Trezvant et al v. Fidelity Employer Services Corporation et al

REPLY to Response to Motion re MOTION Certify Questions of State Law and Stay of Claims

D. Mass.June 21, 2006

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSSETTS DEBBIE L. TREZVANT, TIMOTHY CAHILL, DEBORAH CHERYL ARCH, and MARY-CATHERINE PICHE, each of them individually and on behalf of all others similarly situated and similarly situated current and former employees of Defendant Plaintiffs, v. FIDELITY EMPLOYER SERVICES CORPORATION, FIDELITY EMPLOYER SERVICES COMPANY, LLC, and FMR CORP., Defendants. Case No. 05-10673 (WGY) PLAINTIFFS’ REPLY MEMORANUM IN FURTHER SUPPORT OF THEIR REQUEST TO CERTIFY QUESTIONS OF STATE LAW TO THE NEW HAMPSHIRE SUPREME COURT AND FOR A STAY OF THEIR CLAIMS Plaintiffs, Debbie L. Trezvant, Timothy Cahill and Deborah Cheryl Arch, on behalf of themselves and the proposed Rule 23 class (collectively, “Plaintiffs”), respectfully submit this memorandum of law in further support of their request that this Court certify the questions of New Hampshire law to the New Hampshire Supreme Court for resolution.1 The memorandum is also in further support of a request to stay the proceedings in this Court until the New Hampshire Supreme Court has resolved or otherwise disposed of the Certified Questions in order to preserve the state court’s 1 Plaintiffs’ stand by their phrasing of the questions as more appropriate than Defendants’. See Pls.’ Req. to Certify Questions, at 1-2. Case 1:05-cv-10673-WGY Document 59 Filed 06/21/2006 Page 1 of 18 jurisdiction to answer those questions and so as not to unfairly prejudice Plaintiffs and/or the proposed class.2 Preliminary Statement Since the February 14, 2006 hearing when the Court requested that the parties frame questions to be considered for certification to the Supreme Court of New Hampshire, the Plaintiffs were negotiating with the Defendants over the language of the questions, as well as discovery issues and the decertification of the FLSA opt-in class. Plaintiffs diligently worked to resolve as many issues as possible prior to the submission of the motion and did not delay. Defendants have characterized Plaintiffs’ motion to certify questions to the New Hampshire Supreme Court as one for reconsideration of rulings by this Court at the February 14, 2006 Hearing. See Def.’s Opp’n, at 3-4. We believe this characterization is incorrect. Plaintiffs are not seeking reconsideration of the Court’s dismissal of their state law claim. Rather, the submission was at the Court’s request for the submission of questions for certification to the New Hampshire Supreme Court. See Tr. of Mot. Hr’g, dated February 14, 2006, at 8 (attached as Exhibit A) (“You frame the questions, the defense, or the plaintiff, rather, can frame the questions to be submitted to the Supreme Court of New Hampshire, serve a copy on the other side, they can state their objections, and I will consider certifying the key questions to the Supreme Court of New Hampshire.”) and Minute Order (“The Court will consider whether to certify the question 2 As this memorandum addresses points raised by the Court’s June 1, 2006 ruling which was issued after the Plaintiffs’ original memorandum and Defendants’ Opposition, it focuses on some issues which were not specifically addressed in either the original memorandum or the Opposition. Plaintiffs respectfully request that in the interest of justice the Court consider the entire submission, especially in light of the somewhat unusual procedural posture here. 2 Case 1:05-cv-10673-WGY Document 59 Filed 06/21/2006 Page 2 of 18 to the Supreme Court of New Hampshire. A proposed question is to be prepared, served and filed.”) I. Plaintiff’s Proposed Questions are Novel and Unsettled, and the Court Should Certify Questions to the New Hampshire Supreme Court As the Certified Questions are “novel” “dispositive legal question[s],” and “the state's law in the area is unsettled,” they are appropriate for certification to the New Hampshire Supreme Court. Therrien v. Sullivan, No. Civ. 04-31-SM, 2005 WL 589425, at *7 (D.N.H. Mar. 14, 2005). The vigor and content of the parties’ debate on the issues demonstrates that the certification is appropriate. The heart of the questions posed by both sides is