Opinion
NO. 2014-CA-001580-ME
06-19-2015
RICHARD POWELL; LARRY TIMMONS; AND RICHARD WHEELER, ON BEHALF OF THEMSELVES AND OTHERS SIMILARLY SITUATED AS A CLASS APPELLANTS v. JAMES MARINE, INC.; JAMES BUILT, LLC; PADUCAH RIVER PAINTING; AND JMI WICKLIFFE APPELLEES
BRIEF FOR APPELLANTS: John Frith Stewart Crestwood, Kentucky James W. Owens Paducah, Kentucky BRIEF FOR APPELLEES: Kenneth S. Handmaker Augustus S. Herbert Rebecca Grady Jennings Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE DENNIS R. FOUST, JUDGE
ACTION NO. 13-CI-00275
OPINION
AFFIRMING
BEFORE: J. LAMBERT, STUMBO AND THOMPSON, JUDGES. STUMBO, JUDGE: Richard Powell, Larry Timmons and Richard Wheeler, on behalf of themselves and others similarly situated, appeal from an Order of the Marshall Circuit Court denying their Motion to certify their complaint as a Class Action. Powell, et al., contend that the court erred in failing to conclude that the Appellants met their burden of demonstrating that a class should be certified under Kentucky Rules of Civil Procedure (CR) 23.01. We find no error, and AFFIRM the Order on appeal.
Plaintiffs/Appellants Powell, Timmons and Wheeler were welders employed by James Marine Inc. ("JMI") at its Paducah, Kentucky facility at various times from 1997 to 2009. JMI is a river vessel repair company. The record reveals that Powell was employed by JMI for 150 days, Timmons for 56 days and Wheeler for 66 days.
Powell was employed for additional days which fell outside the statute of limitations. --------
On June 17, 2013, Appellants filed the instant action against JMI and James Built, LLC alleging violations of wage and hour provisions contained in the Kentucky Wage and Hour Act at KRS Chapter 337. Specifically, the Appellants alleged that they were required to perform "off the clock" work in violation of the Act by being forced to arrive at the JMI parking lot 25 minutes before work began so they could walk approximately 2,400 feet from the parking lot to the "dock string". Appellants maintained that after arriving, they were required to go to the tool room and collect their tools and equipment, after which they went to the locker room to change into their work clothes. The corpus of their Complaint, Amended Complaint and Second Amended Complaint was that this work was required to be performed by 5:55 a.m., which constituted uncompensated work in violation of the Act. Their work day began at 6:00 a.m.
Additionally, the Appellants claimed that at the end of the work day, they had to wait until the horn blew before removing their tool buckets and other items, which were then carried to the tool room before going to the locker room. The Appellants alleged that they had to wait in line to clock out and then walk the approximately 2,400 feet back to their vehicles.
JMI strongly denied the claims, arguing that there was no policy requiring employees to engage in unpaid work before or after their shifts, that employees are not required to change clothes at work and can wear street clothing and other protective gear at work. Additionally, JMI tendered affidavits that welders are not required to stand in line to wait for equipment or to clock in, and that they are not required to pick up their tools or additional gear until after 6:00 a.m. when the foremen assign the daily work tasks. According to JMI, additional affidavits demonstrated that employees are given between 5 and 10 minutes before the end of their shifts to gather up tools and prepare to end the work day, and that employees receive overtime pay when working for more than 40 hours per week.
On November 27, 2013, the Appellants filed a Motion for Class Certification. The Appellants, who are all welders formerly employed by JMI, sought to be representatives for all welders employed by the Defendants/Appellees who the Appellants claimed were similarly situated. The matter continued until an oral argument was conducted on August 22, 2014. Thereafter, on September 15, 2014, the Marshall Circuit Court rendered an Order denying the Motion for Class Certification. As a basis for the denial, the court determined that the Appellants "have not met their burden with respect to the legal requirements pursuant to CR 23 to certify this case as a class action lawsuit." This appeal followed.
The Appellants now argue that the Marshall Circuit Court erred in denying the Motion for Class Certification. They direct our attention to CR 23.01, which sets out the four prerequisites of class certification, and contend that the Appellants are unclear which prerequisites were not satisfied because Judge Foust's Order does not give any detail. The Appellants further note that the issue before us was resolved without the benefit of trial and based on competing affidavits tendered by the respective parties. They go on to assert the veracity of their underlying claim, to wit, that the Appellees misinterpreted KRS Chapter 337, are liable for compensatory damages based on violations of the wage and hour provisions, that the court improperly relied on affidavits as a basis for denying the motion for certification, and that the Appellees improperly relied on an illegitimate Collective Bargaining Agreement. In sum, the Appellants seek an Opinion reversing the Order on appeal and remanding the matter with instructions to certify the class in this matter.
In 2013, a panel of this Court addressed the "legal morass" of class certification in Hughes v. UPS Supply Chain Solutions, Inc., 2013 WL 4779746 (Ky. App. 2013). That panel stated that,
In this Commonwealth, CR 23.01 and CR 23.02 govern class certification. CR 23.01 reads:
Subject to the provisions of Rule 23.02, one or more members of a class may sue or be
sued as representative parties on behalf of all only if (a) the class is so numerous that joinder of all members is impracticable, (b) there are questions of law or fact common to the class, (c) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (d) the representative parties will fairly and adequately protect the interests of the class.
