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Edward Earl Nicholson, Individually and On Behalf of All Others Similarly Situated v. Uti Worldwide

May 10, 2011


The opinion of the court was delivered by: J. Phil Gilbert District Judge


This matter comes before the Court on plaintiff Edward Earl Nicholson's motion for class action certification of Counts II, III, IV and V under Federal Rule of Civil Procedure 23 (Doc. 94). Defendants UTi Worldwide, Inc. and UTi Integrated Logistics, Inc. (collectively "UTi") have responded to the motion (Doc. 104), and Nicholson has replied to that response (Doc. 106). In addition, Nicholson has filed supplemental authority, but not using the procedure for supplementing a motion found in Local Rule 7.1(g). However, the Court was aware of the supplemental citation even before Nicholson pointed it out and will consider it despite Nicholson's procedural error.

I. Background

The Court has set forth the background of this case in a recent order granting conditional collective action certification of Count I pursuant to § 216(b) of the Fair Labor Standards Act 29 U.S.C. § 216(b):

From November 2008 to August 2009, Nicholson worked for UTi as a forklift operator in Edwardsville, Illinois. Nicholson was an hourly worker protected by the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and the Illinois Minimum Wage Law ("IMWL"), 820 ILCS § 105/1 et seq. Nicholson alleges that during his employment, UTi required its forklift operators like him to "work before their paid shifts donning special clothing and protective gear, locating forklifts, inspecting forklifts, completing inspection documents, changing forklift batteries, logging into computer systems and applications, obtaining supplies, and driving or walking to assigned work areas." Am. Compl. ¶ 1. He claims he and other forklift operators were sometimes required to replace pallets and arrange work areas before their paid shifts began, and were required to work during unpaid lunch breaks. Id. (Doc. 110).

In conjunction with the pending motion for class certification, Nicholson charges that this "off-the-clock" work was facilitated by time-clock policies that (1) rounded an employee's clock-in time to the time of his scheduled shift if he clocked in less than fifteen minutes (or seven minutes, at one facility) before his shift started and (2) automatically deducted thirty minutes for an unpaid lunch break regardless of an employee's lunchtime clock-out and clock-in times.

UTi maintains that the clock-in rounding policy reflected the fact that an employee was allowed to clock in within fifteen (or seven, at one facility) minutes before his shift began but was not required to work until his shift time, at which time he attended a safety meeting or performed the tasks Nicholson lists in the amended complaint. It also notes that employees were given a thirty-minute lunch break and were never required to work during that break time.

Nicholson filed this lawsuit in September 2009. Following the Court's dismissal of some of his claims, the following claims pled in the amended complaint remain:

Count I: a claim for failure to pay overtime wages in violation of the FLSA, 29 U.S.C. § 207(a)(1);

Count II: a claim for failure to pay overtime wages in violation of the IMWL, 820 ILCS § 105/41(a);

Count III: a claim for breach of contract for failure to pay contracted wages; Count IV: a quantum meruit claim for unpaid "gap time" (hours worked before the employee reaches the forty-hour per week overtime threshold that were not paid at the correct rate of pay); and Count V: an unjust enrichment claim for unpaid "gap time."

As noted above, the Court has conditionally certified Count I as a collective action under the FLSA. Nicholson now asks the Court to certify the following class under Rule 23 for Counts II through V:

All current and former UTi employees in the State of Illinois whose primary job duty is/was to operate a forklift at any time from September 14, 2004, to the present.

UTi objects to certification on the grounds that Nicholson has not established that the number of putative class members is large enough to justify class treatment. It also argues that common questions of law or fact do not predominate in this litigation and that a class action is not superior to other methods of resolving the issues. In a footnote, it also objects to other requirements for class certification under Rule 23(a), but since it has not supported those arguments adequately, it has waived them. See Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 397 (7th Cir. 2000) (perfunctory, underdeveloped and unsupported arguments are waived); Perry v. Sullivan, 207 F.3d 379, 382 (7th Cir. 2000).

As in its opposition to conditional collective action certification of Count I under the FLSA, UTi challenges the affidavits Nicholson has submitted in support if its request for class certification. Nicholson has submitted a number of affidavits from current or past forklift operators who worked at UTi and who stated that trainers told them they had to perform certain work tasks before the beginning of their shifts. UTi argues that the affidavits should be disregarded because they are vague, speculative and lack foundation. It notes they do not contain the names or identifying descriptions of any trainers who directed the off-the-clock work. UTi has submitted opposing affidavits from the trainers themselves stating that they never directed such work. Nicholson's affidavits need not be disregarded simply because they lack the equivalent amount of factual detail as UTi's affidavits. Nicholson's affidavits purport to be based on personal knowledge and contain enough details to paint a picture of the relevant employment practices at UTi's Edwardsville warehouses and other UTi facilities, and that is all that is required. The conflicting affidavits merely show that there is an issue of fact for trial. Whether testimony from the affiants will be sufficient to justify relief in the end will be a matter to be decided later in this litigation.

