WADE v. JMJ ENTERPRISES, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

TIFFANY WADE, individually, )

and on behalf of all others similarly situated, )

)

Plaintiff, )

) 1:21CV506

v. )

)

JMJ ENTERPRISES, LLC & )

TRACI JOHNSON MARTIN, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

LORETTA C. BIGGS, District Judge.

Before the Court are Plaintiff’s Motion to Certify a Rule 23 Class, (ECF No. 71), and

Defendants’ Motion to Decertify Plaintiffs’ Conditional Collective Action, (ECF No. 81).1

For the reasons stated herein, Plaintiff’s Motion will be granted in part; and Defendants’

Motion will be denied.

I BACKGROUND

JMJ Enterprises, LLC (“JMJ”) and Traci Johnson Martin, the sole owner of JMJ,

(collectively “Defendants”) control, own, or operate three group homes in Greensboro, North

Carolina. (ECF No. 78-1 at 216:13–217:8; id. at 20:5-9.) The group homes serve at-risk

children and adolescents with mental illness or emotional disturbance, as well as adults with

developmental disabilities and mental illness. (ECF No. 78-1 at 139:24–140:2.) JMJ employed

Plaintiff Tiffany Wade (“Plaintiff”) at one of its group homes, Fresh Start Home for Children,

on or about February 22, 2021, through April 9, 2021. (ECF Nos. 80-2 at 63:23–64:9; 80-4 at

4).

Following Plaintiff’s resignation from JMJ on April 9, 2021, she commenced this

action, (ECF No. 1), alleging that Defendants violated the Fair Labor Standards Act (“FLSA”)

29 U.S.C. § 201 et seq., and the North Carolina Wage and Hour Act (“NCWHA”), N.C. Gen.

Stat. § 95-25.1 et seq., by failing to compensate her for time associated with attending training

sessions and mandatory meetings during her employment with JMJ. (ECF No. 1 ¶¶ 1–2.) On

January 10, 2022, this Court, upon motion of Plaintiff, conditionally certified Plaintiff’s action

as a FLSA Collective Action. (ECF No. 21 at 5.)

Plaintiff subsequently filed an Amended Complaint on June 7, 2022, (ECF No. 53),

adding allegations that Defendants did not pay employees overtime and adding counts for

overtime wages under the NCWHA and the FLSA. (ECF No. 53 at 14–17.) Plaintiff’s

Amended Complaint contains five counts, three of which are federal claims under the FLSA:

(Count I) failure to pay minimum wages for all hours worked; (Count II) failure to pay

overtime wages; and (Count V) retaliation. (Id. at 13–18.) Plaintiff also brings state claims

under the NCWHA: (Count III) failure to pay wages due and (Count IV) failure to pay

overtime wages. (Id. at 15–17.)

Plaintiff now moves to Certify a Class pursuant to Rule 23(a) and Rule 23(b)(3) of the

Federal Rules of Civil Procedure, while Defendants move to Decertify Plaintiff’s Conditional

Collection Action.

II. PLAINTIFF’S COUNT IV IS PREEMPTED BY THE FLSA

As a threshold matter the Court will address an issue that was not raised by either

party―North Carolina law provides for FLSA preemption by exempting certain claims made

pursuant to the NCWHA. Luna-Reyes v. RFI Const., LLC, 109 F. Supp. 3d 744, 752 (M.D.N.C.

2015).

Here, Plaintiff brings two claims under the NCWHA in the Amended Complaint. First,

in Count III, Plaintiff alleges that Defendants failed to pay wages due pursuant to N.C. Gen.

Stat. § 95-25.6 and § 95-25.7. (ECF No. 53 at 15–16.) Second, in Count IV, Plaintiff alleges

that Defendants failed to pay overtime wages, pursuant to N.C. Gen. Stat. § 95-25.4. (Id. at

16–17.) The Court concludes that in this case Count IV of Plaintiff’s Amended Complaint is

preempted by FLSA and must be dismissed; however, Count III is not preempted.

The NCWHA includes an exemption to several of its provisions for employees covered

under the FLSA. See N.C. Gen. Stat. § 95-25.14 (stating in pertinent part that “[t]he provisions

of G.S. 95-25.3 (Minimum Wage)” and “G.S. 95-25.4 (Overtime)” do not apply to “[a]ny

person employed in an enterprise engaged in commerce or in the production of goods for

commerce as defined in the Fair Labor Standards Act”).

Plaintiff brings Count IV for overtime pay under N.C. Gen. Stat. § 95-25.4, and as

noted above, this claim is exempt pursuant to N.C. Gen. Stat. § 95-25.14 for employers

covered under the FLSA. Here, the FLSA applies to JMJ, which Plaintiff concedes by bringing

the FLSA claims,2 and North Carolina law provides for FLSA preemption by exempting the

NCWHA overtime claim Plaintiff brings in Count IV. See Luna-Reyes, 109 F. Supp. 3d at 752

(stating that under N.C. Gen. Stat. § 95-25.14, the FLSA preempts North Carolina’s overtime

2 The Parties do not dispute that JMJ is an enterprise subject to the FLSA. The FLSA applies to the

employees of an “enterprise engaged in commerce or in the production of goods for commerce,” that

“has employees ‘handling, selling, or otherwise working on goods or materials that have been moved

in . . . commerce,’” and which is “engaged in the operation of an institution ‘primarily engaged in the

care of the sick, the aged, the mentally ill or defective who reside on the premises of such institution.’”

Dole v. Odd Fellows Home Endowment Bd., 912 F.2d 689, 693 (4th Cir. 1990) (citing 29 U.S.C. § 203(s)(5)

(§ 95-25.4) provision).) Moreover, Plaintiff’s claim for overtime wages under the NCWHA is

duplicative of the overtime claim brought under the FLSA. (See ECF No. 53 at 14–15; id. at

16-17.) See Anderson v. Sara Lee Corp., 508 F.3d 181, 194 (4th Cir. 2007) (“Our conclusion is

consistent with the rulings of several district courts deeming state claims to be preempted by

the FLSA where those claims have merely duplicated FLSA claims.”) For these reasons, Count

IV for overtime wages under the NCWHA is preempted by the FLSA and therefore will be

dismissed as a matter of law.

