DeBoissiere v. American Modification Agency et al, No. 2:2009cv02316 - Document 31 (E.D.N.Y. 2010)
Court Description: MEMORANDUM AND ORDER denying 23 Motion to Certify Class. Plaintiffs' motion to certify a New York state law class action under Rule 23 is DENIED WITHOUT PREJUDICE. Plaintiffs have leave to re-file their motion to adduce evidence concerning the adequacy of representation factor. So Ordered by Judge Joanna Seybert on 5/5/10. C/ECF (Valle, Christine)
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DeBoissiere v. American Modification Agency et al Doc. 31 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------X MARICELA DEBOISSIERE, individually and on Behalf of all Others Similarly Situated, Plaintiffs, MEMORANDUM & ORDER 09-CV-2316 (JS)(MLO) - against AMERICAN MODIFICATION AGENCY, AMERIMOD INC., SALVATORE PANE, JR., Defendants. -----------------------------------X APPEARANCES: For Plaintiffs: Erik Harald Langeland, Esq. Erik H. Langeland, P.C. 500 Fifth Avenue, Ste. 1610 New York, NY 10110 For Defendants: No appearances. SEYBERT, District Judge: On June 1, 2009, Plaintiff Maricela Deboissiere, on behalf of others similarly situated, sued Defendants, alleging that Defendants violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et. seq., and applicable New York law by failing to pay their loan modification advisors minimum wages and overtime. Plaintiffs now move to certify their New York state law claims under FED. R. CIV. P. 23. no opposition Plaintiffs’ Defendants’ papers Complaint failure to and, or in fact, otherwise appear does Defendants have filed have appear not, yet in however, to this answer case. negate the Dockets.Justia.com Court’s responsibility to sua certification is appropriate. sponte consider whether class Having done so, the Court DENIES Plaintiffs’ motion for class certification WITHOUT PREJUDICE. BACKGROUND Defendants employed the named Plaintiff, and others similarly situated, to work as loan modification advisers in New York. Pl. Exs. A, B. In this role, Plaintiffs sold loan modifications to customers. Pl. Exs. B-F at ¶ 5. Defendants paid Plaintiffs on a commission only basis. Pls. Exs. B-D at ¶¶ 6, 9. loan modification nothing, not during even Thus, if Plaintiffs failed to sell a a minimum pay period, wage. Defendants Pls. Exs. B-F paid at them ¶ 6. Likewise, Defendants did not pay Plaintiffs time and a half for working more than 40 hours a week. Pls. Exs. B-F at ¶ 8. Indeed, Defendants did not even record Plaintiffs’ hours. Pls. Exs. B-F at ¶ 10. This action followed. DISCUSSION I. Applicable Legal Standards To certify a class, Plaintiffs must establish, by a preponderance of the evidence, that: (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 2 claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. See FED. R. CIV. P. 23; Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008) (imposing a preponderance of the evidence standard). In addition, Plaintiffs must establish, by a preponderance of the evidence, that one of Rule 23(b)’s requirements have been met. Teamsters Local 445 Freight Div. Pension Fund, 546 F.3d at 202. Here, Plaintiffs seek certification under Rule 23(b)(3), requiring them to show that: (1) common questions “predominate” over individual questions; and that (2) “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Given Plaintiffs’ burden, the Court must “receive enough evidence, by affidavits, documents, or testimony, to be satisfied that each Rule 23 requirement has been met.” Id. at 204 (internal quotations and citations omitted). II. Numerosity Plaintiffs have put forth sufficient evidence to indicate that the proposed class consists of at least 50 loan modification officers. establish numerosity. Pls. Exs. B-D. This is sufficient to See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (numerosity presumed at 40 members). 