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Addelson v. Commonwealth Limousine Service, Inc.

Superior Court of Massachusetts, Suffolk

November 7, 2018

Edward ADDELSON, et al.[1] on Behalf of Themselves and All Others Similarly Situated
v.
COMMONWEALTH LIMOUSINE SERVICE, INC. dba Commonwealth Worldwide Chauffeured Transportation et al. and Individually Thomas Hawkesworth et al. on Behalf of Themselves and All Others Similarly Situated
v.
Commonwealth Limousine Service, Inc. dba Commonwealth Worldwide Chauffeured Transportation et al. and Individually; Julie Baker on Behalf of Herself and All Others Similarly Situated
v.
Commonwealth Limousine Service, Inc. dba Commonwealth Worldwide Chauffeured Transportation et al. and Individually

          MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

          Elaine M. Buckley, Justice of the Superior Court

          The plaintiffs brought this action on behalf of themselves and all others similarly situated against the defendants, Commonwealth Limousine Services, Inc. d/b/a Commonwealth Worldwide Chauffeured Transportation ("Commonwealth") and its President, Dawson A. Rutter, Jr., alleging that the defendants failed to pay its drivers certain earned wages. More specifically, the plaintiffs claim that Commonwealth deducted a thirty-minute lunch break from every six hours of recorded working time in violation of 454 Code Mass. Regs. § 27.02. The matter is before the court on the plaintiffs’ Motion for Class Certification. For the reasons that follow, the motion is DENIED.

         FACTUAL BACKGROUND

         The plaintiffs are employed by Commonwealth as chauffeurs on a full-time basis. All plaintiffs are expected to transport customers to various locations within Massachusetts. The plaintiffs are paid on an hourly basis. Commonwealth calculates the hours worked for its chauffeurs on a trip-by-trip basis. For each trip, Commonwealth pays for fifteen minutes of "report time" prior to the start of a job and also for the amount of time it takes the chauffeur to get from Commonwealth’s headquarters to the location at which the chauffeur will pick up the passenger, i.e., "portal time." Once the chauffeur picks up a passenger, the chauffeur is paid for the entire duration of the trip. Commonwealth pays for ninety minutes of driving time for each trip even if the trip is shorter than ninety minutes. After the trip is over, Commonwealth pays "portal time" for the amount of time it takes the chauffeur to get back to Commonwealth’s headquarters. Further, if an hour or less separates two trips, Commonwealth pays for up to an hour of "fill-in time." In addition, Commonwealth may also pay "stand-by time" if a driver is authorized by dispatch to remain on-call for another trip. Finally, certain trips, called "Road Shows," are sometimes day-long jobs during which the chauffeur is instructed to never leave the location where the chauffeur has dropped off the customer.

         In April 2009, Commonwealth instituted a meal break policy where it automatically deducted thirty minutes for a meal break from shifts exceeding six cumulative hours of work. Commonwealth did not pay chauffeurs for this thirty-minute break. If a chauffeur notified Commonwealth that he or she was unable to take a meal break, however, the thirty minutes would not be deducted from his/her pay. The policy was in effect until November 28, 2011.

         The plaintiffs claim that Commonwealth’s meal break policy resulted in a failure to pay them for working time. See 454 Code Mass. Regs. § 27.02 ("Working time does not include meal times during which an employee is relieved of all work-related duties"). More specifically, they contend that because they were only compensated for time when they were actually engaged in work, they could not by definition be "relieved of all work-related duties" during the thirty minutes that Commonwealth deducted from their paid time for a meal break. The plaintiffs seek to certify a class consisting of "all persons who worked for Defendants in Massachusetts as chauffeurs, at any time between December 30, 2008 and the date of final judgment."

         PROCEDURAL BACKGROUND

          On January 17, 2012, Jamie Botero ("Botero"), on behalf of himself and others similarly situated, filed a class action complaint against the defendants in Suffolk Superior Court. The defendants removed the matter to the United States District Court for the District of Massachusetts. Thereafter, the plaintiffs in the Addelson action now before this court filed opt-in notices in the Botero litigation in District Court. On March 25, 2014, the District Court denied Bolero’s motion for conditional class certification under the Fair Labor Standards Act. On October 8, 2014, Botero filed a motion to dismiss the class allegations and proceed with his individual claims in District Court, which the District Court allowed with prejudice. Judge Gorton specifically stated that the dismissal was with prejudice such that Botero could not refile his class allegations in a new proceeding. On December 29, 2014, the Addelson plaintiffs filed the current action in Superior Court. On March 11, 2016, the Hawkesworth plaintiffs filed their action and on May 24, 2016, Baker filed her action.

