." However, Minor testified that she was told to be at work at 8:45, and that tellers normally began recording their time between 8:50 and 9:00 A.M. R. 182-83; R. 186-87. Coming into work at 8:45 A.M., while possibly clocking in by 8:50 A.M., does not signify the presence of a bank-wide "requirement" that tellers report fifteen minutes prior to clocking in, as Plaintiff seems to argue.
Brothers further alleges that she, and similarly situated employees, were required to perform customer service tasks during her lunch period, a time when she was off the clock. Doc. No. 43, p. 7. Brothers characterizes this as a function of the bank's two-ring policy, which required that all phone calls be answered within two rings. Id. However, other bank employees state in sworn documents that they did not work during the lunch hour, simply allowing on-duty employees to answer phones. Doc. No. 48, p. 23.
Third, Brothers alleges that she was required to complete Bankers Edge tests while at home or otherwise off the clock. Doc. No. 43, p. 8. However, other bank workers state in sworn documents that they completed such exams during work hours, and were never instructed not to do so. See Doc. No. 48, pp. 24
Finally, Brothers alleges that she was occasionally required to work past closing time without being able to record her time. Doc. No. 43, p. 10. Another bank employee, Minor, testified that she would occasionally record her post-closing time hours, but this was limited by her being instructed to only record a set number of hours per week. Doc. No. 43, p. 10. Other bank tellers testified that they left work essentially immediately after clocking out, and where work was performed after a clock-out, the time was appropriately adjusted. See, e.g., Doc. No. 57, p. 3.
Brothers estimates that her damages for non-payment of wages are $2722.15. Doc. No. 43, p. 17. It is unclear whether this amount of damages comes from a carefully constructed diary of daily activity kept by Brothers during the course of her employ, or from an ex post facto statistical estimation based upon various memories of possible events.
In general, the Court found that testimony as to numerous issues in this matter was frequently vague and inconclusive, which is a definite stumbling block for Plaintiff's efforts at certification, given that she bears the burden of making certain showings necessary for certification, as discussed infra. See, e.g., R. 235-36.
D. Parties' Arguments Regarding Certification
After conducting some preliminary limited discovery, Brothers moves the Court for an order certifying her overtime claims on behalf of herself and others similarly situated as a "collective action" under the FLSA. Doc. No. 44. Essentially, Brothers alleges, on behalf of herself and others similarly situated, that Portage Bank violated the FLSA by failing to pay Brothers and other employees compensation for working in excess of forty hours in a week. Additionally, Brothers alleges that Portage Bank violated state law by failing to pay appropriate wages for time actually worked, but not recorded. In support of these requests, Brothers offers her own assessments of her experiences working at Portage Bank, and also testimony from two other workers, Minor and Burke. As to the class certification issue, Brothers argues that she is similarly situated to other potential claimants, and that fairness and procedural factors "lend themselves to class treatment." Doc. No. 43, p. 21. II. Analysis of Class Certification Request
A. Whether to Adjudicate Brothers' FLSA Claim as a Collective Action
The FLSA requires employers to pay employees at least the minimum wage for all hours worked; furthermore, overtime hours must be paid at a rate of not less than one and one-half times the employee's regular rate. 29 U.S.C. § 207(a)(1).
Brothers petitions to proceed upon her FLSA claims on a collective basis. To state a collective action under the FLSA, all class members must be similarly situated, and members must affirmatively consent to join the action. 29 U.S.C. § 216(b). In relevant part, Section 216(b) states:
An action . . . may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.29 U.S.C. § 216(b). A collective action under the FLSA differs from a class action under Rule 23. One such difference is that a potential plaintiff must opt in to be included in an FLSA collective action. 29 U.S.C. § 216(B) ("No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought."). Collective actions and class actions also bear many similarities, and the terms are frequently used interchangeably in opinions. See Ruehl v. Viacom, Inc., 500 F.3d 375, 379 n. 3 (3d Cir. 2007) ("Most courts, ours included , have not been methodical in their use of the terms 'class action' and 'collective action.' The result is that numerous cases about FLSA 'collective actions' use the Rule 23 term 'class action.'").
