James A. Southern, Individually v. Sci Kentucky Funeral Services, Inc. ( 2021 )

RENDERED: APRIL 9, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0947-ME
JAMES A. SOUTHERN,
INDIVIDUALLY AND ON BEHALF
OF ALL SIMILARLY SITUATED
INDIVIDUALS APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE A.C. MCKAY CHAUVIN, JUDGE
ACTION NO. 11-CI-006501
SCI KENTUCKY FUNERAL APPELLEE
SERVICES, INC.
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, KRAMER, AND LAMBERT, JUDGES.
LAMBERT, JUDGE: James A. Southern appeals from the Jefferson Circuit
Court’s July 27, 2020, order denying his motion to certify a class action that he and
others similarly situated were not paid for all hours worked (including meal, rest
time breaks, and overtime hours worked). After careful review, we affirm.
The facts, as summarized by the circuit court, are as follows:
Mr. Southern was employed by SCI [Kentucky
Funeral Services, Inc.] as a funeral director. In his
Complaint, Mr. Southern alleges that, contrary to SCI’s
written policies requiring funeral directors to accurately
reflect time in and time out for all hours of work
(including lunch breaks, overtime, and work performed
while on-call), he was required to record eight (8) hours
of work per day, even when he worked through lunch or
break times. Mr. Southern further alleges that SCI failed
to provide mandatory breaks or compensate him for on-
call time and community marketing activities. He
brought the above-styled suit against SCI alleging
violations of the Kentucky Wages and Hours Act, breach
of contract, and unjust enrichment. Mr. Southern now
seeks class certification on his claims for all current and
former funeral directors who were employed by SCI.
Southern’s suit against SCI was originally brought in 2011. He sought to certify
the proposed class by motion filed on December 18, 2019. SCI responded to the
motion on February 7, 2020, and the circuit court held a hearing telephonically on
May 20, 2020, and entered its order denying on July 27, 2020. This interlocutory
appeal was filed by Southern pursuant to Kentucky Rules of Civil Procedure (CR)
23.06.1
1
CR 23.06 states, “An order granting or denying class action certification is appealable within
10 days after the order is entered. An appeal does not stay proceedings in the circuit court unless
the circuit judge or the Court of Appeals so orders. The matter shall be expedited in the
appellate courts.”
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Our standard of review of the circuit court’s decision whether to
certify a class action is stated succinctly in Hensley v. Haynes Trucking, LLC, 549
S.W.3d 430 (Ky. 2018):
A trial court’s determination as to class certification is
reviewed on appeal for an abuse of discretion. Under an
abuse-of-discretion standard, this Court may reverse a
trial court’s decision only if “the trial judge’s decision
was arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.” “Implicit in this deferential
standard is a recognition of the essentially factual basis of
the certification inquiry and of the [trial] court’s inherent
power to manage and control pending litigation.”
Importantly, “As long as the [trial] court’s reasoning
stays within the parameters of [CR] 23’s requirements for
certification of a class, the [trial court’s] decision will not
be disturbed.”
Id. at 444 (footnotes omitted). “[T]he only question that is before us is: Was the
trial court’s decision to certify [or not to certify] the class in this case ‘arbitrary,
unreasonable, unfair, or unsupported by sound legal principles?’” Id. at 445.
CR 23.01 (“Prerequisites to class action”) states in its entirety:
Subject to the provisions of Rule 23.02, one or more
members of a class may sue or be sued as representative
parties on behalf of all only if (a) the class is so
numerous that joinder of all members is impracticable,
(b) there are questions of law or fact common to the
class, (c) the claims or defenses of the representative
parties are typical of the claims or defenses of the class,
and (d) the representative parties will fairly and
adequately protect the interests of the class.
Furthermore:
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The circuit court’s order “must address the four
prerequisites of CR 23.01 (numerosity, commonality,
typicality, and adequacy) and one of the three
requirements of CR 23.02.” Nebraska Alliance Realty
Company v. Brewer, 529 S.W.3d 307, 317 (Ky. App.
2017). The party seeking certification bears the burden
of proof. Young v. Nationwide Mut. Ins. Co., 693 F.3d
532, 537 (6th Cir. 2012) (citation omitted). See also
Manning v. Liberty Tire Services of Ohio, LLC, 577
S.W.3d 102, 110 (Ky. App. 2019) (citing Young, 693
F.3d at 537).
Summit Medical Group, Inc. v. Coleman, 599 S.W.3d 445, 449 (Ky. App. 2019),
reh’g denied (Mar. 17, 2020).
Here, the circuit court addressed the four prerequisites of CR 23.01,
beginning with numerosity. Because, as the court stated, “SCI does not appear to
dispute whether Mr. Southern has presented sufficient evidence of record on the
issue of numerosity,” that issue did not need to be discussed further. We, likewise,
will not address the issue of numerosity.
Regarding commonality, the circuit court made the following findings
and conclusions:
The lynchpin of the commonality analysis is
whether the class claims depend upon a common
contention that is capable of class-wide resolution (i.e.
that determination of its truth or falsity will resolve an
issue that is central to the validity of a claim common to
every member of the class). Hensley v. Haynes,
Trucking, LLC, 549 S.W.3d 430, 447 (Ky. 2018); Wal-
Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).
Mr. Southern is, as a preliminary matter, only required to
make a modest factual showing sufficient to demonstrate
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that he and the putative class members were victims of a
common policy or plan that violated the law. England v.
