Case 2:16-cv RSL Document 13 Filed 05/11/17 Page 1 of 10

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1 Case :-cv-0-rsl Document Filed 0// Page of The Honorable Robert S. Lasnik UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON ANANAIS ALLEN, an individual, and AUSTIN CLOY, an individual, v. Plaintiffs, FLIGHT SERVICES AND SYSTEMS, INC., a foreign corporation, Defendant. PLAINTIFFS MOTION FOR CLASS CERTIFICATION, APPOINTMENT OF CLASS COUNSEL AND APPOINTMENT OF CLASS REPRESENTATIVES Noting Date: June, I. INTRODUCTION Plaintiffs Analais Allen and Austin Cloy (collectively, the Plaintiffs respectfully submit this motion to certify a class for the causes of action alleged in their Complaint against Flight Services and Systems, Inc., ( FSS. Plaintiffs also seek appointment of class counsel and class representatives. The putative class (the Class comprises all FSS employees who have been either Hospitality Workers or Transportation Workers as defined within Section., et seq., of the City of SeaTac Municipal Code (the Ordinance, who worked one or more hours within the City of SeaTac between January, and the present, who were paid less than the prevailing minimum wage prescribed by Ordinance and who have not released their claims arising under the Ordinance, including for interest or punitive damages. REPRESENTATIVES -

2 Case :-cv-0-rsl Document Filed 0// Page of Between January, and the present, FSS provided aviation staffing services at Sea-Tac International Airport in SeaTac, WA (the Sea-Tac Airport. During that time, FSS failed to pay its personnel on-site the prevailing minimum wage required by the Ordinance. The case meets all of the requirements provided under Fed. R. Civ. P. (a, (b(, and (b(, and is thus, ideally suited for adjudication on a class wide basis. II. FACTUAL SUMMARY FSS provides staff and labor who perform passenger services, security services, groundhandling services, and terminal services at Sea-Tac International Airport in SeaTac, WA. See Turner Declaration, Exhibit One, and Cloy Declaration,. For example, FSS s passenger services include electric cart drivers, gate/ticket agents, and wheelchair assistants. Id. FSS s ground handling services including baggage handlers, cabin cleaners, and aircraft janitors. Id. Many of FSS s Sea-Tac International Airport employees are recent immigrants from Somalia, Ethiopia, the Philippines, and Latin America. Cloy Declaration,. Between January, and the present, FSS employed approximately nonsupervisory, non-managerial employees within the City of SeaTac. Dkt. #-,. Due to its offered services and number of employees, FSS qualifies as a Transportation Employer as defined within the Ordinance. SMC..0(M. As a Transportation Employer, FSS s nonmanagerial employees must be paid the prevailing minimum wage prescribed within the Ordinance. SMC..00(A. Plaintiff Cloy was employed by FSS within SeaTac, WA between August and October, and was paid $. per hour. Cloy Declaration,. Mr. Cloy s served in the following roles: aircraft cabin cleaner, encoder, security agent, and FIS baggage agent. Id. Plaintiff Allen was employed by FSS within SeaTac, WA between August and November, and was paid $.0 per hour. Allen Declaration,. Mr. Allen served FSS as a baggage handler. Id. REPRESENTATIVES -

3 Case :-cv-0-rsl Document Filed 0// Page of FSS employed the Plaintiffs, and thus, each Plaintiff qualified as a Transportation Worker for the purposes of the Ordinance. SMC..0(N. In all cases, FSS failed to pay Plaintiffs the required $.00 per hour minimum wage required under the Ordinance. Allen Dec.,, Cloy Dec.,. III. ARGUMENT Plaintiffs move for certification of the following Class: All employees of FSS who have been either Hospitality Workers or Transportation Workers and who worked one or more hours within the City of SeaTac at any time during the time period from January,, to the present, who were paid less than the prevailing minimum wage prescribed by City of SeaTac Ordinance..00, and who have not released fully their claims arising under that statute. A. Standards for Deciding this Motion A court may certify a class only if ( the class is so numerous that joinder of all members is impracticable; ( there are questions of law or fact common to the class; ( the claims or defenses of the representative parties are typical of the claims or defenses of the class, and ( the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. (a. A plaintiff seeking class certification must affirmatively demonstrate compliance with Rule and be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. Wal-Mart Stores, Inc. v. Dukes, S.Ct.,, 0 L.Ed.d (. Frequently, a court s determination of whether Rule (a s requirements are met entails some overlap with the merits of the plaintiff s underlying claim. Id. But that is no license to engage in a free-ranging merits inquiries at the certification stage. Stockwell v. City & County of San Francisco, F.d 0 (th Cir.. After satisfying the four requirements of Rule (a, the proposed class must also meet one of the requirements of Fed. R. Civ. P. (b. See Edwards v. Ford Motor Co., No. -, U.S. App. LEXIS 0 (th Cir. Feb.,. B. The Proposed Class Meets All the Requirements of Rule. REPRESENTATIVES -