However, Count III brought under § 95-25.6 and § 95-25.7 of the NCWHA is not

preempted by the FLSA. (ECF No. 53 ¶ 83). § 95-25.6 is commonly known as the “payday

statute” and requires each employer to pay “all wages and tips accruing to the employee on

the regular payday.” See Martinez-Hernandez v. Butterball, LLC, 578 F. Supp. 2d 816, 818, 821

(E.D.N.C. 2008) (quoting N.C. Gen. Stat. § 95-25.6) (internal quotation marks omitted). As

discussed above, this provision is not exempt under the NCWHA for employees covered by

the FLSA. See N.C. Gen. Stat. § 95-25.14. Similarly, N.C. Gen. Stat. § 95-25.7 provides that

“[e]mployees whose employment is discontinued for any reason shall be paid all wages due on

or before the next regular payday” and is not exempt under the NCWHA for employees

covered by the FLSA. Therefore, because Plaintiff brings Count III pursuant to provisions

that are not exempt under the NCWHA and thus are not preempted by FLSA because they

are sufficiently distinct from FLSA provisions. See Martinez-Hernandez, 578 F. Supp. 2d at 820

(citing Barton v. Pantry, Inc., No. 1:04-CV-748, 2006 WL 1367421, at *2 n.5 (M.D.N.C. May 17,

2006) (finding that NCWHA claims were not preempted where the state law claims did not

invoke minimum wage nor the overtime provisions of the FLSA) (‘‘[S]ome of the employees

may have been due more than minimum wage for the hours worked ‘off the clock’ or deleted

from the records. These amounts would not be covered by either their minimum wage or

overtime compensation claims under the FLSA.”)) The record sufficiently supports

allegations that Plaintiff and putative class members were not paid for all hours worked,

including for training, (ECF No. 80-1 at 98:21–99:1), and mandatory meetings, (ECF Nos. 72-

1 at 49:1-6, 12-24; 72-2 at 28:11–29:2; 72-4 at 27:12–32:12; 72-5 at 39:14–41:8), and that

Defendants made unauthorized deductions from employees’ time logs, (ECF No. 72-15).

Although arising from the same facts, Plaintiff’s wages due claim is sufficiently separate and

distinct from her FLSA claims for minimum wage and overtime wages as the theory of liability

does not invoke provisions of the FLSA.

III. RULE 23 CLASS CERTIFICATION

The Court will next consider whether Plaintiff meets the requirements for certifying a

class under Rule 23 for the remaining NCWHA claim, Count III for wages due pursuant to

N.C. Gen. Stat. § 95-25.6 and 95-25.7.3 Plaintiff seeks to establish a class defined as “all non-

exempt, hourly paraprofessionals/counselors who were employed by [JMJ] working in North

Carolina.” (ECF No. 72 at 7.) Plaintiff contends that she has satisfied the Rule 23(a) and Rule

23(b)(3) requirements. (ECF No. 72 at 8–17.) Defendants contend that Plaintiff has not

satisfied these requirements. (ECF No. 80 at 7–19)

In order to be certified under Rule 23, a class must first comply with the four

prerequisites established in the Rule’s subsection (a): “(1) numerosity of parties; (2)

commonality of factual and legal issues; (3) typicality of claims and defenses of class

representatives; and (4) adequacy of representation.” Gunnells v. Healthplan Servs., Inc., 348 F.3d

3 These claims are subject to a two-year statute of limitations. See N.C. Gen. Stat. § 95-25.22(f) (citing

N.C. Gen. Stat. § 1-53).

417, 423 (4th Cir. 2003) (citing Fed. R. Civ. P. 23(a)). Once that baseline is established, the

class action “must fall within one of the three categories enumerated in Rule 23(b).” Id. (citing

Fed. R. Civ. P. 23(b)). Plaintiff seeks class certification in this case under Rule 23(b)(3), (ECF

No. 72 at 2), which requires that “questions of law or fact common to class members

predominate over any questions affecting only individual members” and that “a class action is

superior to other available methods” of adjudication. Fed. R. Civ. P. 23(b)(3).

A party seeking class certification under Rule 23 “must affirmatively demonstrate his

compliance with the Rule—that is, he must be prepared to prove” his ability to meet all of the

prerequisites the Rule requires. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011); see also

Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 (4th Cir. 2001) (“The party seeking class

certification bears the burden of proof.” (citation omitted)). Yet while the plaintiff bears the

burden to demonstrate compliance, a district court also “has an independent obligation to

perform a ‘rigorous analysis’ to ensure that all of the prerequisites have been satisfied.” EQT

Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014) (citing Wal-Mart, 564 U.S. at 350–51).

“Frequently that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s

underlying claim.” Wal-Mart, 564 U.S. at 351. However, “[m]erits questions may be

considered to the extent—but only to the extent—that they are relevant to determining

whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Conn. Ret.

Plans & Tr. Funds, 568 U.S. 455, 466 (2013).

The Court first evaluates the prerequisites under Rule 23(a).

A. Numerosity

To be certified under Rule 23 a plaintiff must first demonstrate that its class is “so

numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “No

specified number is needed” to make this showing, Cypress v. Newport News Gen. & Nonsectarian

Hosp. Ass’n, 375 F.2d 648, 653 (4th Cir. 1967), and “[a] court has broad discretion” in making

a determination based on the particular circumstances of the case. Roman v. ESB, Inc., 550

F.2d 1343, 1348 (4th Cir. 1976). Indeed, some courts have held that classes as small as eighteen

may satisfy the numerosity requirement. See Cypress, 375 F.2d at 653.

Plaintiff argues that because the putative class has 95 members, it is sufficiently

numerous and joinder is an impractical alternative, so numerosity is satisfied. (ECF No. 72 at

9.) Defendants do not appear to contest that Plaintiff has satisfied the numerosity

requirement, even though Defendants point out that of the 97 individuals notified for the

FLSA action, only 15 opted into the litigation. (ECF No. 80 at 8.) To the extent that

Defendants are challenging numerosity, their arguments are neither relevant nor persuasive.

The Court finds that a class of 95 members would make joinder impractical.

Furthermore, the Court finds that given the particular circumstances of the putative class

members who are “entry-level workers who are not paid much more than minimum wage,”

(ECF No. 72 at 9), 95 class members are more than sufficient to satisfy the numerosity

requirement.