Advance Stores Co., Inc., 263 F.R.D 423, 454 (W.D.Ky.
2009). He has failed to do so.
Mr. Southern[] contends that SCI had an unwritten
de facto policy of requiring its hourly wage funeral
directors to work off-the-clock and to work without their
statutorily mandated lunch and rest breaks. To the extent
that this may be true with respect to Mr. Southern, there
is insufficient evidence of record to allow the Court to
find [either] that all members of the class were subject to
this unwritten de facto policy or were damaged as a
consequence of SCI violating same.
Southern argues that this finding is not supported by the record and that the circuit
court “fail[ed] to give credence to the key dispute common to all class members,”
(Manning, 577 S.W.3d at 113) namely, that SCI’s wage and hour practices violated
Kentucky law and resulted in breach of contract with the class members and unjust
compensation to SCI.
We disagree. It was incumbent on Southern to demonstrate, in
support of this argument, that proof of the unwritten policy existed, and that other
class members were affected by it.
The U.S. Supreme Court in Wal-Mart Stores, Inc.
v. Dukes highlighted the focus of the commonality
question: Whether the class plaintiffs’ claims “depend
upon a common contention . . . that is capable of class
wide 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.” This
Court has also expounded on the commonality
requirement: “CR 23.01(b) requires that there must be
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questions of law or fact common to the class, but it does
not require that all questions of law or fact be common.”
Hensley, 549 S.W.3d at 443 (footnotes omitted). “To say that the trial court’s
decision lacked sufficient evidentiary support is to ignore the copious amount of
discovery and exhibits in this case[.]” Id. at 446. “[T]he record shows the trial
court adequately grasped the potential differences among class members and how
they may affect this case in further proceedings.” Id. at 448. We cannot agree
with Southern that the circuit court’s finding that he failed to make a showing of
commonality was clearly erroneous or an abuse of discretion. Id. at 444.
We next address the issue of typicality, satisfied when the claims and
defenses “arise from the same event, practice, or course of conduct that gives rise
to the claims of other class members and if the claims of the representative are
based on the same legal theory.” Id. at 443. Regarding typicality, the circuit court
held thus:
The only evidence of record is testimony by Mr.
Southern that he was subject to an unwritten de facto
policy requiring him to perform work without
compensation and/or mandatory rest periods at the SCI
funeral home where he worked. SCI engaged in the same
conduct with respect to all of its funeral directors at all
funeral homes owned by SCI. It does not follow that the
alleged unwritten de facto policy existed at every funeral
home owned by SCI. There is, moreover, significant
evidence of record that indicates that funeral directors at
other SCI funeral homes did not share Mr. Southern’s
experience. See England v. Advance Stores Co. Inc., 263
F.R.D. 423, 451 (W.D.Ky. 2009).
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Again, the record supports the circuit court’s determination. This
analysis comports with Hensley, and we find no abuse of discretion in holding that
the typicality requirement was not met. Id. at 444; CR 23.01(c).
The final CR 23.01 consideration is whether “the representative
parties will fairly and adequately protect the interests of the class.” On that
subject, the circuit court held:
The adequacy requirement tends to merge with the
commonality and typicality criteria, in that they serve as
guideposts for determining whether maintenance of a
class action is economical, and whether the named
plaintiff’s claim and the class claims are so interrelated
that the interests of the class members will be fairly and
adequately protected in their absence. Manning v.
Liberty Tire Servs. of Ohio, LLC, 577 S.W.3d 102, 115-
16 (Ky.App. 2019); Amchem Prod., Inc. v. Windsor, 521
U.S. 591, 625-26 (1997). More particularly, the Court
must determine whether Mr. Southern: (1) has a
common interest with the unnamed members of the class;
and (2) will vigorously prosecute the interests of the class
through qualified counsel. Hensley v. Haynes Trucking,
LLC, 549 S.W.3d 430, 443 (Ky. 2018). In so doing the
Court looks at whether he is a part of the class and
possessed the same interest and suffered the same injury
as the potential class members. Amchem Prod., Inc. v.
Windsor, 521 U.S. 592, 625-26 (1997). There is
insufficient evidence of record for the Court to find that
such is the case.
While it may be possible that Mr. Southern has a
common interest with the unnamed class members, there
is no evidence of record that any other funeral directors
employed by SCI have suffered the same alleged injury
as Mr. Southern. In the absence of same, Mr. Southern
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cannot meet his burden to establish that he will fairly and
adequately protect the interests of the proposed class.
The circuit court’s analysis regarding adequacy comports with
Kentucky law. Furthermore, “[t]he representative must not have any significant
interests antagonistic to or conflicting with those of the unnamed members of the
class.” Hensley, 549 S.W.3d at 443 (footnote omitted). We find no error in the
circuit court’s determination that Southern did not demonstrate that he could
adequately represent the class. Manning, 577 S.W.3d at 116.2
In the present case, we find no abuse of discretion in the circuit
court’s decision. Hensley, 549 S.W.3d at 443.
Based on the foregoing, we affirm the Jefferson Circuit Court’s July
27, 2020, interlocutory order denying Southern’s motion for class action
certification.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Michael D. Grabhorn Michelle D. Wyrick
Andrew M. Grabhorn Louisville, Kentucky
Louisville, Kentucky
2
SCI did not dispute that class counsel could not adequately represent the plaintiffs in this
action. We agree with the circuit court that the issue of class counsel did not need to be
addressed.
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