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Dekeyser v. Thyssenkrupp Waupaca, Inc.

United States District Court, E.D. Wisconsin

March 31, 2016

RYAN DEKEYSER, THOMAS COOPER, HARLEY GRANIUS, AND CARLOS LOPEZ, on behalf of themselves and others similarly situated, Plaintiffs,
THYSSENKRUPP WAUPACA, INC., d/b/a Waupaca Foundry, Inc., Defendant

          For Ryan DeKeyser, Thomas Cooper, Harley Granius, Carlo Lantz, Plaintiffs: Anne T Regan, John Gordon Rudd, Jr, LEAD ATTORNEYS, Zimmerman Reed PLLP, Minneapolis, MN; Kelly A Lelo, T Joseph Snodgrass, LEAD ATTORNEYS, Shawn M Raiter, Larson King LLP, St Paul, MN; Patricia Agnes Bloodgood, Zwerling Schachter & Zwerling LLP, New York, NY.

         For Thyssenkrupp Waupaca Inc, doing business as Waupaca Foundry Inc, Defendant: Joseph Louis Olson, Paul E Benson, LEAD ATTORNEYS, Mitchell W Quick, Michael Best & Friedrich LLP, Milwaukee, WI.


         William C. Griesbach, Chief United States District Judge.

         Plaintiffs are past and current workers in Defendant Waupaca Foundry Inc.'s iron foundries who seek to be paid for time spent " donning and doffing" (changing into and out of) work clothes and protective gear, and for time spent showering after their shifts in facilities provided by Waupaca. In 2012, I granted summary judgment in favor of Waupaca on Plaintiffs' claims for unpaid wages and overtime under the Fair Labor Standard Act and its Wisconsin-law counterpart. ECF Nos. 427 & 437. The Seventh Circuit reversed, concluding summary judgment was not proper based on a factual dispute as to whether such changing and showering were " required by the nature of the work" in the foundries, and thus compensable under these laws. DeKeyser v. Thyssenkrupp Waupaca, Inc., 735 F.3d 568, 571 (7th Cir. 2013).

         The case is back before me on Plaintiffs' motion to certify the Wisconsin law claims as a class action under Federal Rule of Civil Procedure 23, and on Waupaca's motion to de-certify the previously " conditionally" certified FLSA collective action, under 29 U.S.C. § 216(b). For the reasons below, Plaintiffs' motion will be granted and Waupaca's motion granted-in-part and denied-in-part.


         This case involves six iron foundries, three located in two plants in Waupaca, Wisconsin (" Plant 1" and " Plant 2/3" ), and one located in each of the cities of Marinette, Wisconsin (" Plant 4" ), Tell City, Indiana (" Plant 5" ), and Etowah, Tennessee (" Plant 6" ). Plaintiffs asserted the FLSA claims on behalf of all " similarly situated" workers in these foundries, and they asserted the Wisconsin law claims on behalf of similarly situated workers in the Wisconsin foundries. This Court previously conditionally certified a collective action under the FLSA, 29 U.S.C. § 216(b), based on a preliminary showing that the Plaintiffs were indeed similarly situated to the proposed FLSA class members. ECF No. 91 at 4 (describing two-step approach to certification of FLSA collective action). The proposed class (hereinafter " the FLSA class" ) was defined as all non-exempt, hourly paid, production workers employed by Waupaca at the six foundries at any time since December 18, 2005. ECF Nos. 91 at 9; 94 at 1. Notices were disbursed, 486 individuals opted into the FLSA class, and 4 subsequently withdrew, leaving the FLSA class comprised of 482 current or former workers. Def.'s Br. in Supp. of Mot. to De-Certify at 3 & n.2, ECF No. 554. These workers perform many different jobs in different departments of the foundries. Waupaca seeks de-certification of the FLSA class.

         Plaintiffs oppose Waupaca's motion to decertify the FLSA class and have filed their own motion to certify a Rule 23 class including production workers in the four Wisconsin foundries. Plaintiffs define the proposed class (hereinafter " the Wisconsin class" ) as follows: " All persons who are or were employed by Waupaca Foundry at any time after June 4, 2006, as nonexempt, hourly paid, production employees (defined as employees in the Millroom, Coreroom, Disa, Shakeout, Melt, Maintenance, and Melt Maintenance departments) at plants located in Waupaca, Wisconsin, or Marinette, Wisconsin, and who are not or have not been paid for their on-site donning, doffing, or showering." ECF No. 547 at 1. Plaintiffs submit that this class includes 4,104 workers. Pls.' Br. in Supp. Mot. for Class Cert. at 15, ECF No. 438.


         I. Wisconsin Class/Rule 23

         " A district court may certify a class of plaintiffs if the putative class satisfies all four requirements of Federal Rule of Civil Procedure 23(a)--numerosity, commonality, typicality, and adequacy of representation--and any one of the conditions of Rule 23(b)." Siegel v. Shell Oil Co., 612 F.3d 932, 935 (7th Cir. 2010). The party seeking certification bears the burden of demonstrating compliance with Rule 23. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). Here, Plaintiffs seek certification under both Rule 23(b)(2) and Rule 23(b)(3), discussed below.

         A. Rule 23(a)

         As Plaintiffs estimate the Wisconsin class includes more than 4,000 workers, the numerosity requirement (" the class is so numerous that joinder of all members is impracticable" ) is not in dispute.

         The commonality requirement is that " there are questions of law or fact common to the class." Fed.R.Civ.P. 23(a)(2). Even a single such common question is enough to satisfy Rule 23(a)(2), and the existence of a mixture of common and individual questions presents an issue of whether common questions " predominate" over individual questions under Rule 23(b)(3), not an issue of commonality under Rule 23(a)(2). SeeWal-Mart Stores, 131 S.Ct. at 2556. At the same time, the Supreme Court has warned that because any competently crafted class complaint literally raises common ...

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