The Court finds that Plaintiff has satisfied the Rule 23(a) numerosity requirement.

B. Commonality

Plaintiff asserts that she and the putative class members “were all non-exempt

employees who worked for Defendants in North Carolina” and lists questions of law and fact

that she and the putative class members share in support of her argument that she has satisfied

the commonality requirement. (ECF No. 72 at 9–11.) Defendants argue that there are “few,

if any” common questions of law and fact between Plaintiff and the putative class. (ECF No.

80 at 8). Specifically, Defendants argue that the meeting Plaintiff complains of only “affected

the staff of Fresh Start,” and “that the type of, and need for training is very much

individualized based on the background of the applicant.” (Id. at 9.) Defendants also seek to

attack commonality by making merits-based arguments, (id.), which are not proper for the

Court to consider because a review of these arguments indicates that they are not relevant to

the law with respect to commonality or Rule 23 certification.

Rule 23 certification is only appropriate if “there are questions of law or fact common

to the class.” Fed. R. Civ. P. 23(a)(2). Because “any competently crafted class complaint

literally raises common questions,” what matters most to commonality is “the capacity of a

class-wide proceeding to generate common answers apt to drive the resolution of the

litigation.” See Wal-Mart, 564 U.S. at 349–50 (emphasis omitted). Furthermore, although Rule

23(a)(2) speaks of “questions,” plural, “[a] single common question will suffice,” so long as it

is “of such a nature that its determination ‘will resolve an issue that is central to the validity of

each one of the claims in one stroke.’” EQT Prod. Co., 764 F.3d at 360 (citing Wal-Mart, 564

U.S. at 350, 359).

Plaintiff articulates nine questions, eight of which concern the remaining NCWHA

claim for wages due:

(b) whether the Defendants failed to pay wages when due based upon the

Defendants’ failure to obtain a written authorization from the Wade and the

NCWHA Class members in the form required by N.C. Gen. Stat. § 95-25.8(a);

(c) whether Defendants unlawfully took deductions from wages in violation of

N.C. Gen. Stat. § 95-25.8(b); (d) whether Defendants failed to pay Wade and

the NCWHA Class members all the wages they had agreed to pay when those

wages were due; (e) whether Defendants failed to compensate Wade and the

NCWHA Class members at the agreed-upon rate, when Defendants used an

inaccurate system to record the number of hours worked by Wade and members

of the NCWHA Class; (f) whether Defendants failed to pay the Wade and the

NCWHA Class members for all hours worked; (g) whether Defendants

members; (h) whether Defendants failed to pay Wade and the NCWHA Class

members for time spent preparing onboarding materials, taking mandatory

training and attending mandatory meetings; (i) whether Defendants’ failure to

comply with the NCWHA was willful.

(ECF No. 72 at 10–11.) After reviewing the entirety of the record, the Court finds that the

questions central to Plaintiff’s claim for wages due unite putative class members under a

“common contention.” See Wal-Mart, 564 U.S. at 350. The questions here all center on

Defendants’ employee time recording and wage policies and practices and relate to whether

Defendants properly compensated putative class members for time worked. Furthermore,

these questions are all based on the same legal theory―violation of the NCWHA’s payday

provisions, specifically N.C. Gen. Stat. § 95-25.6 and § 95-25.7. Based on the information in

the record, these questions appear well suited to common resolution—a “yes, they did” or

“no, they did not” that will apply to all class members and “resolve an issue that is central to

the validity” of each member’s claim for wages due.

Therefore, the Court concludes that the Rule 23(a) commonality is satisfied here, as the

class members are united by common questions of law and fact.

C. Typicality

Plaintiff argues that she has satisfied typicality because her claims and the claims of the

putative class members “arise from the same practices and course of conduct by Defendants.”

(ECF No. 72 at 11–12.) Defendants argue that Plaintiff’s claims and defenses are not typical

of the claims and defenses of the putative class. (ECF No. 80 at 8.) Specifically, Defendants

argue that Plaintiff is unlike the putative class members because Defendants have brought a

counterclaim against Plaintiff for “failing to repay a payroll cash advance prior to her

resignation” and because Plaintiff has brought a retaliation claim against Defendants that is

A plaintiff moving for certification under Rule 23 must show that “the claims or

defenses of the representative part[y] are typical of the claims or defenses of the class.” Fed.

R. Civ. P. 23(a)(3). Typicality does not require “that the plaintiff’s claim and the claims of

class members be perfectly identical or perfectly aligned”—some minor variation between a

named plaintiff’s individual claim and those of the class members she aims to represent is to

be expected. See Deiter v. Microsoft Corp., 436 F.3d 461, 467 (4th Cir. 2006). However, courts

will readily deny class certification “when the variation in claims strikes at the heart of the

respective causes of actions.” See id.

Considering the claim for wages due, Plaintiff’s circumstances are distinguishable from

the putative class members. Most notably, Defendants filed a counterclaim against Plaintiff

for allegedly failing to repay a $600 pay advancement. (ECF No. 5 at 11–12.) Accordingly,

Plaintiff has distinct factual circumstances related to her claim for wages due and similarly,

Defendants have defenses only applicable to Plaintiff, which would not apply to the putative

class. These variations from the putative class, however, do not negate or undermine

Plaintiff’s interest in her NCWHA claim for wages due under N.C. Gen. Stat. § 95-25.6 and §

95-25.7. See Haywood v. Barnes, 109 F.R.D. 568, 578 (E.D.N.C. 1986) (“[T]he typicality

requirement may be satisfied even if there are factual distinctions between the claims of the

named plaintiffs and those of the class members, differences in the amount of damages

claimed, or even differences in the availability of certain defenses against a class representative

. . . . The typicality requirement merely emphasizes that the class representative[] ‘ought to be

squarely aligned in interest with the represented group.’” (emphasis added) (citations omitted)).

Even considering Plaintiff’s distinctions, the heart of Plaintiff’s and the putative class’s claims

and defenses for wages due “tend to advance the same interests.” Ealy v. Pinkerton Gov’t Servs.,

Inc., 514 F. App’x 299, 308 (4th Cir. 2013) (citing Dieter, 436 F.3d at 466–67.)