And, CR 23.02 reads:
An action may be maintained as a class action if the prerequisites of Rule 23.01 are satisfied, and in addition:
(a) The prosecution of separate actions by or against individual members of the class would create a risk of
(i) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or,
(ii) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(b) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(c) the court finds that the questions of law or fact common to the members of
the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (i) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (ii) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (iii) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (iv) the difficulties likely to be encountered in the management of a class action.
Taken together, CR 23.01 and CR 23.02 provide a comprehensive scheme to navigate the legal morass of class certification. Under this scheme, a class may be only certified if the legal mandates outlined in both CR 23.01 and CR 23.02 are fulfilled. Under CR 23.01, there are four separate prerequisites that must be satisfied, and under CR 23.02, one of three conditions must be satisfied.
The four prerequisites of CR 23.01 are:
(1) "numerosity"—the class must be so numerous as to make joinder of all members impractical; (2) "commonality"—there must be common questions of law or fact; (3) "typicality"—the claims or defenses of representative parties must be typical of the class; and (4) "adequacy of representation"—the representative parties must fairly and adequately protect the interests of the class.
6 Kurt A. Phillips, Jr., David V. Kramer and David W. Burleigh, Kentucky Practice—Rules of Civil Procedure Annotated, CR 23.01 (6th ed.2005). And, the three
conditions of CR 23.02 are:
(1) the prosecution of separate actions would create a risk of inconsistent or varying adjudications affecting individual members of the class, which would establish incompatible standards of conduct for the party opposing the class, or would create a risk of adjudications with respect to individual members that as a practical matter either would dispose of the interests of those not parties or would substantially impair or impede their ability to protect their interests; or (2) the party opposing the class has acted in such a way that final injunctive relief or corresponding declaratory relief with respect to the class would be appropriate; or (3) the court finds that questions of law or fact common to the members predominate over questions affecting only individual members, and a class action is superior to other available methods for fair and efficient adjudication.
6 Kurt A. Phillips, Jr., David V. Kramer and David W. Burleigh, Kentucky Practice—Rules of Civil Procedure Annotated, CR 23.02 (6th ed.2005).
In practice, CR 23.01 and CR 23.02 create a two-step analysis for class certification. The first step requires a court to initially determine whether all four of the prerequisites of CR 23.01 are fulfilled. If any of the four prerequisites are not fulfilled, the court must deny class certification. On the other hand, if the court concludes that all four prerequisites of CR 23.01 are met, the court then proceeds to the second step and must determine whether one of the three conditions of CR 23.02 is satisfied. If none of the conditions of CR 23.02 is satisfied, class certification must be denied; however, if at least one of the three conditions is satisfied, the court must certify the class.
The review of a court's denial of class certification is examined for abuse of discretion. Id. at p. 3, citing Sowders v. Atkins, 646 S.W.2d 344 (Ky. 1983). Additionally, the burden rests with the Appellants to overcome the strong presumption that the trial court's rulings are correct. City of Jackson v. Terry, 302 Ky. 132, 194 S.W.2d 77, 78 (1946). In the matter at bar, the Appellants bear the burden of demonstrating that the trial court abused its discretion in denying class certification. They have not met this burden. The Appellants have not addressed the elements of CR 23.01, much less demonstrated that the trial court abused its discretion in determining that one or more of those elements were not satisfied. The Appellants have not shown that the class is so numerous as to make joinder impractical; that there are common questions of law or fact among the class; that the claims of the representatives are typical; nor that representative parties will fairly and adequately protect the interests of the class. The absence of any one of these elements is fatal to the formation of the class. Hughes, supra. Because the Order on appeal is presumed to be correct, City of Jackson, supra, and as the Appellants have not met the burden of proving an abuse of discretion in the denial of their motion for certification, we have no basis for finding error. The additional arguments asserted by the Appellants - such as their contention that the Appellees deliberately misinterpreted KRS 337.540 ("Limitation of working hours; exceptions; overtime"), and their claim that the Appellees are liable for compensatory damages based on violation of the wage and hour standards - have no bearing on the issue of whether the Marshall Circuit Court properly denied certification of the class. We therefore hold those arguments as moot.
For the foregoing reasons, we AFFIRM the Order of the Marshall Circuit Court denying the Appellants' Motion for Class Certification.
J. LAMBERT, JUDGE, CONCURS.
THOMPSON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
THOMPSON, JUDGE, DISSENTING: Respectfully, I dissent. I would remand this action to the trial court to make specific findings to support its denial of certification of class action. I believe the general finding by the trial court in support of its order is insufficient. Therefore, I would reverse. BRIEF FOR APPELLANTS: John Frith Stewart
Crestwood, Kentucky
James W. Owens
Paducah, Kentucky
BRIEF FOR APPELLEES: Kenneth S. Handmaker
Augustus S. Herbert
Rebecca Grady Jennings
Louisville, Kentucky