United States District Court, D. Arizona
MEMORANDUM OF DECISION AND ORDER
STEPHEN M. McNAMEE, District Judge.
Before the Court is Plaintiffs' motion pursuant to Fed.R.Civ.P. 23 for class action certification of their third claim submitted in their Collective Action and Class Action Complaint. (Doc. 189.) Plaintiffs' third claim is a state law claim for failure to pay timely wages. (Id.) The matter is fully briefed (Docs. 189, 196, 200), and the Court heard oral argument on the motion (Doc. 206).
The Court will deny Plaintiffs' motion to certify Claim 3, failure to pay timely wages pursuant to Arizona Revised Statutes §§ 23-351 to 23-353. The Court finds that Claim 3 does not satisfy the commonality prerequisite and therefore is not appropriate for class wide treatment.
Defendant Roadrunner Communications ("Roadrunner") is an Arizona limited liability company that provides satellite television installation and repair services for DirectTV. (Doc. 30 at 3.) As additional Defendants Plaintiffs individually name Brian Rambo and wife, Hobie Dufort and wife, and Lonnie Densberger and wife, who are alleged to be member-managers of Roadrunner. (Doc. 1 at 4-6.) Roadrunner operates five locations in Arizona, along with providing services in California and New Mexico. (Id.)
Plaintiffs, which the parties refer to as "Technicians" or "Contractor" signed Independent Contractor Agreements ("ICAs") to work for Roadrunner providing installation and repair services for DirecTV. (Doc. 196 at 2, referencing the ICA contract, Doc. 196-3.) The ICA expressly provides:
Contractor is an independent contractor of the Company. Nothing in this [Independent Contractor] Agreement shall be construed as creating an employer-employee relationship, as a guarantee of future employment or engagement, or as a limitation upon the Company's sole discretion to terminate this Agreement at any time without cause. Contractor further agrees to be responsible for all of Contractor's federal and state taxes, withholding, social security, insurance, and other benefits; At the Company's request, the Contractor shall provide the Company with satisfactory proof of independent contractor status...
(Id. at 5.) Compensation for the Plaintiffs under the ICA provided:
Contractor's pay will be determined by the job as reflected on each completed work order. The Company will provide a price sheet outlining the Contractor's pay for each piece of work completed. The Contractor understands that he is responsible to provide all tools and equipment necessary for completion of the installation work with the exception of the DirecTV equipment provided by DTV Home Services II, LLC. Contractor further understands that he will not be reimbursed for any business expenses nor will be receiving any benefits from the Company including, but not limited to, income tax withholding, social security, or Medicare contributions. The Company will provide a 1099-MISC as an informational report to the IRS reflecting what the Contractor has been paid by the Company at the end of the tax year.
(Id. at 3.)
Plaintiffs allege that Technicians typically began their workdays by arriving at Roadrunner's office, completing paperwork, returning equipment related to the previous day's work, and receiving their daily work schedules from one of Roadrunner's lead supervisors. (Doc. 1 at 6.) After obtaining their schedules Plaintiffs were allegedly sent off to the locations of the assigned installation or repair, after which they proceeded in a proscribed order to the next assignment. (Id.) Plaintiffs allege that they were required to purchase and were not compensated for materials necessary for the completion of the jobs and which became the property of Defendants' customers after installation. (Id.)
Plaintiffs were subject to charge-backs, but it is in dispute how often and when a charge-back was applied to a Technician's pay. (Doc. 30 at 5.) Plaintiffs allege that all Technicians had reductions in their paychecks due to chargebacks. (Doc. 1 at 6-8.) Examples of charge backs include:
Failed Quality Control charge back (or "QC charge back"), which Defendants assess if Defendants' lead technician determines that a task had not been performed up to his subjective standard. The charge back may be as large as the entire per-task fee, as determined in Defendants' sole discretion.
Non-responding box charge back (or "NRB charge back"), which Defendants assess if less than a certain percentage of a Technician's installed satellite receiver boxes during a particular time frame are not connected to a telephone line or the internet. Each customer, and not the Technician, decides how many receiver boxes to connect to a telephone line or the internet; therefore, a Technician's percentage of "non-responding boxes" is not within his control.
Sin 7 charge back, which Defendants assess if, within seven days of an installation, a customer calls ...