Importantly, prior to a district court's authorizing a collective action, the named plaintiff must show that she is "similarly situated" to the employees she hopes to represent. Unfortunately, the FLSA does not define "similarly situated." Furthermore, neither the Third Circuit nor the Supreme Court provides a precise definition. Nonetheless, district courts within this Circuit have established a two-step process for making this determination. The first stage utilizes a fairly lenient standard and assesses the question for purposes of allowing further discovery. Smith v. Sovereign Bancorp, 2003 WL 22701017, at *2 (E.D. Pa. Nov. 13, 2003). The second stage involves a more piercing analysis. Pontius v. Delta Financial Corporation, 2005 WL 6103189, at *3 (W.D. Pa. June 24, 2005). While, as stated above, the parties seem to disagree as to what stage we are in, the Court notes the following: Plaintiff moved for class certification (not conditional certification), and some discovery has taken place. Therefore, the Court will now make its final certification decision.
The determination of the "similarly situated" issue consists of a "specific factual analysis of each employee's claim to ensure that each proposed plaintiff is an appropriate member of the collective action." Lugo v. Farmer's Pride, 2008 WL 638237, at *2 (E.D. Pa. Mar. 7, 2008). Furthermore, plaintiff must demonstrate a factual nexus between her situation and the situation of other current and former bank employees. See Aquilino v. Home Depot, Inc., 2006 WL 2583563, at * 1 (D.N.J. Sept. 7, 2006). The Third Circuit suggested the looking at the three following questions could be helpful used in the analysis: 1) whether the proposed plaintiffs work in the same department, division or location; 2) whether the proposed plaintiffs advance similar claims, and 3) whether the proposed plaintiffs seek substantially the same form of relief. Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 51 (3d Cir. 1989) (overruled on other grounds). Importantly, the named plaintiff has the burden to show that she and the proposed class are "similarly situated." Saxton v. Title Max of Ala., 431 F. Supp. 2d. 1185, 1188 (N.D. Ala. 2006).
1. Plaintiff Has Not Adduced Sufficient Evidence of a Single Policy or Plan to Overcome Likely Differences in Work Sites, Employee Habits, and Specific Management Practices
In this matter, Plaintiff has not presented legitimate evidence of a single policy or plan that permeated all of the Portage Bank offices. Instead, Plaintiff only offered the statements of three employees, and the apparent guess that "All of the issues raised by Plaintiffs were apparently the result of a single policy or plan." Doc. No. 43, p. 21. Absent some shred of evidence, or even a direct accusation, that Portage Bank implemented a single policy or plan that encouraged or required off-the-clock work, Brothers' ambitions to turn her FLSA claims into a collective action are mortally wounded. It may well be that Brothers' particular managers conducted business in a manner that violated FLSA requirements; however, where only a small number of employees suffered injury due to a small number of managers at a small number of sites, such is likely insufficient to merit a collective action.
In any work situation, no matter the efforts of an employer, at least some employees will become disaffected. Such disaffection, especially where caused by matters not actionable under the law, may create some credibility issues.
Furthermore, the specific type of the proof required for Brothers' claims does not lend itself to comparability and mass analysis. Brothers essentially argues that she is entitled to overtime payments due to extra work that was required of her before clocking in, during lunch, after clocking out in the evenings, and at home, However, there is scant evidence that other putative collective action members behaved similarly during lunch or at home, or faced similar requirements. In particular, the Court has before it numerous affidavits of employees who assert that as employees of Portage Bank, they completed all tests during work hours, never worked during lunch, and typically clocked in within moments of arriving at work. See Doc. Nos. 49-70. Furthermore, Plaintiff herself fails to argue that she was required to take such tests at home; rather, she states in her brief: "Every witness testified that during their initial training and through e-mails from management they were told that they must complete each of the Bankers Edge Tests by a specific deadline, and they could take these tests either at work, at lunch period or at home . . . ." Doc. No. 43, p. 21 (emphasis added). This averment, rather than strengthening Brothers' claim, actually establishes the voluntary nature of completing the exams during off-the-clock time.