the interpretation of state statutes, which is an area properly “within the [purview] of the state’s courts.” See Acadia Ins. Co. v. McNeil, 116 F.3d 599, 604 (1st Cir. 1997) ("Because the answer to this question is not obvious to us, and because New Hampshire's highest court is the final arbiter of the meaning of a statute of that state, we believe that we should certify this question."). Thus, while Plaintiffs maintain that their reading of sections 275:42 and 275:43 is the most logical, it is readily apparent that the statutes are – at the very least – ambiguous on the issues of whether employees can bring a class action claim for FLSA mandated overtime under the New Hampshire statues. 3 Case 1:05-cv-10673-WGY Document 59 Filed 06/21/2006 Page 3 of 18 A. Question 1 – Whether A Cause of Action or Claim for Relief Under Section 275:43 for Wages Due May Include Unpaid Federally Required Overtime Wages 1. The Statutory Language Does Not Clearly Permit Or Prohibit An Action For Federally-Mandated Overtime, Nor Is There Any Clear Precedent On This Issue. Contrary to Defendants’ assertions, it is unclear, unsettled, and wholly unaddressed whether Section 275:43 (I) permits an action for federally-mandated overtime pay.3 While this Court correctly points out Plaintiffs’ failure to cite to any cases that address an action under Section 275:43 (I) for federally-mandated overtime pay (See June 1, 2006 Ct. Mem., at 37), Defendants similarly have been unable to cite to any cases that barred such an action. Despite Defendants’ reliance, the definition of “wages” in Section 275:42 does not answer the question of whether Section 275:43 (I) permits an action for federally- mandated overtime pay. Section 275:42 (III) states: The term "wages" means compensation, including hourly health and welfare, and pension fund contributions required pursuant to a health and welfare trust agreement, pension fund trust agreement, collective bargaining agreement, or other agreement adopted for the benefit of an employee and agreed to by his employer, for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission, or other basis of calculation. N.H. Rev. Stat. Ann. § 275:42 (III) (2006). Defendants have taken the position that, despite its placement in the sentence, the phrase “or other agreement” limits the meaning of the term “compensation.” See Def.’s Opp’n, at 8 n.5. This supposition is both illogical and ungrammatical. 3 Plaintiffs respectfully submit that a claim under 275:43 (I) is not duplicative of their FLSA claim. Unlike the FLSA, the New Hampshire law provides a three-year statute of limitations period regardless of whether Plaintiffs are able to prove willfulness. See Pls.’ Req. to Certify Questions, at 16. 4 Case 1:05-cv-10673-WGY Document 59 Filed 06/21/2006 Page 4 of 18 First, Defendants’ understanding of Section 275:42 (III) is presumably based upon an interpretation of the word “including” as limiting, i.e., creating an exclusive list. Although the word “include” may be used with this meaning, “Include is used most appropriately before an incomplete list of components . . .” THE AMERICAN HERITAGE DICTIONARY 651 (2nd College ed. 1985) (italics in original) (attached as Exhibit B). Accordingly, the most straightforward reading of 275:42 (III) is a provision which defines “wages” as “compensation” and then presents a non-exclusive list of types of compensation that are included. Moreover, given the fact that the phrase “or other agreement” follows “hourly health and welfare” and “pension fund contributions” it is grammatically correct to interpret the “or other agreement” as modifying the later phrases, rather than the word “compensation.” See Anhydrides & Chemicals, Inc. v. United States, 130 F.3d 1481, 1483 (Fed. Cir. 1997), quoting C. DALLAS SANDS, 2A SUTERHLAND STATUTORY CONSTRUCTION § 47.33 (4th ed.) (footnotes omitted) (“The rules of grammar apply in statutory construction: Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent, which consists of ‘the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence.’”); New Hampshire Mun. Trust Workers’ Compensation Fund v. Flynn, 133 N.H. 17, 21 (N.H. 1990), quoting Lake County v. Rollins, 130 U.S. 662, 670 (1988) (“To get at the thought or meaning expressed in a statute, a