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White v. Rick Bus Co.

September 28, 2010


The opinion of the court was delivered by: Wolfson, United States District Judge



In this putative class action, Defendant Rick Bus Company ("Rick Bus") moves to strike the class allegations in Plaintiff Joyce Perry White's, Taheerah Smart's, and George Danbury's (collectively, "Plaintiffs'") Complaint, pursuant to Federal Rule of Civil Procedure 12(f).*fn1 The complaint asserts Fair Labor Standard Act, 29 U.S.C. § 201, et seq.

("FLSA"), New Jersey State Wage and Hour Law ("NJWHL"), 34:11-56.1a1, et seq., New Jersey Wage Payment Law ("NJWPL"), N.J.S.A. 34:11-4.1, et seq., and common law breach of contract, unjust enrichment, conversion, and fraud claims.*fn2 In addition, Plaintiff Danbury cross-moves for conditional certification of his FLSA overtime claim. For the reasons set forth herein, the Court will deny Defendant's motion to strike without prejudice for several reasons: (1) it is not clear from Defendant's briefing whether it seeks to dismiss all of Plaintiffs' class allegations or only those related to its FLSA, NJWHL, and NJWPL claims; (2) Defendant failed to address the proper standard for striking FLSA class allegations*fn3; and (3) neither party has addressed whether this Court should retain supplemental jurisdiction over the NJWHL, NJWPL, and other state law claims in accordance with the Third Circuit's directive in De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 306 (3d Cir. 2003). The Court also denies Danbury's cross-motion without prejudice for the reasons expressed herein.


A. Facts

In their Second Amended Complaint, Plaintiffs allege that they were not paid their full wages while employed at Rick Bus. Specifically, Plaintiff White alleges that when she worked as a part-time bus driver for Rick Bus, she was subjected to the practice of "rounding," in violation of FLSA regulation 29 C.F.R. § 785.48(b).*fn4 Second Am. Compl., ¶¶ 2-4. Plaintiff Smart similarly alleges that, as a part-time bus aide and "standby employee," she was also subjected to rounding. Id. In terms of class allegations, Plaintiffs White and Smart allege that there are other part-time drivers and aides "similarly situated" to them, and that Rick Bus engages in a "policy and practice [of] withholding and/or diverting pay owed to its current and former employees for actual time worked for which its employees are entitled to be paid." Id. at ¶ 3. According to the complaint, this practice not only violates FLSA regulation 29 C.F.R. § 785.48(b) but also gives rise to causes of action under New Jersey state law.*fn5 These state law causes of action include NJWHL and NJWPL statutory claims, as well as common law claims for breach of contract, conversion, fraud and unjust enrichment.

Plaintiff Danbury brings his claim against Rick Bus for failing to pay him overtime wages. Id. at ¶¶ 1, 6- 7. Danbury, specifically, alleges that he is a former... full time bus driver who... on behalf of himself, and other similarly situated current and former full time employees of defendant, Rick Bus Company, were routinely required on numerous occasions to work in excess of forty hours per week but were not paid for each additional hour worked in excess of forty hours during any given work week at a rate one and a half times their normal and/or regular rate of pay.

Id. a ¶ 6; see id. at ¶¶ 38-9. In terms of class composition, he alleges that the class is comprised of "full time bus drivers and full time aides, all who routinely worked forty hours per week and were paid an hourly wage rate...." Id. at 40. Like White and Smart, he asserts that Defendant's policy and practice violates the FLSA, NJWHL, and NJWPL. He, further, asserts the same New Jersey common law claims as his co-plaintiffs. In connection with his FLSA claim, he alleges that Rick Bus' actions were willful, and that the FLSA exemption for executive, administrative, or professional employees does not apply. Id. at ¶ 56.

In a certification attached to his cross-motion for conditional certification under the FLSA, Danbury asserts that he worked for Rick Bus from 1998 through June 15, 2008, as a full time bus driver. Danbury Cert. at ¶ 3. (Prior to 1998, he worked "several stints" as a part-time driver, with the remaining time as a full-time driver.) Id. He asserts that he "inquired of defendant as to why I have never received any overtime pay and was advised that 'this company does not pay overtime wages." Id. at ¶ 9. See also id. at ¶ 12 (asserting that "when I and the other Full-Time Bus Drivers complained about the discrepancies pertaining to the failure of defendant to pay overtime wages for overtime hours worked, we were all advised that 'if you don't like it, you can find another job."). He, further, contends he is aware that none of my co-employees who are or were Full-Time Bus Drivers ever received any overtime pay for the hours that they worked in excess of forty hours during any given work week. I know this information based upon my conversations with them and in many instances, the comparison of our weekly pay checks.

Id. at ¶ 10. Danbury does not identify any of these bus drivers by name and there are no certifications or affidavits from those unnamed sources.

Also by way of certification, Danbury's counsel, Frederick Coles, III, asserts that he has "received in excess of one hundred and thirty unsolicited telephone calls from current and former employees of defendant, Rick Bus Company, who have expressly requested to be joined in this action as a result of defendant's longstanding policies and/or practices of failing to pay these individuals for all of the hours they have worked." Coles Cert. at ¶ 7. Counsel then qualifies this statement: "Admittedly, the claims of some of the individuals with whom I spoke, fall outside of the limitations period for the putative collective class action portion of this litigation as well as under the proposed class action claims pertaining to the common law claims." Id. The certification does not state how many of the one hundred and thirty unsolicited phone callers were full-time bus drivers or aides with overtime claims, as opposed to part-time employees with other sorts of claims. No names or details about the phone callers is provided in Coles' Certification.

B. Procedural History

Plaintiffs filed the instant action on October 23, 2009. After the Second Amended Complaint and Answer were filed, Defendant moved to strike Plaintiff's class action allegations, arguing solely that the allegations failed to satisfy the dictates of Rule 23. (As noted, it is not clear from Defendant's briefing whether it seeks to strike all of Plaintiffs' class action allegations or only those relating to the FLSA, NJWHL, and NJWPL claims.) Plaintiff opposed Defendant's motion to strike, and filed a cross-motion for conditional certification of Danbury's FLSA claim as a class representative of full-time bus drivers and full-time aides. Plaintiffs have not moved for ...

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