United States District Court, M.D. North Carolina
PEDRO TORRES-TINAJERO, on behalf of himself and all other similarly situated persons, Plaintiffs,
ALPHA CONSTRUCTION OF THE TRIAD, INC. and JEFFREY W. ALLEY, Defendants.
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., DISTRICT JUDGE.
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. For the reasons set forth herein,
Plaintiff's motion will be denied without prejudice to
him renewing it in the future.
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. §
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.)
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.)
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
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
(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 ...