contract or a constitution, the first resort, in all cases, is to the natural signification of the words, in the order of grammatical arrangement in which the framers of the instrument have placed them.”) 5 Case 1:05-cv-10673-WGY Document 59 Filed 06/21/2006 Page 5 of 18 Indeed, Section 275:43 (III) states that “wages” includes “[v]acation pay, severance pay, personal days, holiday pay, sick pay and payment of employee expenses, when such benefits are a matter of employment practice or policy, or both.” N.H. Rev. Stat. Ann. § 275:43 (III) (2006) (emphasis added). Clearly, the inclusion of payments made as a matter of “practice or policy” (in the context of benefits) undermines any reading of the term “wages” as including only payments made pursuant to an agreement. (This section, which discusses various benefits and not salary or hourly wages, should, of course, not be read as being an exclusive list of types of wages.) Defendants have cited no authority restricting Section 275:42 (III) “wages” to compensation pursuant to an employment contract or agreement or barring the otherwise broad and remedial use of Section 275:43 (I) from permitting employees to recover federally mandated overtime pay. To the contrary, the cases cited by Defendants support a broader interpretation of the definition of “wages” than the narrow one they propose, and by the use of ellipsis, indicate that “compensation” is not limited to “agreement[s].” For instance, Ives v. Manchester Subaru, Inc., 126 N.H. 796, 800 (N.H. 1985), interpreted Section 275:42 (III) as broadly “defin[ing] wages as ‘compensation … for labor or services rendered by an employee, whether the amount is determined on a time task, piece, commission or other basis of calculation.’” (quoting, § 275:42(III)) (ellipsis in original). The court in Ives found that the plaintiff’s profit sharing agreement fell under 275:42(III) because it was “compensation calculated on some ‘other basis’” and was “compensation for labor and services.” Id. Contrary to Defendants’ claims, Ives did not purport to define or limit wages to compensation pursuant to an agreement. Defendants’ argument that Ives is restrictive is absurd. Ives happened to involve a profit sharing 6 Case 1:05-cv-10673-WGY Document 59 Filed 06/21/2006 Page 6 of 18 agreement; however, no restriction on the definition of “wages” can, under any possible reading of Ives, be implied. Indeed, if anything, Ives understood employment agreements to be merely one type of compensation. Nor did Gilman v. County of Cheshire, 126 N.H. 445 (N.H. 1985), the only other case cited by Defendants, profess to limit “wages” to compensation pursuant to agreements. Gilman involved a sick leave policy, not an employment agreement, and rather than stating that wages/compensation are limited to employment agreements, the court stated that benefits which “constitute a part of an employee’s compensation . . . form a part of the employment contract.” Id. at 449. Again, no possible reading of Gilman implies a restriction of wages to agreements. The Defendants actually misquote N.H. Code Admin. R. Ann. 803.02(g) as limiting wages to agreements; in actuality, the Rule states that the employer is required to “[p]ay wages based [both] upon required records of hours worked per RSA 279:27 and RSA 275:49, VI, and in accordance with written or verbal agreement between the parties per RSA 275:49, I-III . . . .” This is a mandate, not a restriction, and merely brings attention to Defendants failure to keep records of the hours worked by Plaintiffs and pay wages for those hours. The Untied States District Court for the District of New Hampshire articulated the definition of “wages” in precisely the same manner as the New Hampshire Supreme Court. See McCarthy v. Citigroup Global Markets, Inc., No. Civ. 04CV477JD, 2005 WL 3447958 at *5 (D.N.H. Dec. 15, 2005) (“The New Hampshire wage laws apply to “compensation … for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission, or other basis of calculation.”) (quotation 7 Case 1:05-cv-10673-WGY Document 59 Filed 06/21/2006 Page 7 of 18 omitted) (ellipsis in original). Furthermore, the court in McCarthy stated that an employee was entitled to have Section 275:43 (I) applied to his action for “earned compensation,” despite