1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Deion Anthony, No. CV-22-00268-PHX-GMS
10 Plaintiff, ORDER
11 v.
12 Rise Services Incorporated, et al.,
13 Defendants. 14 15 16 Pending before the Court is Plaintiff’s Motion for Rule 23 Class Action Certification 17 (Doc. 257). For the reasons detailed below, Plaintiff’s Motion is granted. 18 BACKGROUND 19 Rise Services Incorporated (“Defendant” or “Rise”) is a Utah corporation that 20 provides services to people with development and intellectual disabilities. (Doc. 261-1 21 at 7). Services are provided in one of four environments: group homes, day programs, 22 employment training, and one-on-one in-home care. (Id.). These services are provided by 23 Direct Service Professionals (“DSPs”), sometimes referred to as Direct Support 24 Professionals. (Doc. 261 at 3; Doc. 261-1 at 4). Rise operates in multiple states, but 25 primarily in various Arizona communities: Yuma, Bullhead City, Kingman, Lake Havasu, 26 Surprise, Litchfield Park, Glendale, Mesa, Queen Creek, San Tan Valley, Thatcher, 27 Douglas, Bisbee, Sierra Vista, Tucson, and the Navajo Nation. (Doc. 261-1 at 9–10). Rise 28 employs about 1300 total DSPs across its operations. (Id. at 10–11). 1 During the COVID-19 pandemic, Rise implemented a temporary hazard pay policy 2 for DSPs working in “hazardous” environments. (Doc. 257-1 at 4). Retroactive to March 3 11, 2020, this policy would pay DSPs time and a half for working in environments where 4 there would be direct contact with clients who tested positive for COVID-19. (Id.). 5 Defendant employed Deion Anthony (“Plaintiff”) as a DSP by Defendant from 6 September 2, 2021, until January 23, 2022. (Id. at 9). Plaintiff alleges that while employed 7 by Defendant he never received hazard pay, despite being entitled to it. (Doc. 37 at 2). 8 Plaintiff further alleges that he was denied pay for training he was required to complete 9 off-the-clock. (Id.). Importantly, Plaintiff alleges that Defendant routinely and 10 consistently failed to pay all DSPs the compensation they earned. (Id.). 11 Premised on these allegations, Plaintiff filed Complaint alleging liability against 12 Defendant on Fair Labor Standard Act (“FLSA”) and Arizona Wage Act claims. (Doc. 1 13 at 18–27). On August 8, 2022, this Court granted Conditional FLSA class certification for 14 Plaintiff’s claims. (Doc. 37). On December 23, 2022, Plaintiff filed a Motion for Rule 23 15 Class Action Certification as to his Arizona Wage Act claims. (Doc. 257). Plaintiff moves 16 for certification “pursuant to Rule 23(b)(2) and/or (b)(3)” of the Federal Rules of Civil 17 Procedure. (Doc. 257 at 2). 18 DISCUSSION 19 I. Legal Standard 20 Rule 23 is the mechanism by which plaintiffs may certify class actions. Fed. R. Civ. 21 P 23. Plaintiffs seeking class certification must satisfy four prerequisites: numerosity, 22 commonality, typicality, and adequacy. Id. at 23(a). Additionally, plaintiffs must 23 demonstrate their claims qualify under one of three types of class actions. Id. at 23(b)(2), 24 23(b)(3). Rule 23(b)(2) certifies classes for seeking “final injunctive relief or 25 corresponding declaratory relief.” Id. at 23(b)(2). Rule 23(b)(3) certifies classes when 26 “questions of law or fact common to class members predominate over any questions 27 affecting only individual members” and a class action is the most fair and efficient tool. 28 Id. at 23(b)(3). 1 The party seeking class certification bears the burden of showing these elements. 2 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011). Courts engage in “a rigorous 3 analysis” when considering certifying a class. Id. at 350. This analysis will, at times, 4 overlap with the merits of the plaintiff’s case: i.e., the facts that the plaintiff alleges must 5 also qualify for class certification. Id. at 351. 