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Mooney v. Domino's Pizza, Inc.

United States District Court, D. Massachusetts

September 1, 2016

ALEXANDER MOONEY and KEVIN BARTLETT, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
v.
DOMINO'S PIZZA, INC., et al. Defendants.

          ORDER ON MOTION FOR CLASS CERTIFICATION

          INDIRA TALWANI UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Plaintiffs Alexander Mooney and Kevin Bartlett bring this putative wage and hour class action against their former employer, franchisee Defendant G.D.S. Enterprises, Inc. (“GDS”); its franchisor, Defendant Domino's Pizza, LLC (“Domino's”); and the president of GDS, Defendant Geoffrey Schembechler (“Schembechler”) (collectively, “Defendants”). Before the court is Plaintiffs' Motion for Class Certification [#44]. For the following reasons, Plaintiffs' motion is ALLOWED.

         II. Background

         GDS operates seven Domino's pizza stores in Massachusetts. Second Am. Class Action Compl. ¶¶ 4, 10 [“Second Am. Compl.”] [#47]. Plaintiffs worked for GDS as delivery drivers: Mooney was employed from March 2012 to November 2015; Bartlett from October 2010 to March 2014. Id. ¶¶ 12, 13.

         When Plaintiffs were hired, GDS paid $5.00 per hour plus tips. Id. ¶¶ 12, 13, 16. In October 2012, Mooney's wage was increased to $7.00 per hour plus tips. Id. ¶¶ 12, 16. In 2013, both Plaintiffs' wages were increased to $8.00 per hour plus tips. Id. ¶¶ 12, 13, 16. Throughout the time they were employed, GDS charged customers a delivery charge that Plaintiffs contend should have been, but was not, remitted to them. Id. ¶¶ 18, 20, 28. Plaintiffs also allege that they were paid the same hourly wages when they were doing tasks besides deliveries, specifically, “inside work” at the pizza stores before and after deliveries, for which they received no tips. Id. ¶¶ 16, 38.

         Plaintiffs allege that Defendants violated the Massachusetts Tips Law, Mass. Gen. Laws ch. 149, § 152A, by not remitting the delivery charge to delivery drivers. Second Am. Compl. ¶ 37. Plaintiffs also contend that, because class members did not receive tips for their “inside work, ” GDS and Schembechler were precluded, under Mass. Gen. Laws ch. 151, § 20, from paying them a tipped minimum wage for that work. Second Am. Compl ¶ 38. Plaintiffs assert two causes of action: Count I under Mass. Gen. Laws ch. 149, §§ 150, 152A, for Defendants' retention of the delivery charges; and Count II under the Massachusetts Minimum Wage Law, Mass. Gen. Laws ch. 151, §§ 1, 7, 20, for GDS and Schembechler's payment of a tipped wage, based both on the retention of the delivery charges and the payment of a tipped wage for “inside work.” Second Am. Compl ¶¶ 37, 38.

         Defendants dispute that the delivery charge is covered by the Massachusetts Tips Law and contend that, if it is, Defendants are protected by a safe harbor provision. Defendants assert further that the “inside work” was related to Plaintiffs' delivery work and that Defendants were not required to pay a regular minimum wage for time spent on such duties.

         Plaintiffs now move for class certification.

         III. Discussion

         Plaintiffs “must affirmatively demonstrate . . . compliance” with Federal Rule of Civil Procedure 23 to maintain a class action. Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). Under Rule 23(a), the party seeking class certification must demonstrate that four prerequisites are met: “(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.” Fed.R.Civ.P. 23(a). Once these prerequisites are satisfied, a party seeking class certification “must also satisfy through evidentiary proof at least one of the provisions of Rule 23(b).” Comcast Corp., 133 S.Ct. at 1432. Here, Plaintiffs seek certification under Rule 23(b)(3), which requires that “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”

         A. Rule 23(a) Factors

         1. Numerosity

         The numerosity requirement of Rule 23(a) is satisfied if “the class is so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). The threshold for numerosity is “low.” García-Rubiera v. Calderón, 570 F.3d 443, 460 (1st Cir. 2009) (citing Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001) (noting that “generally[, ] if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met”)). The court “may draw reasonable inferences from the facts presented to find the requisite numerosity.” McCuin v. Sec'y of Health & Human Servs., 817 F.2d 161, 167 (1st Cir. 1987).

         Plaintiffs contend that a class comprised of current and former drivers will exceed 100 members. Second Am. Compl. ¶ 7. GDS, at the time of Defendant Schembechler's deposition, had an estimated sixty to seventy drivers. Churchill Aff. Ex. 1 24 [#45-1] (Schembechler Dep.). Even sixty to seventy drivers would satisfy Rule 23(a)(1). See García-Rubiera, 570 F.3d at 460 (citing Stewart, 275 F.3d at 226-27). Accordingly, numerosity is satisfied.

         2. Commonality

         To establish commonality, Plaintiffs must show that “there are questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). Commonality requires that class members “have suffered the same injury, ” such that their claims “depend upon a common contention . . . of such a nature that it is capable of classwide resolution-which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 564 U.S. at 349-50. Raising common questions, therefore, is not enough; “rather[, ] the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U.L. Rev. 97, 132 (2009)). In wage and hour class actions, “courts have found the commonality requirement met where employees alleged per se illegal wage policies that violated the rights of all class members.” Garcia v. E.J. Amusements of N.H., Inc., 98 F.Supp.3d 277, 286 (D. Mass. 2015) (collecting cases).

         a. Delivery Charge

         Plaintiffs point to the common question of whether the delivery charge retained by Defendants was a “service charge” within the meaning of the Tips Act. Defendants concede that the question of whether the delivery charge is a service charge is common but contend that it does not have an answer common to all class members. Defendants argue that whether the delivery charge may be considered a “service charge” under Mass. Gen. Laws ch. 149, § 152A, depends on the circumstances of each customer's encounter with the delivery fee and that those circumstances will vary by each customer. Defendants argue further that they are entitled to a safe harbor, based not only on their notices to customers, but also on specific conversations that they may have had with delivery drivers about the delivery charge.

         In determining whether the Tips Act allows for evaluations of each employee's and each customer's individual transactions, or evaluates liability based on the employer's policies and practices, the court begins with the language of the statute. Matamoros v. Starbucks Corp., 699 F.3d 129, 134 (1st Cir. 2012) (stating that the inquiry into the meaning of the Tips Act “starts with the language of the statute itself”). Under Mass. Gen. Laws ch. 149, § 152A(d),

[i]f an employer or person submits a bill, invoice or charge to a patron or other person that imposes a service charge or tip, the total proceeds of that service charge or tip shall be remitted only to the wait staff employees, service employees, or service bartenders in proportion to the service provided by those employees.

         The statute defines a “service charge” to include “a fee charged by an employer to a patron in lieu of a tip to any wait staff employee, service employee, or service bartender, including any fee designated as a service charge, tip, gratuity, or a fee that a patron or other consumer would reasonably expect to be given to a wait staff employee, service employee, or service bartender in lieu of, or in ...


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