Court: District Court, E.D. New York; December 22, 2015; Federal District Court
On April 17, 2014, Plaintiff Michael Callari moved to conditionally certify a collective action under Section 216(b) of the Fair Labor Standards Act (FLSA) and to certify a class action under Federal Rule of Civil Procedure 23 for violations of New York Labor Law (NYLL). The proposed class included employees of Defendants Blackman Plumbing Supply, Inc., Richard Blackman, and John Does 1-10 who served as inside salespersons and assistant managers within the preceding six years. On March 27, 2015, Magistrate Judge Tomlinson granted the collective action certification, but on March 31, 2015, the court denied the class action certification (referred to as the "March 31, 2015 Order").
Currently, Plaintiff seeks reconsideration of the March 31, 2015 Order under Local Civil Rule 6.3. The court outlines the strict standard for reconsideration, emphasizing that it is typically denied unless the moving party identifies controlling decisions or data overlooked by the court. To succeed, the movant must demonstrate an intervening change in law, present new evidence, or show a need to correct clear error or prevent manifest injustice. The court clarifies that a motion for reconsideration cannot introduce new facts or arguments that were not previously presented or relitigate already decided issues. The Plaintiff's motion for reconsideration is ultimately denied.
The Plaintiff's motion for class certification argued that inside salespersons and assistant branch managers met the commonality and typicality requirements of Rule 23(a) due to shared duties and both being classified by the Defendant, BPS, as exempt from overtime compensation. The Court rejected this claim, noting that the Plaintiff did not provide evidence that inside sales representatives were also classified as exempt. In the Plaintiff's motion for reconsideration, he contended that the Defendants did not dispute the classification of inside sales representatives, implying that the Court should accept his assertion of common exemption. The Court clarified that it is the Plaintiff's responsibility to prove the Rule 23 requirements by a preponderance of evidence. Even if the Defendants did not challenge the Plaintiff's assertion, the Court was still required to evaluate the evidence independently to determine if the class met the necessary criteria. Thus, the Plaintiff's claim that the lack of challenge by the Defendants necessitated acceptance of his assertion was insufficient for reconsideration.
The Plaintiff argues that the Court incorrectly relied on Susan Cook's testimony regarding the overtime policy for inside salespersons at BPS. The Court found the Plaintiff did not demonstrate a common overtime policy applicable to both inside salespersons and assistant branch managers, partly based on Cook's statement that not all inside salespersons were exempt from overtime. The Plaintiff claims Cook's testimony only reflected the current policy and did not address the entire class period. However, Cook's deposition indicated that inside salespersons received overtime as of December 12, 2012, supporting the Court's conclusion that at least during part of the class period (March 31, 2009 to March 31, 2015), inside salespersons received overtime, unlike assistant branch managers. The Court determined that the Plaintiff's evidence was limited to specific branches and did not provide class-wide proof regarding the overtime issue. Consequently, the Court found no error in its factual findings and denied the Plaintiff's request for reconsideration, stating that the factual assertions presented would not have changed the outcome of the case.
The Court denied the Plaintiff's motion for certification, concluding that the roles of assistant branch managers at BPS were not uniformly defined across its branches, necessitating individual assessments for determining their overtime exemption status. The Plaintiff's motion for reconsideration claimed that the Court wrongly dismissed certain testimonies and a compliance agreement with the Department of Labor regarding back wages. However, the Plaintiff referenced the same evidence previously considered and rejected by the Court. Consequently, the Court refused to revisit its prior decisions, emphasizing that motions for reconsideration must demonstrate overlooked controlling authority or facts, rather than merely reiterating earlier arguments. The Court cited precedents indicating that motions seeking to re-litigate already decided issues are not permissible.
The Plaintiff sought to renew his motion for Rule 23 class certification contingent upon the granting of a conditional certification and notice, arguing that additional discovery might support his case. The Court denied this request, stating the Plaintiff provided no legal authority or justification for such renewal after further discovery in the FLSA 216(b) collective action. The Court emphasized the case's four-year duration, noting the Plaintiff had ample opportunity to conduct discovery to support his Rule 23 motion. Allowing a renewal would unfairly prejudice the Defendants, particularly since the Plaintiff did not demonstrate that additional discovery would yield supportive documents for class certification. In his current motion, the Plaintiff argues the Court erred in asserting he had sufficient discovery opportunities, claiming the Defendants failed to provide relevant information about inside salespersons and assistant managers since 2008. However, he again did not supply legal authority supporting his right to renew the motion based on potential new findings. Additionally, a directive was previously issued for the Defendants to disclose names of relevant employees, and the Plaintiff had nearly two years to investigate their qualifications and duties. Consequently, the Plaintiff has not established a factual or legal basis for the Court to reconsider its denial of his motion to renew certification.
The Plaintiff argues that the Court incorrectly relied on *Wal-Mart Stores, Inc. v. Dukes* as that case pertains to gender discrimination, while the current case involves wage and hour claims. The Plaintiff cites *Jackson v. Bloomberg, L.P.*, where the court certified a Rule 23 class for customer support representatives alleging failure to pay overtime under the FLSA and NYLL, finding that a common policy required overtime work, which made *Dukes*' reliance unpersuasive. Additionally, *Morris v. Affinity Health Plan, Inc.* suggests that *Dukes* does not prevent commonality findings. The Plaintiff asserts that commonality requires a contention that can resolve issues central to all claims, a standard supported by Second Circuit case law, including *Sykes v. Mel S. Harris Associates LLC* and *Jacob v. Duane Reade, Inc.* The Supreme Court has clarified that commonality necessitates proof of a shared injury among class members, not merely a violation of the same law. The Court maintains that the standards articulated in *Dukes* apply to wage and hour cases, and thus declines to follow the nonbinding district court decisions in *Jackson* and *Morris*. The Court concludes that there was no error in referencing *Dukes*, and reconsideration is unwarranted.
The Plaintiff argues that the Court incorrectly relied on the case Velasquez v. Digital Page, Inc. because it involved the retail employee exemption, while this case concerns the executive exemption under the FLSA. Although the Plaintiff is correct that the exemptions differ, the Court did not use Velasquez for general legal principles about the executive exemption. Instead, Velasquez was cited to illustrate that both cases required individual inquiries into whether class members worked overtime, which undermines the assertion of commonality necessary for class certification under Rule 23. The Court found no error in referencing Velasquez, and even if it were deemed inappropriate, the Plaintiff failed to present any binding legal authority that contradicted the Court's reasoning or addressed other supporting cases, such as Myers v. Hertz Corp. and White v. W. Beef Properties, Inc., which emphasized the need for individualized assessments in similar contexts. Consequently, the Plaintiff's motion for reconsideration was denied.
The Plaintiff contends that, even if a class of inside salespersons and assistant branch managers across all twenty BPS branches does not meet Rule 23(a) and (b) requirements, the Court could certify a sub-class of assistant branch managers and inside salespersons at specific branches. The Court rejects this argument for two main reasons. First, the Plaintiff's initial motion sought certification for a class encompassing all twenty branches without proposing sub-classes or referencing Fed. R. Civ. P. 23(c)(5), making the current assertion procedurally improper. Legal precedent indicates that new arguments cannot be introduced in a motion for reconsideration. Second, Rule 23(c)(5) allows for discretionary creation of sub-classes, and the Court is not required to initiate this process independently; that responsibility lies with the party seeking certification. Therefore, the Court's failure to consider sub-classes sua sponte was not an error. As a result, the Plaintiff's motion for reconsideration is denied, and the Clerk of the Court is instructed to terminate the related docket entry.
