United States District Court, W.D. Kentucky, Louisville Division
TINA MITCHAM, On Behalf of Herself and All Others Similarly Situated, Plaintiff,
INTREPID U.S.A., INC., et al., Defendants.
OPINION AND ORDER CONDITIONALLY APPROVING RULE 23
HORN BOOM, UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on the Parties' Joint Motion
for Order Preliminarily Approving Rule 23 Class Action
Settlement. [R. 52; R. 53] Named Plaintiff and proposed Class
Representative, Tina Mitcham (the “Class
Representative” or “Plaintiff”), and
Defendants Intrepid U.S.A., Inc. and F.C. of Kentucky, Inc.,
d/b/a Intrepid USA Healthcare Services
(“Intrepid” or “Defendants, ”
collectively with Plaintiff, the “Parties”)
jointly move the Court to approve the Rule 23 Settlement in
this action, and seek the following relief:
1. For certification, for settlement purposes only, of a
settlement class (the “Settlement Class” or
“Rule 23 Class”) pursuant to Federal Rule of
Civil Procedure 23(a) and 23(b)(3).
2. For appointment, for settlement purposes only, of Named
Plaintiff Tina Mitcham as Class Representative.
3. For appointment, for settlement purposes only, the
Plaintiff's attorneys, David W. Garrison and Joshua A.
Frank of Barrett Johnston Martin & Garrison, LLC as Class
Counsel for the Rule 23 Class.
4. For preliminary approval of the Settlement Agreement (the
“Settlement Agreement”) with regard to the
Parties' Rule 23 Class (the “Rule 23
5. For approval of RG2 Claims Administration to act as the
settlement claims administrator and to send the Rule 23 Class
Members a proposed Notice of Proposed Settlement of Class
Action Lawsuit and Fairness Hearing (“Class
Notice”) and a proposed Opt-Out Statement (collectively
6. To schedule a Fairness Hearing pursuant to Fed.R.Civ.P.
23(e) for final approval of the Settlement, consistent with
the Parties' proposed time frame.
[R. 52, Joint Mot., at pp. 1-2] For the reasons set forth
below and for purposes of settlement only, the Court will
certify the settlement class, will appoint the Named
Plaintiff as Class Representative, will appoint the
Plaintiff's attorneys as Class Counsel, will approve of
RG2 Claims Administration to act as settlement claims
administrator and to send out Class Notice Materials pending
resolution of the attorneys' fees issue, and will
preliminarily approve the Settlement Agreement for the Rule
23 Class conditioned upon resolution of the attorneys'
fees issue. The Court will address the requested relief in
Court incorporates, for reference, the Background in its
Opinion and Order Approving 216(b) Settlement, entered
concurrently with this Opinion. In addition to the background
set forth in that Opinion, and relevant here, the Parties
advise the Court of the terms of the separate settlement that
applies to the proposed Rule 23 Class (the “Rule 23
Settlement”). The Named Plaintiff's Rule 23 claims
arise under the Kentucky Wages and Hours Act
(“KWHA”). [R. 53, Mem. in Supp., at p. 2] The
Named Plaintiff claims that Defendants failed to properly pay
the Rule 23 Class for all time spent working as defined by
the KWHA, including overtime. Id.; [R. 1, Compl., at
¶¶ 1, 26-36] This Plaintiff sought compensation
from Defendants for overtime pay for time spent by the class
for performing various work-related activities that she
claims were not recorded by Defendants, “including
travel time and time spent charting for patients.”
Id. The Named Plaintiff also sought liquidated
damages, litigation costs, expenses, reasonable
attorneys' fees, and further relief as the Court deems
just and proper. Defendants deny these allegations and deny
any liability for these claims. However, to avoid further
costs, burdens and risks associated with litigation, the
Parties have agreed to settle all claims.
Parties seek preliminary certification of the Settlement
Class defined as:
All former and current non-exempt home health workers
employed by Defendants in the position of Licensed Practical
Nurse, Physical Therapy Assistant, Certified Occupational
Therapy Assistant, or Home Health Aide at any of
Defendants' Kentucky locations from November 22, 2012 to
November 13, 2018 to provide in home health care services to
patients, who performed 20 or more visits during any week
within this time period and who were paid on a fee per visit
basis, but excluding any individuals who entered into the
settlement in the case, Paine et al. v. Intrepid U.S.A.,
Inc., No. 3:14-cv-02005 (M.D. Tenn. 2017) (“Class
Members”) and excluding any individual who joined this
Action by filing a consent form pursuant to 216(b) of the
Fair Labor Standards Act (“FLSA”).
