Free Motion to Certify Class - District Court of Federal Claims - federal

Case 1:05-cv-01043-VJW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS NO: 05-1043C

JORGE A. DELPIN-APONTE, et al., v. UNITED STATES OF AMERICA

MOTION TO CERTIFY CLASS ACTION

BEFORE THE HONORABLE COURT: COMES NOW Plaintiffs in the above captioned complaint and as further detailed, through undersigning counsel, respectfully STATE and PRAY: 1) Pursuant to Court of Federal Claims Rule 23, plaintiffs move this court to enter an order determining that the action should be certified as a class action. In support of the foregoing motion, plaintiffs incorporate the allegations of Paragraphs 1 to 44 of their complaint. 2) In the captioned case, the class action is so numerous that joinder of all members is impracticable. The numerosity requirement isn't limited only by the factor of how many possible litigants can join the class, but if "...the proposed class includes over 1,000 known plaintiffs... [T]his fact alone supports the numerosity requirement." (2006). 3) There are thousands of past U.S. Postal Employees that have been penalized by the wrongful computation of overtime pay. In Puerto Rico, as of Land Grantors v. United States, 71 Fed. Cl. 614

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today, there are around 4,000 U.S. Postal Employees that work, without considering future employees who will work, overtime and who are potential litigants in position to join the class. Thus the numerosity requirement is easily established in this action. 4) Moreover, there are questions of law or fact common to the class. The commonality "...requirement is satisfied when there is at least "one core common legal question that is likely to have one common defense," the resolution of which will affect all or a significant number of the putative class members." Filosa v. United States, 70 Fed. Cl. 609 (2006). 5) In this action the U.S. Postal Employees are not just claiming a legal question that have a common legal defense, they are claiming the exact same legal question of whether are they all paid in compliance with all federal regulations or not, and the defendant argues against all the exact same defense alleging they are in compliance with the regulations. Appropriately this action fulfills without any doubt the commonality requirement. 6) Moreover, the claims of the representative parties are typical of the claims of the class. The typicality requirement asks "...that the claims of the

representative parties be typical of the claims of the class." Fisher v. United States, 69 Fed. Cl. 193, 200 (2006) (citing Shipes v. Trinity Indus., 987 F.2d 311, 316 (5th Cir. 1993)). To accomplish this requirement a simple analysis is used to understand that the claim of each member of the class arises from a similar chain of events and that each one of them is claiming the same legal arguments.

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Fisher v. United States, supra (citing In re Drexel Burnham Lambert Group, 960 F.2d 285, 291 (2nd Cir. 1992)). 7) The claims of Jorge A. Delpin-Aponte are the exact same claim of the putative members of the class. That is, the U.S. Postal Employees as well as Mr. Delpin-Aponte, claim that the Defendants have been, and will continue, violating the Fair Labor Standards Act, ("F.L.S.A."), 29 U.S.C. §§ 201 ­ 219, by incorrectly calculating their overtime as required by the F.L.S.A., id. foregoing claim complies with the typicality requirement. 8) Furthermore, the representative parties will fairly and adequately protect the interests of the class. In analyzing whether the representative party will be able to adequately represent the interests of the class, the court should evaluate the qualifications of the representatives of the class and if there are any possible conflicting interests that may arose between the representatives and the members of the class. Land Grantors v. United States, supra. 9) Plaintiffs counsel is a highly respected member of the legal community, admitted for more than fifteen years to the practice of law in the Puerto Rico Bar and in the Federal Bar. With plenty of experience in the litigation field and with keen knowledge of the legal system, plaintiffs' claim will be represented by a highly qualified and experienced counsel who'll vigorously represent the interests of all the class members. Hence the qualifications of the representatives of the class will be a great asset in the process of pursuing a favorable outcome to the claim of the class. Consequently the