UTi also invites the Court to visit the merits of this case. However, as explained below, such an inquiry goes beyond the Court's role at this point of the litigation, which is simply to decide if class certification is appropriate.

II. Analysis

A principal purpose of class certification is to save the resources of both the courts and the parties by permitting an issue potentially affecting every class member to be litigated in an economical manner. See General Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 155 (1982). The Court may certify a class if it satisfies all four provisions of Federal Rule of Civil Procedure 23(a), at least one provision of Rule 23(b) and the implied prerequisites that a class be ascertainable and that the class representative be within the class. It is the moving party's burden to establish that each of the prerequisites of Rule 23 is satisfied. General Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 161 (1982); Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). A plaintiff's failure to satisfy any of the Rule 23 requirements precludes class certification. Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993) (citing Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993)).

Generally, when ruling on a motion for class certification, the Court does not consider the merits of the case; rather, the Court focuses on whether the certification requirements are satisfied. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974). "'[T]he question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.'" Id. (quoting Miller v. Mackey Int'l, Inc., 452 F.2d 424 (5th Cir. 1971)). Thus, the Court's role in the action currently under review is to "determine whether the plaintiff[s are] asserting a claim which, assuming its merits, would satisfy the requirements of Rule 23." See H. Newberg, 8 Newberg on Class Actions, § 24.13 (3d ed. 1992).

Nonetheless, the determination of a class certification motion may involve some consideration of the factual and legal issues that comprise the plaintiff's cause of action. Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978). While the Court may not consider arguments directly on the merits, it may make a preliminary inquiry into the merits of the action when necessary to determine whether the requirements for class certification have been met. Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676-77 (7th Cir. 2001). For example, it may take into account the substantive elements of a plaintiff's claims and the proof necessary to those elements so as to envision the form trial on those issues would take. Elliott v. ITT Corp., 150 F.R.D. 569, 573 (N.D. Ill. 1992) (citing Simer v. Rios, 661 F.2d 655, 672 (7th Cir. 1981)).

The Court must rigorously assess whether the prerequisites have been met, see Falcon, 457 U.S. at 161, and, if the party seeking class certification meets each of them, the Court must certify the proposed class, see Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 130 S. Ct. 1431, 1437 (2010) (noting "a categorical rule entitling a plaintiff whose suit meets the specified criteria [of Rule 23] to pursue his claim as a class action"); Vickers v. Trainor, 546 F.2d 739, 747 (7th Cir. 1976); Fujishima v. Board of Educ., 460 F.2d 1355, 1360 (7th Cir. 1972). The Court has broad discretion to determine whether a proposed class satisfies the requirements, Keele v. Wexler, 149 F.3d 589, 592 (7th Cir. 1998); Patterson v. General Motors Corp., 631 F.2d 476, 480 (7th Cir. 1980), and should err in favor of maintaining class actions, King v. Kansas City S. Indus., Inc., 519 F.2d 20, 26 (7th Cir. 1975). A. Implied Prerequisites

Before the Court can address the issues raised by Rule 23, the moving party must satisfy two implied prerequisites of Rule 23. The first is that the class is sufficiently defined so as to be identifiable as a class. Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006); Simer v. Rios, 661 F.2d 655, 669 (7th Cir. 1981) ("It is axiomatic that for a class action to be certified a 'class' must exist."); Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir. 1977); Duffin v. Exelon, No. CIV A 06 C 1382, 2007 WL 845336 at *3 (N.D. Ill. Mar. 19, 2007). The second is that the named representative fall within the class. Alliance to End Repression, 565 F.2d at 977.

The plaintiff proposes a class consisting of all individuals employed by UTi in Illinois whose primary job duty is or was to operate a forklift at any time from September 14, 2004, to the present. The Court finds the class is sufficiently identifiable as a class and is not overbroad. It will be a relatively simple matter to ascertain who is in the classes by reference to objective criteria contained within UTi's employee records and job descriptions. Furthermore, it is clear that the named representative falls within the class definition. Thus, Nicholson has satisfied the implied prerequisites to class certification.

B. Rule 23(a)

Rule 23(a) allows a plaintiff to sue on behalf of a class only if all four of the following elements are satisfied:

(1) the class is so numerous that joinder of all members is impracticable; 6

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or ...

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