Katrina Voorhees v. Cortona Partners, LLC

RENDERED: DECEMBER 22, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0942-ME
KATRINA VOORHEES APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 20-CI-00393
CORTONA PARTNERS, LLC; AND
JOHN CIOFFI, III APPELLEES
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND MCNEILL, JUDGES.
CLAYTON, CHIEF JUDGE: Katrina Voorhees, a pizza delivery driver, filed suit
in Kenton Circuit Court, individually and on behalf of similarly-situated
individuals, alleging that her former employer, Cortona Partners, LLC, and its sole
member, John Cioffi, III (collectively “Cortona”), violated Kentucky’s Wages and
Hours Act, Kentucky Revised Statutes (KRS) 337.010 et seq. (“KWHA”). The
trial court denied class certification and Voorhees brought this interlocutory appeal
pursuant to Kentucky Rules of Civil Procedure (“CR”) 23.06. The sole issue
before the Court is whether the trial court abused its discretion in ruling the
putative class was not sufficiently numerous to warrant certification of a class
action. Having reviewed the arguments of counsel, the record, and the applicable
law, we affirm.
I. BACKGROUND
From about October 2014 to June 2016, Voorhees was employed as a
pizza delivery driver for a Snappy Tomato restaurant located in Independence,
Kentucky. The restaurant, a franchise, was one of three owned by Cortona. All
three restaurants were located in Kenton County, two in Independence and one in
Park Hills. Cortona sold the two restaurants in Independence in December 2017,
closed the Park Hills location in May 2018, and sold it in September 2018.
According to Cioffi, he employed five or fewer drivers to cover
deliveries for all three restaurants on weekends. On weekdays, he employed one
driver or made the deliveries himself. The average delivery distance was four to
five miles. The majority of the drivers were paid the statutory minimum hourly
wage of $7.25, or slightly more, with the highest-paid driver earning $7.57 per
hour. The drivers used their own cars to make the deliveries. Cortona did not
track its drivers’ individual automobile expenses such as vehicular wear and tear,
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gas, repairs, and insurance; instead, it reimbursed the drivers at a flat rate of
between $1.00 and $1.25 per delivery.
Voorhees filed her complaint on March 2, 2020, alleging Cortona
violated the KWHA by systematically under-reimbursing drivers for driving-
related expenses, with the result that the drivers were effectively paid below the
minimum wage. The complaint contended that the average reimbursement rate for
the drivers averaged between $.20 and $.25 per mile, which was well below the
IRS standard mileage reimbursement rate at that time of between $.535 and $.58
per mile. Voorhees sought to bring the claim as a class action on behalf of all
individuals currently or formerly employed as delivery drivers by Cortona at any
time in the five years preceding the filing of the complaint. The complaint asserted
that the class consisted of at least one hundred persons who were geographically
dispersed, and consequently their joinder in a single claim was impracticable.
Voorhees subsequently filed a specific motion and supporting memo
for class certification pursuant to CR 23.01, claiming the class contains at least
fifty-four delivery drivers who were employed by Cortona during the recovery
period.
Following a hearing, the trial court denied the motion on the grounds
that Voorhees had failed to meet the burden of proving that the members were so
numerous that their joinder as individual plaintiffs would be impracticable.
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This appeal by Voorhees followed.
II. ANALYSIS
a. Standard of review
CR 23.01 provides that 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.
Specifically in respect to the numerosity requirement, “[t]here is no
precise size or number of class members that automatically satisfies the numerosity
requirement.” Hensley v. Haynes Trucking, LLC, 549 S.W.3d 430, 443 (Ky. 2018)
(citation omitted). “Whether a number is so large that it would be impracticable to
join all parties depends not upon any magic number or formula, but rather upon the
circumstances surrounding the case.” Id. “Practicability of joinder also depends
on the size of the class, the ease of identifying its members and determining their
addresses, facility of making service on them, and their geographic dispersion.”
Id.A trial court’s determination as to class certification is reviewed on
appeal for an abuse of discretion. Id. at 444. Applying this standard, the appellate
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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.” Id.Our review of the trial court’s decision is further limited by the strict
parameters of interlocutory appeals. Id. at 436. We are permitted to focus only on
the limited issue of whether the trial court properly denied certification, not on the
merits of the underlying case. Id. “We must . . . scrupulously respect the
limitations of the crossover between (1) reviewing issues implicating the merits of
the case that happen to affect the class-certification analysis and (2) limiting our
review to the class-certification issue itself.” Id.b. The numerosity requirement
Voorhees argues that the trial court misinterpreted Kentucky
minimum wage law to conclude that some of the putative class members’ claims
were de minimis and, on that faulty basis, ruled the class was too small to meet the
numerosity requirement.
In its order denying class certification, the trial court cited Hensley v.