Therefore, the Court concludes that Plaintiff has satisfied the Rule 23(a) typicality

requirement.

D. Adequacy of Representation

Plaintiff argues she is an adequate representative of the class because she is a member

of the class, her interests do not conflict with the other putative class members, and she

understands the obligation of class representative. (ECF No. 72 at 12–13.) Plaintiff also

argues that her counsel is qualified to be appointed as class counsel. (Id. at 13.) Defendants

challenge the adequacy of both Plaintiff and her counsel arguing: (1) that Plaintiff lives a great

distance from the Middle District of North Carolina as she moved to Michigan, her “time

restraints,” and her “lack of interest;” (ECF No. 80 at 10), and (2) that Plaintiff’s counsel’s

“behavior during the course of litigation evidences either a lack of knowledge of the applicable

law and rules, or a conscience disregard for them.” (ECF No. 80 at 11.)

Under Rule 23, a representative party and class counsel must “fairly and adequately

protect the interests of the class.” Fed. R. Civ. P. 23(a)(4), (g)(4).

(1) Plaintiffs’ knowledge, involvement, and credibility

The adequacy inquiry entails an investigation into the representatives’ knowledge—

both of the case and of their duties to the proposed class—as well as their credibility and

integrity. See generally Monroe v. City of Charlottesville, Va., 579 F.3d 380, 385 (4th Cir. 2009); 1

Herbert B. Newberg & William Rubenstein, Newberg and Rubenstein on Class Actions §§ 3:67–

3:68 (6th ed. 2022). Certification may be inappropriate where the named plaintiff

demonstrates so little understanding of their case, or takes so light a hand in its direction, as

McLaughlin, McLaughlin on Class Actions § 4:29 (19th ed. 2022). “Generally,” however, “the

representative’s understanding of the basic facts underlying the claims, [along with] some

general knowledge of and a willingness and ability to participate in discovery are sufficient to

meet this standard.” See id.; see also Gunnells, 348 F.3d at 430 (“It is hornbook law . . . that ‘[i]n

a complex lawsuit . . . the representative need not have extensive knowledge of the facts of

the case in order to be an adequate representative.’” (alteration in original)). Certification may

also be inappropriate where the named plaintiff does not demonstrate the “requisite credibility

to ensure that [s]he will act as a fiduciary with respect to the class [s]he seeks to represent.”

Shiring v. Tier Techs., Inc., 244 F.R.D. 307, 315 (E.D. Va. 2007).

With respect to knowledge and involvement, Plaintiff in this case has participated in

discovery and demonstrated sufficient understanding of the case. (See ECF Nos. 72-1; 9-1

(Plaintiff’s declaration detailing the facts that give rise to this action)). After reviewing

Plaintiff’s declaration and deposition testimony, the Court finds that Plaintiff has a reasonable

understanding of and investment in this suit, which is all that is required. Compare Clark v.

Duke Univ., No. 1:16-CV-1044, 2018 WL 1801946, at *7 (M.D.N.C. Apr. 13, 2018)

(concluding, based on declarations and participation in depositions, that named plaintiffs

would adequately represent a class), with Monroe, 579 F.3d at 385 (affirming district court’s

decision not to certify class when named plaintiff “had little interest in or knowledge and

understanding of the case” and “offered virtually no evidence refuting glaring questions as to

his adequacy as a class representative”).

Defendants cite excerpts from Plaintiff’s deposition to support their arguments that

Plaintiff lacks interest and will not fairly and adequately protect the interests of the class. (ECF

No. 80 at 10.) Plaintiff responds that Defendants do not support this argument with any case

authority. (ECF No. 87 at 6–7.) To the extent Defendants argue that Plaintiff’s deposition

testimony undermines her credibility, the Court is not persuaded. The deposition testimony

that Defendants present reflects that at the time she was employed for JMJ, Plaintiff was not

invested in her co-workers, and since the litigation began Plaintiff has not spent much time

reviewing discovery, and she has not communicated with any opt-in Plaintiffs. (See ECF No.

80 at 10.) The Court does not find that Plaintiff’s statements clearly demonstrate “a lack of

credibility regarding the allegations being made or a lack of knowledge or understanding

concerning what the suit is about.” See Shiring, 244 F.R.D. at 315. Instead, as noted in the

Court’s discussion of typicality, Plaintiff has adequately demonstrated the opposite. See Romero

v. Mountaire Farms, Inc., 796 F. Supp. 2d 700, 715 (E.D.N.C. 2011) (finding that plaintiffs met

the adequacy requirement where there were “no conflicts or antagonistic interests of the

named [p]laintiffs to the interests of any other production workers. The named [p]laintiffs

ha[d] the same interests as all other production workers: recovering the wages earned for all

uncompensated work time and full reimbursement for allegedly illegal deductions taken from

all affected employees’ wages.”)

Therefore, Plaintiff has demonstrated both her knowledge and credibility, so the Court

concludes that Plaintiff is an adequate class representative.

(2) Plaintiff’s counsel’s qualifications

Under Rule 23(a)(4), a court must find that class counsel is “qualified, experienced and

generally able to conduct the proposed litigation.” McLaurin v. Prestage Foods, Inc., 271 F.R.D.

465, 476 (E.D.N.C. 2010) (quoting Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir.

1968)). Rule 23(g)(1) requires the Court to consider the work counsel has done in identifying

or investigating potential claims in the action; counsel’s experience in handling class actions,

other complex litigation, and the types of claims asserted in the action; counsel’s knowledge

of the applicable law; and the resources that counsel will commit to representing the class.

Fed. R. Civ. P. 23(g)(1). Defendants excerpted portions of Plaintiff’s deposition with

Plaintiff’s counsel’s extensive objections which, Defendants contend, shows that Plaintiff’s

counsel lacks sufficient understanding and control of this case. (ECF No. 80 at 12–19.)

Defendants do not support this argument with any authority, case law or otherwise. The

Court is not persuaded by Defendants’ argument that Plaintiff’s counsel’s alleged violation of

Local Rule 30 provides an adequate basis to demonstrate that she lacks sufficient qualifications

to conduct and manage this litigation. Furthermore, the record evidence shows that Plaintiff’s

counsel has more than twenty-four years of experience practicing labor and employment law,

specifically complex wage and hour class and collective action cases, and that Plaintiff’s

counsel has lectured and presented on wage and hour class and collective action topics. (See

generally ECF No. 72-13.) After reviewing Plaintiff counsel’s qualifications and involvement in

similar litigation, the Court finds that she possesses the necessary experience to satisfy

the adequacy of representation requirement as specified in Rule 23(g)(1).

