McKnight V. Honeywell Safety Products Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
BARBARA MCKNIGHT and 	:
SHEILA ANDERSON, 	:
Individually and on behalf of all 	:
Other Persons Similarly Situated, 	:
Plaintiffs, 	:
:
v. 	: 	C.A. No. 16-132ML
:
HONEYWELL SAFETY PRODUCTS 	:
USA, INC. and HONEYWELL 	:
INTERNATIONAL, INC., DAVID M. 	:
COTE, CARL JOHNSON, and MARK R. 	:
JAMES, in their Official and Individual 	:
Capacities, 	:
Defendants. 	:
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, United States Magistrate Judge.
Plaintiffs Barbara McKnight and Sheila Anderson1 have sued Defendants Honeywell
Safety Products USA, Inc., Honeywell International, Inc., and its employees David M. Cote, Carl
Johnson and Mark R. James (collectively “Honeywell”). Plaintiffs claim that they were
employed by Honeywell as “buyers” and are entitled to unpaid wages for work performed for
which they did not receive compensation, as well as for overtime work for which they did not
receive overtime premium pay. These claims are asserted under federal law pursuant to the Fair
Labor Standards Act, 29 U.S.C. §§ 201, et seq. (“FLSA”), and under state law pursuant to the
Rhode Island Minimum Wage Act, R.I. Gen. Laws §§ 28-12-1, et seq., and the Rhode Island
1 At the time of the filing of the motion to strike, the pending complaint (ECF No. 1) was brought by a single
plaintiff, Barbara McKnight. After the motion to strike was filed, Plaintiff moved to amend her complaint, which
motion was granted based on Defendants’ representation that they had no objection. By agreement of the parties,
the operative complaint for purposes of this motion is the First Amended Collective Action and Class Action
Complaint (ECF No. 17-1), which is referred to in this report and recommendation as the “complaint.” As a
housekeeping matter, the Court notes that the motion to amend was granted but Plaintiffs have neglected to take the
ministerial step of filing the complaint; they are urged to do so quickly to avoid confusion as the case proceeds.
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Wages Act, R.I. Gen. Laws §§ 28-14-1, et seq. Plaintiffs purport to assert their claims on behalf
of similarly situated persons who have been employed by Defendants. Paragraphs 34 to 44 of
the complaint set out collective class allegations under the FLSA opt-in class procedures,
claiming a nationwide class of buyers and former buyers who worked for Defendants after
March 17, 2013. Paragraphs 45 to 53 state class action allegations under opt-out class
procedures, pursuant to Fed. R. Civ. P. 23, on behalf of a class of buyers and former buyers who
work or worked for Defendants in Rhode Island in the same time period.
Pursuant to Fed. R. Civ. P. 12(f), Defendants move to strike both the FLSA opt-in class
and the Rule 23 opt-out class. Their motion has been referred to me for report and
recommendation. For the reasons that follow, I recommend that the motion to strike the Rule 23
class be granted without prejudice, while the motion to strike the FLSA collective class be
denied. The reasoning follows.
I. 	RULE 23 CLASS
The Rule 23 class is based on the law of Rhode Island; as such the putative class is
necessarily limited to buyers who worked in Defendants’ Rhode Island facilities. Complaint ¶
46. Plaintiffs’ problem is that only a small number of individuals have held that position during
the relevant time period. Defendants have submitted the declaration of Joshua Pascoe, Director
of Data Analytics in Honeywell’s Human Resources Services organization. ECF No. 12-10. He
avers that only nine individuals, including Plaintiffs McKnight and Anderson, fall into the Rule
23 class as defined in the complaint. ECF No. 12-10 ¶ 6 & Ex. A. Plaintiffs have submitted no
counter-affidavit, but represented at oral argument that they not could materially rebut this
factual proffer. As counsel stated, it is conceivable that discovery might uncover a few more
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individuals but unlikely that the total of identified individuals would be as many as twenty
putative class members.
The first prerequisite for class certification under Rule 23 is that the putative members of
the class are “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P.
23(a)(1). While courts have declined to draw bright lines, it is well settled that twenty is simply
not enough, particularly when joinder is clearly practicable and each of the putative class
members could be easily located and informed of the pendency of the action. Pruitt v. City of
Chicago, 472 F.3d 925, 926 (7th Cir. 2006) (class consisting of forty possible class members
“flunked” numerosity requirement in Title VII case); Andrews v. Bechtel Power Corp., 780 F.2d
124, 132 (1st Cir. 1985) (affirming rejection of subclass with forty-nine members on numerosity
grounds); Murray v. Norberg, 423 F. Supp. 795, 798 (D.R.I. 1976) (class of fewer than twenty
putative plaintiffs did not meet numerosity requirement of Rule 23, when joinder was practicable
and class members could be easily located and told of action); cf. Park v. Ford Motor Co., No.