Nonetheless, the affidavits on the record are obviously not dispositive of anything as to the merits of Brothers' claim, or really to the merits of certain other potential opt-in class members; however, upon review of the employees' numerous sworn statements, the Court finds that Brothers has not showed sufficient proof that she is similarly situated to other Portage Bank employees. First, Brothers only worked at three locations, under a limited number of managers; it is certainly possible that Brothers had a uniquely antagonistic relationship with these managers, or that Brothers exhibited peculiar work habits that were not common among tellers. Additionally, by the nature of individualized work habits, other bank employees may not have worked during lunch or at home, as Brothers claims that she did. The Court acknowledges that as to the issue of morning time, Brothers is potentially similarly situated to other employees. However, that alone does not carry sufficient weight given the other dissimilarities. Even this morning time claim, seemingly Brothers' strongest, is not consistently extant across the class of potential employees, as shown by the testimony and affidavits presented. Brothers' assertion that every employee suffered fifteen minutes of unpaid time at every branch, every day, simply does not conform with the sworn assertions from numerous affiants. See Doc. No. 43, p. 21; see, e.g., Doc. No. 50, ¶ 5 (swearing that employees clocked in within a matter of minutes, no more than five, upon arriving at work).
Most damaging is that Brother presents no reliable evidence or even the direct accusation that Portage Bank had a single, conclusive plan that governed the behavior of employees, and inevitably caused them to work overtime hours without payment.
As another example, Brothers complains of the "two-ring" policy at work, which required employees to answer a phone within two rings. Doc. No. 43, p. 7. Brothers alleges that this policy caused her to frequently work during lunch hours. However, Brothers makes no allegations that her apparent penchant for top-notch customer service, evidenced in her willingness to answer the phone during a lunch break, was not an individualized and/or voluntary circumstance. She does not state that it was Portage Bank's policy that even workers on lunch break must answer a phone in accordance with the two-ring policy. In fact, other Portage Bank workers testified that they ignored phone rings during lunch, allowing other on-duty employees to respond to calls. See, e.g., Doc. No. 49. Brothers' other justifications for her claim similarly fall short of the type of uniform plan or systematic employer action that would justify or make efficient a collective action under FLSA.
Additionally, Brothers must show evidence that others similarly situated not only exist, but also would actually seek to join this lawsuit. See Home v. United Auto. Ass'n, 279 F. Supp. 2d 1231, 1236 (M.D. Ala. 2003). In this matter, Plaintiff presents evidence that include the depositions of Minor and Burke. However, such testimony does not appear to include any averments that Minor or Burke intend to opt-in to a FLSA collective action.
Nonetheless, even if Minor and Burke were to opt-in, an FLSA opt-in collective action still requires a certain number of employees. Courts have not established a precise number that is requisite. However, the District Court of Minnesota, aptly analyzing the question of whether to certify an FLSA collective action, declared that two employees was simply not enough. Parker v. Rowland Express, Inc., 492 F. Supp. 2d 1159, 1165 (D. Minn. 2007). In assessing the case sub judice, the Court believes that three is similarly not enough. Plaintiff has not alleged that more individuals would join such a class, and in this matter, three employees does not justify a collective action. Should any other employee feel motivated to sue Portage Bank over non-payment of overtime, each such employee is free to file an individual action. Therefore, for all of the above reasons, including insufficient evidence that Brothers was similarly situated to others at work, and insufficient evidence that others would actually opt-in to the suit should certification be granted, the Court hereby denies the motion for certification as to the FLSA claims.
2. Plaintiff's Arguments Regarding Improper "Exempt" Status of Job of "Customer Service Supervisor"Further Illustrate the Impropriety of Certifying an FLSA Collective Action
Plaintiff confusingly dedicates some pages in her brief to attempting to show that Brothers was misclassified in her supervisor position, in that her duties remained that of a teller. This may well be, but the Court cannot understand how the analysis of the propriety of an exempt classification is anything but an individualized determination as to each employee so classified. The fact intensive nature of such individualized determinations are the hallmark of individual actions, not collective actions. As before, Portage Bank employees who feel that they were inappropriately classified as exempt, and are due overtime wages thus unjustly withheld, are welcome to file their own actions; however, the Court finds none of the cost-saving purposes or other benefits of collective actions under the FLSA on these claims; therefore, Plaintiff's class certification claims for all matters under the FLSA are hereby denied.
