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Burkhart-Deal v. Citifinancial

February 4, 2010

AMY BURKHART-DEAL, PLAINTIFF,
v.
CITIFINANCIAL, INC., AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Donetta W. Ambrose Judge, U.S. District Court

OPINION AND ORDER

SYNOPSIS

In this civil action ("Burkhart-Deal II"), Plaintiff alleges violations of Pennsylvania's Minimum Wage Act ("PMWA"), 43 Pa. CS. 333.101 et seq., Wage Payment and Collection Law ("WPCL"), 43 Pa. C.S.A. 260.1, and Administrative Code.*fn1 The core of Plaintiff's Complaint is the failure to pay all wages earned. Plaintiff now seeks to certify a class pursuant to Fed. R. Civ. P. 23, of Financial Service Representatives ("FSRs") who worked in Defendant's approximately 110 Pennsylvania retail locations during the three-year period prior to the filing of the Complaint.

For the following reasons, I find that this matter is not appropriate for class treatment, and the Motion for Class Certification will be denied.*fn2

OPINION

I. Applicable Standards

First, a party seeking class certification must demonstrate that the class satisfies the requirements of Rule 23(a): numerosity, or that the class is so numerous that joinder of all members is impracticable; commonality, or that there are questions of law or fact common to the class; typicality, or that the claims or defenses of the representative parties are typical of the claims or defenses of the class; and adequacy of representation, or that the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P.23(a). Where, as here, a class is sought to be certified under Rule 23(b)(3), the class must also satisfy the Rule's superiority and predominance requirements.

Class certification is appropriate only "if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23 are met." In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 309 (3d Cir. 2008). The party seeking certification bears the burden of meeting all the requirements of Rule 23. Id. A failure to satisfy any one of the Rule's requirements is fatal to certification. Zlotnick v. Tie Communications, Inc., 123 F.R.D. 189, 190 (E.D. Pa. 1988).

II. Plaintiff's Motion

A. Numerosity

The first prong of Rule 23(a) requires that the class be "so numerous that joinder is impracticable." Joinder under the rule need only be impracticable, not impossible; in other words, class treatment is appropriate if joinder would be extremely inconvenient or difficult. Elias v. Ungar's Food Prods, Inc., 252 F.R.D. 233, 242 (D.N.J. 2007). Accordingly, a court must evaluate the practicability of joinder in the context of the particular litigation. Clauser v. Newell Rubbermaid, Inc., No. 99-5753, 2000 U.S. Dist. LEXIS 10631, at *9 (E.D. Pa. July 31, 2000).

A plaintiff may demonstrate numerosity by identifying a sufficiently large number of individuals who are members of the proposed class. Davis v. City of Philadelphia, No. 93-0495, 1994 U.S. Dist. LEXIS 3640, at *7 (E.D. Pa. Mar. 23, 1994). To do so, a representative must demonstrate "that 'common sense' suggests that it would be difficult or inconvenient to join all class members." Chemi v. Champion Mortg., No. 05-cv-1238, 2009 U.S. Dist. LEXIS 44860, at *17 (D.N.J. May 26, 2009). "Although there is no rigid guideline, courts typically hold that groups of twenty or fewer individuals are not so numerous that joinder is impracticable." Leitch v. MVM, Inc., 2004 U.S. Dist. LEXIS 14307, at *8 (E.D. Pa. July 21, 2004).

In that vein, unsupported speculation that more members might join at a later date is insufficient. E.g., Grigsby v. Kane, 250 F. Supp. 2d 453, 457 (M.D. Pa. 2003). Instead, a plaintiff may "reasonably estimate that the number is substantial, and they may rely on reasonable inferences drawn from the available facts." Niemiec v. Ann Bendick Realty, No. 04-CV-897, 2007 U.S. Dist. LEXIS 98840, at *17 (E.D.N.Y. Mar. 30, 2007)

Thus far in this case, the parties have proceeded under Plaintiff's proposed class definition, which reads, ...


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