Opinion
Case No. 1:19 CV 2092
2022-03-29
Matthew BRANNING, on behalf of himself and those similarly situated, Plaintiffs v. ROMEO'S PIZZA, INC., et al., Defendants
Andrew R. Biller, Biller & Kimble, Columbus, OH, Louise M. Roselle, Markovits, Stock & DeMarco, Nathan B. Spencer, Philip J. Krzeski, Samuel D. Elswick, Jr., Andrew P. Kimble, Biller & Kimble, Cincinnati, OH, for Plaintiff Matthew Branning. Andrew P. Kimble, Nathan B. Spencer, Philip J. Krzeski, Samuel D. Elswick, Jr., Biller & Kimble, Cincinnati, OH, for Plaintiff Bradley Dietrich. Brittany N. Brantley, Richard A. Millisor, Fisher & Phillips, Cleveland, OH, Mathew A. Parker, Fisher & Phillips, Columbus, OH, for Defendants Spackler, Smails, and Noonan Pizza Company, The Summer of George Pizza Company, LLC, I Don't Always Eat Pizza Company, LLC. Marc R. Hertrick, Laribee & Hertrick, Medina, OH, Matthew A. Dooley, Stephen M. Bosak, O'Toole McLaughlin Dooley & Pecora, Sheffield Village, OH, Richard A. Millisor, Fisher & Phillips, Cleveland, OH, for Defendant Ryan Rose. Richard A. Millisor, Fisher & Phillips, Cleveland, OH, for Defendants Doe Corporation, John Does, Robert Braun, Thomas Fiala, John O'Keefe, David Leissinger, Robert Glegora, DMTB Pizza Company, The Estate of Michael Hudson. Matthew A. Dooley, Stephen M. Bosak, O'Toole McLaughlin Dooley & Pecora, Sheffield Village, OH, Richard A. Millisor, Fisher & Phillips, Cleveland, OH, for Defendants BDS BrookPark, LLC, BDS Brunswick, LLC, Romeos Parma, LLC.
Andrew R. Biller, Biller & Kimble, Columbus, OH, Louise M. Roselle, Markovits, Stock & DeMarco, Nathan B. Spencer, Philip J. Krzeski, Samuel D. Elswick, Jr., Andrew P. Kimble, Biller & Kimble, Cincinnati, OH, for Plaintiff Matthew Branning.
Andrew P. Kimble, Nathan B. Spencer, Philip J. Krzeski, Samuel D. Elswick, Jr., Biller & Kimble, Cincinnati, OH, for Plaintiff Bradley Dietrich.
Brittany N. Brantley, Richard A. Millisor, Fisher & Phillips, Cleveland, OH, Mathew A. Parker, Fisher & Phillips, Columbus, OH, for Defendants Spackler, Smails, and Noonan Pizza Company, The Summer of George Pizza Company, LLC, I Don't Always Eat Pizza Company, LLC.
Marc R. Hertrick, Laribee & Hertrick, Medina, OH, Matthew A. Dooley, Stephen M. Bosak, O'Toole McLaughlin Dooley & Pecora, Sheffield Village, OH, Richard A. Millisor, Fisher & Phillips, Cleveland, OH, for Defendant Ryan Rose.
Richard A. Millisor, Fisher & Phillips, Cleveland, OH, for Defendants Doe Corporation, John Does, Robert Braun, Thomas Fiala, John O'Keefe, David Leissinger, Robert Glegora, DMTB Pizza Company, The Estate of Michael Hudson.
Matthew A. Dooley, Stephen M. Bosak, O'Toole McLaughlin Dooley & Pecora, Sheffield Village, OH, Richard A. Millisor, Fisher & Phillips, Cleveland, OH, for Defendants BDS BrookPark, LLC, BDS Brunswick, LLC, Romeos Parma, LLC.