B. Whether to Adjudicate Brothers' State Law Claim as a Class Action
Brothers's remaining state law claim, her gap-time claim, is that Portage Bank violated Pennsylvania law by not paying Brothers any compensation whatsoever for hours worked, but not recorded. Plaintiff argues that "Ms. Brothers and similarly situated employees of Portage, were entitled to be paid compensation at their contractual hourly rates . . . ." Id. ¶ 38. Portage Bank responds with the argument that Brothers' claim does not meet any of the procedural requirements necessary for class certification.
1. Consideration of Rule 23 Factors
The essential purpose of this class certification decision is to assess the necessity and efficiency of adjudicating claims as a group. Without sufficient issues in common, handling claims as a class action would accomplish nothing more than creating unnecessary procedural complications. See Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir. 1994). Class actions premised upon state law operate under the procedures of Federal Rule of Civil Procedure 23, which differ fundamentally from those prescribed by the FLSA in that they require class participants to opt-out rather than opt-in. Fed. R. Civ. P. 23. In a recent opinion, the Third Circuit emphasized the rigor that should be applied to analysis under Rule 23. In re Hydrogen Peroxide, 552 F.3d 305, 309 (3d Cir. 2008) (explaining that class certification is appropriate only where "the trial court is satisfied, after a rigorous analysis, that the prerequisite of Rule 23 are met.").
In determining whether to certify a class, this Court must thoroughly examine the factual and legal allegations contained in the complaint. Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 166 (3d Cir. 2001). Furthermore, this Court must resolve factual or legal disputes relevant to the class certification, even if such determinations overlaps somewhat with the merits of the matter. Hydrogen Peroxide, 552 F.3d at 317. Furthermore, a court may "'consider the substantive elements of the plaintiffs' case in order to envision the form that a trial on those issues would take . . . .'" Id. (quoting Newton, 259 F.3d at 166). In essence, this Court is directed to assess numerous aspects of the potential proceedings in determining the propriety and wisdom of class certification.
A hopeful proponent of a class certification request must satisfy two sets of requirements: those set forth in Rule 23(a) and those in Rule 23(b). Manual for Complex Litigation, Fourth, § 21.131. Rule 23(a) states four essential requirements for class certification: 1) numerosity; 2) commonality, 3) typicality; and 4) adequacy. Fed. R. Civ. P. 23. Rule 23 states in relevant part:
(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
Fed. R. Civ. P. 23(a)(1)-(4). Rule 23(b) permits class actions under certain specified conditions, but only if the action first satisfies Ruler 23(a)'s prerequisites. See Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir. 1994) (explaining that to obtain class certification, a plaintiff must meet all four requisites of Rule 23(a) and at least one part of Rule 23(b)); see also Newton v. Merrill Lynch, Pierce, Fenner & Smith, 259 F.3d 154, 182 (3d Cir 2001); Manual for Complex Litigation, Fourth, § 21.131. Because all four requirements of Rule 23(a) must be met, the Court will first consider these prerequisites before proceeding, if necessary, to a discussion of Rule 23(b).(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.
a. Numerosity Requirement
Rule 23(a)(1) requires that the proposed class be sufficiently numerous so that joinder of all member is impracticable. Fed. R. Civ. P. 23(a). This requirement is not frequently litigated, likely due to the typical economics driving class actions. Given the high necessary inputs in terms of attorney labor, motions for class certification for a relatively small potential class simply do not occur frequently. Nonetheless, in this matter, the numerosity issue looms large.
See Richard A. Nagareda, Aggregate Litigation Across the Atlantic and the Future of American Exceptionalism, 62 Vand. L. Rev. 1, 30 (2009) (discussing the policy behind class actions and the process by which aggregate litigation "dramatically enabl[es]" claims that are not marketable on an individual basis).