the fact that the employee had signed an agreement to waive the payment of wages in order to participate in a stock purchase plan. McCarthy, 2005 WL 3447958 *8 (remanding the issue to arbitration). Thus, the court clearly contemplated the application of Section 275:43 (I) to an action for wages that was not pursuant to any agreement between the employer and employee – indeed, the wages sought in McCarthy were in direct contradiction to the parties’ agreement. The Supreme Court of New Hampshire has also recognized that an employee can bring a claim under the New Hampshire statutes for the payment of wages (including N.H. Rev. Stat. §§ 275:42, 275:43) for wages that were not pursuant to an employment contract or agreement. Hobart v. Duvall, 112 N.H. 420, 421-423 (N.H. 1972) (ruling that municipal employees could bring a claim to recover unpaid wages which had accumulated as a result of “departmental policy requiring one hour of free work before overtime is given” and which was in direct contradiction to the departmental policy). As stated in Plaintiffs’ Request to Certify Questions, the New Hampshire Supreme Court, in other contexts, has ruled that the term “wages” includes overtime pay. See, e.g., In re Appeal of Berlin Educ. Ass’n, NHEA/NEA, 125 N.H. 779, 783-84 (N.H. 1984) (““[C]ourts have rather consistently held that such items as overtime pay, . . . are mandatory subjects of [collective] bargaining encompassed within the term ‘wages.’”); Brampton Woolen Co. v. Local Union 112, 95 N.H. 255, 257 (N.H. 1948) (in determining arbitrability under a collective bargaining agreement, the court stated “[t]here can be little doubt that workers generally consider the money which comes to them as a result of their 8 Case 1:05-cv-10673-WGY Document 59 Filed 06/21/2006 Page 8 of 18 labors, whether it be regular pay, overtime or vacation pay as a part of their wages and courts have recognized this fact”). Furthermore, as discussed in Plaintiffs’ Request to Certify Questions, the position that “all wages due” includes FLSA overtime pay is consistent with (albeit, as this Court found, not mandated by) the accompanying regulations4 and the New Hampshire Supreme Court’s requirement that chapter 275 be interpreted to give effect to its broad remedial purpose. See Pls.’ Req. to Certify Questions, at 5-6. Finally, even if 275:43 (I) were, contrary to the arguments and authority set forth above, narrowly limited to claims for compensation that are the result of an agreement, such an agreement can here be found. Fidelity defines employees as “Exempt” or “Nonexempt” pursuant to FLSA provisions. (FID002971) (attached as Exhibit C). “Nonexempt employees are paid one and one-half times their regular hourly rate of pay for all hours worked in excess of 40 hours during the workweek.” (FID003191; FID003192; FID003194; FID003195) (Exhibit C). These writings and policies establish an agreement pursuant to which a nonexempt employee is entitled to overtime. See Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 45 n.11 (1st Cir. 2001) (“statements in employee handbooks regarding benefits may give rise to enforceable contracts under New Hampshire law.”); Avery v. City of Talladega, Ala., 24 F.3d 1337, 1348 (11th Cir. 1994) (finding that in the case that an employment handbook incorporates the FLSA, “[i]f a violation of the FLSA has occurred, then a violation of the contract, which incorporates the FLSA, will have occurred as well.”) (emphasis added) See also Gilman, 4 Although New Hampshire law does not explicitly recognize that federally mandated overtime is incorporated in “wages” under 275:42 (III) and 275:43 (I), the law is certainly open to federally mandated overtime being included as wages, and thus it is a question ripe for certification to the New Hampshire Supreme Court. 