ORDER
SOLOMON OLIVER, JR., UNITED STATES DISTRICT JUDGE Currently pending before the court in the above-captioned case is Plaintiff Matthew Branning's ("Plaintiff" or "Branning") Motion for Class Certification Pursuant to Rule 23 of the Federal Rules of Civil Procedure and Motion for Conditional Certification under the Fair Labor Standards Act ("Motion for Certification") (ECF No. 74). Also pending is Plaintiff's Motion to Strike Defendants’ Objection to Plaintiff's Notice Concerning Conditional Certification ("Motion to Strike") (ECF No. 98). For the following reasons, the court grants the Motion for Certification (ECF No. 74) and denies the Motion to Strike (ECF No. 98).
I. BACKGROUND
A. Factual Background
This dispute centers on Branning's contention that Defendants Spackler, Smails, and Noonan Pizza Company; The Summer of George Pizza Company, LLC; DMTB Pizza Company; I Don't Always Eat Pizza Company, LLC; Rob Braun; Thomas Fiala; John O'Keefe; David Leissinger; the Estate of Michael Hudson, and Robert Gligora (collectively, "Defendants") inadequately reimbursed their delivery drivers for their delivery driving-related vehicle expenses. In early 2019, Branning began working as a pizza delivery driver for a Romeo's Pizza store located in Lodi, Ohio. (Second Am. Compl. ¶ 240, ECF No. 66.) As part of the job, Branning used his personal vehicle, a 2011 Kia Soul, to make deliveries. (Id. ¶ 245.) Instead of reimbursing Branning for his actual delivery-related expenses, Branning was reimbursed between a flat rate of $1.50 per delivery, and on a per-mile basis, depending on the time frame. (Id. ¶¶ 246–247.) According to Branning, Defendants’ $1.50 reimbursement rate "under-reimbursed [him] by approximately $.40 per mile[,]" thereby violating the FLSA's minimum wage protections. (Second Am. Compl. ¶¶ 257, 323–330.)
B. Procedural History
On September 11, 2019, Branning filed his class action Complaint in this court, on behalf of himself and other similarly-situated delivery drivers, asserting the following five claims for relief: (1) failure to pay minimum wages in violation of the Fair Labor Standards Act ("FLSA") (count one), (2) a failure to pay minimum wages in violation of the Ohio Constitution (count two), (3) untimely payment of wages in violation of Ohio Revised Code § 4113.15 (count three), (4) a claim for damages pursuant to Ohio Revised Code § 2307.60 (count four), and (5) unjust enrichment (count five). Since filing his original Complaint, Branning subsequently amended his Complaint twice, without objection from Defendants, and after obtaining leave of court. (ECF Nos. 65, 66.)
On May 11, 2021, Branning filed his Motion for Certification, asking this court to conditionally certify the following class under the FLSA:
All current and former delivery drivers employed by Defendants Spackler, Smail, and Noonan Pizza Company; The Summer of George Pizza Company, LLC; DMTB Pizza Company; I Don't Always Eat Pizza Company, LLC; Rob Braun; Thomas Fiala; John O'Keefe; David Leissinger; the Estate of Michael Hudson; and Robert Gligora between the date three years prior to the filing of the original complaint and the date of final judgment in this matter ("Spackler FLSA Collective").
(Mot. for Certification at PageID #1453, ECF No. 74.) In addition, Plaintiff also seeks certification of the following class under Rule 23 :
All current and former delivery drivers employed by Defendants Spackler, Smails, and Noonan Pizza Company; The Summer of George Pizza Company, LLC; DMTB Pizza Company; I Don't Always Eat Pizza Company; Rob Braun; Thomas Fiala; John O'Keefe; David Leissinger; The Estate of Michael Hudson; and Robert Gligora in the State of Ohio between the date three years prior to the filing of the original Complaint and the date of final judgment in this matter ("Spackler Rule 23 Class").
(Id. ) On October 28, 2021, Defendants filed a Response in Opposition to the Motion for Certification (ECF No. 93), to which Branning replied (ECF No. 96) on December 2, 2021.
