Laichev v. JBM, Inc.

269 F.R.D. 633, 2008 U.S. Dist. LEXIS 118638, 2008 WL 8065589
CourtDistrict Court, S.D. Ohio
DecidedJune 19, 2008
DocketNo. 1:07cv802
StatusPublished
Cited by6 cases

This text of 269 F.R.D. 633 (Laichev v. JBM, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Laichev v. JBM, Inc., 269 F.R.D. 633, 2008 U.S. Dist. LEXIS 118638, 2008 WL 8065589 (S.D. Ohio 2008).

Opinion

ORDER

MICHAEL R. BARRETT, District Judge.

This matter is before the Court on the Plaintiffs’ Motion for Order Approving the Case as a Collective and Class Action (Doc. 26). Defendant filed a memorandum in opposition (Doc. 32) to which Plaintiffs replied [635]*635(Doc. 44). Plaintiffs request the Court to approve the mailing of the collective action Notice, certify the class, appoint class counsel, and direct Defendant to produce the names and addresses of any and all putative class and collective action members.

Defendant also filed a Motion for Judgment on the Pleadings for Plaintiffs’ Second Cause of Action (Doc. 31), Plaintiffs responded (Doe. 40) to which Defendant replied (Doc. 43). Finally, Defendant filed a motion for oral argument (Doe. 45).

I. FACTS

Plaintiffs bring this action alleging violations of the Fair Labor Standards Act (“FLSA”) and the Ohio Minimum Fair Wage Standards Act, specifically, Ohio Revised Code § 4111.03 and § 4111.10 (“OMFWSA”). Plaintiffs and the proposed classes are technicians who install and repair DirecTV hardware who allegedly did not receive overtime pay despite working more than forty hours a week. Specifically, Plaintiffs propose a collective action for technicians of JBM, Inc. (“JBM”) located in various states under the FLSA and a Fed.R.Civ.P. 23 class action under the OMFWSA for technicians who worked in Ohio.

The proposed collective action class definition is “all technicians who have worked for JBM between September 22, 2005 and the date of final judgment in this matter in a non-supervisory capacity.” The Rule 23 class definition is “all technicians who have worked for JBM in Ohio between September 22, 2005 and the date of final judgment in this matter in a non-supervisory capacity.”

Defendant denies these allegations and has moved for judgment on the pleadings as to the second cause of action, Rule 23 class action based on the Ohio minimum Fan-Wages Standards Act. This motion will be addressed first.

II. ANALYSIS

A. Motion for Judgment on the Pleadings

A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) attacks the sufficiency of the pleadings and is evaluated under the same standard as a motion to dismiss. Thomas v. Gee, 850 F.Supp. 665, 668 (S.D.Ohio 1994), citing, Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir.1979). In ruling upon such motion, the Court must accept as true all well-pleaded material allegations of the pleadings of the opposing party, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment. Id., citing, Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir.1973). Even though a complaint need not contain “detailed” factual allegations, its “[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (citations omitted).

JBM argues Ohio Revised Code § 4111.14(K) provides for an opt-in class mechanism for class actions and that Fed. R.Civ.P. 23 provides for an opt-out class mechanism thereby creating a class that cannot be maintained relying on Williams v. Le Chaperon Rouge, 2007 U.S. Dist. LEXIS 95510 (N.D.Ohio 2007) or, in the alternative, creating an inherit conflict. Plaintiff counters that numerous courts, including this District, have found to the contrary, that opt-in and opt-out classes may be maintained in the same litigation. Plaintiff further counters that O.R.C. § 4111.14(K) applies to minimum wage and not overtime which is governed by O.R.C. § 4111.10. Finally, Plaintiff counters that O.R.C. § 4111.14(K)(3) specifically provides that the opt-in classes can be joined in a single action with opt-out classes.

O.R.C. § 4111.14(K) specifically states, in relevant part, “[i]n accordance with Section 34a of Article II, Ohio Constitution, an action for equitable and monetary relief may be brought against an employer ... for any violation of Section 34a of Article II, Ohio Constitution ... ”. It goes on to state, at § 4111.14(K)(2), that “[n]o employee shall join as a party plaintiff in any civil action that is brought under division (K) of this section ... unless that employee first gives written consent to become such a party plain[636]*636tiff.” Finally, § 4111.14(K)(3) states “[a] civil action regarding an alleged violation of this section shall be maintained only under division (K) of this section. This division does not preclude the joinder in a single civil action under this division and an action under section 4111.10 of the Revised Code.” Thus, based upon the language of the statute, § 4111.14 only applies to actions brought under that particular section of the code, which is limited to implementing Section 34 of Article II, Ohio Constitution. It does not apply to O.R.C. § 4111.10 which provides for damages for violations of O.R.C. § 4111.03, a section of the code that provides for overtime pay. Furthermore, since § 4111.10 does not include a consent provision like § 4111.14(K)(2), Plaintiff may maintain a class action for violations of § 4111.10 under Fed.R.Civ.P. 23.

Although on its face it would appear that this opinion is in direct conflict with Judge Aldrich’s holding in Williams v. Le Chaperon Rouge, 2007 WL 4521492, 2007 U.S. Dist. LEXIS 95510 (N.D.Ohio Dec. 17, 2007), when viewed more closely it is apparent that Williams is distinguishable from the present matter. In Williams, the Plaintiff moved for Rule 23 “class certification of her state law claim under the Ohio Minimum Fair Wage Standards Act, O.R.C. §§ 4111.01-99.” Id. at *1, 2007 U.S. Dist. LEXIS 95510, at *1. Judge Aldrich found that O.R.C. § 4111.14(E)(2) required an opt-in class which thereby conflicted with the opt-out provisions of Rule 23.

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269 F.R.D. 633, 2008 U.S. Dist. LEXIS 118638, 2008 WL 8065589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/laichev-v-jbm-inc-ohsd-2008.