9 Case 1:05-cv-10673-WGY Document 59 Filed 06/21/2006 Page 9 of 18 126 N.H. at 449 (benefits which “constitute a part of an employee’s compensation . . . form a part of the employment contract.”) B. Question 2 – Whether the New Hampshire Legislature Directly Expressed an Intent to Prohibit Opt-Out Class Actions for Causes of Action or Claims for Relief Brought Pursuant to Section 275:43 for Wages Due 1. It Is (at Worst) Unclear Whether A Federal Rule 23 Class Action Can Be Brought For Violations of Section 275:43 Although Plaintiffs have found no case in which employees as a class sought to vindicate their rights under Section 275:43, there is no language in the New Hampshire statutes which limit the availability of Rule 23 nor any indication that a Rule 23 Class Action was expressly excluded by the legislature. Nor have Defendants cited a single case rejecting a plaintiff’s ability to bring a class action on a cause of action under Section 275:43. That research uncovers no class action previously brought under a statute is not a reason to either deny its availability or to decline to certify the question to the state court. To the contrary, an issue of first impression is precisely the type of issue that should be certified. If a class action under the statute at issue had previously been brought in New Hampshire, there could be no debate here – all parties would already know whether class treatment is or is not appropriate. As this Court stated, N.H. Rev. Stat. Ann. 275:53(I) 5 may be interpreted “to limit standing to the employee/employees or their designee.” (June 1, 2006 Mem. at 39) However, this may be immaterial as the named plaintiffs in a class are regularly referred to as being “designated” as the class representatives or lead plaintiffs. See, e.g. Gratz v. 5 “Action by an employee to recover unpaid wages and/or liquidated damages may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves, or such employee or employees may designate an agent or representative to maintain such action.” N.H. Rev. Stat. Ann. 275:53(I) 10 Case 1:05-cv-10673-WGY Document 59 Filed 06/21/2006 Page 10 of 18 Bollinger, 539 U.S. 244, 253 (2003); Anchem Products, Inc. v. Windsor, 521 U.S. 591, 602-603 (1997); Ballard v. Tyco Int’l, No. 02-MD-1335-PB, 2005 WL 928537 at * 1 (D.N.H. April 22, 2005). Moreover, as recognized by the Court, no prohibition is plainly obvious from the language of the statute, and it is an unsettled issue whether a class action can be brought for a Section 275:43 claim. There is no reason to assume the language is restrictive of a class action, and thus, the statute cannot possibly qualify as a “direct expression” prohibiting a class action.6 Because there is no “direct expression” by the state legislature to specifically and completely prohibit plaintiffs from pursuing a Rule 23 class action, the Court should follow federal procedural law to determine whether a class action can be brought and allow a Rule 23 class action under the line of cases cited in Plaintiffs opening brief. See Pls.’ Req. to Certify Questions, at 11-13) At a minimum, whether the New Hampshire legislature made a “direct expression” of its intent to prohibit class actions is a question appropriate for certification to the New Hampshire Supreme Court. Additionally, in addition to the vast majority of courts that routinely allow state law overtime class actions supplemental to FLSA actions, courts have recognized that Rule 23 class actions are appropriate for state wage collection claims based only upon FLSA required overtime. See Bartleson, 219 F.R.D. 629 at 638-639 (acknowledging that a Rule 23 class action could be brought for a state wage collections law based upon the employer’s failure to pay federal overtime wages under the FLSA; however, the court found that numerosity was not met). “The very fact that the [state wage collections law] looks to the FLSA to determine the wages due under these circumstances [unpaid 6 A direct expression could, for instance, read as follows: “Class actions under this statute are prohibited.” 11 Case 1:05-cv-10673-WGY Document 59 Filed 06/21/2006 Page 11 of 18 overtime] lends support to the plaintiff’s assertion that the FLSA and [state wage collections law] claims [brought as a Rule 23 class action] properly may be brought in the same action.” Bartleson v. Winnebago Indus., No. C02-3008-MWB, 2003 WL 22427817, *3 (N.D. Iowa Oct. 24, 2003), modified by, 219 F.R.D. at 634. Finally, as noted above in footnote 3, the New Hampshire statute is not duplicative of the FLSA. The statute at issue here varies from the FLSA in one critcal aspects, the limitations period. Under the FLSA, the limitations period is two years, absent a showing of willfulness. The New Hampshire statute under consideration has a three year statute without regard to willfulness. 