United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
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.
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.
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.
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.
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.
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.
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.
Motion for reconsideration
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
The FLSA collective action
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.
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
The Rule 23 class action
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.
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.
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).
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