United States District Court, W.D. Wisconsin
TIMOTHY CONNELLY, et al. Individually and on behalf of all others similarly situated, Plaintiffs-Petitioners,
DANIEL LEPKE TRUCKING ET AL, Defendant-Respondent.
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' PETITION FOR LEAVE TO APPEAL CLASS
CERTIFICATION ORDER UNDER FED. R. CIV. P. 23(F)
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)
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
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.
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?
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
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.
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.
AND PROCEDURAL BACKGROUND
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) ...