United States District Court, N.D. California
SOM SWAMY, on behalf of himself and on behalf of all others similarly situated, Plaintiff,
TITLE SOURCE, INC., Defendant.
ORDER GRANTING IN PART CLASS CERTIFICATION AND
DENYING FLSA CONDITIONAL CERTIFICATION
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.
employment class action, plaintiff moves for conditional
certification of a FLSA collective action and for class
certification under FRCP 23(b)(3). For the reasons stated
below, plaintiff's motion for class certification is
GRANTED IN PART AND DENIED IN PART.
Plaintiff's motion for conditional certification under
the FLSA is DENIED.
Title Source, Inc. - a national real estate valuation company
that works with lenders to evaluate properties and refinance
loans - hired staff appraisers who worked remotely and
inspected properties in their geographic region. Appraisers
chose their own work schedule and also selected the type and
location of appraisal to complete. They all had the same
primary duties to schedule an inspection with the homeowner,
inspect the property, identify comparable properties, and
complete standardized valuation reports.
Source uniformly classified its staff appraisers as exempt
employees and did not keep records of their hours worked.
Appraisers completed a minimum of eight appraisals per pay
period, but could work more if they so wished. And, although
appraisers earned a base salary, they received additional
compensation if they produced above the eight-appraisal
2013 to 2017, plaintiff Som Swamy worked as a Title Source
appraiser in the San Francisco Bay Area. Swamy did not keep
track of the hours he worked. He testified during his
deposition, however, that there were some weeks where he
worked more than 40 hours.
filed this putative class and collective action in March
2017. In September 2017, Swamy moved for conditional
certification of his FLSA collective action. At the
suggestion of Title Source - and out of concern that sending
multiple notices to class members would cause unnecessary
confusion - Swamy's motion was held in abeyance pending
his anticipated motion for class certification under FRCP 23
(Dkt. Nos. 1, 73, 94).
now renews his motion for conditional certification of a FLSA
collective action and moves for class certification under
FRCP 23(b)(3) (Dkt. Nos. 109-10). This order follows full
briefing and oral argument.
Motion for Class Certification.
to FRCP 23(a), for a named plaintiff to obtain class
certification, the court must find: (1) numerosity; (2)
common questions of law or fact; (3) typicality; and (4)
adequacy of the class representatives and counsel. The
proposed class must also be ascertainable. In addition to
satisfying FRCP 23(a)'s prerequisites, the party seeking
class certification must show that the action is maintainable
under FRCP 23(b)(1), (2), or (3). Amchem Products, Inc.
v. Windsor, 521 U.S. 591, 613-14 (1997). Here, Swamy
seeks class certification only under FRCP 23(b)(3), which
further requires predominance and superiority.
requests certification of the following California Class: All
persons who are or have been employed by Title Source as a
real estate appraiser for Title Source within the State of
California at any time from March 7, 2013 (i.e.,
within four years prior to the date on which this action was
filed) to the final disposition of this case.
FRCP 23(a)(1), numerosity is satisfied by showing that
“joinder of all members is impracticable.” There
are at least 48 individuals that fall within the definition
of the California Class (Dkt. No. 112-12 at 3). As Title
Source does not dispute, numerosity is demonstrated here.
under FRCP 23(a)(3) is shown when “the claims or
defenses of the representative parties are typical of the
claims or defenses of the class.” Swamy performed the
same job duties as the putative class members under the same
compensation plan. He also received the same wage statements
and worked in accordance with the same Title Source policies
and procedures. Swamy's claims are therefore typical.
of Title Source's arguments to the contrary is
convincing. Title Source first argues that typicality is not
met because Swamy's wife and daughter would (in limited
circumstances) assist him with aspects of his work such as
answering the phone or filling out parts of appraisal forms.
Title Source also cites to declarations of appraisers who
Title Source characterizes as “diametrically
opposed” to Swamy's views regarding his role as an
appraiser. Title Source fails to explain, however, how either
issue makes Swamy uniquely vulnerable to atypical defenses.
and his counsel will adequately represent the class. FRCP
23(a)(4) requires that “the representative parties will
fairly and adequately protect the interests of the
class.” This prerequisite has two parts: (1) that the
proposed representative plaintiff and his counsel do not have
any conflicts of interest with the proposed class; and (2)
that they will prosecute this action vigorously on behalf of
the class. Hanlon v. Chrysler Corp., 150 F.3d 1011,
1020 (9th Cir. 1998). Nothing in the record indicates that
Swamy or his counsel would have a conflict with other
potential class members. Furthermore, both Swamy and his
counsel have vigorously prosecuted this action on behalf of
the California Class, and nothing in the record suggests that
they will not continue to do so.
Source contends that there is a conflict between Swamy, his
counsel, and the class because - in an effort to make it
easier to certify a class - Swamy has proposed limiting the
reimbursement of business expenses to fixed amounts. In
particular, regardless of whether a class member's actual
costs were higher, Swamy seeks reimbursement for the use of
(1) personal vehicles at the IRS reimbursement rate, (2) home
internet at the lowest cost plan identified by Swamy's
expert, and (3) cell phone use at $85 per month. Title Source
further points to Swamy's abandonment of his claims for
home computer expenses and costs of appraisal software. These
are minor concessions that will streamline the case and make
recovery more likely. They therefore do not amount to a
failure by counsel to vigorously prosecute the
Source next attacks Swamy's credibility by pointing to
purported inconsistencies between his deposition testimony
and earlier declarations filed in this action. For example,
in support of his initial motion for conditional FLSA
certification, Swamy wrote in his declaration that he
“believe[d] that other Staff Appraisers would be
interested in recovering their unpaid overtime wages if given
the opportunity, ” (Dkt. No. 73-3 ¶ 9), but he
later testified that he was unfamiliar with the work
schedules of other appraisers, had not reviewed other
appraisers' pay stubs or expenses, and had not spoken
with any colleagues to see whether they wanted to join the
lawsuit (see Dkt. No. 126, Exh. 10). Contrary to
Title Source, these statements are not diametrically opposed
to Swamy's prior declaration.
Source further argues that Swamy demonstrated a lack of
familiarity with this case when he conceded that he had not
reviewed certain pleadings and court orders in preparation
for his deposition. This argument is also unconvincing. Swamy
need not have reviewed every document relevant to this action
prior to his deposition to demonstrate adequacy. And,
regardless, Swamy testified that he reviewed his prior
declaration and answers to discovery requests.