McFarlin v. The Word Enterprises, LLC

          OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO CERTIFY CLASS [38]

          GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE

         I. Introduction

         Presently before the Court is Plaintiff's Motion to Certify Class. The plaintiff wishes to add 106 delivery drivers to the class, who were employed by three different Hungry Howie's Pizza stores. For the reasons that follow, the Court will grant Plaintiff's Motion to Certify Class.

         II. Factual Background

         Plaintiff Chad McFarlin filed a complaint against The Word Enterprises, LLC et al. on July 6, 2016. See Dkt. No. 1. Plaintiff alleges that Defendants paid him below the Federal and Michigan minimum wage during his time as a delivery driver for Hungry Howie's pizza. Id. Plaintiff brings the action under the Fair Labor Standards Act, the Michigan Minimum Wage Law, and the Michigan Workforce Opportunity Wage Act to recover unpaid wages owed to him and similarly situated Hungry Howie's delivery drivers employed by Defendants. Id. Defendants filed an answer on August 31, 2016 denying the allegations and asserting affirmative defenses. Dkt. No. 19. Plaintiff and Defendants entered into a stipulation for conditional certification pursuant to 29 U.S.C. § 216(b) on March 21, 2017. Dkt. No. 31. On June 13, 2017, Plaintiff filed a Motion to Certify Class. Dkt. No. 38. Plaintiff moves for class certification of the state minimum wage claims. Dkt. No. 38, pg. 9 (Pg. ID 190). Defendants opposed the motion and filed a response on July 11, 2017. Plaintiff replied on July 31, 2017. Dkt. No. 40.

         III. Legal Standard

         Federal Rule of Civil Procedure 23(a)-(b) contains the requirements for class certification. To be certified, “a proposed class must satisfy all four prerequisites of Rule 23(a) and fall within one of the three types of class actions described in Rule 23(b).” Bridging Comms. Inc. v. Top Flite Fin. Inc., 843 F.3d 1119, 1124 (6th Cir. 2016). Rule 23(a) requires “numerosity, commonality, typicality, and adequate representation.” Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537 (6th Cir. 2012). In addition, Plaintiff asserts that the proposed class meets the requirement of 23(b)(3): questions of law or fact predominate over any questions affecting only individual members, and a class action is the superior method to bring this action. Dkt. No. 38, pg. 27 (Pg. ID 208).

         IV. Discussion

         Rule 23(a)

         Numerosity

To satisfy the numerosity requirement, a class must be “so numerous that joinder of all members is impracticable.” Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 541 (6th Cir. 2012). A “substantial” number of affected individuals is enough to satisfy this requirement. Id. “Impracticability of joinder must be positively shown, and cannot be speculative.” Id.

         There is no exact number that must be met for a class to be certified. Calloway v. Caraco Pharm. Labs., Ltd., 287 F.R.D. 402, 406 (E.D. Mich. 2012). The Sixth Circuit has certified a class with as few as thirty five people. Afro Am. Patrolmen's League v. Duck, 503 F.2d 294, 298 (6th Cir. 1974). This Court and courts in general consider a variety of factors when determining numerosity, including the type of action, the size of the individual claims, the location of the members, and the ability to easily ascertain identities of proposed class members. See Calloway v. Caraco Pharm. Labs., Ltd., 287 F.R.D. 402, 406 (E.D. Mich. 2012); see also 7a The Late Charles Alan Wright et al., Federal Practice and Procedure § 1762 (3d ed. 2017). However, the Sixth Circuit has held that the “sheer number of potential litigants in a class, especially if it is more than several hundred, can be the only factor needed to satisfy [numerosity].” Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 5665, 570 (6th Cir. 2004). However, a class is not required to have several hundred members in order for this Court to find numerosity based on numbers alone. See Davidson v. Henkel Corp., 302 F.R.D. 427, 437 (E.D. Mich. 2014) (noting that Sixth Circuit precedent indicates that this Court may, but is not required, to consider other factors when determining numerosity). This Court has held that numerosity was satisfied where there were forty nine class members who were dispersed throughout the United States. Id.

         In this case, the proposed class members worked for one of three companies that owned a Hungry Howie's Pizza Store: TWE-Perry; TWE Haslett; or TWE St. Johns. Plaintiff contends that the total number of drivers for each company should be combined when considering numerosity. Defendants contend that the Court should view each company separately when determining numerosity, which appears to be similar to treating each company as a sub-class. If the Court combines the drivers for each company, the class will include approximately 106- 117 delivery drivers in total. Dkt. No. 38, pg. 23 (Pg. ID 204) (Plaintiff contends the proposed class consists of at least 117 total members); Follman Aff. Ex. 13, at 3 (Defendant contends the proposed class consists of 106 total members). If the class is divided into subclasses based on the three different companies that the delivery drivers worked for, the sub-class totals are: forty three drivers for TWE-Perry; thirty eight drivers for TWE Haslett; and twenty five drivers for TWE St. Johns. Follman Aff. Ex. 13, at 3.

         The Sixth Circuit recognizes the single employer doctrine. Under this doctrine, courts can treat multiple interrelated companies as a single employer. Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 993 (6th Cir. 1997). Courts evaluate the following factors to determine interrelatedness: (1) interrelation of operations, i.e., common offices, common record keeping, shared bank accounts and equipment; (2) common management, common directors and boards; (3) centralized control of labor relations and personnel; and (4) common ownership and financial control.” Id. at 994. Here, Plaintiff has demonstrated that each of the companies in question are interrelated enough to constitute a single employer. Each store has common ownership in Mr. Kevin Dittrich, Mr. Dittrich is president of each company, each company has the same area director, and the same ...