Therefore, the Court concludes that Plaintiff has satisfied the adequacy of

representation requirement, and having satisfied the numerosity, commonality, and typicality

requirements discussed above, Plaintiff has satisfied all the prerequisites under Rule 23(a).

E. Certification Pursuant to Rule 23(b)(3)

Plaintiff further argues that Rule 23(b)(3) is applicable here because the common legal

and factual issues of the putative class predominate over any individual issues and that class

treatment is superior to other procedures for handling the claims. (ECF No. 72 at 15.)

Defendants do not appear to address whether Plaintiff has satisfied the Rule 23(b)(3)

requirements and only assert that Plaintiff has not satisfied the Rule 23(a) prerequisites. (See

ECF No. 80 at 19.)

Assuming the requirements of Rule 23(a) have been met, a plaintiff may obtain Rule

23(b)(3) certification if “the court finds that the questions of law or fact common to class

members predominate over any questions affecting only individual members,” and “a class

action is superior to other available methods for fairly and efficiently adjudicating the

controversy.” Fed. R. Civ. P. 23(b)(3) (emphasis added). For the reasons explained below,

Plaintiff has met the requirements of predominance and superiority, and therefore Plaintiff

meets the requirements for certifying a class under Rule 23 for the remaining NCWHA claim,

Count III for wages due.

The Rule 23(b)(3) predominance inquiry overlaps with the commonality requirement

in 23(a)(2), see Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623–24 (1997); however, the former

is “more demanding,” as its focus is “not only on the existence of common questions, but also

on how those questions relate to the controversy at the heart of the litigation,” see EQT Prod.

Co., 764 F.3d at 366. An individual issue is one where evidence varies between class members

whereas common issues are present when “the same evidence will suffice for each member to

make a prima facie showing.” Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453

(2016) (quoting 2 William Rubenstein, Newberg on Class Actions § 4:50, 196–97 (5th ed. 2012)).

Ultimately, this “balancing test of common and individual issues is qualitative, not

quantitative.” Ealy, 514 F. App’x at 305 (citing Gunnells, 348 F.3d at 429).

The Court first considers the questions of fact. Plaintiff and putative class members

have identified factual circumstances that give rise to their claims for wages due pursuant to

N.C. Gen. Stat. § 95-25.6 and § 95-25.7: Defendants’ failure to compensate employees for

training, mandatory meetings, and time wrongfully reduced or “shaved.” (ECF No. 72 at 1–

2.) 4

With respect to training, the record reflects that new employees were not compensated

for training, (ECF Nos. 72-1 at 43:2-18, 46:21–47:7; 72-2 at 30:15–31:25; 72-5 at 28:5-17; 72-

6 at 264:9–26:20), pursuant to JMJ’s policy, (ECF Nos. 72-6 at 97:4–99:1; id. at 105:18–107:4),

and that other employees had allegedly unauthorized deductions from their paychecks labeled

“training,” (ECF No. 72-14 at 14, 32, 44, 54).

With respect to mandatory meetings, although there is evidence that repercussions for

missing meetings varied across the group homes, (Compare ECF No. 80-21 at 27:8–30:25; 42:8–

43:4 with ECF No. 72-12 at 2–3), the record reflects that each JMJ group home held mandatory

meetings where employees who were not working their scheduled shift would not clock in, so

these employees attending the meeting were not compensated, (ECF Nos. 72-1 at 49:1-6, 12-

24; 72-2 at 28:11–29:2; 72-3 at 13:14–15:2; 72-4 at 27:12–32:12; 72-5 at 39:14–41:8).

With respect to time “shaving,” the record reflects that Defendant Martin regularly

entered the Chronotek system and made adjustments, which were usually reductions to

employee hours. (See generally ECF No. 72-15.)

The Court next considers the questions of law. The “payday statute” found

in N.C. Gen. Stat. § 95-25.6 provides that “[e]very employer shall pay every employee all

wages and tips accruing to the employee on the regular payday.” Similarly,

N.C. Gen. Stat. § 95-25.7 provides that “[e]mployees whose employment is discontinued for

4 The record also reflects that employees were not permitted to leave the group homes until the

employee taking over their responsibilities arrived, so if the employees for the next shift were late, the

employees that stayed after clocking out at the end of their shift were not compensated for this time.

(ECF Nos. 72-1 at 24:2-5; 72-3 at 10:18–11:20.) However, given that individual evidence would be

any reason shall be paid all wages due on or before the next regular payday.”

Therefore, to make out a prima facie case, a plaintiff must simply show that he or she (1)

earned wages that (2) an employer did not pay (3) at the proper time. Mebane v. GKN Driveline

N. Am., Inc., 337 F.R.D. 479, 493 (M.D.N.C. 2020).

In this case, the common factual evidence in the record could demonstrate that JMJ

failed to compensate employees for training and mandatory meetings and improperly reduced

employees’ time logs, and thus would establish a prima facie case for wages due for the class.

See McLaurin, 271 F.R.D. at 478 (finding predominance where common evidence that

defendant’s compensation system was inadequate would establish a prima facie case under the

NCWHA for the class, despite factual differences between employees).

With respect to wages due for training, mandatory meetings, and improper reductions

from time logs, the Court finds that “the common, aggregation-enabling, issues in [this] case

are more prevalent or important than the non-common, aggregation-defeating, individual

issues.” Tyson Foods, Inc. v., 577 U.S. at 453 (citation and internal quotation marks omitted).

For these reasons, Plaintiff has demonstrated predominance.

Moreover, the Court also considers the factors listed in Rule 23(b)(3) that are pertinent

to findings of predominance and superiority:

(A) the class members’ interests in individually controlling the prosecution or

defense of separate actions; (B) the extent and nature of any litigation

concerning the controversy already begun by or against class members; (C) the

desirability or undesirability of concentrating the litigation of the claims in the

particular forum; and (D) the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b)(3).

