Katrina Voorhees v. Cortona Partners, LLC

• Court: Court of Appeals of Kentucky
• Decided: December 21, 2022
• Docket: 2022 CA 000942
• Status: Unknown

Opinion

RENDERED: DECEMBER 22, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2022-CA-0942-ME

KATRINA VOORHEES APPELLANT

APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE PATRICIA M. SUMME, JUDGE ACTION NO. 20-CI-00393

CORTONA PARTNERS, LLC; AND JOHN CIOFFI, III APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND MCNEILL, JUDGES.

CLAYTON, CHIEF JUDGE: Katrina Voorhees, a pizza delivery driver, filed suit

in Kenton Circuit Court, individually and on behalf of similarly-situated

individuals, alleging that her former employer, Cortona Partners, LLC, and its sole

member, John Cioffi, III (collectively “Cortona”), violated Kentucky’s Wages and

Hours Act, Kentucky Revised Statutes (KRS) 337.010 et seq. (“KWHA”). The trial court denied class certification and Voorhees brought this interlocutory appeal

pursuant to Kentucky Rules of Civil Procedure (“CR”) 23.06. The sole issue

before the Court is whether the trial court abused its discretion in ruling the

putative class was not sufficiently numerous to warrant certification of a class

action. Having reviewed the arguments of counsel, the record, and the applicable

law, we affirm.

I. BACKGROUND

From about October 2014 to June 2016, Voorhees was employed as a

pizza delivery driver for a Snappy Tomato restaurant located in Independence,

Kentucky. The restaurant, a franchise, was one of three owned by Cortona. All

three restaurants were located in Kenton County, two in Independence and one in

Park Hills. Cortona sold the two restaurants in Independence in December 2017,

closed the Park Hills location in May 2018, and sold it in September 2018.

According to Cioffi, he employed five or fewer drivers to cover

deliveries for all three restaurants on weekends. On weekdays, he employed one

driver or made the deliveries himself. The average delivery distance was four to

five miles. The majority of the drivers were paid the statutory minimum hourly

wage of $7.25, or slightly more, with the highest-paid driver earning $7.57 per

hour. The drivers used their own cars to make the deliveries. Cortona did not

track its drivers’ individual automobile expenses such as vehicular wear and tear,

-2- gas, repairs, and insurance; instead, it reimbursed the drivers at a flat rate of

between $1.00 and $1.25 per delivery.

Voorhees filed her complaint on March 2, 2020, alleging Cortona

violated the KWHA by systematically under-reimbursing drivers for driving-

related expenses, with the result that the drivers were effectively paid below the

minimum wage. The complaint contended that the average reimbursement rate for

the drivers averaged between $.20 and $.25 per mile, which was well below the

IRS standard mileage reimbursement rate at that time of between $.535 and $.58

per mile. Voorhees sought to bring the claim as a class action on behalf of all

individuals currently or formerly employed as delivery drivers by Cortona at any

time in the five years preceding the filing of the complaint. The complaint asserted

that the class consisted of at least one hundred persons who were geographically

dispersed, and consequently their joinder in a single claim was impracticable.

Voorhees subsequently filed a specific motion and supporting memo

for class certification pursuant to CR 23.01, claiming the class contains at least

fifty-four delivery drivers who were employed by Cortona during the recovery

period.

Following a hearing, the trial court denied the motion on the grounds

that Voorhees had failed to meet the burden of proving that the members were so

numerous that their joinder as individual plaintiffs would be impracticable.

-3- This appeal by Voorhees followed.

II. ANALYSIS

a. Standard of review

CR 23.01 provides that one or more members of a class may sue or be

sued as representative parties on behalf of all only if (a) the class is so numerous

that joinder of all members is impracticable, (b) there are questions of law or fact

common to the class, (c) the claims or defenses of the representative parties are

typical of the claims or defenses of the class, and (d) the representative parties will

fairly and adequately protect the interests of the class.

Specifically in respect to the numerosity requirement, “[t]here is no

precise size or number of class members that automatically satisfies the numerosity

requirement.” Hensley v. Haynes Trucking, LLC, 549 S.W.3d 430, 443 (Ky. 2018)

(citation omitted). “Whether a number is so large that it would be impracticable to

join all parties depends not upon any magic number or formula, but rather upon the

circumstances surrounding the case.” Id. “Practicability of joinder also depends

on the size of the class, the ease of identifying its members and determining their

addresses, facility of making service on them, and their geographic dispersion.”

Id.

A trial court’s determination as to class certification is reviewed on

appeal for an abuse of discretion. Id. at 444. Applying this standard, the appellate

-4- court may reverse a trial court’s decision only if “the trial judge’s decision was

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id.

Our review of the trial court’s decision is further limited by the strict

parameters of interlocutory appeals. Id. at 436. We are permitted to focus only on

the limited issue of whether the trial court properly denied certification, not on the

merits of the underlying case. Id. “We must . . . scrupulously respect the

limitations of the crossover between (1) reviewing issues implicating the merits of

the case that happen to affect the class-certification analysis and (2) limiting our

review to the class-certification issue itself.” Id.

b. The numerosity requirement

Voorhees argues that the trial court misinterpreted Kentucky

minimum wage law to conclude that some of the putative class members’ claims

were de minimis and, on that faulty basis, ruled the class was too small to meet the

numerosity requirement.

In its order denying class certification, the trial court cited Hensley v.