Haynes Trucking, supra, a seminal opinion addressing the certification of class
actions in Kentucky. In Hensley, a group of truck drivers brought a class action
under a now-repealed section of the KWHA, claiming they had been underpaid. In
opposing certification of the class, their employers claimed a significant number of
the putative class included drivers who spent only a de minimis amount of time on
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the work site. Hensley, 549 S.W.3d at 441. If these drivers with de minimis claims
could not be joined to reach the jurisdictional threshold, the employers argued, the
number of people in the class would not meet the numerosity requirement. The
Court stated that “[d]etermining whether Kentucky law excludes as too trifling for
litigation the claims of a group of plaintiffs is not an appropriate consideration for
this Court on interlocutory appeal.” Id. at 441. Although “[t]he potential
application of the de minimis limitation is a proper consideration for the trial court
in determining whether the class-certification requirements are satisfied[,]” the
Court cautioned that “appellate courts on interlocutory appeal cannot reach and
conclusively determine a substantive issue that reaches the merits of a case when
simply reviewing the propriety of the trial court’s class-action certification
determination.” Id. at 441-42.
In addressing the element of numerosity, the trial court stated in
relevant part as follows:
The potential application of the de minimis
limitation is a proper consideration for the trial court in
determining whether the class-certification requirements
are satisfied. Hensley at 441-42 citing Amgen, Inc. v.
Connecticut Retirement Plans and Trust Funds, 568 U.S.
455, 465-66 (2013). If the Courts of Kentucky were to
hold that Kentucky law allows a de minimis limit on
litigable claims some of the purported class members
here would be prevented from bringing suit. Hensley at
441. Defendants sold two of their stores in December
2017 and the third in September 2018 although that
location had closed that May. The complaint was filed
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on March 2, 2020, so the class members would have been
employed from March 2, 2015 through sometime in May
2018, or just over three years at the most. While the
complaint alleges that there are over one hundred
members of the class, the record contains reference to
fifty-four identified employees. There is evidence in the
record that of those, only eight worked more than two
months, five worked one month, and the remainder
worked less than that. Deposition of Defendant John
Cioffi, III, 3/10/21, p. 42, lines 4-8; Cortona Partners
Summary of Driver Wages, Exhibit 4 to motion for class
certification. Upon review of the documents in the
record before the court, it appears that there is sufficient
information in the form of employment records to easily
identify each driver and join them as individual plaintiffs
in this case after which time the court could determine
which of them had sufficient claims to be brought before
this court.
Voorhees argues that the trial court erred as a matter of law in
refusing to certify the class because a de minimis limitation does not apply to
claims made pursuant to the KWHA and also directly contradicts the principles of
CR 23 and relevant case law. This argument is based on a misreading of the trial
court’s order.
The trial court found, based on the employment documents produced
by Cortona, that it would be easy to identify and locate the fifty-four members of
the class and join each of them individually as a plaintiff. Its plan to proceed
thereafter to determine whether the claims of the individual plaintiffs would be
subject to a de minimis limitation was not a decisive factor in its numerosity
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analysis. The question of whether such a de minimis limitation applies relates
directly to the merits of this case and is therefore beyond the scope of our review.
Although “there is no ‘strict numerical test’ that must be met for a
class to be certified[,] . . . and [t]he requirement can be satisfied with a class size as
low as 35 people[,]” Calloway v. Caraco Pharmaceutical Laboratories, Ltd., 287
F.R.D. 402, 406 (E.D. Mich. 2012) (internal quotation marks and citations
omitted), the analogous “pizza cases” cited in Voorhees’s memorandum in support
of class certification, and by her counsel at the hearing before the trial court,
involved significantly larger numbers of drivers than the number at issue here.
See, e.g., Waters v. Pizza to You, LLC, No. 3:19-CV-372, 2021 WL 229040, at *7
(S.D. Ohio Jan. 22, 2021) (at least 160 delivery drivers employed at five stores);
Brandenburg v. Cousin Vinny’s Pizza, LLC, No. 3:16-CV-516, 2018 WL 5800594,
at *3 (S.D. Ohio Nov. 6, 2018) (1,027 delivery drivers employed at fifteen
different locations); McFarlin v. Word Enterprises, LLC, No. 16-CV-12536, 2017
WL 4416451, at *2 (E.D. Mich. Oct. 5, 2017) (between 106 and 117 potential class
members working for three companies owned by the defendant); Perrin v. Papa
John’s Intern., Inc., No. 4:09CV01335 AGF, 2013 WL 6885334, at *1 (E.D. Mo.
Dec. 31, 2013) (4,000 out of 29,000 putative plaintiffs from five different states
filed consent to join the class action). Although Voorhees claimed that the Snappy
Tomato class may be as large as one hundred drivers, the “impracticability of
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joinder must be positively shown, and cannot be speculative.” Young v.
Nationwide Mut. Ins. Co., 693 F.3d 532, 541 (6th Cir. 2012) (quoting Golden v.
City of Columbus, 404 F.3d 950, 966 (6th Cir. 2005)). The trial court’s decision
that it would not be impracticable to join fifty-four individual plaintiffs was based
on substantial, concrete evidence in the record and may not be reversed on appeal
under our deferential standard of review, which recognizes “the essentially factual
basis of the certification inquiry and . . . the [trial] court’s inherent power to
manage and control pending litigation.” Hensley, 549 S.W.3d at 444.
III. CONCLUSION
For the foregoing reasons, the order denying class certification is
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Edward L. Metzger III Tabitha M. Hochscheid
Edgewood, Kentucky Cincinnati, Ohio
Mark Potashnick
St. Louis, Missouri
Andrew Biller
Emily Hubbard
Cincinnati, Ohio
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