United States District Court, D. Maryland
Richard D. Bennett United States District Judge
putative class action lawsuit case arises from Plaintiffs
Tanya and Timothy Emkey's (the “Emkeys” or
“Plaintiffs”) allegations that Defendants W.S.C.,
Inc. (“WSC”) and Indian Acres Club of Chesapeake
Bay, Inc. (“Indian Acres”) (collectively, the
“Defendants”) have failed to uphold their
obligation to transfer the common amenities of a planned
campground to Plaintiffs and other similarly situated owners
of campground lots, or “Funsteads.” The Emkeys
bring claims of breach of contract (Counts One and Four);
violations of Maryland Real Property Article (Counts Two and
Three); unjust enrichment (Count Five); unfair a deceptive
trade practices (Count Six); and seek a declaratory judgment
pending before this Court are the Plaintiffs' Motion for
Conditional Certification and to Send Notice to the Class
(ECF No. 14); Defendants' Motion to Limit Plaintiffs'
Communications with the Putative Class (ECF No. 21); and
Defendants' Motion for Summary Judgment (ECF No. 33). The
parties' submissions have been reviewed, and no hearing
is necessary. See Local Rule 105.6 (D. Md. 2018).
For the reasons stated below, Plaintiff's Motion for
Conditional Certification and to Send Notice to the Class
(ECF No. 14) is DENIED and therefore Defendants' Motion
to Limit Plaintiffs' Communications with the Putative
Class (ECF No. 21) is DENIED AS MOOT. Defendants' Motion
for Summary Judgment (ECF No. 33) shall await this
Court's resolution in due course.
obtain class certification, the Plaintiffs must meet all four
requirements of Federal Rule of Civil Procedure 23(a), and at
least one of the requirements of Rule 23(b). Gunnells v.
Healthplan Servs., Inc., 348 F.3d 417, 423 (4th Cir.
2003). Pursuant to an “implicit threshold
requirement” of Rule 23(a), a plaintiff must establish
that the class is ascertainable. EQT Production Co. v.
Adair, 764 F.3d 347, 358 (4th Cir. 2014). Having met
this basic requirement, the plaintiff must then establish the
requirements of numerosity, commonality, typicality, and
adequacy of representation. Fed.R.Civ.P. 23(a). With respect
to Rule 23(b), Plaintiffs appear to seek certification of the
putative class under Rule 23(b)(3), which requires a finding
that common questions “predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for fairly and
efficiently adjudicating the controversy.” Fed.R.Civ.P.
23(b)(3). Plaintiffs must establish that the class
certification requirements have been met by a preponderance
of the evidence. Brown v. Nucor Corp., 785 F.3d 895,
931-32 (4th Cir. 2015).
class action is an exception to the usual rule that
litigation is conducted by and on behalf of the individual
named parties only.” Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 348, 131 S.Ct. 2541, 2550 (2011)
(internal quotation marks and citation omitted). “Rule
23 does not set forth a mere pleading standard. A party
seeking class certification must affirmatively demonstrate
his compliance with the Rule-that is, he must be prepared to
prove that there are in fact sufficiently numerous
parties, common issues of law or fact, etc.”
Id. at 351. In ruling on a class certification
motion, a court must take a close look at the facts relevant
to the certification question, even if those facts
“tend to overlap with the merits of the underlying
case.” Thorn v. Jefferson-Pilot Life Ins. Co.,
445 F.3d 311, 319 (4th Cir. 2006); accord Gariety v.
Grant Thornton, LLP, 368 F.3d 356, 366 (4th Cir. 2004)
(“[W]hile an evaluation of the merits . . . is not part
of a Rule 23 analysis, the factors spelled out in Rule 23
must be addressed through findings, even if they overlap with
issues on the merits.”).
Supreme Court recently noted that “‘sometimes it
may be necessary for the court to probe behind the pleadings
before coming to rest on the certification question,' and
that certification is proper only if ‘the trial court
is satisfied, after a rigorous analysis, that the
prerequisites of Rule 23(a) have been satisfied.'”
Wal-Mart, 564 U.S. at 350-51 (quoting Gen. Tel.
Co. of the Sw. v. Falcon, 457 U.S. 147, 160 (1982))
(emphasis added); see also Coopers & Lybrand v.
Livesay, 437 U.S. 463, 469 (1978) (“[T]he class
determination generally involves considerations that are
‘enmeshed in the factual and legal issues comprising
the plaintiff's cause of action.'”) (quoting
Mercantile Nat. Bank v. Langdeau, 371 U.S. 555, 558
argue that a class action is appropriate because the
“proposed class members are similarly situated.”
(ECF No. 14.) To support this proposition, Plaintiffs have
relied on case law concerning collective actions under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§§ 201, et seq. which are not applicable
to class actions. See, e.g., Camper v. Home
Quality Management, Inc., 200 F.R.D. 516, 519-520 (D.
Md. 2000) (discussing standards applicable to the
“collective action” provision of the FLSA, 29
U.S.C. § 216(b)). As this Court has explained,
plaintiffs pursuing collective actions under the FLSA
“are not bound by Rule 23's requirements of
numerosity, commonality, typicality, and adequacy; they need
only demonstrate that they are ‘similarly situated'
to proceed as a class. Robinson v. Empire Equity Group,
Inc., 2009 WL 4018560, at *2 n.8 (D. Md. 2009) (quoting
Mancia v. Mayflower Textile Servs. Co., No.
CCB-08-273, 2008 WL 4735344, at *2 (D. Md. Oct. 14, 2008).
The Emkeys' reliance on in apposite case law concerning
the FLSA reflects a misguided and confused litigation
strategy. Their motion otherwise makes only passing
references to the requirements of Rule 23, and they have not
filed a Reply memorandum addressing their Motion's
defects. Because of these deficiencies, Plaintiffs'
Motion does not avail itself to the “rigorous
analysis” this Court must conduct before certifying a
class action. Wal-Mart, 564 U.S. at 350-51 (quoting
Falcon, 457 U.S. at 160). Accordingly,
Plaintiff's Motion for Conditional Certification and to
Send Notice to the Class (ECF No. 14) is DENIED.
concerns about a misleading Facebook post authored by
Plaintiff Tanya Emkey, Defendants have filed a Motion to
Limit Plaintiffs' Communications with the Putative Class,
invoking Fed.R.Civ.P. 23(d)(1). Pursuant to Rule 23(d)(1)(B)
and (C), this Court may “issue orders that . . .
protect class members and fairly conduct the action”
and “impose conditions on the representative
parties.” As this case will not proceed as a class
action under Rule 23, Defendants' Motion (ECF No. 21) is
DENIED AS MOOT.
these reasons, it is HEREBY ORDERED this 21st day of March,
Plaintiffs' Motion for Conditional Certification and to
Send Notice to the Class (ECF No. 14) is DENIED;
Defendants' Motion to Limit Plaintiffs'
Communications with the Putative Class (ECF No. 21) is DENIED
Clerk of Court shall transmit a copy of this Order to counsel