4 Case :-cv-0-rsl Document Filed 0// Page of Numerosity Rule (a( requires a class to be so numerous that joinder of all members is impracticable. K.M. v. Shield, Case No. C-RAJ, U.S. Dist. LEXIS (W.D.Wash. Feb.,. It is a long-standing rule that impractical does not mean impossible rather, impracticality means only the difficulty or inconvenience of joining all members of the class. McClusky v. Trustees of Red Dot, F.R.D. 0, (W.D.Wash.. FSS employed over four hundred Transportation Workers as defined within the Ordinance. Dkt. #-,. This class is sufficiently numerous. See, e.g., McCluskey, F.R.D. at -, (certifying class comprising twenty seven known members at the time. Commonality Rule (a( requires there are questions of law or fact common to the class. Fed. R. Civ. P. (a(. Courts construe the commonality requirement permissively. See Hanlon v. Chrysler Corp., 0 F.d, (th Cir.. All questions of fact and law need not be common to satisfy the rule. Id. The existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class. Wolin v. Jaguar North America, LLC, F.d, (th Cir.. The commonality analysis does not turn on the number of common questions, but on their relevance to the factual and legal issues at the core of the purported class claims. Jiminez v. Allstate Ins. Co., F.d, (th Cir.. A class meets the commonality requirement when the common questions it has raised are apt to drive the resolution of the litigation, no matter their number. Id. The Class s common questions include: o Whether FSS had a duty to pay its non-managerial employees the minimum hourly wages provided within the Ordinance. o Whether FSS wrongfully withheld the minimum hourly wages provided within the Ordinance. REPRESENTATIVES -

5 Case :-cv-0-rsl Document Filed 0// Page of o Whether FSS s failure to pay its employees the minimum hourly wages provided within the Ordinance constituted a statutory violation. o Whether FSS was unjustly enriched by withholding the minimum hourly wages provided within the Ordinance. o Whether injured FSS employees are entitled to receive punitive or double damages as result of FSS s willful withholding of the minimum hourly wages provided within the Ordinance. These questions exclusively focus on FSS s conduct and create no individual issues for the Plaintiffs or Class members. Thus, they are common. To the extent FSS disputes the merits of any common questions, the answer to will be the same for every Class member. Each of these questions relate to FSS s wage policies and practices. Thus, commonality is satisfied. See, e.g., Agne v. Papa John s International, Inc., F.R.D., (W.D. Wash.. Typicality The typicality requirement of Rule (a( is satisfied if the claims or defenses of the representative parties are typical of the claims or defenses of the class. Fed. R. Civ. P. (a(. Under the rule s permissive standards, representative claims are typical if they are reasonably co-extensive with those of absent class members; they need not be substantially identical. Hanlon, 0 F.d at. Plaintiffs claims and those of Class members arise from the same core set of facts: FSS failed to pay employees the minimum hourly wages provided within the Ordinance. Allen Dec.,, Cloy Dec.,. Plaintiffs have no other claims against FSS, except for those arising from violations of the Ordinance. Id at. Plaintiffs seek relief in the form of class-wide monetary and injunctive relief, including uniform statutory damages. Plaintiffs claims are based on the same types of injuries, legal theories and core set of common facts, and therefore typical of the Class. Adequacy of Representation Rule (a( s requirement that the representative parties will fairly and adequately REPRESENTATIVES -