On January 2, 2022, Defendants filed an Objection to Plaintiff's Proposed Notice for Conditional Certification (ECF No. 97). On January 11, 2022, Plaintiff filed a Motion to Strike Defendants’ Objection (ECF No. 98). On January 27, 2022, Defendants filed a Response in Opposition to the Motion to Strike (ECF No. 99), to which Branning replied (ECF No. 100) on February 3, 2022.
II. LEGAL STANDARD
A. Conditional Certification under the FLSA
Under 29 U.S.C. § 216(b) of the FLSA, an employee may bring an action on behalf of herself and others "similarly situated." 29 U.S.C. § 216(b). Each employee wishing to join the collective action must affirmatively "opt-in" by filing written consent. Id. District courts have discretion to facilitate notice to potential plaintiffs. Douglas v. J & K Subway, Inc. , No. 4:14-CV-2621, 2015 WL 770388, at *1 (N.D. Ohio Feb. 23, 2015) (citing Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989) ). Before facilitating notice, however, courts must determine whether the potential class members are similarly situated under § 216(b). Douglas , 2015 WL 770388, at *1.
The second phase occurs after "all of the opt-in forms have been received and discovery has concluded." Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006). During this phase, courts have discretion to make a more thorough finding regarding the "similarly situated" requirement. Id. at 547. Should the court determine "claimants are similarly situated, the district court allows the representative action to proceed to trial. If the claimants are not similarly situated, the district court decertifies the class, and the opt-in plaintiffs are dismissed without prejudice." Douglas v. GE Energy Reuter Stokes , No. 1:07-CV-077, 2007 WL 1341779, at *4 (N.D. Ohio Apr. 30, 2007). The evidentiary burden to satisfy the "similarly situated" requirement at the conditional certification stage is a lenient one. See Comer , 454 F.3d at 547. This is due, in part, to the fact that, given the early stage of the proceedings, a plaintiff typically has little evidence to support his or her claims. Further, because a defendant has the opportunity to file for decertification later, conditional certification is "by no means final." Id. Thus, the standard for allowing class certification is significantly lower than the one used in class actions—it requires only that a plaintiff put forth "minimal evidence," and a court's determination will "typically result[ ] in conditional certification." Id.
Conditional class certification can be appropriate where the class members’ claims are unified only by "common theories of defendants’ statutory violations, even if the proofs of those theories are inevitably individualized and distinct." Douglas , 2007 WL 1341779, at *3 (quoting O'Brien v. Ed Donnelly Enter. , 575 F.3d 567, 584 (6th Cir. 2009) ). Importantly, at the conditional certification stage, the court does not typically "consider the merits of the plaintiff's claims, resolve factual disputes, make credibility determinations, or decide substantive issues." Lawrence v. Maxim Healthcare Servs., Inc. , No. 1:12-CV-2600, 2013 WL 5566668, at *3 (N.D. Ohio Oct. 9, 2013) ; see also Struck v. PNC Bank N.A. , No. 2:11-CV-00982, 2013 WL 571849, at *3 (S.D. Ohio Feb. 13, 2013). Nor does the court consider arguments on possible exemptions under the FLSA. Lawrence , 2013 WL 5566668, at *3. Persuasive authority suggests that courts generally grant conditional certification where the plaintiff identifies other potential class members who submit affidavits regarding their compensation and employment that indicate a common policy or plan with respect to their job duties and responsibilities. See Bifulco v. Mortg. Zone , 262 F.R.D. 209, 214 (E.D.N.Y. 2009) (collecting cases).