6 II. Discussion 7 To certify Plaintiff’s class, he must first show he meets the four prerequisites under 8 Rule 23(a). If met, then Plaintiff must show qualification under Rule 23(b). 9 A. Prerequisites 10 1. Numerosity 11 Numerosity requires that “the class is so numerous that joinder of all members is 12 impracticable.” Fed. R. Civ. P. 23(a)(1). “A proposed class generally satisfies the 13 numerosity requirement if the class has 40 or more members.” Horton v. USAA Cas. Ins. 14 Co., 266 F.R.D. 360, 364–65 (D. Ariz. 2009). Defendant does not challenge Plaintiff’s 15 assertion of numerosity. Plaintiff claims that, since 2019, Defendant has employed over 16 3,200 DSPs. (Doc. 257 at 11). Accordingly, Plaintiff has satisfied Rule 23’s numerosity 17 requirement. 18 2. Commonality 19 Plaintiff claims, and Defendant contests, that the commonality requirement is met. 20 To satisfy commonality, class members’ claims “must depend upon a common contention 21 . . . of such a nature that it is capable of classwide resolution—which means that 22 determination of its truth or falsity will resolve an issue that is central to the validity of 23 each one of the claims in one stroke.” Wal-Mart Stores, Inc., 564 U.S. at 350. 24 Plaintiff has sufficiently alleged various legal and factual issues common across 25 similarly situated putative class members. (Doc. 262 at 4). Plaintiff identifies that DSPs 26 were all subject to the same scheduling and timekeeping systems, the same compensation 27 and hazard pay policies, and the same requirement for off-the-clock training. (Id.). While 28 putative class members may have worked under different supervisors, Plaintiff specifically 1 alleges Defendant’s supervisors all applied the same rules, policies, and demands to their 2 subordinates. (Id.). These are all common contentions that are central to each putative 3 member’s claim. Accordingly, Plaintiff has satisfied the commonality requirement. 4 3. Typicality 5 Defendant also challenges Plaintiff’s assertion of typicality. Typicality exists where 6 “the claims or defenses of the representative parties are typical of the claims and defenses 7 of class.” Fed. R. Civ. P. Rule 23(a)(3). Typicality does not require identical claims; 8 reasonably co-extensive claims are sufficient. Salazar v. Driver Provider Phoenix LLC, 9 No. CV-19-05760-PHX-SMB, 2023 WL 1966915, at *3 (D. Ariz. Feb. 13, 2023); Hanlon 10 v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). The concern with typicality is that 11 the class representative “aligns with the interests of the class.” Hanon v. Dataproducts 12 Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citations omitted). “The test of typicality ‘is 13 whether other members have the same or similar injury, whether the action is based on 14 conduct which is not unique to the named plaintiffs, and whether other class members have 15 been injured by the same course of conduct.”’ Id. (citing Schwartz v. Harp, 108 F.R. D. 16 279, 282 (C.D. Cal. 1985)). 17 Plaintiff has successfully alleged typicality. While the injury affecting individual 18 plaintiffs may differ by degree based on length and nature of employment with Defendant, 19 Plaintiff has alleged injuries typical to the putative class—namely non-payment for 20 hazardous work and non-payment for off-the-clock training. Accordingly, typicality has 21 been shown. 22 4. Adequacy 23 Finally, Plaintiff has shown adequacy, which Defendant does not challenge. 24 Adequacy is satisfied when “the representative parties will fairly and adequately protect 25 the interests of the class.” Fed. R. Civ. P. 23(a)(4).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Deion Anthony, No. CV-22-00268-PHX-GMS
10 Plaintiff, ORDER
11 v.
