Opinion
CASE NO. 09-21814-CIV-JORDAN.
December 30, 2010
ORDER ADOPTING REPORT AND RECOMMENDATION DENYING MOTION FOR CLASS CERTIFICATION
Upon de novo review of the record, including the objections filed by the plaintiffs, I ADOPT Magistrate Judge McAliley' report and recommendation on plaintiff's motion for class certification and orders on related motions [D.E. 248]. Accordingly, the plaintiffs' motion for class certification [D.E. 141] is DENIED.
The plaintiffs raise four objections to the report and recommendation. None of the objections or arguments raised by the plaintiffs, however, show that class certification is appropriate here.
Although the plaintiffs state that they also object to the report's findings that the proposed class did not satisfy the requirements of Rule 23(b)(1)(B) [D.E. 256 at 3], the plaintiffs never explain how or why they object. The only argument pushed by the plaintiffs concerning the requirements of Rule 23(b)(1)(B) is that, "if this matter is not certified as a class action, there could be as many as 460 separate lawsuits, reaching varying adjudications on key issues" [D.E. 141 at 25]. Yet Eleventh Circuit law is clear that "the possibility that an action will have either precedential or stare decisis effect on later cases is not sufficient to satisfy Rule 23(b)(1)(B)." In re Dennis Greenman Sec. Litig., 829 F.2d 1539, 1546 (11th Cir. 1987). The plaintiffs have thus not shown that certification is proper under Rule 23(b)(1)(B).
First, the plaintiffs object to the report's concerns that the plaintiffs may not adequately represent the class members as Rule 23(a)(4) requires. Although Judge McAliley noted that she had concerns about the plaintiffs' adequacy, she did not rule on the specific issue. And Judge McAliley correctly noted that eleven of the putative class representatives provided no information about themselves and hence have not shown that they would adequately prosecute the class action. The plaintiffs added affidavits by three of the eleven missing putative class members, but no evidence suggests that the other eight putative class members would adequately represent absent class members. Regardless, certification is inappropriate for the other reasons mentioned in the report and recommendation.
The plaintiffs' second objection — that the common issues of law and fact predominate all individualized questions of fact — is more complex but nonetheless misses the mark. In their second objection, the plaintiffs note the common issues in this case: that NCL allegedly engaged in a fleet-wide practice of assigning senior stateroom stewards unreasonable amounts of work in an unreasonable time frame. These common issues, the plaintiffs contend, predominate the individualized issues. Like Judge McAliley, I disagree.
It is true that, as the plaintiffs argue, the proposed class would share many issues of fact and law. But, "[w]here, after adjudication of the classwide issues, plaintiffs must still introduce a great deal of individualized proof or argue a number of individualized legal points to establish most or all of the elements of their individual claims, such claims are not suitable for class certification under Rule 23(b)(3)." Klay v. Humana, 382 F.3d 1241, 1255 (11th Cir. 2004) (emphasis added). Here, even after they prove the legal and factual issues that they share, the plaintiffs must introduce an overwhelming amount of individualized proof.
Assume that the plaintiffs prove that NCL had a fleet-wide practice of assigning stateroom stewards an unreasonable amount of work in an unreasonable amount of time. Assume that the plaintiffs further prove that the stewards all have the same collective-bargaining agreement with NCL. That is, the plaintiffs prove all factual and legal issues shared by the class members. But assume, as well, that one or more hypothetical class members never needed helpers to do their job. These hypothetical class members, rather, completed their assignments on their own. The plaintiffs cannot (and do not) contest that, in that scenario, NCL is not liable to the hypothetical class members. After all, the hypothetical class members never lost wages.
Or imagine instead that the hypothetical class members hired helpers for personal reasons unrelated to NCL's practice of assigning an unreasonable amount of work. For example, the hypothetical class members hired relatives as helpers because they needed the money. The hypothetical class members could have done the work on their own but preferred to help relatives in need. Again, in this situation, because NCL's policy did not cause the hypothetical class members' wage decrease, no liability arises.
And yet another possibility exists. It is possible that sometimes the stewards hired helpers because they could not finish their work in the allotted time, but that at other times the same stewards hired helpers for personal reasons. At that point, the parties would need to take discovery on what percentage of the time each individual steward hired a helper for personal reasons and what percentage of the time each individual steward hired a helper because of necessity.
