United States District Court, D. Massachusetts
JORGE GARCIA, ZACHARY DUCLOS, GEORGE KENT, and JENNIFER MILLER, on behalf of themselves and all others similarly situated, Plaintiffs,
E.J. AMUSEMENTS OF NEW HAMPSHIRE, INC. d/b/a FIESTA SHOWS; FIESTA SHOWS, INC. d/b/a FIESTA SHOWS; ATSEIF FESTIVAL MOBILE, INC. d/b/a FIESTA SHOWS; EUGENE DEAN III; EUGENE DEAN; LINDA CHAGROS; NORMA DEAN; and MARY DEAN, Defendants
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For Jorge Garcia, on behalf of themselves and all others similarly situated, Plaintiff: Matthew W. Thomson, Shannon E. Liss-Riordan, LEAD ATTORNEYS, Lichten & Liss-Riordan, P.C., Boston, MA.
For Zachary Duclos, on behalf of themselves and all others similarly situated, George Kent, on behalf of themselves and all others similarly situated, Plaintiffs: Shannon E. Liss-Riordan, LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., Boston, MA.
For Jennifer Miller, on behalf of themselves and all others similarly situated, Plaintiff: Shannon E. Liss-Riordan, LEAD ATTORNEY, Lichten & Liss-Riordan, P.C., Boston, MA; John W. Davis, Davis & Davis, P.C., Boston, MA.
For E.J. Amusements of New Hampshire, Inc., d/b/a Fiesta Shows, Fiesta Shows, Inc., d/b/a Fiesta Shows, Atseif Festival Mobile, Inc., d/b/a Fiesta Shows, Eugene Dean, III, Eugene Dean, Linda Chagros, Norma Dean, Mary Dean, Defendants: Anthony S. Califano, Arthur G. Telegen, Barry J. Miller, Seyfarth Shaw, LLP, Boston, MA; Lauren S. Wachsman, Seyfarth Shaw, Boston, MA.
For MGR Amusements, Inc., Wacky Worm NH, Inc., Fiesta Rides, Inc., Dean & Flynn, Inc. d/b/a Fiesta Shows, Defendants: Anthony S. Califano, Arthur G. Telegen, Barry J. Miller, Seyfarth Shaw, LLP, Boston, MA.
For Centro De Los Derechos Del Migrante, Inc., Movant: Esty R. Lobovits, Kurt Wm. Hemr, Matthew J. Matule, LEAD ATTORNEYS, Skadden, Arps, Slate, Meagher & Flom LLP, Boston, MA.
For JKJ Workforce Agency Inc., Third Party Witness: Terry Klein, LEAD ATTORNEY, Nicole C. Phillips, Henshon Parker LLP, Boston, MA.
MEMORANDUM AND ORDER
PATTI B. SARIS, United States District Judge.
Plaintiff Jorge Garcia brings this proposed class action against Fiesta Shows, a company that provides rides and attractions to fairs and carnivals throughout New England. Garcia alleges that Fiesta Shows violated minimum wage and overtime laws in Massachusetts and New Hampshire (Counts 1-2, 4-5); breached contracts requiring the payment of prevailing wages set by the U.S. Department of Labor (Count 8); and unlawfully forced foreign guest workers to pay pre-employment expenses like travel and costs for obtaining a visa (Counts 3, 6). Additionally, Garcia has alleged a common law claim for unjust enrichment. (Count 7).
Garcia now seeks to certify a class of current and former employees of Fiesta Shows for purposes of litigating his minimum wage and overtime claims under Massachusetts and New Hampshire law (Counts 1-2, 4-5). Fiesta Shows opposes the motion and has filed a cross-motion to deny class certification. For the following reasons, Plaintiff's Motion for Class Certification (Docket No. 166) is ALLOWED. Defendants' Motion to Deny Class Certification (Docket No. 157) is DENIED.
