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Swamy v. Title Source, Inc.

United States District Court, N.D. California

April 2, 2018

SOM SWAMY, on behalf of himself and on behalf of all others similarly situated, Plaintiff,
TITLE SOURCE, INC., Defendant.




         In this 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.


         Defendant 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.

         Title 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 minimum.

         From 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.

         Swamy 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).

         Swamy 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.


         1. Motion for Class Certification.

         Pursuant 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.

         Swamy 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.

         A. Numerosity.

         Under 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.

         B. Typicality.

         Typicality 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.

         Neither 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.

         C. Adequacy.

         Swamy 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.

         Title 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 case.[1]

         Title 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.

         Title 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.

         D. Commonality ...

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