B. Class Certification Under Rule 23
The Sixth Circuit has explained that "[t]o obtain class certification, the plaintiffs must show that (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 defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class." In re Whirlpool Corp. Front-Loading Washer Prod. Liab. Litig. , 722 F.3d 838, 850 (6th Cir. 2013) (citing Fed. R. Civ. P. 23(a) ). These four requirements are commonly referred to as numerosity, commonality, typicality, and adequacy of representation. The Sixth Circuit has also made clear that "[i]n addition to fulfilling the four prerequisites of Rule 23(a), the proposed class must also meet at least one of the three requirements listed in Rule 23(b)." In re Whirlpool Corp. , 722 F.3d at 850. District courts have "broad discretion to decide whether to certify a class." Id. (citing In re Am. Med. Sys., Inc. , 75 F.3d 1069, 1079 (6th Cir. 1996)).
III. LAW AND ANALYSIS
A. Spackler FLSA Collective (Count One)
1. Conditional Certification
Defendants stipulate to the conditional certification of the Spackler FLSA Collective. (Defs.’ Resp. to Mot. for Certification at PageID #2084 n.1, ECF No. 93.) At this stage of the litigation, Plaintiff is only required to "ma[k]e a modest factual showing that he is similarly situated to the putative class members." See Bailey v. Black Tie Mgmt. Co. LLC , No. 2:19-CV-1677, 2019 WL 5884353, at *3 (S.D. Ohio Nov. 12, 2019) ; see also Bradford v. Team Pizza, Inc. , No. 1:20-CV-60, 2020 WL 3496150, at *2 (S.D. Ohio June 29, 2020) (explaining that "[p]laintiffs are similarly situated when they suffer from a single, FLSA-violating policy, and when proof of that policy or of conduct in conformity with that policy proves a violation as to all the plaintiffs"). After considering the evidence in the record and relevant law, the court finds that Plaintiff has carried his burden to make a "modest factual showing" that he is similarly situated to the putative class members because Plaintiff has sufficiently alleged that Defendants’ delivery drivers were subject to a compensation policy that caused their wages to fall below the minimum wage. Accordingly, the court grants Plaintiff's motion to conditionally certify the Spackler FLSA Collective.
2. Plaintiff's Proposed FLSA Notice and Motion to Strike
Having granted Plaintiff's motion to conditionally certify the Spackler FLSA Collective, the court turns now to the parties’ dispute relative to Plaintiff's Proposed FLSA Notice (the "Proposed FLSA Notice") (ECF No. 74-13), which Plaintiff attached as an exhibit to the Motion for Certification. The Proposed FLSA Notice consists of 7 sections. Defendants object to the scope of the putative class as well as the content of Sections 2 and 7. (Defs.’ Obj. at PageID #4474–4477, ECF No. 97.) Instead of responding to Defendants’ Objections, Plaintiff moved to strike the Objections on the grounds that they are "untimely and improperly filed." (Mot. to Strike at PageID #4490, ECF No. 98.) In support of his Motion to Strike, Plaintiff points to Local Rule 7.1 (d), which requires parties to respond to non-dispositive motions within 14 days of service. Here, Defendants filed their Objections to the Proposed FLSA Notice, on January 4, 2022, which was more than two months after Defendants responded to the Motion for Certification.
Despite the fact that Defendants’ Objections were filed beyond the time frame contemplated by Local Rule 7.1 (d), the court finds that striking Defendants’ Objections from the record is not appropriate for two reasons. First, as Defendants point out, the parties exchanged emails discussing Defendants’ "red-line" edits to the Proposed FLSA Notice on July 23, 2021, which was within the time period that the court gave Defendants to respond to the Motion for Certification. (Defs.’ Obj. at PageID #4473, ECF No. 97.) As such, Defendants made Plaintiff aware of their concerns relative to the Proposed FLSA Notice in a timely fashion. Second, the parties have not met and conferred to discuss Defendants’ Objections to the Proposed FLSA Notice, which this court finds—as have several other courts in this district—is appropriate under the circumstances. See Weisgarber v. N. Am. Dental Grp., LLC , No. 4:18-CV-2860, 2020 WL 1322843, at *7 (N.D. Ohio Mar. 20, 2020) (directing the parties to meet and confer in "good faith for the purpose of negotiating the language of the notice that is to be issued to the proposed collective and the procedure for issuing the notice"); Rapp v. Forest City Techs., Inc. , No. 1:20-CV-2059, 2021 WL 2982005, at *12 (N.D. Ohio July 15, 2021) (same). Accordingly, the court denies Plaintiff's Motion to Strike (ECF No. 97), and hereby orders the parties to meet and confer, through counsel, regarding the content and form of Plaintiff's Proposed FLSA Notice to be given to the putative class members and to submit, within 10 days of the date of this Order, a joint proposed judicial notice apprising potential plaintiffs of their rights under the FLSA to opt-in as parties to this litigation.
