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Mitcham v. Intrepid U.S.A., Inc.

United States District Court, W.D. Kentucky, Louisville Division

May 28, 2019

TINA MITCHAM, On Behalf of Herself and All Others Similarly Situated, Plaintiff,
v.
INTREPID U.S.A., INC., et al., Defendants.

          OPINION AND ORDER CONDITIONALLY APPROVING RULE 23 ACTION SETTLEMENT

          CLARIA HORN BOOM, UNITED STATES DISTRICT COURT JUDGE

         This 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 Settlement”).
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 “Notice Materials”).
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 this order.

         I. Background

         The 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.

         II. Settlement Class

         The 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]

         A. Rule 23(a)-(b) Requirements

         This 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). Id.

         The 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)).

         In 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.

         1. Numerosity

         In 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 3-26.

         Here, 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).

         2. ...


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