2. Courts Have Interpreted State Wage Collections Statutes to Cover FLSA Overtime and Allowed Opt-out Rule 23 Class Actions The fact that other courts have interpreted their state’s wage collections statutes as including FLSA overtime provides further indication that Plaintiffs’ proffered interpretation of the statute is at least worthy of consideration by the state’s highest court, which has never addressed this question. “If the goal of the FLSA is generally to protect workers and their right to minimum wages and overtime, no real threat to accomplishment of that goal is posed by [a state law which “borrows” from the FLSA yet which has “enhanced remedies”]. Willis v. Cal-Western Transport, No. CV-00-5695, slip op. at 10, 19 (E.D.Cal. December 22, 2000) (ruling that the FLSA did not preempt a Rule 23 opt-out class action under California unfair competition state law, and accordingly, “the more permissive treatment of class actions under the [state law] . . . [did] not conflict with any congressionally mandated exclusive arrangement.”) 12 Case 1:05-cv-10673-WGY Document 59 Filed 06/21/2006 Page 12 of 18 [S]tate wage actions . . . which are governed by procedures more beneficial to plaintiffs than those in the FLSA and which may provide for remedies to plaintiffs more beneficial than those in the FLSA do not frustrate congressional purpose as evidence by the FLSA and the Portal to Portal Act amendments. Aragon v. Bravo Harvesting, Inc., No. CIV-89-1282-PHX-RCB, 1993 WL 432402 at * 6 (D. Ariz. May 7, 1993) (Ruling that Plaintiffs could bring an Arizona state law claim – which had been certified as a Rule 23 class action – to remedy FLSA violations) In Anthony v. State, the Iowa Supreme Court ruled that FLSA overtime pay is covered by state wage collections law, which provides employees an action to collect unpaid wages similar to Section 275:43. 632 N.W. 2d 897, 901-902 (Iowa 2001). In doing so, the court found that FLSA overtime fell under the definition of “wages,” which is defined under the relevant Iowa law as “compensation owed by an employer.” The Iowa statute is, for our purposes, identical to the New Hampshire statute. 7 Moreover, in a case nearly identical to the one currently before this Court, the United States District Court for the Northern District of Iowa ruled that the plaintiffs in an FLSA case could bring a separate cause of action under the state wage collections law, based upon the employer’s failure to pay federal overtime wages under the FLSA. 7 The full definition of “wages” under the relevant Iowa law is as follows: “compensation owed by an employer for: a. Labor or services rendered by an employee, whether determined on a time, task, piece, commission, or other basis of calculation. b. Vacation, holiday, sick leave, and severance payments which are due an employee under an agreement with the employer or under a policy of the employer. c. Any payments to the employee or to a fund for the benefit of the employee, including but not limited to payments for medical, health, hospital, welfare, pension, or profit- sharing, which are due an employee under an agreement with the employer or under a policy of the employer. The assets of an employee in a fund for the benefit of the employee, whether such assets were originally paid into the fund by an employer or employee, are not wages. d. Expenses incurred and recoverable under a health benefit plan.” Iowa Code § 91 A.2(7). 13 Case 1:05-cv-10673-WGY Document 59 Filed 06/21/2006 Page 13 of 18 Bartleson v. Winnebago Indus., 219 F.R.D. 629, 634 (N.D. Iowa 2003). (“[T]he [state wage collections] claim is essentially ‘duplicative’ of the FLSA claim in this action. However, the court does not agree with [the defendant] that a claim that is duplicative or that merely states an alternative theory of recovery on the same nucleus of facts is ‘futile’ or ‘frivolous,’ such that leave to amend to assert such a claim should be denied.”). Many other courts have taken the same position. See, e.g. Barrois v. Title, No. CIV A. 96-727, 1996 WL 312063, at *1 (E.D. La 1996) (plaintiff brought suit under Louisiana state law requiring employer to pay employee “all wages due within