6 Case :-cv-0-rsl Document Filed 0// Page of protect the interests of the class has two parts: ( the Plaintiffs interests must not materially conflict with those of absent class members, and ( counsel for the Plaintiffs must be able to vigorously prosecute the action on behalf of the class. Hanlon, 0 F.d at. Here, there are no irreconcilable conflicts or antagonistic interests between Plaintiffs and Class. Plaintiffs understand that their representative interests are aligned with the Class, their duties as Class representatives, and their active involvement in this litigation. Plaintiffs also understand that they are personally responsible to act in the Class s best interests and have ultimate authority to approve a settlement. Furthermore, Plaintiffs counsel are willing and able to vigorously, efficiently, and expeditiously prosecute this action. Plaintiffs counsel has experience in class action litigation and employment litigation. See Declarations of Daniel Whitmore and Duncan Turner, attached. Plaintiffs counsel has expended substantial time and effort identifying, investigating, and prosecuting the claims. Turner Dec.,. Plaintiffs counsel has shown they are capable of, have committed substantial resources to, representing the Class, and are committed fully to vigorously prosecuting this action on behalf of the Class. Id.,. Because the requirements of Rule (a are satisfied, the Court should consider the requirements of Rule (b. Ascertainability Some courts recognize an implicit requirement besides those expressed in Rule (a ensuring that a court can ascertain class members can with reference to objective criteria. See Agne v. Papa John s International, Inc., F.R.D., (W.D. Wash.. Ascertainability does not mean the identity of each class member must be known during certification. See Id. Rather, the class definition must describe, a set of common characteristics sufficient to allow members to identify themselves based on the description. Booth v. Appstack, Inc., No. C-JLR, U.S. Dist. LEXIS 0, * (W.D. Wash. March 0,. In other words, the Class definition must be definite enough so that it is REPRESENTATIVES -

7 Case :-cv-0-rsl Document Filed 0// Page of administratively feasible for the court to ascertain whether an individual is a member. Agne, F.R.D. at. Here, persons who may be members of the proposed Class are easily ascertainable. FSS s employment records identify which employees were subject to the Ordinance and which of those employees were paid the minimum hourly wage prescribed by the Ordinance. FSS has already performed these inquiries in answering Plaintiffs discovery. C. Certification is Warranted Under Rule (b( Legal Elements of Plaintiffs Claims Under City of SeaTac Municipal Code Chapter..0(A, any person claiming violation of the chapter has a private cause of action against their employer to enforce the provisions of the Ordinance. The statute provides that a prevailing plaintiff is entitled to any remedy available by law and an award of their attorney s fees. Similarly, RCW..00 provides a private cause of action against employers who willfully withhold employee wages. Failla v. FixtureOne Corp., Wn.d,, P.d, (; Wingert v. Yellow Freight Sys., Inc., Wn.d, 0, 0 P.d, (0. Plaintiffs have brought claims for violation of these statutes and FSS has confirmed that over four hundred other employees may have similar standing. Dkt. #-,. In order to recover for unjust enrichment a plaintiffs must show: ( the defendant receive[d] a benefit, ( The received benefit is at the plaintiffs expense, and ( the circumstances make it unjust for the defendant to retain the benefit without payment. Young v. Young, Wn.d, - (0. The Court must consider the predominance analysis against the elements of Plaintiffs causes of action. Standards For Determining Whether Common Issues Predominate Individual Issues The analysis measures the relative weight of the common to individualized questions. REPRESENTATIVES -