Haynes Trucking, supra, a seminal opinion addressing the certification of class

actions in Kentucky. In Hensley, a group of truck drivers brought a class action

under a now-repealed section of the KWHA, claiming they had been underpaid. In

opposing certification of the class, their employers claimed a significant number of

the putative class included drivers who spent only a de minimis amount of time on

-5- the work site. Hensley, 549 S.W.3d at 441. If these drivers with de minimis claims

could not be joined to reach the jurisdictional threshold, the employers argued, the

number of people in the class would not meet the numerosity requirement. The

Court stated that “[d]etermining whether Kentucky law excludes as too trifling for

litigation the claims of a group of plaintiffs is not an appropriate consideration for

this Court on interlocutory appeal.” Id. at 441. Although “[t]he potential

application of the de minimis limitation is a proper consideration for the trial court

in determining whether the class-certification requirements are satisfied[,]” the

Court cautioned that “appellate courts on interlocutory appeal cannot reach and

conclusively determine a substantive issue that reaches the merits of a case when

simply reviewing the propriety of the trial court’s class-action certification

determination.” Id. at 441-42.

In addressing the element of numerosity, the trial court stated in

relevant part as follows:

The potential application of the de minimis limitation is a proper consideration for the trial court in determining whether the class-certification requirements are satisfied. Hensley at 441-42 citing Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds, 568 U.S. 455, 465-66 (2013). If the Courts of Kentucky were to hold that Kentucky law allows a de minimis limit on litigable claims some of the purported class members here would be prevented from bringing suit. Hensley at 441. Defendants sold two of their stores in December 2017 and the third in September 2018 although that location had closed that May. The complaint was filed

-6- on March 2, 2020, so the class members would have been employed from March 2, 2015 through sometime in May 2018, or just over three years at the most. While the complaint alleges that there are over one hundred members of the class, the record contains reference to fifty-four identified employees. There is evidence in the record that of those, only eight worked more than two months, five worked one month, and the remainder worked less than that. Deposition of Defendant John Cioffi, III, 3/10/21, p. 42, lines 4-8; Cortona Partners Summary of Driver Wages, Exhibit 4 to motion for class certification. Upon review of the documents in the record before the court, it appears that there is sufficient information in the form of employment records to easily identify each driver and join them as individual plaintiffs in this case after which time the court could determine which of them had sufficient claims to be brought before this court.

Voorhees argues that the trial court erred as a matter of law in

refusing to certify the class because a de minimis limitation does not apply to

claims made pursuant to the KWHA and also directly contradicts the principles of

CR 23 and relevant case law. This argument is based on a misreading of the trial

court’s order.

The trial court found, based on the employment documents produced

by Cortona, that it would be easy to identify and locate the fifty-four members of

the class and join each of them individually as a plaintiff. Its plan to proceed

thereafter to determine whether the claims of the individual plaintiffs would be

subject to a de minimis limitation was not a decisive factor in its numerosity

-7- analysis. The question of whether such a de minimis limitation applies relates

directly to the merits of this case and is therefore beyond the scope of our review.

Although “there is no ‘strict numerical test’ that must be met for a

class to be certified[,] . . . and [t]he requirement can be satisfied with a class size as

low as 35 people[,]” Calloway v. Caraco Pharmaceutical Laboratories, Ltd., 287

F.R.D. 402, 406 (E.D. Mich. 2012) (internal quotation marks and citations

omitted), the analogous “pizza cases” cited in Voorhees’s memorandum in support

of class certification, and by her counsel at the hearing before the trial court,

involved significantly larger numbers of drivers than the number at issue here.

See, e.g., Waters v. Pizza to You, LLC, No. 3:19-CV-372, 2021 WL 229040, at *7

(S.D. Ohio Jan. 22, 2021) (at least 160 delivery drivers employed at five stores);

Brandenburg v. Cousin Vinny’s Pizza, LLC, No. 3:16-CV-516, 2018 WL 5800594,

at *3 (S.D. Ohio Nov. 6, 2018) (1,027 delivery drivers employed at fifteen

different locations); McFarlin v. Word Enterprises, LLC, No. 16-CV-12536, 2017

WL 4416451, at *2 (E.D. Mich. Oct. 5, 2017) (between 106 and 117 potential class

members working for three companies owned by the defendant); Perrin v. Papa

John’s Intern., Inc., No. 4:09CV01335 AGF, 2013 WL 6885334, at *1 (E.D. Mo.

Dec. 31, 2013) (4,000 out of 29,000 putative plaintiffs from five different states

filed consent to join the class action). Although Voorhees claimed that the Snappy

Tomato class may be as large as one hundred drivers, the “impracticability of

-8- joinder must be positively shown, and cannot be speculative.” Young v.

Nationwide Mut. Ins. Co., 693 F.3d 532, 541 (6th Cir. 2012) (quoting Golden v.

City of Columbus, 404 F.3d 950, 966 (6th Cir. 2005)). The trial court’s decision

that it would not be impracticable to join fifty-four individual plaintiffs was based

on substantial, concrete evidence in the record and may not be reversed on appeal

under our deferential standard of review, which recognizes “the essentially factual

basis of the certification inquiry and . . . the [trial] court’s inherent power to

manage and control pending litigation.” Hensley, 549 S.W.3d at 444.

III. CONCLUSION

For the foregoing reasons, the order denying class certification is

affirmed.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:

Edward L. Metzger III Tabitha M. Hochscheid Edgewood, Kentucky Cincinnati, Ohio

Mark Potashnick St. Louis, Missouri

Andrew Biller Emily Hubbard Cincinnati, Ohio

-9-