The Third Circuit suggested that if the potential number of plaintiffs exceeds forty, the numerosity factor is satisfied. Steward v. Abrahami, 275 F.3d 220, 226-27 (3d Cir. 2001). Indeed, both parties seem to agree that forty is a bottom threshold or "magic number." The Court does not believe that numerosity analysis depends upon any sort of magic number; instead, the analysis must be an holistic assessment of the individual facts and circumstances of the matter, with the focus of deciding foremost whether joinder is impracticable, and also generally whether the policy goals of class action procedures will be vindicated given the likely number of members of the class. While Plaintiff alleges that the class could be fifty, this number appears to be based only on assumptions that the Court finds nebulous. Doc. No. 6, ¶ 43. Portage Bank asserts that the total number of customer service employees that ever worked during times relevant to this lawsuit is forty-one (41). Furthermore, Portage Bank presented fourteen (14) affiants that plainly have no interest in or justification for joining a class as Brothers proposes. Therefore, the Court finds that even taking Brothers' high estimate of fifty, and subtracting known individuals with no claim, that leaves only thirty-six potential members of the class. The Court further believes that the actual number within the proposed class would be far fewer. Therefore, the court finds that the numerosity requirement is not met; without greater numbers, the policy considerations that favor class actions do not sufficiently justify the effort. In short, Brothers has not satisfied the Court that joinder is impracticable.
Because a plaintiff seeking class certification must meet all four factors of Rule 23(a), Plaintiff's failure to meet the numerosity requirement dooms her motion for class certification. Nonetheless, the Court, for the sake of thoroughness, will analyze the remaining factors.
b. Commonality and Typicality Requirements
While separate in the rule, the Court discusses these two requirements in tandem due to its observations that when considering these two factors, judicial analyses often run together. Fed. R. Civ. P. 23(a)(2)-(3). In essence, the commonality requirement is met if issues "turn on questions of law applicable in the same manner to each member of the class." Gen. Tel. Co. of the S.W. v. Falcon, 457 U.S.147, 155 (1982). As for typicality, the inquiry peers into the Plaintiff's individual circumstances, and the relating legal theories, to see if they materially differ from the circumstances and theories upon which the class members' claims will be based. See Eisenberg v. Gagnon, 766 F.2d 770, 786 (3d Cir. 1985). While "typical" obviously does not mean "identical", the typicality requirement cannot be met where individualized fact inquiries are required for every prospective plaintiff. See Bond v. Nat'l City Bank of Pa., 2006 WL 1744474, at *4 (W.D. Pa. 2006); see also Newton, 259 F.3d at 172 (explaining that where proving an essential element of a cause of action requires individualized inquiry into facts, a court may deny certification).
In this matter, the Court again returns to the sum of the evidence before it, meaning all the Plaintiff's allegations as well as the discovery evidence adduced before the Court. As for commonality, the Court finds, as previously mentioned, that the specific nature of fundamental and necessary elements of these claims requires individualized analysis to a greater extent than most matters deemed suitable for class treatment. For instance, proceeding as a class would require an individualized determination of how much time a particular employee spent actually working during a lunchtime, or whether that employee took tests at home or at work. Frankly, exercising the license to peer into the merits, as expressly approved in Hydrogen Peroxide, 552 F.3d at 317, the Court believes that Brothers' individualized circumstances are likely substantially different from others in the putative class. The strongest possible support for the commonality and typicality prongs is that across Portage Bank's offices, workers' computers took some time to boot up, thus preventing them from clocking in upon arrival. Even on this matter, the testimony of various employees differs widely. While all employees acknowledge that it took some amount of time to get clocked in, many suggest that such time was de minimis. This suggests that Brothers' claims may not be typical of others in a potential class. Essentially, the Court does not believe that administering such claims as class claims is prudent, given the complete dependence for possible relief upon individualized circumstances and behaviors.