The joint proposed judicial notice shall include a specific opt-in period not to exceed sixty (60) days. The joint proposed notice shall be neutral in language. The court recognizes that Defendants maintain that the class period should be limited to three years prior to the court's approval of the notice. However, as another court in this District has pointed out, "courts in this Circuit have mixed results in determining when the statute of limitations begins to run for opt-in plaintiffs." Adams v. Wenco Ashland, Inc. , No. 1:19-CV-1544, 2020 WL 2615514, at *7 (N.D. Ohio May 22, 2020) (ordering that the FLSA notice be limited to three years prior to the date that the Complaint was filed, but also noting that the court was "not determining whether such potential plaintiffs who may receive [n]otice of the suit have successfully opted in within the applicable statute of limitations period"). Accordingly, given the early stage of this litigation, the class period shall be limited to three years prior to the date that the original Complaint was filed, which is September 11, 2019. Defendants shall, within 14 days of the date of this Order, provide Plaintiff with a list of the full name and last known home address of each current and former employee fitting the class description, their last known telephone number and personal email address, and their dates of employment. If the parties are unable to reach an agreement, Plaintiff shall file a response to Defendants’ Objections within 10 days of the date of this Order, and the court will resolve the conflict.
B. Spackler Rule 23 Class (Counts Two, Three, Four, and Five)
The court turns now to Plaintiff's request for class certification of his state law claims under Rule 23 of the Federal Rules of Civil Procedure. In order to obtain class certification under Rule 23, Plaintiff must show that the class certification prerequisites are met, and that he, as the class representative, "possess[es] the same interest and suffered the same injury as the class members [he] seek[s] to represent." In re Whirlpool Corp. , 722 F.3d at 851. The court will first address the four requirements of Rule 23(a) before considering whether class certification is appropriate under Rule 23(b).
1. Rule 23(a)(1) Numerosity
Rule 23(a)(1) requires that the proposed class be so numerous that joinder of all members is impracticable. Fed. R. Civ. P. 23(a)(1). The Sixth Circuit has explained that "[w]hile no strict numerical test exists, ‘substantial’ numbers of affected consumers are sufficient to satisfy this requirement." Young v. Nationwide Mut. Ins. Co. , 693 F.3d 532, 541 (6th Cir. 2012) ; see also Castillo v. Morales, Inc. , 302 F.R.D. 480, 487 (S.D. Ohio 2014) (stating that "[o]ften, a class of 40 or more members is sufficient to meet the numerosity requirement"). Here, Plaintiff asserts that the first requirement of Rule 23(a) is satisfied because he expects that "there are approximately 100 putative class members based on Defendants’ representations during depositions." (Mot. for Certification at PageID #1467, ECF No. 74.) Defendants did not challenge the numerosity requirement in their response to the Motion for Certification. Accordingly, the court finds that Plaintiff has sufficiently demonstrated that the numerosity requirement is satisfied.
2. Rule 23(a)(2)-(3) Commonality and Typicality
The Sixth Circuit has explained that " Rule 23(a)(2) requires plaintiffs to prove that there are questions of fact or law common to the class, and Rule 23(a)(3) requires proof that plaintiffs’ claims are typical of the class members’ claims." Young , 693 F.3d at 542. In showing commonality, the plaintiff must show that their claims "depend on a common contention of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Id. Typicality is met when the named plaintiff's interests are "aligned with those of the represented group, and in pursuing his own claims, [he] will also advance the interests of the class members." Id. The Sixth Circuit has also stated "[t]hese requirements ‘tend to merge’ because both serve as guideposts for determining whether the interests of the class members will be fairly and adequately protected in their absence." Mays v. LaRose , 951 F.3d 775, 793 (6th Cir. 2020).
