Labor & Employment Law Daily Wrap Up, WAGE-HOUR—CLASS ACTIONS—D. Utah: Employer denied dismissal of class action claims of pest control technicians, (Jan 24, 2025)

By Ronald Miller, J.D.

The Tenth Circuit has not articulated a standard for determining whether to preemptively deny class certification based on the pleadings.

A federal district court in Utah denied an employer’s motion to dismiss class action allegations that it violated wage laws in Illinois and Pennsylvania. In conjunction with an FLSA collective action, employees brought state-law claims alleging that the employer’s policies required them to perform a number of work duties off the clock. The court found that the plain language of Rule 23(d)(1)(D) explicitly governs motions to eliminate class action allegations and denied the employer’s motion to preemptively deny certification of the state-law claims based on the pleadings. Similarly, the court denied the employer’s request to dismiss the employees’ individual claims (Kirkpatrick v. Greenix Holdings, LLC, No. 2:23-cv-00033-JNP-JCB (D. Utah Jan. 23, 2025)).

Work off the clock. An employee sued the employer, which provides pest control services to residential customers, alleging that it violated the FLSA by requiring its pest control technicians to perform a number of work duties off the clock. Specifically, the employee alleged that under the employer policies, technicians may not clock in for the day until they arrive at the first worksite, and they are required to sign out when they complete their last appointment of the day, before they begin their commute home.

State-law claims. Claims asserted by two additional employees were included in the employee’s complaint. The first employee alleged that the employer violated the Illinois Minimum Wage Act by failing to pay overtime for tasks that he performed off the clock. The second employee alleged that the employer violated the Pennsylvania Minimum Wage Act and the Pennsylvania Wage Payment and Collection Law for the same reasons.

The two employees each asserted that they should be allowed to pursue their claims as a class action lawsuit under Rule 23 of the FRCP. They each alleged that they could satisfy the Rule 23 requirements for pursuing the Illinois and Pennsylvania claims as a class action.

The employer filed a motion to dismiss arguing that the court should bar the employees from pursuing their Illinois and Pennsylvania claims as a class action because they did not adequately plead facts supporting their assertion that they can satisfy the requirements of Rule 23. Relying on Rule 8(a) and Rule 12(b)(6), the employer asserted that the court should bar the state-law claims from proceeding as a class action at the pleading stage of the litigation, before the employees have an opportunity to move for class certification pursuant to Rule 23.

Procedural rule. In evaluating the employer’s argument, the court first determined which procedural rule governed the motion. The court then examined the merits of the motion under the appropriate standard.

The Tenth Circuit has not articulated a standard for determining whether to preemptively deny class certification based on the pleadings. Here, the district court concluded that cases holding that Rules 8(a) and 12(b)(6) do not control motions to dismiss or strike class action allegations have the better argument. A class action is not a “claim” within the meaning of either Rule 8(a) or Rule 12(b)(6). “[T]he right of a litigant to employ Rule 23 is a procedural right only, ancillary to the litigation of substantive claims.” Thus, the question of whether the plaintiff has stated a claim for relief in the complaint is distinct from the question of whether the plaintiff can prosecute the action as a class representative on behalf of other similarly situated individuals under Rule 23.

Application of Rule 23(d)(1)D). Instead, the plain language of Rule 23(d)(1)(D) explicitly governs motions to eliminate class action allegations found in a complaint. Because Rule 23(d)(1)(D) overtly provides for the relief that the employer seeks in its motion, the court found that this rule, rather than Rule 8(a) or Rule 12(b)(6), controlled.

Notably, Rule 23(d)(1)(D) is silent as to the standard that courts should apply when deciding whether to strike the class action allegations of a complaint. However, courts have viewed motions to strike or dismiss class allegations at the pleading stage with disfavor. “They generally consider such motions an extreme remedy in that they seek to preemptively terminate the class aspects solely on the basis of what is alleged in the complaint, and before the plaintiff has had any meaningful chance to conduct discovery.”

Typicality requirement. Here, the employer argued that the court should strike the class allegations asserted by the employees because it is clear that they cannot satisfy the typicality requirement of Rule 23, which requires the potential class representative to show that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” “Typicality exists where the ‘injury and the conduct are sufficiently similar.’” The employer asserted that the employees had not shown that their claims were sufficiently similar to those of the proposed class members because they did not allege in the complaint that they worked in excess of 40 hours a week.

However, the court found that this argument patently misrepresented the allegations of the amended complaint. Rather, the employees alleged that the employer had company-wide policies that require pest control technicians to perform duties off the clock, causing technicians to work more than 40 hours a week. Further, in a separate paragraph, the employees asserted that during their tenure as [pest control technicians] they worked over 40 hours per week (including both clocked-in time and uncompensated time) for most weeks.

Based on these allegations, the court concluded that the employer had not met the exacting burden of showing that it was clear from the pleadings that the employees cannot satisfy the typicality requirement of class certification. Accordingly, the court denied the employer’s motion to preemptively deny certification of the state-law claims based on the pleadings.

Individual claims. The employer had asserted that the employees’ individual causes of action should be dismissed under Rule 12(b)(6). However, the court disagreed with the employer’s assertion that the employees did not sufficiently support their claim that their clocked-in time plus the time spent performing work tasks off the clock totaled over 40 hours in a given week. Rather, the complaint asserted that the employees were typically clocked in for around 40 hours most weeks. They further alleged that they spent an average of five to ten additional hours a week on uncompensated labor for the employer. Because the employees asserted facts stating a claim that was plausible on its face, the court denied the employer’s request to dismiss their individual claims.

The case is No. 2:23-cv-00033-JNP-JCB.

Judge: Parrish, J.

Attorneys: Frank A. Bartela (Dworken & Bernstein) for Clarence Kirkpatrick. Andrew Applegate (Ray Quinney & Nebeker) for Greenix Holdings dba Greenix Pest Control.

Companies: Greenix Holdings; Greenix Pest Control

Cases: WageHour ClassActions WorkingTime Overtime StateLawClaims Procedure UtahNews IllinoisNews PennsylvaniaNews