12 Rise Services Incorporated, et al.,
13 Defendants. 14 15 16 Pending before the Court is Plaintiff’s Motion for Rule 23 Class Action Certification 17 (Doc. 257). For the reasons detailed below, Plaintiff’s Motion is granted. 18 BACKGROUND 19 Rise Services Incorporated (“Defendant” or “Rise”) is a Utah corporation that 20 provides services to people with development and intellectual disabilities. (Doc. 261-1 21 at 7). Services are provided in one of four environments: group homes, day programs, 22 employment training, and one-on-one in-home care. (Id.). These services are provided by 23 Direct Service Professionals (“DSPs”), sometimes referred to as Direct Support 24 Professionals. (Doc. 261 at 3; Doc. 261-1 at 4). Rise operates in multiple states, but 25 primarily in various Arizona communities: Yuma, Bullhead City, Kingman, Lake Havasu, 26 Surprise, Litchfield Park, Glendale, Mesa, Queen Creek, San Tan Valley, Thatcher, 27 Douglas, Bisbee, Sierra Vista, Tucson, and the Navajo Nation. (Doc. 261-1 at 9–10). Rise 28 employs about 1300 total DSPs across its operations. (Id. at 10–11). 1 During the COVID-19 pandemic, Rise implemented a temporary hazard pay policy 2 for DSPs working in “hazardous” environments. (Doc. 257-1 at 4). Retroactive to March 3 11, 2020, this policy would pay DSPs time and a half for working in environments where 4 there would be direct contact with clients who tested positive for COVID-19. (Id.). 5 Defendant employed Deion Anthony (“Plaintiff”) as a DSP by Defendant from 6 September 2, 2021, until January 23, 2022. (Id. at 9). Plaintiff alleges that while employed 7 by Defendant he never received hazard pay, despite being entitled to it. (Doc. 37 at 2). 8 Plaintiff further alleges that he was denied pay for training he was required to complete 9 off-the-clock. (Id.). Importantly, Plaintiff alleges that Defendant routinely and 10 consistently failed to pay all DSPs the compensation they earned. (Id.). 11 Premised on these allegations, Plaintiff filed Complaint alleging liability against 12 Defendant on Fair Labor Standard Act (“FLSA”) and Arizona Wage Act claims. (Doc. 1 13 at 18–27). On August 8, 2022, this Court granted Conditional FLSA class certification for 14 Plaintiff’s claims. (Doc. 37). On December 23, 2022, Plaintiff filed a Motion for Rule 23 15 Class Action Certification as to his Arizona Wage Act claims. (Doc. 257). Plaintiff moves 16 for certification “pursuant to Rule 23(b)(2) and/or (b)(3)” of the Federal Rules of Civil 17 Procedure. (Doc. 257 at 2). 18 DISCUSSION 19 I. Legal Standard 20 Rule 23 is the mechanism by which plaintiffs may certify class actions. Fed. R. Civ. 21 P 23. Plaintiffs seeking class certification must satisfy four prerequisites: numerosity, 22 commonality, typicality, and adequacy. Id. at 23(a). Additionally, plaintiffs must 23 demonstrate their claims qualify under one of three types of class actions. Id. at 23(b)(2), 24 23(b)(3). Rule 23(b)(2) certifies classes for seeking “final injunctive relief or 25 corresponding declaratory relief.” Id. at 23(b)(2). Rule 23(b)(3) certifies classes when 26 “questions of law or fact common to class members predominate over any questions 27 affecting only individual members” and a class action is the most fair and efficient tool. 28 Id. at 23(b)(3). 1 The party seeking class certification bears the burden of showing these elements. 2 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011). Courts engage in “a rigorous 3 analysis” when considering certifying a class. Id. at 350. This analysis will, at times, 4 overlap with the merits of the plaintiff’s case: i.e., the facts that the plaintiff alleges must 5 also qualify for class certification. Id. at 351. 6 II. Discussion 7 To certify Plaintiff’s class, he must first show he meets the four prerequisites under 8 Rule 23(a). If met, then Plaintiff must show qualification under Rule 23(b). 