Clark v. Bally's Park Place, Inc.

298 F.R.D. 188, 2014 WL 955368
CourtDistrict Court, D. New Jersey
DecidedMarch 12, 2014
DocketCivil Action No. 10-6725
StatusPublished
Cited by2 cases

This text of 298 F.R.D. 188 (Clark v. Bally's Park Place, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. Bally's Park Place, Inc., 298 F.R.D. 188, 2014 WL 955368 (D.N.J. 2014).

Opinion

Opinion

JOSEPH H. RODRIGUEZ, District Judge.

This matter arises under the New Jersey Wage and Hour Law (“NJWHL”), N.J.S.A. § 34:11-56a et seq. Defendant Bally’s Park Place (“Bally’s”) owns and operates Defendant Bally’s Casino and Hotel in Atlantic City, New Jersey. Patrick DeAngelis (“Plaintiff’) is a former Dealer in the Table Games Department at Bally’s.2 Plaintiff al[192]*192leges that Bally’s requires its dealers to attend pre-shift meetings called “Buzz Sessions.” “Buzz Sessions” are bi-weekly meetings which occur approximately 5 to 10 minutes before the start of a dealer’s scheduled shift. At the Buzz Sessions, dealers discuss current promotions, events, and ways to deliver excellent customer service and satisfaction. Plaintiff alleges that the Dealers are not paid for their required attendance at the Buzz Sessions, in violation of the NJWHL.

Presently before the Court is Plaintiffs Motion for Class Certification [Dkt. No. 48] pursuant to Fed.R.Civ.P. 23. Plaintiff brings this motion on behalf of himself and all former and current non exempt hourly employees in the Table Games Department of Bally’s who were required to attend the “Buzz Sessions” without pay, in violation of the NJWHL, N.J.S.A. 34:11-56a et seq. The Court has considered the written submissions of the parties and the arguments advanced orally at the hearing on May 2, 2013. In addition, on June 25, 2013, the Court directed the parties to submit supplemental briefing specifically addressing the Supreme Court’s decision in Comcast Corp. v. Behrend, — U.S. -, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013). For the reasons set forth below and for the reasons expressed on the record at the hearing, Plaintiffs Motion for Class Certification is granted.

I. Background

Plaintiff alleges that Bally’s requires its dealers to attend pre-shift Buzz Sessions during which Bally’s managers discussed current promotions, events, and ways to deliver excellent customer service and satisfaction.3 At the heart of this ease lies Plaintiffs allegation that although Bally’s required attendance at Buzz Sessions, the dealers are not compensated for this time. Instead, dealers’ work time is calculated starting at the time that their scheduled shift begins. According to Plaintiff, Defendants’ timekeeping system and the manner in which employees are directed to eloek-in and clock-out, precludes all members of the proposed class from recording their attendance at the Buzz Sessions. Specifically, Plaintiff alleges that pursuant to Bally’s policy detailed in the Employee Handbook, employees are specifically instructed to clock in no more than three minutes prior to the start of their shift and to clock out no more than three minutes after the end of a shift. The result is a six minute window to clock in and out that relieves Bally’s of any overtime pay obligation, because overtime is automatically assigned after eight minutes. See Pl.Ex. 9, Bengis Dep., 33:3-19; 34:23-35:4. Plaintiff contends that an employee who attends a five to ten minute Buzz Session prior to the start of a shift cannot clock in before the Buzz Session because of the three minute clock-in rule that governs the start of their scheduled shift.

Plaintiff also alleges that if an employee inadvertently clocks-in prior to attending the Buzz Session, they still are not paid for that time, because Bally’s uses a centralized payroll and time-keeping system called “Time-works,” which automatically subtracts the employees’ cloek-in and clock-out time to the closest quarter hour. According to Plaintiff, hourly employees are not paid if they clock in a certain number of minutes before their shift or clock out a certain number of minutes after their shift ends.

The upshot of the above scenarios is that Bally’s avoided compensating these employees for time spent in attendance at Buzz Sessions. Moreover, because Bally’s does not take attendance at these sessions, as required by N.J.S.A., 34:11-56a20, there is no way for the proposed class to definitively prove they are entitled to damages. Instead, Plaintiff argues that because attendance at Buzz Sessions was required, attendance is assumed. See Pl.Ex. 2, Yeager Dep. 67:18-25; 113:5-22 (stating that attendance at Buzz Sessions is required compensable time).

The Class

Though the instant motion, Plaintiff seeks class certification under Rule 23 on behalf of: [A]ll current and former non-exempt (hourly) employees who have worked at [193]*193the Table Games Department in Bally’s Atlantic City casino and were required to attend ‘pre-shift’ meetings any time from December 22, 2008 through the present (the “[c]lass [pjeriod”), in connection with New Jersey wage and hour claims arising from Bally’s Park Place, Inc. and Bally’s Atlantic City[ ] (collectively “Bally’s”) failure to: (a) pay overtime wages to the Class for all work exceeding 8 hours in a day and 40 hours in a week ...; (b) pay straight time wages for pre-shift work ...; (c) and to keep time records ... (Pl.’s Mot. 1.)

II. Standard of Review

“To obtain class action certification, plaintiffs must establish that all four requisites of Rule 23(a) and at least one part of Rule 23(b) are met.” Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir.1994). “[Tjhe requirements set out in Rule 23 are not mere pleading rules.” In re Hydrogen Peroxide, 552 F.3d, 305, 316 (3d Cir.2008). Courts must critically examine the allegations, see Barnes v. Amer. Tobacco Co., 161 F.3d 127, 140 (3d Cir.1998), because “the class determination generally involves considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiffs cause of action.’” Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (citation omitted). In this regard, class certification is only appropriate if the Court “ ‘is satisfied after a rigorous analysis, that the prerequisites’ of Rule 23 have been satisfied.” Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011) (quoting Gen. Tel. Co. of the 5.W. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)).

Pursuant to recent precedent, the “rigorous analysis” requires the Court to “delve beyond the pleadings” and “resolve all factual or legal disputes relevant to class certification, even if they overlap with the merits — -including disputes touching on elements of the cause of action.” Marcus v. BMW of N. Am., 687 F.3d 583, 591 (3d Cir.2012). “Rule 23 gives no license to shy away from making factual findings that are necessary to determine whether the Rule’s requirements have been met.” Id. Indeed, the Court “cannot be bashful” in performing the “rigorous analysis” of the Rule 23 considerations. Id. “Factual determinations necessary to make Rule 23 findings must be made by a preponderance of the evidence.”

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Cite This Page — Counsel Stack

Bluebook (online)
298 F.R.D. 188, 2014 WL 955368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-ballys-park-place-inc-njd-2014.