Here, each individual’s claim is small, and despite the availability of attorneys’ fees, the

putative class members appear to have no interest in pursuing this action individually as that

option may not be financially feasible. (See ECF No. 72 at 15.) There is no indication of other

ongoing litigation related to this controversy. Despite Plaintiff’s recent move to Michigan,

this District is a desirable forum as JMJ’s group homes are located in this district. Finally, at

this time, the Court does not anticipate significant problems with manageability.

However, to ensure the manageability, the Court will organize the class by issue, here,

the common circumstances that give rise to the cause of action: wages due for training, wages

due for mandatory meetings, and wages due for improper reductions from time logs. Rule 23

explicitly permits a class action to be maintained “with respect to particular issues.” Fed. R.

Civ. P. 23(c)(4). See Gunnells, 348 F.3d at 441 (quoting 6 Alba Conte & Herbert B. Newberg,

Newberg on Class Actions § 18:7 (4th ed. 2002) (“Even cases which might not satisfy the

predominance test when the case is viewed as a whole may sometimes be certified as a class

limited to selected issues that are common.”)). Furthermore, to ensure the rigorous analysis

required under Rule 23 and to account for the possibility that individual issues might overtake

the common issues at trial, the Court will conditionally certify the class pursuant to Rule

23(b)(3) and Rule 23(c)(4). See Gunnells, 348 F.3d at 430 (affirming conditional class

certification where the district court noted the possibility that individual issues “might in time

predominate and the case prove unmanageable”); see also Henley v. FMC Corp., 20 F. App’x 108,

118 (4th Cir. 2001) (allowing “[t]he district court [to] . . . conditionally certif[y] . . . the class

action pursuant to Federal Rules of Civil Procedure 23(b)(3) and 23(c)(4)(A)”) (unpublished).

For all the reasons discussed herein, Plaintiff has satisfied the 23(b)(3) requirements of

predominance and superiority with respect to wages due for training, wages due for mandatory

meetings, and wages due for improper reductions from employee time logs, and as discussed,

Plaintiff has satisfied the prerequisites under Rule 23(a). Accordingly, Plaintiff has satisfied

the requirements under Rule 23 for class certification, however in light of the manageability

risks discussed above, certification is conditional.

Accordingly, the Court conditionally certifies the NCWHA Class for wages due for

training, wages due for mandatory meetings, and wages due for improper reductions from

employee time logs pursuant to N.C. Gen. Stat. § 95-25.6 and § 95-25.7, appoints Plaintiff

Wade as class representative, and appoints L. Michelle Gessner at GessnerLaw, PLLC as class

counsel.

IV. FLSA COLLECTIVE ACTION DECERTIFICATION

The Court will next consider Defendants’ Motion to Decertify the FLSA Collective

Action.

Certification of a FLSA collective action requires “(1) that the Plaintiffs in the class be

‘similarly situated,’” and “(2) that the plaintiffs included in the class ‘opt in’ by filing with the

Court their consent to the suit.” Choimbol v. Fairfield Resorts, Inc., 475 F. Supp. 2d 557, 562

(E.D. Va. 2006) (quoting Brooks v. BellSouth Telecomms., Inc., 164 F.R.D. 561, 568 (N.D. Ala.

1995)). The FLSA does not define the term “similarly situated,” and neither has the Fourth

Circuit. O’Quinn v. TransCanada USA Servs., Inc., 469 F. Supp. 3d 591, 604 (S.D. W. Va. 2020).

Courts have established a two-step analysis in deciding whether plaintiffs are “similarly

situated,” beginning with a “notice stage” that simply determines whether providing initial

notification of the action to potential class members is appropriate. Choimbol, 475 F. Supp. at

562 (citing de Asencio v. Tyson Foods, Inc., 130 F. Supp. 2d 660, 662 (E.D. Pa. 2001)). This first

stage applies a “fairly lenient standard,” id. (quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207,

1213–14 (5th Cir. 1995), and “courts appear to require nothing more than substantial

allegations that the putative class member[s] were together the victims of a single decision,

policy, or plan,” id. at 563 (quoting Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392, 400–02

(D. N.J. 1988)). At this stage, a court “does not generally consider the merits of the claims,

resolve factual disputes, or evaluate credibility.” O’Quinn, 469 F. Supp. 3d at 605 (quoting

Hughes v. Gulf Interstate Field Servs., Inc., No. 2:14-cv-000432, 2015 WL 4112312, at *1 (S.D.

Ohio July 7, 2015)). A defendant’s subsequent motion for decertification triggers the second

stage of this analysis, and only then does the court employ a “heightened fact specific

standard” in determining whether plaintiffs have met the “similarly situated” bar. Choimbol,

475 F. Supp. 2d at 563. “Courts have identified a number of factors to consider at this [second]

stage, including (1) disparate factual and employment settings of the individual plaintiffs; (2)

the various defenses available to defendants that appear to be individual to each plaintiff; and

(3) fairness and procedural considerations.” Weckesser v. Knight Enters. S.E., LLC, 391 F. Supp.

3d 529, 532 (D.S.C. 2019) (alteration in original) (quoting Curtis v. Time Warner Ent.-

Advance/Newhouse P’ship, No. 3:12-cv-2370-JFA, 2013 WL 1874848, at *3 (D.S.C. May 3,

2013)).

At the first-stage inquiry in the present matter, this Court granted Plaintiff’s motion to

conditionally certify a FLSA collective because the Plaintiffs “sufficiently alleged that

Defendants have a policy of not compensating employees for time spent attending training

and mandatory meetings.” (ECF No. 21 at 5.) Plaintiff notified 97 putative members and 15

opted into this action. (ECF No. 72 at 1 (citing ECF Nos. 30-1; 30-2; 34-1; 34-2; 35-1; 35-2;

38-1; 40-1; 41-1; 41-2; 41-3; 42-1; 42-2; 43-1; 44-1).) Plaintiff amended the complaint to

include allegations that Defendants did not compensate employees for overtime wages and

added counts for overtime wages under the FLSA. (ECF No. 53 at 14–15).

The motion now before the Court is in the second stage of the inquiry. Accordingly,

the Court must apply a heightened fact-specific standard to the “similarly situated” analysis to

determine whether the collective action can proceed to trial or must be decertified.