9 A. Prerequisites 10 1. Numerosity 11 Numerosity requires that “the class is so numerous that joinder of all members is 12 impracticable.” Fed. R. Civ. P. 23(a)(1). “A proposed class generally satisfies the 13 numerosity requirement if the class has 40 or more members.” Horton v. USAA Cas. Ins. 14 Co., 266 F.R.D. 360, 364–65 (D. Ariz. 2009). Defendant does not challenge Plaintiff’s 15 assertion of numerosity. Plaintiff claims that, since 2019, Defendant has employed over 16 3,200 DSPs. (Doc. 257 at 11). Accordingly, Plaintiff has satisfied Rule 23’s numerosity 17 requirement. 18 2. Commonality 19 Plaintiff claims, and Defendant contests, that the commonality requirement is met. 20 To satisfy commonality, class members’ claims “must depend upon a common contention 21 . . . of such a nature that it is capable of classwide resolution—which means that 22 determination of its truth or falsity will resolve an issue that is central to the validity of 23 each one of the claims in one stroke.” Wal-Mart Stores, Inc., 564 U.S. at 350. 24 Plaintiff has sufficiently alleged various legal and factual issues common across 25 similarly situated putative class members. (Doc. 262 at 4). Plaintiff identifies that DSPs 26 were all subject to the same scheduling and timekeeping systems, the same compensation 27 and hazard pay policies, and the same requirement for off-the-clock training. (Id.). While 28 putative class members may have worked under different supervisors, Plaintiff specifically 1 alleges Defendant’s supervisors all applied the same rules, policies, and demands to their 2 subordinates. (Id.). These are all common contentions that are central to each putative 3 member’s claim. Accordingly, Plaintiff has satisfied the commonality requirement. 4 3. Typicality 5 Defendant also challenges Plaintiff’s assertion of typicality. Typicality exists where 6 “the claims or defenses of the representative parties are typical of the claims and defenses 7 of class.” Fed. R. Civ. P. Rule 23(a)(3). Typicality does not require identical claims; 8 reasonably co-extensive claims are sufficient. Salazar v. Driver Provider Phoenix LLC, 9 No. CV-19-05760-PHX-SMB, 2023 WL 1966915, at *3 (D. Ariz. Feb. 13, 2023); Hanlon 10 v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). The concern with typicality is that 11 the class representative “aligns with the interests of the class.” Hanon v. Dataproducts 12 Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citations omitted). “The test of typicality ‘is 13 whether other members have the same or similar injury, whether the action is based on 14 conduct which is not unique to the named plaintiffs, and whether other class members have 15 been injured by the same course of conduct.”’ Id. (citing Schwartz v. Harp, 108 F.R. D. 16 279, 282 (C.D. Cal. 1985)). 17 Plaintiff has successfully alleged typicality. While the injury affecting individual 18 plaintiffs may differ by degree based on length and nature of employment with Defendant, 19 Plaintiff has alleged injuries typical to the putative class—namely non-payment for 20 hazardous work and non-payment for off-the-clock training. Accordingly, typicality has 21 been shown. 22 4. Adequacy 23 Finally, Plaintiff has shown adequacy, which Defendant does not challenge. 24 Adequacy is satisfied when “the representative parties will fairly and adequately protect 25 the interests of the class.” Fed. R. Civ. P. 23(a)(4). Plaintiff’s claim that he can adequately 26 represent the interests of the putative class is unchallenged. Accordingly, Plaintiff has 27 sufficiently shown adequacy. 28 Because Plaintiff has satisfied the pre-requisites under Rule 23(a), the Court must 1 consider whether Plaintiff qualifies under Rule 23(b). 2 B. Rule 23(b) 3 Plaintiff alleges the Arizona Wage Act claims should be certified under Rule 4 23(b)(2) or (3). 5 1. 23(b)(3) 6 Rule 23(b)(3) allows for class certification where the particular “questions of law or 7 fact common to class members predominate over any questions affecting only individual 8 members.” Fed. R. Civ. P. 23(b)(3). To qualify under this rule, a class action must be 9 “superior to other available methods for fairly and efficiently adjudicating the 10 controversy.” Id. Because Plaintiff can show both predomination and superiority, class 11 certification is appropriate. 