CIV.A. 01-2489, 2004 WL 2821312, at *6 (R.I. Super. Oct. 7, 2004) (citing Newberg On Class
Actions 3d, § 3.05 (1992)) (collecting eleven cases from various jurisdictions holding that
classes of fewer than one hundred members did not meet Rule 23 numerosity requirement).
In this case, with two named plaintiffs, only seven more possible class members remain.
The ease of joinder is illustrated by the reality that 29% of the class is already directly
participating in the case. Moreover, with an existing case already pending, the usual barrier of
the cost to initiate suit is missing. Further, finding seven people in Rhode Island who worked for
Defendants in the past three years, far from being difficult, seems like an easy task. With
numerosity so plainly lacking and joinder of putative class members so clearly practicable,
Defendants’ motion to strike should be granted as to the Rule 23 class. I so recommend, but also
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urge the Court to strike the Rule 23 class without prejudice so that Plaintiffs may amend their
complaint to reinsert such claims in the unlikely event that discovery uncovers many more class
members.
II. 	FLSA CLASS
Plaintiffs’ FLSA class is challenged by Defendants based on the averments in nine
affidavits establishing that the many different “buyers” who work for Honeywell all over the
United States are far from having “similarly situated” job requirements. Because of this,
Defendants argue that it is clear that no amount of discovery will save Plaintiffs from the
inevitable denial of FLSA conditional certification. Defendants ask the Court to strike the
collective class allegations pursuant to Rule 12(f) before the case proceeds to the first step in the
multi-tiered FLSA certification process.2
A FLSA plaintiff may pursue collective relief on behalf of “other employees similarly
situated.” 29 U.S.C. § 216(b). “When determining if persons are ‘similarly situated,’ such
persons must be similarly situated with respect to their job requirements and with regard to their
pay provisions; the positions need not be identical, only similar.” Begin v. Lawn Beauticians,
Inc., No. CV 15-048L, 2015 WL 9652679 at *4 (D.R.I. Nov. 3, 2015), adopted, No. CV 15-48L,
2016 WL 67692 (D.R.I. Jan. 5, 2016). As long as an FLSA complaint has sufficient allegations
plausibly to plead a collective action, the matter should proceed to conditional certification. Id.
In this Circuit, a motion to strike FLSA class allegations under Rule 12(f) is considered to
be a “drastic remedy” that should be deployed with caution. Manning v. Boston Med. Ctr.,
2 In 29 U.S.C. § 216(b) cases, a two-step certification process has evolved through case law. Burns v. City of
Holyoke, 881 F. Supp. 2d 232, 234 (D. Mass. 2012). First, applying a lenient standard, the court must consider the
plaintiff’s motion for conditional certification. The granting of that motion triggers notice to the class members,
who must then opt-in by filing an opt-in consent. At the second stage, after discovery is completed or nearly
completed, the defendants move for decertification; at that point, a far more stringent standard is used. Morgan v.
Family Dollar Stores, 551 F.3d 1233, 1261 (11th Cir. 2008), cert. den., 130 S. Ct. 59 (2009).
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Corp., 725 F.3d 34, 59 (1st Cir. 2013). The mere fact that the named plaintiffs may not be able
to represent a diverse group of employees does not justify the “drastic measure of striking the
class allegations in their entirety.” Id. at 60. Rather, the “plaintiffs should have the chance to
prove their assertions through discovery and a properly-brought motion for class certification.”
Id. In this case, Plaintiffs have already launched the conditional certification procedure with the
filing on November 7, 2016, of their Motion for Conditional Certification and Notice be Issued
to Similarly Situated Employees Pursuant to 29 U.S.C. § 216(b). ECF No. 18.
There is no question that Defendants’ affidavits have raised a serious question whether
Plaintiffs can clear the first bar of demonstrating that they are “similarly situated” with the rest of
the alleged FLSA class, however leniently that bar may be set. However, the declaration filed
with Plaintiffs’ conditional class certification motion, coupled with their plan to pursue discovery
to enhance the factual showing of similarity, is more than enough to avoid the “drastic remedy”
imposed by Rule 12(f). Consequently, I find that the motion to strike should be denied and this
matter should be allowed to proceed to the conditional certification phase.
III. 	CONCLUSION
Based on the foregoing, I recommend that Defendants’ motion to strike be granted in
part, in that the Rule 23 class allegations in paragraphs 45 to 53 should be stricken without
prejudice. I further recommend that the balance of the relief sought by Defendants’ motion to
strike be denied.
Any objection to this report and recommendation must be specific and must be served
and filed with the Clerk of the Court within fourteen (14) days after its service on the objecting
party. See Fed. R. Civ. P. 72(b)(2); DRI LR Cv 72(d). Failure to file specific objections in a
timely manner constitutes waiver of the right to review by the district judge and the right to
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appeal the Court’s decision. See United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008);
Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980).
/s/ Patricia A. Sullivan
PATRICIA A. SULLIVAN
United States Magistrate Judge
November 9, 2016
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