Here, Plaintiff contends that the commonality requirement is satisfied because the proposed class consists of employees that were harmed in the same way. (Mot. for Certification at PageID #1467, ECF No. 74.) Namely, Plaintiff maintains that Defendants’ compensation and reimbursement policies routinely resulted in the underpayment of Defendants’ delivery drivers. (Id. at PageID #1459.) In describing Defendants’ allegedly unlawful policies, Plaintiff asserts that Defendants: (1) required their delivery drivers to provide cars to complete their job duties, (2) paid their delivery drivers between $6.00 and $9.00 per hour, (3) deducted the cost of uniforms from employees’ wages, (4) did not track or reimburse delivery drivers’ actual expenses, and (5) did not reimburse their delivery drivers at the IRS business mileage rate prior to approximately January 1, 2020. (Id. at PageID #1468.) According to Plaintiff, these policies together resulted in Defendants paying their delivery drivers less than the minimum wage. Defendants counter that the commonality requirement is not satisfied because the court would have to make individualized determinations—since the drivers’ actual expenses would vary from driver to driver—to ascertain whether Defendants’ policies "covered or reasonably approximated the actual vehicle-related costs" of their drivers. (Defs.’ Resp. to Mot. for Certification at PageID #2111, ECF No. 93.)
After considering the parties’ arguments and relevant law, the court finds that Plaintiff has met his burden to show that the putative members of the class have been affected by Defendants’ reimbursement policy, which is the focus of the litigation. See Rapp , 2021 WL 2982005, at *7 (stating that "[c]ommonality is met as long as the members of the class have allegedly been affected by a general policy of the defendant, not whether each class member's claims are unique in other ways"). Moreover, as Plaintiff points out, several federal district courts have found the commonality requirement satisfied in delivery driving related under-reimbursement cases even when individualized assessments are necessary to calculate damages. See Brandenburg v. Cousin Vinny's Pizza, LLC , No. 3:16-CV-516, 2018 WL 5800594, at *4 (S.D. Ohio Nov. 6, 2018) (explaining that "[w]hile [the] [d]efendants’ argument may, theoretically, be possible for some delivery drivers, the need for individualized inquiry and calculation of damages is not enough to defeat commonality under Rule 23(a)(2)"); see also Waters v. Pizza to You, LLC , No. 3:19-CV-372, 2021 WL 229040, at *7 (S.D. Ohio Jan. 22, 2021) ("[w]hile the extent of [the] [d]efendants’ under-reimbursement might be different from driver to driver or location to location the need for individualized inquiry and calculation of damages alone is not enough to defeat commonality"); see also McFarlin v. Word Enterprises, LLC , No. 16-CV-12536, 2017 WL 4416451, at *3 (E.D. Mich. Oct. 5, 2017) (determining that "the fact that there will need to be individualized inquiry in this case as to the amount of damages for each delivery driver is not enough to invalidate commonality"). The court finds these decisions are well-reasoned and persuasive, and support the court's conclusion that the question of whether Defendants’ reimbursement policy caused their delivery drivers’ wages to fall below the minimum wage is a common question that is capable of class-wide resolution.