seventy- two hours following an employee’s termination” for unpaid federal (FLSA) overtime wages); Aguayo v. Oldenkamp, No. CV F 04-6279 ASI LJO, 2005 WL 2436477 at *8-11 (E.D. Cal Oct. 3, 2005) mot. denied by on other grounds by, 2006 WL 845876 (E.D.Cal. Mar 31, 2006) (ruling that FLSA overtime rights can be “vindicated” through a Rule 23 opt-out class action on a California unfair competition state law); Scholtisek v. The Eldre Corp., 229 F.R.D. 381, 392 (W.D.N.Y. 2005) (internal quotation omitted) (Certifying a Rule 23 class action under New York state laws which “require that any employee receive overtime pay as provided in the FLSA . . . .”) II. The Court Should Grant Plaintiff’s Motion to Stay Final Decision on Count II Pending An Answer to the Certified Questions In requesting that the Court stay its decision regarding dismissal of Plaintiffs’’ state law claim, Plaintiffs are not seeking reconsideration of the Court’s decision, but instead, seeking clarification. With the greatest respect, Plaintiffs suggest that the Court had something else in mind in the wording of its February 14, 2006 ruling. Plaintiffs understand the Court’s ruling to recognize that Plaintiff’s questions were dispositive and not addressed by New Hampshire Court. See Exhibit A at 5-6 14 Case 1:05-cv-10673-WGY Document 59 Filed 06/21/2006 Page 14 of 18 (“Suppose I do dismiss Count II but I certify your two key questions to the Supreme Court, it is the Supreme Court, I believe, of New Hampshire, since New Hampshire has no law on it and these are questions that would be dispositive.”) Accordingly, although the Court dismissed Count II, it requested the parties to submit questions for certification. See id. at 8 (“I think you’re right, though, that Count II should be dismissed. It will be dismissed. You frame the questions, the defense, or the plaintiff, rather can frame the questions to be submitted to the Supreme Court of New Hampshire, serve a copy on the other side, they can state their objections, and I will consider certifying the key questions to the Supreme Court of New Hampshire.”) and Minute Order (“After hearing the Motion to Dismiss is ALLOWED. The Court will consider whether to certify the question to the Supreme Court of New Hampshire. A proposed question is to be prepared, served and filed.”) As discussed in Plaintiffs’ Request to Certify Questions, Plaintiffs understand that a final dismissal of their state law claim would deprive the New Hampshire Supreme Court of jurisdiction to consider the proposed Certified Questions. See Pls.’ Req. to Certify Questions, at 14-15. See also N.H. Sup. Ct. R. 34 (“This court may answer questions of law . . . when requested by the certifying court if there are involved in any proceeding before it questions of law of this State which may be determinative of the cause then pending in the certifying court.”) (emphasis added); Brown v. Argosy Gaming Co., 384 F.3d 413, 416 (7th Cir. 2004) (“Without an underlying case in which to apply the answer from the state supreme court, certification can never be warranted.”). Accordingly, the Plaintiffs respectfully reiterate their request that the Court clarify this seeming contradiction by allowing final decision on Count II to be withheld until the 15 Case 1:05-cv-10673-WGY Document 59 Filed 06/21/2006 Page 15 of 18 New Hampshire Supreme Court has an opportunity to consider questions certified to it. This position is supported by Migliori v. Airborne Freight Corp, in which this Court read a Massachusetts statute to not support the plaintiff’s stated cause of action, yet certified the state law issue to the Supreme Judicial Court of Massachusetts. 