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 PLAINTIFFSâ
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 plaintiffsâ 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 Commonwealthâs 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 Commonwealthâs 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 Commonwealthâs 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 Boleroâs 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 Boteroâs
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 plaintiffsâ 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.
Sallyâs 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
plaintiffsâ claims and those of class members are based on
single course of conduct, it is irrelevant that each class
memberâs 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 âyesâ or ânoâ 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
Plaintiffâs Motion for ...