With respect to the typicality requirement, Defendants contend that Plaintiff "suffered no injury, and thus, he cannot plausibly pursue a minimum wage claim or share the same interest with the drivers." (Defs.’ Resp. to Mot. for Certification at PageID #2112, ECF No. 93.) Plaintiff counters that Defendants cannot claim that the reimbursement paid exceeded Plaintiff's actual costs for three reasons: (1) they did not include all of Plaintiff's costs associated with using a vehicle for business, (2) they did not track Plaintiff's actual expenses nor did they submit an expert report to suggest what expenses should be used in calculating the proper reimbursement rate, and (3) there is no "merits" analysis requirement in Rule 23. (Pl.’s Reply in Supp. of Mot. for Class Certification at PageID #4393–4395, ECF No. 96.) The court finds Plaintiff's position well-taken for two reasons. First, Plaintiff has provided a declaration explaining that delivery records that were produced in discovery show that he was reimbursed well-below the IRS rate during the relevant time period. And while the parties dispute whether the reimbursement he received exceeded his actual delivery-driving related expenses, the court concludes that resolving that dispute would amount to a trial on the merits, which is not appropriate at this stage of the litigation. See In re Whirlpool Corp. , 722 F.3d at 851–52 (explaining that "district courts may not turn the class certification proceedings into a dress rehearsal for the trial on the merits"). Second, Plaintiff's interests in this case are aligned with the putative class because "[i]f [the] [d]efendants’ wage and hour practices violate Ohio law as to [the] [p]laintiff, they violate Ohio law as to the putative class members." See Waters , 2021 WL 229040, at *8 ; see also Brandenburg , 2018 WL 5800594, at *4 (finding that the typicality requirement was satisfied "since the interests of [the plaintiff] w[as] ... aligned with those of all the delivery drivers and, in pursuing his own claims, the named plaintiff will also advance the interests of the class members"). Accordingly, the court concludes that the typicality requirement is met.
3. Rule 23(a)(4) Adequacy of Representation
Rule 23(a)(4) requires that "the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). The Sixth Circuit has set forth a two-pronged test for determining adequacy of representation: "1) the representative must have common interests with unnamed members of the class, and 2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel." In re Am. Med. Sys., Inc. , 75 F.3d 1069, 1083 (6th Cir. 1996). The court finds that the first prong is satisfied because Plaintiff is challenging the same allegedly unlawful reimbursement policy and seeking the same relief as the putative class. As for the second prong, Plaintiff asserts that he is "ready, willing, and able to fulfill his duties" as the class representative, and his counsel maintains that they have "established an expertise in wage and hour cases in general, and specifically in pizza delivery driver wage and hour cases." (Mot. for Certification at PageID #1470, ECF No. 74.) The court concludes that Plaintiff is an adequate class representative as he has continuously pursued his claims since the outset of this litigation. Further, the court also finds that Plaintiff's counsel is qualified to represent the class, as several courts have recognized their expertise in pizza delivery driving wage and hour litigation. See Waters , 2021 WL 229040, at *8 (S.D. Ohio Jan. 22, 2021) (recognizing Plaintiff's counsel's expertise in pizza delivery driver litigation); see also Mullins v. S. Ohio Pizza, Inc. , No. 1:17-CV-426, 2019 WL 275711, at *5 (S.D. Ohio Jan. 18, 2019) (same); Brandenburg v. Cousin Vinny's Pizza, LLC , No. 3:16-CV-516, 2019 WL 6310376, at *6 (S.D. Ohio Nov. 25, 2019) (same).
4. Rule 23(b)(3) Predominance and Superiority
Having determined that Plaintiff has satisfied the requirements of Rule 23(a), the court turns to the issue of whether Plaintiff has satisfied one of the three conditions set forth in Rule 23(b). Here, Plaintiff asserts that certification is appropriate under Rule 23(b)(3) because common issues of fact and law predominate, and the class mechanism is superior to other methods of relief. (Mot. for Certification at PageID #1471, ECF No.74.) The Sixth Circuit has explained that "[t]o meet the predominance requirement, a plaintiff must establish that issues subject to generalized proof and applicable to the class as a whole predominate over those issues that are subject to only individualized proof." Young , 693 F.3d at 544. In addressing the superiority requirement, courts consider "the difficulties likely to be encountered in the management of a class action." Id. at 545. Rule 23(b)(3) lists four factors that are pertinent to the issue of superiority: "(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action." Fed. R. Civ. P. 23(b)(3)(A)-(D).
