CHICAGO — A federal appeals panel has scrapped a Wisconsin roofing worker's attempt to bring a class action against his fomer employer over allegedly unpaid overtime, using the decision to weigh in on the question of just how many other plaintiffs are needed to bring a class action.
Richard Anderson, a seasonal worker for Weinert Enterprises, disputed how the Green Bay-area roofing company calculated overtime owed to workers for time spent driving to job sites. He first filed a federal collective action under the Fair Labor Standards Act, but withdrew the complaint after failing to draw sufficient employee support. While trying to pursue his state law claims as a class action, Judge U.S. District Judge William Griesbach determined the proposed class would only include a maximum of 37 people, and denied class certification, saying the action didn't include enough plaintiffs to justify a collective action.
The U.S. Seventh Circuit Court of Appeals issued a decision on Anderson’s appeal Jan. 28.
U.S. Seventh Circuit Court of Appeals Judge Michael Y. Scudder
| Skadden.com
Seventh Circuit Judge Michael Scudder wrote the opinion; judges Diane Wood and Michael Brennan concurred.
“Ample ink has been spilled discussing class action litigation and Federal Rule of Civil Procedure 23 (the rule that governs class actions),” Scudder wrote. “Rare are the cases analyzing the Rule’s numerosity requirement. This is one of those cases.”
Anderson moved for class certification in April 2019. Griesbach denied Anderson’s request to expand the class to included employees Weinert planned to hire for the upcoming construction season, limiting membership to roofers on the job between June 2016, and December 2018.
He then ruled Anderson couldn’t show why it was impractical for his suit to simply have multiple named plaintiffs, instead of proceeding as a class action.
“Anderson had not identified any difficulty in locating or contacting potential class members,” Scudder wrote, adding all but two of the 37 lived within a 50-mile radius.
Scudder further noted Griesbach rejected Anderson’s argument that individual plaintiffs would be discouraged from suing because Wisconsin law limits damages in such complaints. Winning plaintiffs can recover court costs and legal fees, Griesbach said, and the numerosity requirement doesn’t hinge on whether individuals could sue, only if joining together as plaintiffs would be feasible.
“While ‘impracticable’ does not mean ‘impossible,’ ” Scudder wrote, a class representative has to demonstrate how and why adding all potential members as individual plaintiffs would be “extremely difficult or inconvenient.”
The panel pointed to several cases that establish a 40-member class is “sufficient to meet the numerosity requirement,” although that number doesn’t guarantee certification. As such, a judge’s evaluation must also include the kind of lawsuit, the individual claims and the location of potential members.
Griesbach properly considered those factors, the panel said, noting “Anderson presented no evidence showing that coordinating with the two out-of-state class members would present such difficulties that joinder of approximately 40 local employees of a small roofing company would be impracticable.”
Furthermore, Scudder wrote, Griesbach didn’t abuse judicial discretion in excluding from the class workers the company hadn’t yet hired. Although the decision on the certification motion came in August 2019, Anderson hadn’t offered any evidence about Weinert’s hiring that season.
“In order to have any 2019 hires included in the proposed class and related numerosity analysis, it was not unreasonable for the district court to conclude that Anderson needed to do more than speculate about how many employees Weinert would (or, in fact, did) hire for the 2019 season," Scudder wrote.
Although Anderson alleged Weinert failed to update initial discovery disclosures, the panel said he should’ve raised that concern when the case was before Griesbach, rather than waiting for his appeal. Scudder also wrote that even if the 2019 hires would’ve pushed the class to 40 members, it wouldn’t change Anderson’s burden of proof.
“He never demonstrated that naming as plaintiffs each of the predominantly local, current, and former employees of a northeast Wisconsin roofing company would be impracticable,” Scudder concluded. “The district court did not abuse its discretion in evaluating the practicability of joinder based on the evidence before it.”
Anderson has been represented in the case by attorney Yingtao Ho, of The Previant Law Firm S.C., of Milwaukee.
Weinert Enterprises has been represented by attorney Jennifer S. Walther, of the firm of Mawicke & Goisman S.C., of Milwaukee.