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Connelly v. Trucking

United States District Court, W.D. Wisconsin

April 3, 2018

TIMOTHY CONNELLY, et al. Individually and on behalf of all others similarly situated, Plaintiffs-Petitioners,
v.
DANIEL LEPKE TRUCKING ET AL, Defendant-Respondent.

          On Appeal From the United States District Court For the Western District of Wisconsin Case No. 15-cv-308 Hon. James Peterson

          Yingtao Ho, THE PREVIANT LAW FIRM, SC Attorneys for Plaintiffs

          PLAINTIFFS' PETITION FOR LEAVE TO APPEAL CLASS CERTIFICATION ORDER UNDER FED. R. CIV. P. 23(F)

         STATEMENT OF JURISDICTION

         Plaintiffs seek Court of Appeal's review of the March 30, 2018, decision and order of the Western District of Wisconsin, which denied the Plaintiffs' motion for Rule 23 class certification. (Docket #145)

         The District Court has jurisdiction of this putative class action under 29 U.S.C. § 216(b) and 28 U.S.C. § 1331. Plaintiffs allege violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. Specifically, that the Defendants failed to count some of their work hours as time worked, and failed to pay them overtime pay whenever they worked more than 40 hours that were counted as time worked. The Plaintiffs also argued that the same practices of the Defendants also violated, and therefore entitled them to additional remedies under Wisconsin law including straight time pay, statutory overtime pay, and contractual overtime pay. The Court has supplemental jurisdiction over the Plaintiffs' Wisconsin law claims under 28 U.S.C. §1367. The Court granted the Plaintiffs' motion for conditional certification after a stipulation by the parties, while no timely motion for decertification of the FLSA class was filed by the Defendants.

         The Court of Appeals has jurisdiction to consider this Petition pursuant to 28 U.S.C. § 1292(e) and Rule 23(f), Fed. R. Civ. P., which permits the filing of an appeal related to a motion for class certification within 14 days of the entry of the order on such motion.

         QUESTIONS PRESENTED

         1. Did the District Court err by excluding from the class, when determining whether the class is sufficiently numerous pursuant to Rule 23(a)(1), persons who filed notices with the Court, which stated that they would opt-out of the lawsuit should a class be certified by the Court?

         SUMMARY OF ARGUMENT

         When determining whether the Plaintiffs' proposed class is sufficiently numerous to meet Rule 23(a)(1) requirements, the Court failed to count as class members persons who filed signed statements stating that they intended to opt-out of the lawsuit, should a class be certified by the Court. The Court's approach is foreclosed by the plain language of Rule 23(a)(1), which states that all class members, regardless of their likelihood of opting out of the lawsuit, must be included when determining whether a proposed class is sufficiently numerous.

         As the Seventh Circuit stated in In re Bridgestone Tires Product Liability Litig., 333 F.3d 763, 769 (7th Cir. 2003), opting out was a post-certification step, so that while one could opt out of a certified class, no one is permitted to opt out of the certification process. In this case, the District Court impermissibly permitted 30 class members to opt out of the certification process by failing to count them for numerosity purposes.

         Moreover, the circumstances surrounding the 30 class members signing their class notices is unknown, so that it is unknown whether the notices were signed under coercive circumstances. The District Court erred by relying upon these notices that could have been the product of coercion, rather than opt-out notices generated through a court supervised opt-out procedure, to find that the proposed class is insufficiently numerous to permit certification.

         FACTUAL AND PROCEDURAL BACKGROUND

         The Plaintiffs requested that the District Court certify three separate classes: (1) Class of the Defendants' drivers who did not receive separate hourly pay for all hours worked before their trucks were loaded for the first time, and after their trucks were unloaded for the final time (Straight time class); (2) Class of the Defendants' employees who during a workweek worked more than 40 hours and did not work across state lines during the four months preceding said workweek (Statutory overtime pay class); and (3) Class of the Defendants' drivers who during a work week worked more than 40 hours regardless of whether they worked across state lines during the four months preceding said workweek (Contractual overtime pay class). (Docket #128) ...


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