Defendants argue that the conditional collective has not shown that they are similarly

situated because members of the collective have different job duties, supervision, and salary,

(ECF No. 82 at 11–13); members of the collective were subjected to different policies and

practices with respect to mandatory meetings (Id. at 13); and “all issues regarding pay for

mandatory meetings, training and overtime were addressed on an individual basis rather than

based upon company-wide policies and plans.” (Id. at 1.) Defendants also assert that “Wade’s

individual employment circumstances at JMJ were substantially different than the other opt-

in plaintiffs” because “Wade is the only plaintiff who 1) was given a payroll advance, 2) is

being countersued in this action, 3) complained about FLSA violations, 4) has alleged a

retaliation claim against the defendants, and 5) has alleged constructive discharge.”5 (Id. at

14.) Plaintiff, in response argues that “[a]ll of the employees are paid based on a common

policy, plan and practice,” “have the same or similar job titles and job duties,” “work in one

of three locations operated by JMJ under the same management and reporting structures,” and

“are subject to the same policies and practices of JMJ.” (ECF No. 84 at 2.)

A. Factual and Employment Settings

First, the Court considers the disparate factual and employment settings of the

individual plaintiffs. The record reflects that the opt-in Plaintiffs’ employment settings were

substantially similar. Although the residents of each JMJ group home have unique needs,

5 Although Plaintiff made constructive discharge allegations during her deposition, (ECF No. 82-2 at

(ECF No. 82-1 at 138:23–141:8), the employees all performed similar functions, which is

reflected in the same job post for positions across the three group homes, (id. at 142:23–143:3),

and in JMJ’s practice to staff employees across the different group homes, (id. at 138:5-12;

143:7-21).

B. Defenses

Next, the Court considers the defenses available that appear to be individual to each

plaintiff. Defendants suggest that because issues regarding pay for mandatory meetings,

training, and overtime were addressed on an individual basis, Defendants have individual

defenses for each of the opt-in Plaintiffs. (ECF No. 82 at 1.) The Court does not agree and

addresses the relevant defenses each in turn.

With respect to payment for mandatory meetings, the record reflects that each JMJ

group home held mandatory meetings where employees would not clock in if the meeting did

not occur during their scheduled shift, so off-duty employees attending the meeting were not

compensated. (ECF Nos. 72-1 at 49:1-6, 12-24; 72-2 at 28:11–29:2; 72-3 at 13:14–15:2; 72-4

at 27:12–32:12; 72-5 at 39:14–41:8.) Furthermore, Defendant Martin admitted that some new

managers were not aware that employees had to be compensated for meetings, until Martin

notified them. (ECF No. 82-1 at 112:8-15.) To the extent Defendants can maintain a defense

with respect to mandatory meetings, it would apply to the collective.

With respect to training, although Plaintiff may have been in a slightly different position

than other opt-in Plaintiffs because she did not have prior experience and needed to complete

trainings, the record reflects that new employees were not compensated for training, (ECF

Nos. 72-1 at 43:2-18; id. at 46:21–47:7; 72-2 at 30:15–31:25; 72-5 at 28:5-17; 72-6 at 264:9–

26:20), pursuant to JMJ’s policy, (ECF Nos. 72-6 at 97:4–99:1; id. at 105:18–107:4), and that

other employees had allegedly unauthorized deductions from their paychecks labeled

“training.” (ECF No 72-14 at 14, 32, 44, 54.) Taken together these practices could reflect a

policy to not compensate JMJ employees for training time, so defenses would apply to the

collective.

With respect to overtime, the record reflects that JMJ uses a payroll system called

“Chronotek” to record employee hours. (ECF No. 82-1 at 64:19–65:15.) Employees clock in

and out of shifts at the group homes by calling a number and the Chronotek system records

the time data. (ECF No. 82-1 at 197:11-24.) If employees need to correct the time logged in

Chronotek, they do so using a paper “correction log,” and the supervisors access the

Chronotek system to correct employees’ time. (Id. at 198:16–199:13.) Supervisors maintain

the “correction logs” at each group home. (Id.) Defendant Martin sends the time data from

Chronotek to the payroll company, and the payroll company calculates employees’ paychecks.

(Id. at 64:2-16.) The record reflects that all of the opt-in Plaintiffs used Chronotek and the

“correction log” system to record hours, that JMJ supervisors were responsible for making

corrections to Chronotek according to employee entries in the corrections log, and that JMJ

supervisors were responsible for calculating employee overtime hours manually. (Id. at 257:19-

22). In addition, JMJ’s payment records indicate that the opt-in Plaintiffs received paychecks

without overtime calculations. (See generally ECF No. 72-14.) Finally, Chronotek records

reflect that Defendant Martin regularly adjusted JMJ employees’ hours, usually to decrease the

time worked. (See generally ECF No. 72-15.) Taken together these practices could reflect a

practice that resulted in JMJ employees not being compensated for overtime, so defenses with

respect to these practices would apply to the collective. Opt-in Plaintiffs must also prove

Defendants’ knowledge to establish liability for overtime, which the Court discusses below.

With respect to time “shaving,” as discussed above, the record reflects that Defendant

Martin regularly entered the Chronotek system and made adjustments, which were usually

reductions to employee hours. (See generally ECF No. 72-15.) Defenses to this practice, would

apply to the collective.

Therefore, the record reflects that opt-in Plaintiffs were all subjected to common JMJ

policies and practices regarding training, mandatory meetings, overtime pay, and reductions

from employee time logs. Accordingly, the available defenses would apply to all or nearly all

of the opt-in Plaintiffs.

C. Fairness and Procedural Considerations

Defendants do not appear to directly address the fairness and procedural

considerations, although Defendants state that “JMJ is a very small employer and Wade was

employed there for only a few days.” (ECF No. 82 at 15.) Plaintiff argues that the fairness

and procedural considerations weigh in favor of denying Defendants’ motion for

decertification. (ECF No. 84 at 9.) Specifically, Plaintiff asserts that “[t]he difficulties in

managing this FLSA collective are not especially great” and “are far less than the difficulties

that would arise from requiring Plaintiffs to proceed individually.” (Id. at 10.) Plaintiff further

asserts that “because the size of individual claims is small . . . the practical considerations of

litigating these claims individually, whether joined to this action or as individual actions, would

be insurmountable.” (Id. at 10–11.)