3 III. Commonality indicate Plaintiffs have that class members’ including whether questions, plan violated Defendants exempt New York’s misclassified from New put York’s forth claims share Defendants’ wage their wage sufficient and loan and many evidence common legal commission-only hour laws and modification hour to laws. pay whether advisors In as addition, Plaintiffs have put forth sufficient evidence showing that class members’ claims share many common factual questions, including whether Defendants paid minimum wages, whether Defendants expected them to work more than 40 hours a week, and whether Defendants paid them overtime wages when they worked more than 40 hours a week. Court finds that requirement. Supermarket (S.D.N.Y. Given these common issues, among others, the Plaintiffs See, Corp., Oct. 24, have generally, 06-CV-15341, 2008) met Frederick 2008 (overtime U.S. the v. commonality Dreiser Loop LEXIS 86138 Dist. claims); Brzychnalski v. Unesco, Inc., 35 F. Supp. 2d 351, 354 (S.D.N.Y. 1999) (minimum wage claims). IV. Typicality Plaintiffs requirement because contend the that named they meet Plaintiff, the Ms. typicality DeBoissiere, asserts the same claims the class does: that she worked for Defendants as a loan modification advisor, was paid only in 4 commissions, routinely worked more than 40 hours a week, and did not receive overtime or the minimum wage. V. The Court agrees. Adequacy of Representation A. Ms. DeBoissiere Plaintiffs declaration, Ms. representative. further argue DeBoissiere that, is based an on adequate her class In this regard, Plaintiffs contend that Ms. DeBoissiere’s declaration “attest[s] to the pertinent facts of this case,” and “indicates her willingness to participate as the class representative.” declaration facts. (Pl. Ex. The Court disagrees. B) sufficiently Ms. DeBoissiere’s attests to this case’s But it says nothing about Ms. DeBoissiere’s willingness or ability to serve as a class representative. Nor does it say anything about whether Ms. DeBoissiere possesses any “conflicts of interest” with the other class members. Compare Pl. Br. 9 with Pl. Ex. B. This lack of evidence is fatal to Plaintiffs’ present motion. As discussed above, Plaintiffs bear the burden of showing, by a preponderance of the evidence, that they have met Rule 23’s requirements. Teamsters Local 445 Freight Div. Pension Fund, 546 F.3d at 202. evidence. Counsel’s statements are not See, generally, Baptist v. Global Holding & Inv. Co., L.L.C., 04-CV-2365, 2007 U.S. Dist. LEXIS 49476, *18 (E.D.N.Y. July 9, 2007) (attorney argument Plaintiffs provide nothing else. 5 is not evidence). And Thus, Plaintiffs have failed to establish, by a preponderance of the evidence, that Ms. DeBoissiere would be an adequate representative. B. Plaintiffs’ Counsel Plaintiffs also contend that their apparent counsel, Stephan Zouras, adequately failure LLP represent to and the establish Ms. Erik H. class. Langeland, P.C., Notwithstanding DeBoissiere’s adequacy, would Plaintiffs’ the Court reaches this issue, as it goes to the same Rule 23 prong. The Court finds that Erik H. Langeland, P.C., would be adequate class counsel. The Court makes no such finding with respect to Stephan Zouras, LLP for a simple reason: this firm has not yet filed a Notice of Appearance or otherwise formally appeared. Before the Court decides Stephan Zouras, LLP’s adequacy to serve as class counsel under Rule 23, Stephan Zouras, LLP must first be counsel to some party or intervener. VI. Preponderance & Superiority Because the Court finds that Plaintiffs have not yet shown Ms. DeBoissiere’s representative, Plaintiffs under Rule 23(a). adequacy have failed to to serve meet as class their burden Thus, the Court declines to reach whether Plaintiffs have met Rule 23(b)(3)’s requirements. CONCLUSION Plaintiffs’ motion to certify a New York state law class action under Rule 23 is 6 DENIED WITHOUT PREJUDICE. Plaintiffs have leave to re-file their motion to adduce evidence concerning the adequacy of representation factor. SO ORDERED. /s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J. Dated: Central Islip, New York May 5, 2010 7
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