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Torrezani v. VIP Auto Detailing, Inc.

United States District Court, D. Massachusetts

March 6, 2017

CHARLES TORREZANI and JOSIMAR DESOUZA, individually and behalf of all others similarly situated, Plaintiffs,




         The Plaintiffs, Charles Torrezani and Josimar DeSouza (“Plaintiffs”), have filed a Third Amended Complaint (Docket No. 11)(“Complaint”) against VIP Detailing, Inc. (“VIP”) and Gilbert Volponi (“Volponi” and, together with VIP, “Defendants”) for violation of the overtime provision of the Massachusetts Minimum Fair Wage Law, Mass.Gen.L. ch. 151, §1A (Count I)(“MFWL”), violation of the Fair Labor Standards Act, 29 U.S.C. s. 201 et seq. (“FLSA”)(Count II), and violation of the Massachusetts Wage Act, Mass.Gen.L. ch. 149, §148 (Count III)(“MWA”) as a result of Defendants alleged failure to pay them, and similarly situated individuals, overtime wages. Plaintiffs have filed a motion seeking: (1) class certification of their state law claims pursuant to Fed.R.Civ.P. 23, and (2) collective certification of class claims and issuance of notice pursuant to 29 U.S.C. §216(b). For the reasons set forth below, that motion is granted.


         The Plaintiffs worked for the Defendants for several years performing vehicle detailing and cleaning at auto dealerships in Auburn and Millbury, Massachusetts. Plaintiffs typically worked somewhere between fifty (50) and sixty (60) hours per week and were not provided with breaks. Plaintiffs were paid on an hourly basis. Torrezani, for example, was paid twelve dollars ($12) per hour. Plaintiffs were not paid premium or overtime compensation for hours worked in excess of forty (40) per week; instead, they were paid the so-called “straight-time” hourly wage for all hours worked. Moreover, Defendants failed to accurately record the time worked by employees and did not issue them paystubs detailing the hours worked and rate of pay.

         Plaintiffs seek class certification of their state law claims pursuant to Fed.R.Civ.P. 23 and collective class certification under the FLSA. In a Rule 23 class action, each individual employee who falls within the definition of the class is deemed a class member and is bound by any final judgment (favorable or not), unless s/he has opted out of the class. Under the FLSA, a potential class member must opt in to the action by filing written notice of consent with the Court; only individuals who have opted to be class members are bound by the final judgment. Because the standards to obtain class certification are different, the Court will conduct a separate analyses of whether the Plaintiffs have met the requirements for class certification under Rule 23 and/or the FLSA.

         Certification Of State Law Claims Under Fed.R.Civ.P. 23

         Count I of the Complaint asserts a violation of the overtime provision of the MFWL, which provides that non-exempt employees be paid at least one and one-half times their regular wage rate for hours worked om excess of forty (40) hours per week Mass. Gen. L. ch. 151, § 1A.[1] Count III of the Complaint asserts a claim for violation of the MWA, which mandates that non-exempt hourly employees be paid their hourly wage for all time worked. See Id., ch. 149, §148. Plaintiffs seek to certify as a class:

All individuals who have worked for VIP Auto Detailing, Inc., and Gilbert Volponi performing automobile detailing and cleaning at any time since August 2, 2012, at either of the Herb Chambers dealerships in Auburn and Millbury, Massachusetts, and who were not paid overtime compensation when they worked more than 40 hours in a week.

Rule 23(a) Requirements

         A proposed class under Rule 23(a) must meet the following four requirements: “(1) the class is so numerous that joinder of all members is impracticable (numerosity); (2) there are questions of law or fact common to the class (commonality); (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (typicality); and (4) the representative parties will fairly and adequately protect the interests of the class (adequacy). The plaintiffs have the burden of showing that all the prerequisites for a class action have been met.” Garcia v. E.J. Amusements of New Hampshire, Inc., 98 F.Supp.3d 277, 284-85 (D. Mass. 2015)(internal citations omitted). In this case, Defendants only dispute whether the fourth requirement has been met, i.e., the adequacy of the Plaintiffs to protect the interests of the class. Nevertheless, because the law charges the Court with “‘conduct[ing] a rigorous analysis of the prerequisites established by Rule 23 before certifying a class' ”, see Id. at 285 (citation to quoted case omitted), I will independently analyze whether each requirement has been met.