In weighing the fairness and procedural factors, courts commonly consider the primary

objectives of allowing collective actions under the FLSA’s § 216(b), “namely ‘(1) to lower costs

to the plaintiffs through the pooling of resources; and (2) to limit the controversy to one

proceeding which efficiently resolves common issues of law and fact that arose from the same

alleged activity’.” Rawls v. Augustine Home Health Care, Inc., 244 F.R.D. 298, 302 (D. Md. 2007)

(quoting Moss v. Crawford & Co., 201 F.R.D. 398, 410 (W.D. Pa. 2000)). A court “also must

‘determine whether it can coherently manage the class in a manner that will not prejudice any

party.’” Id. (quoting Moss, 201 F.R.D. at 410).

Here, the opt-in Plaintiffs seek to bring claims under the FLSA for failure to pay

minimum wages and for failure to pay overtime wages. To state a claim for violation of the

FLSA’s minimum wage provision, a plaintiff must allege that “(1) [he or she was] employed

by Defendant; (2) [his or her] work ‘involved interstate activity’; and (3) ‘[he or she] performed

work for which [he or she was] undercompensated.’” Sanchez v. Truse Trucking, Inc., 74 F. Supp.

3d 716, 721 (M.D.N.C. 2014) (quoting Pruell v. Caritas Christi, 678 F.3d 10, 12 (1st Cir.

2012)). To state a claim for violation of the FLSA’s overtime provision, plaintiffs must allege

that “(1) [he or she] worked overtime hours without compensation; and (2) [his or her]

employer knew (or should have known) that they had worked overtime but did not

compensate them for it.” Duncan v. Phoenix Supported Living, Inc., No. 2:05CV1, 2007 WL

2226017, at *15 (W.D.N.C. July 31, 2007) (citing Davis v. Food Lion, 792 F.2d 1274, 1276 (4th

Cir. 1986) (“[I]t is necessary for a plaintiff to show that his employer had knowledge, either

actual or constructive, of his overtime work.”).

Certain opt-in Plaintiffs bring these claims for Defendants’ actions up to three years

prior to the initiation of this action; therefore, they must also show that Defendants’ violations

of the FLSA were willful. See 29 U.S.C. § 255(a) (establishing that FLSA actions are “forever

barred unless commenced within two years after the cause of action accrued, except that a

cause of action arising out of a willful violation may be commenced within three years after

the cause of action accrued.”); see also McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988)

(citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 128 (1985)) (defining a willful FLSA

violation as one where the “employer either knew or showed reckless disregard for the matter

of whether its conduct was prohibited by the [FLSA].”).

A determination of whether JMJ’s policies and practices were compliant with the FLSA

could establish the collective’s prima facie case for the FLSA minimum wage claim. With

respect to the FLSA overtime wages claim, opt-in Plaintiffs will also have to prove that

Defendants had knowledge of their uncompensated overtime work; however, given that JMJ’s

employee hours were recorded and wages were calculated using the same systems, the facts

related to determining any violations of the FLSA overtime provisions are manageably similar.

See Houston v. URS Corp., 591 F. Supp. 2d 827, 833–34 (E.D. Va. 2008) (holding that plaintiffs

are similarly situated to a class when they “raise a similar legal issue as to coverage, exemption,

or nonpayment o[f] minimum wages or overtime arising from at least a manageably similar

factual setting with respect to their job requirements and pay provisions” (alteration in original)

(internal quotations omitted)); McLaurin, 271 F.R.D. at 469 (noting that “[d]ifferences as to

time actually worked, wages actually due and hours involved are, of course, not significant to

[a similarly situated] determination”).

Finally, the record indicates that JMJ had common policies and practices with respect

to training, mandatory meetings, overtime pay, and reducing employee time logs that applied

to all the opt-in Plaintiffs,6 such that common resolution of the FLSA claims is possible.

6 Opt-in Plaintiffs are not similarly situated with respect to FLSA claims for minimum wages or

overtime wages for “work performed for the benefit of JMJ” when it was not authorized, and

employees were not clocked in. (ECF No. 84 at 7 (citing ECF No. 82-1 at 122:24–123:5; 124:21–

125:12; 211:8-18.)) Several other courts have decertified similar collective actions for wages based on

work before and after employees’ scheduled shifts, noting that “the need for such individualized

inquiries precludes ‘a common answer to the question of whether Plaintiffs actually worked pre-shift

Considering the purpose of the FLSA to allow plaintiffs with common claims to pool

resources and proceed in collective actions to resolve their common issues, the fairness and

procedural considerations weigh in favor of finding that the opt-in Plaintiffs are similarly

situated and allowing the FLSA collective action to proceed.

In applying a heightened fact-specific standard, the Court finds that in light of the

similarities between opt-in Plaintiffs’ factual and employment settings, the manageably similar

circumstances with regard to Defendants’ defenses, and the fairness and procedural factors,

Plaintiffs are similarly situated and can proceed as a collective action under the FLSA with

respect to their allegations that Defendants have a policy of not compensating employees for

time spent attending training and mandatory meetings, not paying overtime, and improperly

reducing employee time logs.

Therefore, Defendants’ Motion to Decertify the Collective Action is denied.

For the reasons stated herein, the Court enters the following:

ORDER

IT IS THEREFORE ORDERED that Plaintiff’s Count IV of the Amended

Complaint is preempted and is therefore DISMISSED.

IT IS FURTHER ORDERED that Plaintiff’s Motion to Certify a Rule 23 Class

(ECF No. 71), is GRANTED IN PART as follows:

1. The Court conditionally certifies the NCWHA Class for wages due

for training, wages due for mandatory meetings, and wages due for

improper reductions from employee time logs pursuant to

N.C. Gen. Stat. § 95-25.6 and § 95-25.7, appoints Plaintiff Wade as

class representative, and appoints L. Michelle Gessner at

GessnerLaw, PLLC as class counsel. If individual issues overtake

common issues at trial, the Court will reconsider whether the

requirements of Rule 23 certification remain satisfied.

IT IS FURTHER ORDERED that Defendants’ Motion to Decertify the Collective

Action, (ECF No. 81), is DENIED.

This, the 30th day of September 2023.

/s/Loretta C. Biggs

United States District Judge