Stacy Norell, on Behalf of Herself and all Others Similarly Situated
Spring Valley Country Club, Inc. et al No. 133336
Date March 15, 2016
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S
MOTION FOR CLASS CERTIFICATION
Rosalind H. Miller, Justice of the Superior Court.
putative class action, the plaintiff asserts claims for
violations of the state Tips Act (Count I) and for unjust
enrichment (Count II) on behalf of herself and other
similarly situated individuals who have worked as waitstaff
in recent years at the Spring Valley Country Club, Inc.
(club). With discovery closed, the plaintiff now brings the
case before the Court on motion for class certification.
non-evidentiary hearing and a careful review of the
pleadings, motion papers, and other record materials, see
Weld v. Glaxo Wellcome, Inc., 434 Mass. 81, 85-86,
746 N.E.2d 522 (2001), the Court exercises its discretion to
deny certification of the class proposed by the plaintiff,
see id. at 84-85 (class status decision lies in
" broad discretion" of motion judge). The plaintiff
has not sustained her burden with regard to the requirements
of Mass.R.Civ.P. 23.
support class certification, the plaintiff must satisfy the
four prerequisites of Mass.R.Civ.P. 23(a) and the two
additional requirements of rule 23(b). Bellermann v.
Fitchburg Gas & Elec. Light Co., 470 Mass. 43, 51-52, 18
N.E.3d 1050 (2014). Specifically, the plaintiff must show
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 claims--or defenses
of the class, and (4) the representative parties will fairly
and adequately protect the interests of the class, "
Mass.R.Civ.P. 23(a), and 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, "
Mass.R.Civ.P. 23(b). See Bellermann v. Fitchburg Gas &
Elec. Light Co., 470 Mass. at 52. The plaintiff
satisfies this showing by providing " information
sufficient to enable the motion judge to form a reasonable
judgment" that the class meets all the certification
requirements of rule 23. See id., quoting Weld
v. Glaxo Wellcome, Inc., 434 Mass. at 87.
plaintiff has not developed a record that persuades the Court
that the proposed class is " so numerous that joinder of
all members is impracticable, " Mass.R.Civ.P. 23(a)(1).
Courts have interpreted " impracticable" in this
context " to mean impractical, unwise or imprudent
rather than impossible or incapable of being performed."
E.g., Brophy v. School Comm. of Worcester, 6
Mass.App.Ct. 731, 735, 383 N.E.2d 521 (1978). "
'Impracticability, ' sometimes called
'numerosity, ' requires establishing that individual
joinder of each alleged class member would impose an undue
burden on the party seeking to maintain the class
action." J.W. Smith & H.B. Zobel, Rules Practice §
23.4, at 337 (2d ed. 2006).
Determination of joinder impracticability takes into
consideration " all the circumstances surrounding a
case." Reporter's Notes to Mass.R.Civ.P. 23, 46
Mass. Gen. Laws Ann., Rules of Civil Procedure, at 270
(Thomson/West 2006), quoting Demarco v. Edens, 390
F.2d 836, 845 (2d Cir. 1968). The " most important
factor is the absolute size of the proposed class, " 5
Moore's Federal Practice § 23.22[b], at 23-54 to
23-55 (3d ed. 2015), but " [o]ther relevant factors are:
(1) the geographical distribution of the class members; (2)
the nature of the claim; and (3) the impossibility of
obtaining personal jurisdiction over some class members,
" J.W. Smith & H.B. Zobel, Rules Practice,
supra ; see Brophy v. School Comm. of
Worcester, 6 Mass.App.Ct. at 735 (along with number of
class members, courts also consider efficiency and judicial
case, the plaintiff's argument regarding numerosity rests
solely upon the size of the putative class. For the record
evidence of class size, the plaintiff cites to the deposition
of Steven Robinson, the defendants' designee pursuant to
Mass.R.Civ.P. 30(b)(6), who " estimate[d] more than
[twenty]" waitstaff worked full-time for the club on a
regular basis, but that " the numbers [we]re larger than
the actual number of people working [at the club]" when
taking into account short-term workers.
