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Torres-Tinajero v. Alpha Construction of Triad, Inc.

United States District Court, M.D. North Carolina

July 24, 2019

PEDRO TORRES-TINAJERO, on behalf of himself and all other similarly situated persons, Plaintiffs,
v.
ALPHA CONSTRUCTION OF THE TRIAD, INC. and JEFFREY W. ALLEY, Defendants.[1]

          MEMORANDUM OPINION AND ORDER

          OSTEEN, JR., DISTRICT JUDGE.

         Presently before this court is Plaintiff Pedro Torres-Tinajero's Motion for Class Certification and for Approval of Class Notice and Method of Distribution. (Doc. 51.) Plaintiff has filed a brief in support of his motion, (Doc. 52), and Defendants, proceeding pro se, have not responded.[2] For the reasons set forth herein, Plaintiff's motion will be denied without prejudice to him renewing it in the future.

         I. BACKGROUND

         Plaintiff brought this case as both a collective action pursuant to the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201 et seq., and a class action under the North Carolina Wage and Hour Act (“NCWHA”), N.C. Gen. Stat. § 95-25.1 et seq. (Complaint (“Compl.”) (Doc. 1) ¶ 1.) This court has federal question jurisdiction over Plaintiff's FLSA claim, see 28 U.S.C. §§ 1331, 1337; 29 U.S.C. § 216(b), and can exercise supplemental jurisdiction over Plaintiff's NCWHA claims, see 28 U.S.C. § 1367(a), (c).

         Plaintiff's FLSA claim is for unpaid overtime wages. (Compl. (Doc. 1) ¶ 2.) Plaintiff brings two NCWHA claims, one of which Plaintiff alleges in the alternative to the FLSA claim. (See Id. ¶¶ 3-4.) Plaintiff's first NCWHA claim is based on Defendants' failure to pay overtime wages when due on the scheduled payday under N.C. Gen. Stat. § 95-25.6. (See Id. ¶ 3.) Plaintiff's second NCWHA claim, which he alleges in the alternative to the FLSA claim, is for unpaid overtime wages under N.C. Gen. Stat. § 95-25.4. (See Id. ¶ 4.)

         Plaintiff moves to certify a class as to the payday claim under N.C. Gen. Stat. § 95-25.6 or, in the alternative, a class as to the NCWHA overtime claim under N.C. Gen. Stat. § 95-25.4. (See Pl.'s Mot. for Class Cert. (Doc. 51) at 1-3; see also Pl.'s Br. in Supp. of Mot. to Certify Class (“Pl.'s Br.”) (Doc. 52) at 2-4.) Plaintiff moved to certify a class when he did, on January 23, 2019, to comply with Local Rule 23.1(b)'s deadline, which Magistrate Judge Peake extended until February 1, 2019. (See Pl.'s Mot. for Class Cert. (Doc. 51) at 1; Doc. 42 at 3.) Under Local Rule 23.1(b), a plaintiff has ninety days from filing a class action complaint to move to certify a class. LR 23.1(b). That ninety-day window does not apply to a motion for conditional certification of collective action under the FLSA. Clark v. Wells Fargo Fin., Inc., No. 1:08CV343, 2008 WL 4787444, at *8 (M.D. N.C. Oct. 30, 2008), R&R adopted by, No. 1:08CV343, 2009 WL 10715692 (M.D. N.C. Sept. 8, 2009). And Plaintiff does not move contemporaneously for conditional certification of collective action under the FLSA because he “has not obtained any of the discovery necessary to conclusively establish that the plaintiff's employment was subject to ‘enterprise coverage'” under the FLSA. (Pl.'s Mot. for Class Cert. (Doc. 51) at 1 n.1.)

         II. DISCUSSION

         The court will deny Plaintiff's motion without prejudice to him refiling it accompanied by, or after, a motion for conditional certification of collective action under the FLSA. Granting Plaintiff's motion for class certification as to an NCWHA claim, at this time, would be a premature decision.

         A. Class Certification

         Under Federal Rule of Civil Procedure 23, a plaintiff seeking to sue on behalf of a class must satisfy all four requirements of Rule 23(a) and one of the requirements of Rule 23(b). See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997). The prerequisites under Rule 23(a) are:

(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or ...

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