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10) The question that Mr. Delpin-Aponte has presented before this Honorable Court is the exact same question that the rest of the U.S. Postal Employees need to be answered in order to solve the controversy, thus the representative party is in the exact same position as to the members of the class. Given that fact, the interests of the class will be similarly protected by the representative party since they, as well as the putative members of the class, are seeking the exact same remedy without interfering at all one's interests with another's. Plaintiffs' counsel is completely free from any conflicting interest

between the class representatives and the putative class members. 11) Based on the preceding explanation, it's a fact that the plaintiffs comply with the adequacy requirement and that the undersigned counsel will be able to duly watch and protect the interests of all the members of the class. 12) Additionally, the United States Postal Service has refused to act on grounds generally applicable to the class. commonality requirement. United States, supra. This is a derived requisite of the

Land Grantors v. United States, supra; Filosa v.

This claim is based on the wrong application of the

F.L.S.A., supra, by the Defendants, who willfully has not paid, and will not pay, employees in Puerto Rico who work overtime, according to the standards of the mentioned statute. In other words, the Defendants have clearly refused to

comply with the requirements of the F.L.S.A., supra. Consequently the inaction of the Defendants to correct their error is evidence that they are refusing to act on the same identical grounds applicable to all members of the class.

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13) In addition, common questions predominate over those affecting only individual members in the captioned case. This requirement basically asks

"...whether proposed classes are sufficiently cohesive to warrant adjudication by representation..." Land Grantors v. United States, supra (quoting Amchen

Products v. George Windsor, 521 U. S. 591 (1997)). 14) It's notable that questions will arose of how much money each class member can claim individually, after the final favorable outcome of the claim. At that point the court should move to accept as fulfilled this requirement since latter the individual questions of how much money can each class member claim can be, if necessary, decided in another individual way. Extremely relevant to this matter, this honorable court, in Barnes v. United States, 68 Fed. Cl. 492, 498 (2005) clearly said that if individualized damage determinations would be considered as "...determinative, there scarcely would be a case that would qualify for class status in this court or any court...". 15) It's clear that there's a common question identically similar to every potential member of the class, which basically is if the government has properly calculated, as required by F. L. S. A., supra, the payment of each U. S. Postal Employee. This question is unarguably identical for each potential member and predominates over the matter of how much is the individual compensation that each member can possibly claim. In consequence, the present claim satisfies

the necessary requirements of a common question that predominates over questions of the individual members.

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16) Finally, a class action is superior to other methods to obtain a fair and efficient adjudication. The superiority requirement is fulfilled when "...a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results." Barnes v. United States, 68 Fed. Cl. 492, at 499 (quoting Federal Rules of Civil Procedure 23 Advisory Committee Note (1966 amendment, subdivision (b)(3))). 17) The claim presented to this honorable court is based on the application of a statute, F. L. S. A., supra, which is wrongly applied by the Defendants. All potential members of the class are on the same exact position as to the discrimination of how their payroll is being wrongly calculated. For all those

members to present their case in a single and unique claim, represent that the thousands of them will not have to re-litigate individually the exact same claim, turning into an economy of time and resources as well as preventing the court of an overflow of repeated complaints. Thus, the ideal and better method available to plaintiffs in order to obtain a fair and efficient adjudication of their claim is to certify the case as a class action. 18) This claim complies with all necessary requisites in order to certify this claim as a class action. WHEREFORE, Plaintiffs move the Court for the preceding reasons, to certify the above claim as a Class Action.

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Respectfully submitted, S/ Santiago F. Lampón SANTIAGO F. LAMPÓN LAMPÓN & ASSOCIATES PO BOX 363641 SAN JUAN, PR 00936-3641 Tel: (787) 273-6767 Fax: (787) 758-3679 Attorney for Plaintiffs

July 12, 2007

CERTIFICATE OF SERVICE I hereby certify that on this 12 day of July, 2007, a copy of the foregoing "Motion to Certify Class Action" has been filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

S/ Santiago F. Lampón