[R. 53, Mem. in Supp., at p. 3; R. 53-1, Ex. 1, Settlement
Agreement, at p. 4, ¶ 1.17]
Rule 23(a)-(b) Requirements
matter is brought as a class action pursuant to Rule 23 of
the Federal Rules of Civil Procedure. Rule 23 sets certain
requirements for the certification of a class action and
requires that any dismissal or compromise of the action be
approved by the Court. Fed.R.Civ.P. 23(e). The Court
“has broad discretion to decide whether to certify a
class.” In re Whirlpool Corp. Front-Loading Washer
Prod. Liab. Litig., 722 F.3d 838, 850 (6th Cir. 2013),
cert. denied, 134 S.Ct. 1277 (2014). “Class
certification is appropriate if the court finds, after
conducting a ‘rigorous analysis,' that the
requirements of Rule 23 have been met.” Id. at
851 (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 351 (2011)); Young v. Nationwide Mut. Ins. Co.,
693 F.3d 532, 537 (6th Cir. 2012). To be certified under Rule
23, a putative class must satisfy, by a preponderance of the
evidence, each of the four requirements of Rule 23(a):
numerosity, commonality, typicality, and adequacy.
Fed.R.Civ.P. 23; Ruiz v. Citibank, N.A., 93
F.Supp.3d 279, 287 (S.D. N.Y. 2015) (preponderance standard);
Wagner v. White Castle Sys., Inc., 309 F.R.D. 425,
430-31 (S.D. Ohio 2015) (citing Mielo v. Bob Evans Farms,
Inc., No. 14-1036, 2015 WL 1299815 (W.D. Penn. Mar. 23,
2015)) (finding plaintiffs had not met their burden for
certification under Rule 23(a)(2) under preponderance
standard). In addition, a putative class must satisfy the
requirements of one of the three provisions of Rule 23(b).
party seeking class certification bears the burden of proof.
In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th
Cir. 1996) (citing General Tel. Co. v. Falcon, 457
U.S. 147, 161 (1982). This standard is heightened in the
context of class certification for settlement purposes.
Int'l Union, United Auto., Aerospace, & Agr.
Implement Workers of Am. v. Gen. Motors Corp., 497 F.3d
615, 625 (6th Cir. 2007) (finding the Court “must give
‘undiluted, even heightened, attention' to its
protections before certifying a settlement-only class-one
formed just for the purpose of settlement, not for
litigation.”) (quoting Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 620 (1997)).
addition to the express requirements of Rule 23, the Sixth
Circuit requires that a putative class be “sufficiently
ascertainable.” Rikos v. P&G, 799 F.3d
497, 525 (6th Cir. 2015), cert. denied, P&G v.
Rikos, 136 S.Ct. 1493 (2016). “In our circuit, the
ascertainability inquiry is guided by Young v. Nationwide
Mutual Insurance Co., 693 F.3d 532 (6th Cir.
2012).” Id. Under Young, for a
putative class to be ascertainable, “‘the court
must be able to resolve the question of whether class members
are included or excluded from the class by reference to
objective criteria.'” Id. (quoting
Young, 693 F.3d at 539). The Court will address each
of these requirements in turn.
order to satisfy Rule 23(a)(1), a class must be “so
numerous that joinder of all members is impracticable.”
Fed.R.Civ.P. 23(a)(1). “The reason for [the
impracticability] requirement is obvious. Only when joinder
is impracticable is there a need for a class action
device.” In re Am. Med. Sys., Inc., 75 F.3d at
1079 (quoting 1 Herbert B. Newberg & Alba Conte,
Newberg on Class Actions, § 3.01, at 3-4 (3d
ed. 1992)). There is no strict numerical test for determining
impracticability of joinder. Senter v. Gen. Motors
Corp., 532 F.2d 511, 523 n. 24 (6th Cir. 1976) (and
citations therein). Rather, “[t]he numerosity
requirement requires examination of the specific facts of
each case and imposes no absolute limitations.”
General Tel. Co. v. EEOC, 446 U.S. 318, 330 (1980).
When class size reaches substantial proportions, however, the
impracticability requirement is usually satisfied by the
numbers alone. 1 Newberg, supra, § 3.05, at
the putative Settlement Class contains 134 persons,
“all of whom are readily identifiable from
Intrepid's payroll records.” [R. 53, Mem. in Supp.,
at p. 9] Joinder of all these claims would certainly be
impracticable. The Court finds that the putative Settlement
Class satisfies the Numerosity requirement of Rule 23(a)(1).