12 a. Predomination 13 The predominance requirement under Rule 23(b)(3) is “designed to determine 14 whether a class action [i]s far more efficient thereby promoting judicial economy.” Brink 15 v. First Credit Res., 185 F.R.D. 567, 572 (D. Ariz. 1999) (citing Valentino v. Carter– 16 Wallace, Inc., 97 F.3d 1227, 1232 (9th Cir. 1996)). The predominating questions of law 17 can include a defendant’s anticipated defense. See In re Agent Orange Prod. Liab. Litig. 18 MDL No. 381, 818 F.2d 145, 166–67 (2d Cir. 1987) (holding class certification under 19 23(b)(3) was appropriate because defendant’s defense was common to all of parties’ 20 claims). When a question of law is so central to a case that it predominates, factual 21 differences for the purpose of calculating individual damages does not prevent class 22 certification. Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1167 (9th Cir. 2014) (holding 23 that differences in damages calculation cannot, by itself, prevent class certification under 24 23(b)(3)); Brink, 185 F.R.D. at 572. 25 Plaintiff successfully shows that common questions predominate in this matter. 26 Plaintiff has detailed that putative class members were all allegedly subject to the same 27 injurious practices of Defendant, namely that Defendant refused to properly compensate 28 employees for training time and hazard pay. Defendant’s assertion that each putative class 1 member will have different amounts of damages is not enough to defeat predominance. 2 Finally, the entire claim will crumble beneath the putative class if Defendant can show 3 compliance with the Arizona Wage Act. Because the central question in this claim is 4 whether Defendant complied with the Arizona Wage Act when paying its Arizona 5 employees, predominance is met. 6 b. Superiority 7 Class certification under 23(b)(3) requires more than just predominance; it requires 8 a showing that a class action is the superior method of adjudication. The question of 9 superiority is about determining whether class adjudication is the most efficient, effective, 10 and economic approach for the Court. Zinser v. Accufix Rsch. Inst., Inc., 253 F.3d 1180, 11 1190 (9th Cir. 2001); Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168 (9th Cir. 12 2010). In making this determination, courts consider four factors: 13 (A) the class members’ interests in individually controlling the prosecution 14 or defense of separate actions; 15 (B) the extent and nature of any litigation concerning the controversy already 16 begun by or against class members; 17 (C) the desirability or undesirability of concentrating the litigation of the 18 claims in the particular forum; and 19 (D) the likely difficulties in managing a class action. 20 Fed. R. Civ. P. 23(b)(3)(1)–(4). 21 Consideration of the above factors indicates that a class action is the most efficient 22 method of adjudicating this matter. Adjudication as a class would preserve judicial 23 resources by allowing central questions pertaining to the entire class to be adjudicated in 24 one event, avoiding the costs associated with numerous individual trials. Additionally, not 25 all putative class members may be able to justify the expense of an individual trial. As 26 such, a class action may be the only reasonable opportunity for certain class members 27 exercise their right to bring an action. Finally, Defendant’s challenge to superiority is also 28 premised on the individual question of damages, which insufficient on its own to prevent || class certification under 23(b)(3). 2 Because Plaintiff has shown predomination and superiority under 23(b)(3), class || certification is granted. 4 2. 23(b)(2) 5 Rule 23(b)(2) allows for class certification where the entire class is seeking final 6 || injunctive or declaratory relief. Fed. R. Civ. P. 23(b)(2). Because Plaintiff has satisfied requirements for class certification under 23(b)(3), consideration of 23(b)(2) is not 8 || required. 9 CONCLUSION 10 Accordingly, 11 It is therefore ordered that Plaintiff's Motion for Rule 23 Class Action Certification (Doc. 257) is GRANTED. 13 Dated this 20th day of December, 2023. 14 - 5 A Whacrsay Sooo) Whicren 16 Chief United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28
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