I. LEGAL STANDARDS FOR CLASS CERTIFICATION
At the outset, the Court must determine the proper legal standard to be applied to Garcia's motion for class certification. The
First Circuit has stated that the Federal Rules of Civil Procedure apply in federal court as long as they (1) are valid under the Constitution and (2) do not " abridge, enlarge or modify any substantive right." Morel v. Daimler-Chrysler AG, 565 F.3d 20, 24 (1st Cir. 2009) (quoting the Rules Enabling Act, 28 U.S.C. § 2072(b)); see also Hoyos v. Telcorp Commc'ns, Inc., 488 F.3d 1, 5 (1st Cir. 2007) (" [A] federal court sitting in diversity . . . must apply state substantive law, but a federal court applies federal rules of procedure to its proceedings." ). For this reason, federal courts ordinarily apply Federal Rule of Civil Procedure 23 when adjudicating class certification motions. See In re Nexium Antitrust Litig., 777 F.3d 9, 17-18 (1st Cir. 2015); Greif v. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 258 F.Supp.2d 157, 161 (E.D.N.Y. 2003) (agreeing that " all class actions in federal courts are governed by Rule 23" (emphasis added)). Rule 23 has also generally applied when federal courts are sitting in diversity and applying state substantive law. See Matamoros v. Starbucks Corp., 699 F.3d 129, 139 (1st Cir. 2012) (applying Rule 23 to class action alleging violations of the Massachusetts Tips Act); Manning v. Boston Med. Ctr. Corp., 725 F.3d 34, 58-59 (1st Cir. 2013) (applying Rule 23 to class action alleging Massachusetts common law claims).
Both parties, however, urge the Court to set aside Rule 23 for at least some of the claims. Garcia argues that a " more lenient" standard applies to his claims under Massachusetts law. Meanwhile, Fiesta Shows argues that New Hampshire law does not allow class certification for wage and hour claims at all. Both of these arguments fail.
A. Massachusetts Wage and Overtime Claims
The Massachusetts wage and hour statute states that a plaintiff may bring a lawsuit on behalf of " himself and for others similarly situated." Mass. Gen. Laws c. 149, § 150, c. 151, § § 1B, 20. Garcia's request for a " more lenient" standard is based on the Supreme Judicial Court's recent statement that the Massachusetts wage statute " specifically provides for a substantive right to bring a class proceeding." Machado v. System4 LLC, 465 Mass. 508, 989 N.E.2d 464, 470 (Mass. 2013). As a result, Garcia argues that the " traditional technicalities" of Rule 23 should not apply here because they might interfere with his substantive right to bring a class action in Massachusetts.
Garcia's argument stumbles at the starting gate because he does not explain how Rule 23 conflicts with the " more lenient" standard he proposes under Massachusetts law. Garcia suggests that Rule 23 might interfere with his substantive right to proceed as a class. But he does not explain how a class certification analysis under Massachusetts law would proceed any differently from a Rule 23 analysis. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (" It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones." ).
Nor do the cases cited by Garcia shed any light on what a " more lenient" standard would look like here. See Machado, 989 N.E.2d at 470 (holding that the Federal Arbitration Act requires enforcement of class action waivers in arbitration clauses even when Massachusetts law provides for a " substantive right" to bring a class proceeding); Sebago v. Tutunjian, 85 Mass.App.Ct. 1119, 7 N.E.3d 1122 (Mass.App.Ct. 2014) (unpublished) (citing to Mass. R. Civ. P. 23,
which is similar in all relevant aspects to its federal counterpart); see also Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337, 893 N.E.2d 1187, 1207-10 (Mass. 2008) (applying Mass. R. Civ. P. 23 to a class based on wage and hours claims). If anything, Sebago and Salvas suggest that the Court should apply Fed.R.Civ.P. 23 in the same way that Massachusetts courts apply Mass. R. Civ. P. 23 to classes based on wage claims.
Garcia also cites to cases where Massachusetts courts have recognized a lower threshold for class certification under the Massachusetts Consumer Protection Act, Mass. Gen. Laws c. 93A (Chapter 93A), instead of Mass. R. Civ. P. 23. See Aspinall v. Philip Morris Cos.,442 Mass. 381, 813 N.E.2d 476, 485 (Mass. 2004); Fletcher v. Cape Cod Gas Co.,394 Mass. 595, 477 N.E.2d 116, 122-23 (Mass. 1985). But Garcia's attempt at analogizing Chapter 93A claims to wage and overtime claims is like comparing cotton candy to corn dogs. Chapter 93A class actions are subject to a less stringent standard because the " statutory language in c. 93A § 9(2) differs in significant respects from Mass. R. ...