Starting with the predominance requirement, the court finds that there are common issues of fact and law, making this an appropriate case for class certification. Indeed, as Plaintiff points out, in this case "liability turns on what the proper reimbursement rate is for pizza delivery drivers and whether Defendants paid that rate." (Mot. for Certification at PageID #1471, ECF No. 74.) Defendants assert that Plaintiff cannot meet the predominance requirement because the court will have to make individualized determinations with respect to liability and damages. (Resp. at PageID #2114–2115, ECF No. 93.) However, as several other courts have explained, "[a]lthough the damages for each delivery driver will be an individual determination, the damages arise from a course of conduct that is applicable to the entire class: Defendants’ payroll practices." Waters , 2021 WL 229040, at *9 ; McFarlin , 2017 WL 4416451, at *4 (same). Because Defendants subjected their delivery drivers to the same reimbursement policy and because liability turns on what the proper reimbursement rate is for pizza delivery drivers and whether Defendants paid that rate, the court concludes that Plaintiff has met his burden to show that these issues can be determined by common proof and common questions predominate. Accordingly, the court finds that the predominance requirement is satisfied.
Turning to the superiority requirement, the court finds that all of the factors listed in Rule 23(b)(3)(A)-(D) weigh in favor of certification. Here, there is no evidence that the putative class has an interest in maintaining a separate action (factor one), nor is there any indication that there is a similar litigation pending in another court (factor two). Further, the court also concludes that judicial efficiency "weighs in favor of concentrating the litigation of the claims in this court" (factor three) because the claims in this case involve policies affecting a large number of employees, and a resolution on the matter "avoids competing decisions on the issues and offers finality." Waters , 2021 WL 229040, at *10. Lastly, because the putative class is a defined size and the claims in this case arise from Defendants’ allegedly unlawful reimbursement policy—which applied to all of the members of the putative class—the court concludes that no major difficulty is likely to arise in the management of the class action (factor four).
5. Rule 23 (c)(2) Notice
Rule 23(c)(2) states that "[f]or any class certified under Rule 23(b)(3) ... the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." Fed. R. Civ. P. 23 (c)(2)(B). Here, Plaintiff attached a proposed Rule 23 notice ("Proposed Rule 23 Notice") as an exhibit to the Motion for Certification. From a close reading of the parties’ arguments relative to notice, it appears that Defendants objected to the Proposed FLSA Notice but did not raise any objections with respect to the Proposed Rule 23 Notice. (Id. ) However, because some of the objections lodged at the Proposed FLSA Notice may be relevant to the Proposed Rule 23 Notice—namely, Defendants’ objections to Plaintiff's description of the case and Defendants’ position in the case—the court hereby orders the parties to meet and confer, through counsel, regarding the content and form of the Proposed Rule 23 Notice to be given to the putative class members and to submit, within 10 days of the date of this Order, a joint proposed Rule 23 Notice.
IV. CONCLUSION
For the foregoing reasons, the court grants Plaintiff's Motion for Certification (ECF No. 74) and denies Plaintiff's Motion to Strike (ECF No. 98). In doing so, the court hereby conditionally certifies this case as a FLSA Collective Action in respect to count one, and a Rule 23 class action in regard to counts two, three, four, and five. The court also grants Plaintiff's request to appoint Plaintiff Matthew Branning as class representative, and the law firm of Biller & Kimble, LLC as lead counsel for the putative class. Consistent with the court's findings above, the court hereby orders the parties to meet and confer, through counsel, regarding the content and form of the Proposed FLSA Notice and the Proposed Rule 23 Notice to be given to the putative class members and to submit, within 10 days of the date of this Order, a joint proposed FLSA Notice and a joint proposed Rule 23 Notice. The court hereby sets a telephonic status conference with counsel for the parties in the within case on April 18, 2022, at 3:15 p.m., to resolve any outstanding issues.
IT IS SO ORDERED.