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Kenneth Pagan, On Behalf of Himself v. the New Wilson's Meats

May 17, 2011

KENNETH PAGAN, ON BEHALF OF HIMSELF
AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
THE NEW WILSON'S MEATS, INC.
ET AL. DEFENDANTS.



The opinion of the court was delivered by: Jones, J.

MEMORANDUM

I. Introduction

The above-referenced matter involves allegations by Plaintiff Pagan that Defendants (discount meat/grocery purveyors) knowingly failed to pay Plaintiff - and other former and current employees who were/are similarly situated - for lunch and dinner breaks they did not take, and that Defendants failed to pay their employees the proper overtime rate. Accordingly, Plaintiff seeks class certification pursuant to Fed.R.Civ. P. 23 for claims brought under Pennsylvania's Minimum Wage Act of 1968 (43 P.S. §333.101 et seq.)(hereinafter "MWA") and Wage Payment Collection Law (43 P.S. § 260.1 et seq.)(hereinafter "WPCL").*fn1

In seeking class certification, Plaintiff Pagan initially proposed himself as class representative. However, counsel for Plaintiff subsequently proposed that another former employee of Defendants, Thomas Hopper, be "additionally" approved as class representative.*fn2

For the reasons which follow, this Court declines to approve either candidate and finds that the matter is inappropriate for certification.

II. Discussion

A. Rule 23(a)

Fed.R.Civ.P. 23 governs class actions and has been explained as follows:

In order to be certified, a class must satisfy the four requirements of Rule 23(a) of the Federal Rules of Civil Procedure: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. Fed. R. Civ. P. 23(a); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613, 138 L. Ed. 2d 689, 117 S. Ct. 2231 (1997). If these Rule 23(a) requirements are satisfied, the court must also find that the class is maintainable under Rule 23(b)(1), (2), or (3). Fed. R. Civ. P. 23(b).

[R]ule 23(b)(3) provides that common questions must predominate over any questions affecting only individual members, and class representation must be superior to other available methods for the fair and efficient adjudication of the controversy. The Rule 23(b)(3) predominance inquiry tests whether the class is sufficiently cohesive to warrant adjudication by representation, and mandates that it is far more demanding than the Rule 23(a)(2) commonality requirement. Amchem, 521 U.S. at 623-24.

In re LifeUSA Holding, 242 F.3d 136, 143-144 (3d Cir. 2001). See also Panetta v. SAP Am., Inc., 2006 U.S. Dist. LEXIS 17556, at **2-3 (E.D. Pa. Apr. 6, 2006)(noting that under Rule 23(a), "a purported class must: (a) be so numerous that joinder of all members individually is impracticable; (b) have a question of law or fact common to all members; (c) have a class representative whose claims or defenses are typical to the rest of the class; and (d) have a class representative who will be able to fairly and adequately protect the interests of the class as a whole.")(citing Fed.R.Civ.P. 23)(emphasis added). Moreover, "[t]he district court has a good deal of discretion in determining whether or not to certify a class." Mazus v. Dep't of Transp., 629 F.2d 870, 876 (3d Cir. Pa. 1980), cert. denied, 449 U.S. 1126 (1981).

In assessing a certification request,

[P]roper analysis under Rule 23 requires rigorous consideration of all the evidence and arguments offered by the parties. It is incorrect to state that a plaintiff need only demonstrate an "intention" to try the case in a manner that satisfies the predominance requirement. Similarly, invoking the phrase "threshold showing" risks misapplying Rule 23. A "threshold showing" could signify, incorrectly, that the burden on the party seeking certification is a lenient one (such as a prima facie showing or a burden of production) or that the party seeking certification receives deference or a presumption in its favor. So defined, "threshold showing" is an inadequate and improper standard. '[T]he requirements of Rule 23 must be met, not just supported by some evidence.'

In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 321 (3d Cir. Pa. 2008)(citation omitted).*fn3

Plaintiff herein has failed to satisfy any of the requirements for sustaining a class action.

I. Numerosity

Despite plenty of opportunities to do so, Plaintiff Pagan has yet to demonstrate the existence of any party - aside from himself or Mr. Hopper - who might wish to participate in this lawsuit. Although counsel for Plaintiff has summarily indicated in briefing that they "estimate that the Class includes approximately one hundred twenty (120) to three hundred fifty (350) current and former low-income hourly-paid discount meat and grocery store employees at Defendants' Outlet II and New Wilson's locations over the course of the Class period," evidence of same has not evolved through discovery, additional briefing or throughout the course of three separate court hearings. (Doc. No. 76, ¶ 11.) Instead, in his Motion for Class Certification, Plaintiff names only six (6) employees whose time cards contain alleged discrepancies. (Doc. No. 76, ¶¶ 26-36.)*fn4 *fn5 Moreover, as Defendants correctly point out in their Opposition to Certification, Plaintiff has provided no evidence that the time cards cited by Plaintiff "represent a clock out for a compensable 'break,' as opposed to a non-compensable 'meal break.'" (Doc. No. 88, ¶¶ 26-36.) Plaintiff did not call any of these individuals (with the exception of Messrs. Pagan and Hopper) to controvert this assertion by Defendants at the certification hearing and as will be discussed below, neither Mr. Pagan nor Mr. Hopper was in fact able to do so.

During the certification hearing, Mr. Pagan listed seven individuals with whom he spoke about the instant lawsuit, yet none of these individuals expressed any interest in becoming involved with the litigation. (Pagan Dep. 12:4-25, 12:1-25, 14:1-25, 15:1, January 28, 2009.)

Clearly, While the law is well-established that a plaintiff "need not show the exact number of potential [members] in order to satisfy the [numerosity] requirement," it is equally well-established that "the plaintiffs do have the burden of showing that the size is such that the joinder of all members is impracticable. Mere speculation as to the number of members who may be involved is not sufficient to satisfy Rule 23(a)(1)."

Jackson v. SEPTA, 260 F.R.D. 168, 187 (E.D. Pa. 2009)(citations omitted)(emphasis added). See also Susquehanna v. H & M, Inc., 98 F.R.D. 658, 664 (M.D. Pa. 1983)("[T]he exact number of members of a plaintiff class need not be ascertained for the numerosity requirement to be satisfied [however,] mere speculation and unsupported conclusions as to the number of members of a class is inadequate."). To that end, "[n]o 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." Stewart v. Abraham, 275 F.3d 220, 226-227 (3d Cir. Pa. 2001), cert. denied, 536 U.S. 958 (2002). See also Davis v. Thornburgh, 903 F.2d 212, 233 (3d Cir. Pa. 1990)(noting that a minimum of 40 proposed class members is "generally considered ample for a presumption of numerosity."), cert. denied, 498 U.S. 970 (1990).

In Panetta v. SAP Am., Inc., 2006 U.S. Dist. LEXIS 17556 (E.D. Pa. Apr. 6, 2006), the court noted as follows:

Mr. Panetta makes general allegations in his First Amended Class Action Complaint that the class satisfies all four of the requirements in Rule 23(a). There are, however, deficiencies with regard to all four prongs. First, though there is no specific number below which a purported class fails to fulfill the numerosity requirement, see Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001), if a class number falls below 40, it should not generally be qualified. Id. Here,plaintiff merely recited that the size of the purported class is "so numerous . . . making joinder impracticable." Further, in his response to defendants' assertion in their motion to strike that the purported class is only six people, Mr. Panetta argued ...


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