         DISCUSSION

         As an initial matter, the class claims in this case are time-barred as a matter of law. Commonwealth ceased automatically deducting thirty minutes as an unpaid meal break for every six hours of work on November 28, 2011. As the action is governed by a three-year statute of limitations period, see G.L.c. 149, § 150; G.L.c. 151, § 20A, any class based claims needed to be brought by November 28, 2014.[2] The first of the three class actions consolidated before this court was filed on December 29, 2014. In light of the China Agritech, Inc. v. Resh, 138 S.Ct. 1800 (2018) decision, the timely filing of Botero’s action did not toll the statute of limitations for class claims until Botero withdrew his class allegations. Therefore, the class claims, filed after November 28, 2014, are time barred. See id. at 1811 (plaintiffs cannot exhume failed class actions by filing new, untimely class claims).[3]

         Even if the plaintiffs’ claims were not time barred, the court would not certify the class action because the plaintiffs have not met the commonality requirement of Mass.R.Civ.P. 23. To obtain class certification, a plaintiff must show that (1) the class is sufficiently numerous to make joinder of all parties impracticable, (2) there are common questions of law and fact, (3) the claim of the named plaintiff representative is typical of the claims of the class, and (4) the named plaintiff will fairly and adequately represent the interests of the class. See Mass.R.Civ.P. 23(a). In addition, a plaintiff must show that common questions of law and fact predominate over individualized questions, and that the class action is superior to other available methods for fair and efficient adjudication of the controversy. See Mass.R.Civ.P. 23(b). The plaintiff bears the burden of providing information sufficient to enable the court to form a reasonable judgment that the putative class meets the requirements of Rule 23. Weld v. Glaxo Wellcome, Inc., 434 Mass. 81, 87 (2001), This court has broad discretion in determining whether to certify a class. Sally’s v. Wal-Mart Stores, Inc., 452 Mass. 337, 361 (2008).

         Commonwealth argues that the plaintiffs cannot satisfy the following requirements for class certification under Mass.R.Civ.P. 23: commonality, typicality, predominance, and superiority.[4] To satisfy the commonality requirement, the plaintiffs must demonstrate that "all the persons whom they profess to represent have a common interest in the subject matter of the suit and a right and interest to ask for the same relief." Spear v. HV Greene Co., 246 Mass. 259, 266 (1923) (interest of each prospective class member must arise from "a common relationship to a definite wrong"). "It is not essential that the interest of each member of the class be identical in all aspects with that of the plaintiff." Id.; Weld, 434 Mass. at 92 (as long as plaintiffs’ claims and those of class members are based on single course of conduct, it is irrelevant that each class member’s interaction with defendants may have differed). What matters to class certification is the "capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (quotations and citation omitted). If "questions that go to the heart of the elements of the cause of action will each be answered either ‘yes’ or ‘no’ for the entire class and the answers will not vary by individual class member," the commonality requirement is met. Raposo v. Garelick Farms, LLC, 293 F.R.D. 52, 55 (D.Mass. 2013) (quotations and citation omitted). To establish an improper meal break deduction, the plaintiffs would have to show that they were not "relieved of all work-related duties" for thirty minutes on a particular day. It is only possible to assess whether a particular chauffeur was "relieved of all work-related duties" on a specific day on a chauffeur-by-chauffeur basis; for each chauffeur, a fact finder would have to determine whether that chauffeur spent thirty minutes of his/her time for his/her own benefit during that six-hour time period. This results in questions about how chauffeurs spent their time before, during, and after trips which will produce highly individualized answers. For example, some drivers probably had a meal break in which he/she was "completely relieved from duty" and some drivers might not have had a meal break, but told his/her supervisor such that he/she was compensated for the missed meal break. In fact, Commonwealth has submitted affidavits from some potential class members stating that they took their meal breaks or were paid for meals breaks that they missed. See Vitali v. Reit Mgmt & Research, LLC, 2016 Mass.Super. LEXIS 30 at *27 (2016) (commonality requirement not met because "individual factual determination," including whether employees reported missed lunch breaks to payroll). In addition, because of the various ways for which Commonwealth paid its chauffeurs for time periods when they were engaged in "work-related duties," e.g., the ninety-minute guaranteed minimum paid per trip and payment for "fill-in" and "stand-by" time, some chauffeurs might have had thirty minutes on any given day during which they were "relieved of all work-related duties." The plaintiffs argue that they are challenging the entire policy, i.e., whether Commonwealth utilized an unlawful automatic meal deduction practice which resulted in the chauffeurs not getting paid for working time. The determination, however, of what constitutes working time is an inquiry that goes beyond the policy and needs to be analyzed on a case-by-case basis. More specifically, it is not the policy that is per se illegal, it is the way Commonwealth implemented the policy that potentially lead to an illegal practice for some chauffeurs. Whether a particular chauffeur was "relieved of all work-related duties" for thirty minutes during a six-hour shift is a fact-intensive inquiry that is not susceptible to a common, class-wide analysis. Because the proposed class cannot satisfy the commonality requirement, Rule 23(a)(2), the court will not address the remaining Rule 23(a) factors or the requirements of Rule 23(b), see Raposo, 293 F.R.D. at 58, except to say that the reasons for denying the certification for commonality would apply for denying the class for failure to meet the typicality, predominance, or superiority requirements.

         ORDER

          For the foregoing reasons, it is hereby ORDERED that Plaintiff’s Motion for ...


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