952 F.Supp. 38, 44 (D. Mass. 1997). Although in Migliori this Court granted defendant’s motion for summary judgment and “administratively closed” the case, it conditioned its final order upon the receipt of the state court’s opinion. Id. Plaintiffs respectfully request that the same procedure be ordered here. III. The Court Should Stay Plaintiffs’ FLSA Claim Pending Decision On The Certified Questions Since the Court ruled that it would not stay the Plaintiff’s FLSA Claim, material circumstances have changed; on May 3, 2006, on the parties consent, the FLSA class was decertified, resulting in an expedited trial. At this date, documents have been exchanged, and Defendants have taken the deposition of two of the plaintiffs. Accordingly, there is less chance of meaningful delay due to a stay. While the case is not yet “trial ready,” the bulk of the pre-trial work has been accomplished, and if this Court declines to certify or Plaintiffs lose before the New Hampshire Supreme Court, it will not take long to prepare the case for trial. Discovery is currently scheduled to close July 22, 2006. Thus, if the case is now stayed and Plaintiffs’ ultimately lose on the issue of the certified questions, it will take only a few weeks to complete discovery. Moreover, the absence of a stay would adversely prejudice the Plaintiffs and result in judicial inefficiency for all the reasons stated in Plaintiffs’ opening brief. See Pls.’ Req. to Certify Questions, at 15-17. Significantly, a refusal to stay Plaintiffs’ FLSA claim will likely ultimately deprive the New Hampshire Supreme Court of jurisdiction to 16 Case 1:05-cv-10673-WGY Document 59 Filed 06/21/2006 Page 16 of 18 consider the Certified Questions and thus deprive the Plaintiffs of the chance of a Rule 23 class action. Even if the New Hampshire Supreme Court answers the questions, without a stay, the Plaintiffs claims will likely have already been fully adjudicated, rendering the issue moot. Accordingly, Plaintiffs respectfully request that the Court stay all of their claims until the Court decides whether to certify, and if it does, until New Hampshire Supreme Court has resolved or otherwise disposed of the Certified Questions. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court certify the following unresolved questions of state law to the New Hampshire Supreme Court: (i) whether a cause of action or claim for relief under Section 275:43 for wages due may include unpaid federally required overtime wages; and (ii) whether the New Hampshire legislature directly expressed an intent to prohibit opt-out class actions for causes of action or claims for relief brought pursuant to Section 275:43 for wages due. Plaintiffs further request that this Court stay all their claims pending this Court’s decision on certification and then, assuming the Court certifies, pending a decision or other disposition of the Certified Questions by the New Hampshire Supreme Court, in order to preserve the state court’s jurisdiction over the Certified Questions and so as not to unfairly prejudice the Plaintiffs and/or the proposed class. 17 Case 1:05-cv-10673-WGY Document 59 Filed 06/21/2006 Page 17 of 18 Dated: New York, New York June 21, 2006 Respectfully submitted, DEBBIE L. TREZVANT, TIMOTHY CAHILL, DEBORAH CHERYL ARCH, and MARY- CATHERINE PICHE, each of them individually and on behalf of all others similarly situated and similarly situated current and former employees of Defendants, By their attorneys, _____/s/_Michael D. Palmer_____________ Michael Douglas Palmer Charles E. Joseph (CJ-9442) Joseph & Herzfeld LLP 757 Third Avenue, 25th Floor New York, NY 10017 (212) 688-5640 Ira Spiro (CA State Bar No. 67641) James Mark Moore (CA State Bar No. 180473) Spiro Moss Barness Harrison & Barge LLP 11377 W. Olympic Blvd., 5th Floor Las Angeles, CA 90063-1683 (310) 235-2468 Thomas E. Kenney (BBO No. 516590) Pierce & Mandell, P.C. 11 Beacon Street, Suite 800 Boston, MA 02108 (617) 720-2444 18 Case 1:05-cv-10673-WGY Document 59 Filed 06/21/2006 Page 18 of 18 Case 1:05-cv-10673-WGY Document 59-2 Filed 06/21/2006 Page 1 of 10 Case 1:05-cv-10673-WGY Document 59-2 Filed 06/21/2006 Page 2 of 10 Case 1:05-cv-10673-WGY Document 59-2 Filed 06/21/2006 Page 3 of 10 Case 1:05-cv-10673-WGY Document 59-2 Filed 06/21/2006 Page 4 of 10 Case 1:05-cv-10673-WGY Document 59-2 Filed 06/21/2006 Page 5 of 10 Case 1:05-cv-10673-WGY Document 59-2 Filed 06/21/2006 Page 6 of 10 Case 1:05-cv-10673-WGY Document 59-2 Filed 06/21/2006 Page 7 of 10 Case 1:05-cv-10673-WGY Document 59-2 Filed 06/21/2006 Page 8 of 10 Case 1:05-cv-10673-WGY Document 59-2 Filed 06/21/2006 Page 9 of 10 Case 1:05-cv-10673-WGY Document 59-2 Filed 06/21/2006 Page 10 of 10 Case 1:05-cv-10673-WGY Document 59-3 Filed 06/21/2006 Page 1 of 2 Case 1:05-cv-10673-WGY Document 59-3 Filed 06/21/2006 Page 2 of 2 Case 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