In addition, NCL has shown that some stateroom stewards did not hire any helpers and that some stateroom stewards hired helpers for personal reasons. For every class member, then, the parties would have to take discovery on whether the class member hired a helper. And, if the class member hired a helper, the parties would need to discover why. If the parties do not answer these questions, liability cannot be proven. These questions, in addition, arise for every proposed class member. And the questions, without a doubt, arise from individualized facts. Because these questions arise for every class member and because their answers depend on individualized facts, these questions, and not those that the plaintiffs share in common, predominate. See Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1273-74 (11th Cir. 2009).
The plaintiffs do not even attempt to offer a response to these points, arguing instead that, by proving that NCL had a fleet-wide policy, the plaintiffs would prove liability. Yet this merely assumes that all class members were harmed by the policy — that they hired helpers and that they did so because of NCL's fleet-wide policy. The record reflects that neither assumption is proper. The plaintiffs also attempt to masquerade this deficiency by arguing that by proving their legal theory, they prove that it was impossible for senior stateroom stewards to complete their work in the allotted time without work. But NCL has shown that some stateroom stewards completed their work without help. Thus, the plaintiffs cannot generally prove that it was impossible for senior stateroom stewards to complete their work.
Similarly, the issue of damages is so fact specific as to demand a member-by-member analysis. For each member, the parties would need to show how many times a class member hired a helper, how much each class member paid his helpers, and how many times each class member hired a helper because of necessity and how many times because of personal reasons. This is one of those cases where "the computation of each individual's damages will be so complex, fact-specific, and difficult that the burden on the court system would be simply intolerable." Klay, 382 F.3d at 1260.
Continuing with the same objection, the plaintiffs quote the summary-judgment order previously decided in this case and argue that the order vindicates their argument. This argument fails as well.
In its motion for summary judgment, NCL argued that no genuine issue of material fact existed as to whether its policy forced the plaintiffs to hire helpers. NCL attached affidavits showing that some stewards never hired helpers. According to NCL, because some stewards could complete their work without helpers, this showed that the plaintiffs could complete their work without helpers. In the summary judgment order, I disagreed with NCL, concluding that a fact finder could believe that the plaintiffs (and stewards generally) could not have finished their work in the allotted time without a helper. But this does not suggest, as the plaintiffs argue, that NCL's policy would create de facto liability as to all stewards. Even if the policy made it generally difficult for stewards to complete their jobs without help, the parties would have to address the specific facts for every steward. After all, liability could not run in situations where a steward completed his job without the help of helpers.
In their third and fourth objections, the plaintiffs argue that this case would not be unmanageable and that therefore a class action is superior to other means of litigation. But the plaintiffs never show how, exactly, 500-plus stewards — most no longer working for NCL and working in different locations around the world — will get notice of this action. Unlike the cases mentioned by the plaintiffs, most class members here no longer work for NCL, so NCL cannot simply give the stewards notice. And the plaintiffs fail to explicate how NCL could cheaply and accurately depose 500-plus stewards, scattered throughout the world, to ask whether they hired a helper and for what reason. Indeed, the plaintiffs showed a stubborn unwillingness to travel to the United States for mediation. At the time, the plaintiffs argued that they should not be penalized for being poor and that "requiring them to mediate in the United States would force these destitute seafarers to bear prohibitive travel costs which they simply cannot afford" [D.E. 110 at 1]. Now, after it appears that the plaintiffs may lose on their motion for class certification, the plaintiffs' attorneys toss the previous strategy away and promise to cover all necessary expenses. The plaintiffs and their attorneys vehemently clamored against the costs of bringing 20 individuals to Miami. I cannot imagine how they plan to bring 500-plus seafarers to Miami. The plaintiffs' about-face is far too late.
After litigating the issue twice, only five of the putative class representatives traveled to the United States for mediation.
Lastly, in an attempt to salvage their class action, the plaintiffs offer a short, three-page "proposed class action trial plan." The proposed plan, however, does not resolve any of these concerns.
DONE and ORDERED in chambers in Miami, Florida, this 31st day of December, 2010.