class merely shown as " larger" than " more
than" twenty is not so numerous that it warrants class
status for that reason alone. To be sure, " [t]he
Supreme Judicial Court has never attempted to set any minimum
number which would be necessary for a class suit, "
Reporter's Notes to Mass.R.Civ.P. 23, supra, but
the information provided by the plaintiff does not show that
the proposed class exceeds the size of classes for which
courts have denied certification on numerosity grounds, see 1
H. Newberg, Class Actions § 3.12, at 197 (5th ed. 2011)
(certification denied in cases where " putative classes
numbered as many as 258"), and see, e.g.,
Pennsylvania Pub. Sch. Employees Retirement Sys. v.
Morgan Stanley & Co., 772 F.3d 111, 120 (2d Cir. 2014)
(court did not abuse discretion in denying certification
despite " evidence of the existence of over 100
potential class members"). This is not a case where
" a class defined so as to include an extremely large
number of class members may, by itself, establish that
joining all class members would be impracticable." 5
Moore's Federal Practice § 23.22[b],
supra at 23-55. Rather, on the plaintiff's
showing, the class here is somewhere in or around the "
gray area" of " mid-sized classes, " where the
party moving for certification must provide other indications
of impracticability of joinder. See 1 H. Newberg, Class
Actions, supra at 205; 5 Moore's Federal
Practice § 23.22[b], supra at 23-56.
noted, however, the plaintiff has not provided information
that shows, nor indeed does she argue, that impracticality
factors beyond numbers alone support class certification.
Although the plaintiff has undertaken discovery, see
Bellermann v. Fitchburg Gas & Elec. Light Co., 470
Mass. at 52 n.8 (" Where . . . the parties have
undertaken discovery . . . the information should rest on the
more developed record"), she does not point to
information in the record that pertains to, for instance,
" the geographic dispersion of the class members the
size of individual claims, the financial resources of class
members, [or] the ability of claimants to institute
individual suits, " 1 H. Newberg, Class Actions,
supra at 206; see J.W. Smith & H.B. Zobel, Rules
Practice, supra (setting out " relevant
factors"); 5 Moore's Federal Practice §
23.22[d][e], supra at 23-60 to 23-63 (describing
" practicability factors"). In addition, while
courts have considered fear of retaliation as a factor in
favor of certifying classes of employees, see, e.g.,
Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620,
624 (5th Cir. 1999); 1 H. Newberg, Class Actions,
supra at 208, the plaintiff has not shown specific
reason to apply that factor in this case, and, in any event,
it has no apparent relevance to members of the putative class
who no longer work at the club, cf., e.g., Romero v.
Producers Dairy, Inc., 235 F.R.D. 474, 485 (E.D.Cal.
2006) (numerosity requirement more readily met where class
contains employees suing their " present
employer"). Finally, the Court observes that the
plaintiff has not argued that class members cannot be readily
identified and located by the parties, such that "
joinder of all class members is more likely to be
impracticable." 5 Moore's Federal Practice §
23.22 [f], supra at 23-64. Rather, it reasonably
may be determined that employment records maintained in the
ordinary course of business would make the identities and
addresses of employees " readily ascertainable, "
such that " joinder is more likely to be found to be
practicable, " id. at 23-65, see, e.g.,
Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir.
2006) (affirming denial of certification: eighty-four-member
class was not " such an overwhelmingly large number as
to be prohibitive of joinder, " and there was no problem
locating remaining individuals for joinder).
the plaintiff has not sufficiently shown that, in the
particular circumstances of this case, individual joinder of
each alleged class member would cause undue burden, to the
plaintiff or the Court, so as to satisfy the first
prerequisite of rule 23(a).
the requirements of rule 23 are conjunctive, the ...