8 Case :-cv-0-rsl Document Filed 0// Page of Amchem, U.S. at. It requires no showing that legal and factual issues raised by the claims of each class member are identical but, rather, focuses on the notion that the adjudication of common issues will help achieve judicial economy. Valentino v. Carter- Wallace, Inc., F.d, (th Cir. (citation omitted. The predominance inquiry is meant to tes[t] whether proposed classes are sufficiently cohesive to warrant adjudication by representation. Wal-Mart, S. Ct. at (quoting Amchem, U.S. at. In This Case, Common Issues Predominate Over Any Individual Issues Including Causation and Damages This case presents no choice of law issues Washington law applies to the proposed Class. Rather, this case will primarily hinge on application of the Ordinance to FSS and the appropriate damages for FSS s statutory violations and unjust enrichment. Class Treatment Is Superior to Individual Litigation Finally, in this case, class treatment is superior to other available methods of litigation. It would be far more costly and inefficient for each Class member to seek relief separately, particularly with individual statutory damages of $00 to $,000. See K.M. v. Shield, Case No. C- RAJ, U.S. Dist. LEXIS, * (W.D. Wash. Feb.,. See also Brown, F.R.D. at - (holding that class adjudication is [] preferable where the value of each individual class member s claim was in the range of $,000 to $,000. Plaintiffs know of no other litigation pending against FSS for the claims they assert. According to data provided by FSS, the total value of the putative class members claims is, at minimum, $,0,.00. Dkt. #-,. Given the size of the proposed Class individual claims for damages would not only burden the court system that would be deciding the same legal issues in a number of small cases, but would also not make economic sense for litigants or lawyers. It is possible that in many, if not most, individual cases, litigation costs would dwarf potential recovery. See Jordan v. Paul Fin., LLC, F.R.D. at (N.D.Cal. REPRESENTATIVES -

9 Case :-cv-0-rsl Document Filed 0// Page of (internal quotation marks omitted. Because predominance is satisfied, the Court should conclude that a class action is a superior method of adjudicating Plaintiffs claims. D. Certification is Warranted Under Rule (b( Fed. R. Civ. P. (b( allows a court to certify a class when: The party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. See Fed. R. Civ. P. (b(. A Court may grant a motion for class certification under Rule (b( and (b( when the monetary and injunctive relief is susceptible to common resolution. See Baouch v. Werner Enters., Case No. :CV0, U.S. Dist. LEXIS (D. Neb. May,. Although Rule (b( has no predominance or superiority requirements, [as does Rule (b(,] the Rule includes an implicit cohesiveness requirement, which precludes certification when individual issues abound. Id. The cohesiveness requirement is met when members of a putative class seek uniform injunctive relief from policies or practices that are generally applicable to the class as a whole. Rodriguez v. Hayes, F.d 0, (th Cir.. Under City of SeaTac Municipal Code Chapter..0(A, the Court may grant injunctive relief. FSS has subjected all Class members to common payment practices and hourly rates. The Class members are cohesive enough to stand to benefit from a post-trial, permanent injunction against FSS requiring they pay the minimum hourly wages provided in the Ordinance or periodically set by the SeaTac City Manager. Applying these legal principles to this action shows that the proposed injunctive relief Class is cohesive. E. Class Counsel Should Be Appointed Finally, Fed. R. Civ. P. (g( provides a court that certifies a class must appoint class counsel. Here, Plaintiffs counsel has spent significant time and resources vigorously REPRESENTATIVES -

10 Case :-cv-0-rsl Document Filed 0// Page of litigating this case, including: ( researching Plaintiffs claims, ( communicating with Defendant s counsel and ( briefing class certification. DATED this th day of May,. BADGLEY MULLINS TURNER PLLC /s/ Duncan C. Turner Duncan C. Turner, WSBA # Ballinger Way NE, Suite 0 Seattle, WA Telephone: ( - duncanturner@badgleymullins.com Attorney for Plaintiffs LAW OFFICE OF DANIEL R. WHITMORE /s/ Daniel R. Whitmore Daniel R. Whitmore, WSBA #0 th Avenue West, Suite 0 Seattle, WA Telephone: ( dan@whitmorelawfirm.com Attorney for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on May,, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Gregory A. McBroom LIFE POINT LAW th Ave. S, #A0 Federal Way, WA 00 Phone: ( - mcbroom@lifepointlaw.com Attorney for Defendant /s/ Jennifer Bates Jennifer Bates, Paralegal BADGLEY MULLINS TURNER PLLC Ballinger Way NE, Suite 0 Shoreline, WA Telephone: -- jbates@badgleymullins.com REPRESENTATIVES -