c. Fair and Adequate Representation Requirement
The final requirement of Rule 23(a) is that Brother be a fair and adequate representative of the rights of the class whom she seeks to represent. This requirement protects the due process rights of absent class members. In re Gen. Motors Corp., 55 F. 3d 768, 785 (3d Cir. 1995). This prong depends in part upon the qualifications of the plaintiff's counsel and the lack of antagonism between plaintiff's interests and those of the class. Vanderbilt v. Geo-Energy, Ltd., 725 F.2d 204, 207 (3d Cir. 1983) (citing Lewis v. Curtis, 671 F.2d 779, 788 (3d Cir.1982)). The Court has no reason to believe that Plaintiff's counsel is not competent, experienced and professional; furthermore, despite Brothers' previous involvement in litigation against Portage Bank, the Court also has no reason to believe that her interests would necessarily be antagonistic toward the class. Therefore, Brothers does not necessarily fail to meet this factor; however, such does not save her attempt at certification because all four factors must be met.
2. Conclusion: State Law Claims are not Appropriate for Class Certification under Rule 23
Because the Court finds that the potential state claims in this action do not meet the Rule 23(a) prerequisites, there is no compelling need to analyze at length the criteria of Rule 23(b). Nonetheless, as an alternative basis for this decision, and following recent guidance from the Third Circuit, this Court finds that this proposed class certification does not meet the predominancy requirement of Rule 23(b)(3), given that this predominance requirement, which tests the cohesiveness of a proposed class, is "far more demanding" than the commonality requirement. Hydrogen Peroxide, 552 F.3d at 311 (3d Cir. 2008) Essentially, the Court finds that questions of law or fact common to members of the class simply do not predominate over questions affecting only individual members. Consequently, certifying the class would not advance "the efficiency and economy of litigation which is a principal purpose of the procedure." Gen. Tel. Co. of the S.W., 457 U.S. at 159. In other words, a class action is not a superior method to others available for resolving the underlying controversies. Therefore, the Plaintiff's Motion to Certify is denied as to any state law claims subject to the procedural requirements of Rule 23.
III. Plaintiff's Alternative Request for Remand
The Court's previous Opinion discussed the Court's willingness to reconsider the wisdom of retaining supplemental jurisdiction over state law claims. Doc. No. 32, p. 11. The exercise of jurisdiction over state law claims under 28 U.S.C. §1367(a) is discretionary. However, given the course of the above analysis, such a reconsideration is not necessary. State law issues do not predominate here; furthermore, there are no novel and complex issues of state law. See Keeley v. Loomis Fargo & Co, 11 F. Supp. 2d 517, 520-21 (D.N.J. 1998). Therefore, the Court refuses to remand any claims whatsoever, and will retain jurisdiction over this dispute on the basis of removal jurisdiction pursuant to 28 U.S.C. § 1441(a). IV. Conclusion
In conclusion, the Court notes that aggregate litigation, whether in the form of a collective action under the FLSA or a class action under Rule 23, has great potential to advance numerous societal and jurisprudential interests. However, in this matter, the dynamics of the relevant policy and law, as applied to these circumstances, militate against aggregation. The Court does not believe that certifying a class action will necessarily lower the costs to potential plaintiffs, as the small number of potential claimants precludes realization of proper economies of scale. Furthermore, Plaintiff has not shown, given the small number of potential claimants, that joinder is impracticable. The legal issues that would be relevant in individual actions would be easily disposed; however, the factual arguments in such actions would be consuming and contentious. In other words, common questions do not predominate over individual questions. Essentially, this matter is not appropriate for efficient resolution in one proceeding. Furthermore, the Court questions whether Brothers herself would be an adequate representative for such a class. In short, the Court does not believe that the disputes underlying this matter should be handled on a class basis; as mentioned previously, though, potential claimants who believe that their rights have been violated under either federal law or Pennsylvania law likely have numerous alternative avenues through which to obtain remedy.
Therefore, for all of the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff's Motion (Doc. No. 45) is DENIED.
BY THE COURT: March 24 , 2009
/s/ _________
KIM R. GIBSON
UNITED STATES DISTRICT JUDGE