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Ricard v. KBK Services, Inc.

United States District Court, W.D. Wisconsin

September 7, 2016

ANDREW RICARD and TIM MACKAY, Plaintiffs,
v.
KBK SERVICES, INC., Defendant.

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Plaintiffs Andrew Ricard and Tim Mackay worked in construction for defendant KBK Services, Inc. They sued KBK for underpayment of wages on behalf of a class, alleging violations of the Fair Labor Standards Act (FLSA) and Wisconsin law.

         Both the FLSA collective action and the class action were previously certified. Dkt. 151. KBK now moves the court to reconsider those certifications. Dkt. 152. On reconsideration, the court will decertify the FLSA collective action because the named plaintiffs are the only two members of that action. The court will also decertify the Rule 23 class because plaintiffs are not adequate representatives of the class. Accordingly, there is no need for plaintiffs to send notice to the Rule 23 class, and their motion for approval of their notice and opt out form will be denied as moot. Dkt. 154.

         Both sides also move for summary judgment on the merits. Dkt. 104 and Dkt. 108. The court will grant KBK's motion for summary judgment and deny plaintiffs'. Plaintiffs' travel to the KBK job sites is ordinary home-to-work travel and not compensable. Because this decision disposes of the case, the parties' joint motion to adjourn the trial date, Dkt. 161, will be denied as moot.

         BACKGROUND

         Plaintiffs are former employees of KBK, which does sheetmetal, steamfittting, and plumbing work on construction projects in northern Wisconsin. Plaintiffs live in Ashland, where KBK has its main office and shop. KBK also has a shop in Medford. For the most part, KBK employees work at the job sites where KBK provides its services.

         Plaintiff Mackey worked for KBK from May 2012 to September 2013. Plaintiff Ricard worked for KBK from May 2013 to September 2013. Between May and September 2013 (the only relevant period, for reasons explained in the analysis section), plaintiffs worked on three projects in three locations: Antigo, Marshfield, and Medford. These locations were at least 115 miles from plaintiffs' homes in Ashland; the furthest was about 160 miles. KBK did not require plaintiffs to stay overnight near the jobsites, nor did it reimburse them for doing so.

         KBK employees also occasionally loaded trucks and drove materials and equipment from KBK facilities to jobsites. KBK employees were generally compensated for driving between work locations if they worked at both sites that day. But plaintiffs were not compensated for the time spent driving from home to worksites or back.

         The court has jurisdiction over the FLSA claims under 28 U.S.C. § 1331 because those claims raise federal questions, and it has supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367.

         ANALYSIS

         A. Motion for reconsideration

         The court previously certified the Rule 23 class relating to plaintiffs' state law claims. Dkt. 151. It also denied KBK's motion to decertify the stipulated conditional FLSA collective action, in part because the court lacked certain information. Id. The parties had not yet informed the court whether any of the 27 potential members had opted in by the March 11, 2016, deadline. It is now clear that none did, thus the only FLSA collective action members are the two named plaintiffs. KBK has moved for reconsideration of both certifications because of both classes' apparently low interest levels in the case. Dkt. 152. The standard for certifying each type of action is largely the same. Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 772 (7th Cir. 2013). As is the result: the court will decertify both.

         1. The FLSA collective action

         The court uses a two-step process to certify a collective action under the FLSA. See Berndt v. Cleary Bldg. Corp., No. 11-cv-791, 2013 WL 3287599, at *6 (W.D. Wis. Jan. 25, 2013) (collecting cases). First, plaintiffs must make a modest factual showing that the potential members are similarly situated. The court then conditionally certifies the collective action and authorizes notice to the potential members, who have the choice to opt in to the litigation. Second, after members have received notice and opted in and the parties have engaged in some discovery, the court examines whether the members are in fact similarly situated.

         In this case, the parties stipulated to the first step and sent notice to the potential members. Dkt. 67. However, none of the potential members opted in, so the only two members are the named plaintiffs. That makes the similarly-situated analysis unnecessary. There is no group to certify, and the court will therefore grant KBK's request to decertify the collective action. “When a collective action is decertified, it reverts to one or more individual actions on behalf of the named plaintiffs.” Alvarez v. City of Chicago, 605 F.3d 445, 450 (7th Cir. 2010). Accordingly, the named plaintiffs may proceed on their FLSA claims on their own behalf, but they may not represent a collective action.

         2. The Rule 23 class action

         The court certified the Rule 23 class after finding that it met the requirements of numerosity, commonality, typicality, and adequacy of representation. Dkt. 151. Because plaintiffs seek monetary damages, the class also had to satisfy Rule 23(b)(3), which required that: (1) common questions predominate over individualized questions; and (2) the class action device is superior to another method of adjudication. The certified class comprises the following:

all KBK employees who, during the time period of May 19, 2013, and thereafter, traveled at least 90 miles from their home to work on a KBK jobsite, and were not paid for all of their travel time between their home and the KBK jobsite or did not have all of their travel time counted as hours worked in determining their eligibility for overtime pay.

Dkt. 151, at 3. KBK asks the court to revisit its certification decision because none of the class members chose to join the collective action. KBK contends that because of the lack of interest, a class action is not superior to other methods of adjudicating the matter.

         The level of interest in the FLSA collective action does not determine whether adjudicating related state-law issues as a class action satisfies the predominance or superiority requirements. Ervin v. OS Rest. Servs., Inc., 632 F.3d 971, 980 (7th Cir. 2011) (“A simple disparity in numbers [between a class and its corresponding collective action] should not lead a court to the conclusion that a state claim ‘substantially predominates' over the FLSA action”). But the lack of interest in the FLSA action may shed light on whether plaintiffs adequately represent the interests of the other class members.

         When plaintiffs first presented their certification arguments, they characterized this case as addressing uniform company policies. Dkt. 12 and Dkt. 75. Plaintiffs pleaded broadly in their third amended complaint that plaintiffs and group members collectively faced similar circumstances. Dkt. 39. But, even though the class is quite small, plaintiffs have not presented information about how their specific facts match those of the remaining class members. For example, their briefing details the distances that they travelled and the hours that they worked, but there is no information regarding the circumstances of the other class members. Given that none of the other class members have any interest in pursuing FLSA claims related to those policies, plaintiffs' attempts to change those policies may not be in the best interest of the other class members. And if each class member's experience under the policies varies, then a class action may not be the superior way to adjudicate their claims. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 359 (2011).

         And it looks like plaintiffs' experiences may be atypical. Ricard is not similarly situated to the rest of the class because he has state court litigation pending against KBK. That case has nothing to do with the rest of the class (although the court addresses it below because Ricard claims that KBK is retaliating against him). Mackay's claims largely fall outside of the statute of limitations, so he may not be the best class member to represent a class with timely claims. Because neither named plaintiff appears to adequately ...


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