         Number of Class Members (Numerosity)

         To be certified as a class under Rule 23, the number of members must so numerous that joinder of all would be “impracticable.” “‘No minimum number of plaintiffs is required to maintain a suit as a class action, but generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met.' ” Id., (citation to quoted case omitted). In this case, based on the Defendants' own records, the Plaintiffs alleged that they have established a class of approximately 46 current/former employees who worked for VIP at local car dealerships during the relevant time period. However, after review of the evidence submitted by the Plaintiffs, I questioned whether they could, in fact, establish that the number of potential class members was so numerous that joinder would be impractical. For that reason, I issued an Order For Supplemental Briefing (Docket No. 28), requiring the parties to review the records submitted by the Plaintiffs and identify those individuals which they contend are potential class members. After reviewing the parties' submissions[2], I find that the concerns about the number of potential Plaintiffs was warranted. Simply put, Plaintiffs' evidence does not support their allegation that there are forty-six potential Plaintiffs. Defendants, on the other hand, have filed a response, which addresses the exact concerns raised by the Court regarding the documentary evidence submitted by the Plaintiffs in support of their numerosity claim. Defendants have identified, at most, thirty potential class members. See Defs' Resp. To Pls' Revised Supp. Mem. Concerning Numerosity (Docket No. 32) and Aff. Of Gilbert Volponi Re Defs' Resp. To Pls' Revised Supp. Mem. Concerning Numerosity (Docket No. 33). I find based on the parties' supplemental submissions, that there are thirty potential class members. The question now becomes whether this lesser number of potential class members is sufficient to satisfy the numerosity requirement.

         Classes of forty of more have been found to be sufficiently numerous for purposes of Rule 23(a)(1), see DeRosa v. Massachusetts Bay Comm. Rail Co., 694 F.Suppp.2d 87, 98 (D.Mass. 2010). Where the potential class number is less than forty, federal courts “have taken a more flexible approach to the numerosity analysis, ” In re Nexium (Esomeprazole) Antitrust Litigation, 296 F.R.D. 47, 51 (D.Mass. 2013), considering “[s]ubjective factors such as the geographic location of proposed class members, the nature of the action, and matters of judicial economy.” Id., at 52. Other factors considered are “‘the ability of individual claimants to institute separate suits, …whether injunctive or declaratory relief is sought, ' ” the financial resources of proposed class members and their (the proposed class member's) ability to file individual suits. McCluskey v. Trustees of Red Dot Corp. Employee Stock Ownership Plan & Trust, 268 F.R.D. 670, 674 (W.D. Wash. 2010)(citation to quoted case omitted). The focus of the inquiry remains whether joinder of all potential plaintiffs would be impracticable; impracticable does not mean that it would be impossible, rather it “means only ‘the difficulty or inconvenience of joining all members of the class.' “ Id. (citation to quoted case omitted).

         In this case, I have little information concerning the current residences of potential class members, however, I will assume for purposes of this discussion they are primarily located within Central Massachusetts. Given this assumption, this factor cuts against a finding that joinder would be impractical. At the same time, one of the primary purposes behind class actions is judicial economy. I agree with the Plaintiffs that avoiding multiple suits by as many as thirty additional class members strongly favors maintaining this suit as a class action. This is particularly true in this case given that the Court can reasonably infer that substantially all of the class members have limited financial resources and would find it difficult to pursue the claims themselves[3]. See Id. Thus, these combined factors favor a finding that the numerosity requirement has been met.

         Commonality ...

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