Collins v. Greater Cincinnati Behavorial Health Services

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION - CINCINNATI

TAMMY COLLINS, on behalf of herself : Case No. 1:23-cv-578

and all others similarly situated,

: Judge Matthew W. McFarland

Plaintiff, ‘

v.

GREATER CINCINNATI BEHAVIORAL :

HEALTH SERVICES,

Defendant. :

ORDER GRANTING DEFENDANT’S MOTION TO STRIKE (Doc. 5)

This matter is before the Court on Defendant’s Motion to Strike Rule 23

Allegations (Doc. 5). Plaintiff filed a Response in Opposition (Doc. 8), to which Defendant

filed a Reply in Support (Doc. 9). Plaintiff also filed a Notice of Supplemental Authority

(Doc. 10), to which Defendant filed a Response (Doc. 11). Thus, this matter is ripe for the

Court's review. For the reasons below, Defendant's Motion to Strike Rule 23 Allegations

(Doc. 5) is GRANTED.

ALLEGED FACTS

Plaintiff Tammy Collins is a former employee of Defendant Greater Cincinnati

Behavioral Health Services. (Compl., Doc. 1, § 15.) While employed by Defendant,

Plaintiff regularly worked over 40 hours. ([d. at §{ 18-20, 36.) Though Plaintiff was

entitled to receive overtime compensation, Defendant improperly identified Plaintiff as

exempt from receiving such payment. (Id. at {J 21-42.) Resultantly, Defendant failed to

properly compensate Plaintiff for those hours she worked in excess of 40. (Id.)

Plaintiff brings claims against Defendant for violating the Fair Labor Standards

Act (“FLSA”) and the Ohio Minimum Fair Wage Standard Act (“OMFWSAY”),

individually and on behalf of all other similarly situated employees. (Compl., Doc. 1, □

44-78.) Plaintiff brings allegations relating to an “opt-in” collective action against

Defendant for violating the FLSA and a Federal Rule 23 “opt-out” class action against

Defendant for violating the OMFWSA’s overtime provision. (Id. at §{ 44-78.)

Defendant now moves to strike Plaintiff’s Federal Rule 23 class allegations relating

to Plaintiff's OMFWSA claim. (Motion to Strike, Doc. 5.)

LAW & ANALYSIS

Federal Rule of Civil Procedure 12(f) allows a court to strike from a pleading “any

redundant, immaterial, impertinent, or scandalous matter.” Whether to strike portions of

a pleading is within a court's discretion. Watkins & Son Pet Supplies v. Iams Co., 107 F.

Supp. 2d 883, 887 (S.D. Ohio 1999). Motions to strike are considered a “drastic remedy”

and therefore “generally viewed with disfavor and rarely granted.” Id. “The motion to

strike should be granted only when the pleading to be stricken has no possible relation

to the controversy.” Brown & Williamson Tobacco Corp. v. U.S., 201 F.2d 819, 821 (6th Cir.

1953).

Generally, “courts should exercise caution when striking class action allegations

based solely on the pleadings, because class determination generally involves

considerations that are enmeshed in the factual and legal issues comprising the plaintiff's

cause of action.” Geary v. Green Tree Servicing, LLC, No. 2:14-cv-522, 2015 WL 1286347, at

*16 (S.D. Ohio Mar. 20, 2015) (quotation omitted). But, “Rule 23(c)(1)(A) says that the

district court should decide whether to certify a class ‘[a]t an early practicable time’ in the

litigation, and nothing in the rules says that the court must await a motion by the

plaintiffs.” Pilgrim v. Universal Health Care, LLC, 660 F.3d 943, 949 (6th Cir. 2011) (citing

Fed. R. Civ. P. 23(c)(1)(A)). When discovery and factual development would not “alter

[a] central defect in [the] class claim,” a court may appropriately strike class allegations

based on a defendant’s motion. Id.

Defendant moves to strike Plaintiff's Federal Rule 23 class allegations brought in

relation to Plaintiff's OMFWSA overtime claim. (Motion to Strike, Doc. 5.) Defendant

maintains that these allegations are immaterial and impertinent because a Federal Rule

23 class is prohibited under the OMFWSA. (Id. at Pg. ID 42-44.) In response, Plaintiff

maintains that Federal Rule 23 is procedural and therefore overrides any prohibition by

Ohio law. (Response in Opp., Doc. 8.) So, to determine whether a strike is appropriate,

the Court must consider the proper procedure under the OMFWSA.

I. Applicable Procedure under the OMFWSA

The OMFWSA states that “an employer who pays an employee less than wages to

which the employee is entitled . . . is liable to the employee affected for the full amount

of the overtime wage rate.” Ohio Rev. Code § 4111.10(A). Recently, the Ohio Legislature

amended this portion of the OMFWSA with the following language:

No employee shall join as a party plaintiff in any civil action that is brought

under this section by an employee, person acting on behalf of an employee,

or person acting on behalf of all similarly situated employees unless that

employee first gives written consent to become such a party plaintiff and

that consent is filed with the court in which the action is brought.

Ohio Rev. Code § 4111.10(C) (emphasis added). This language parallels the FLSA’s

collective action procedural language, which requires similarly situated employees to

“opt-in” to FLSA lawsuits through written consent. See 29 U.S.C. § 216(b). An “opt-in”

collective action—like the type required by § 4111.10(C)—is “fundamentally different”

from a Federal Rule 23 “opt-out” class action. Clark v. AGL Homecare & Training Ctr., LLC,

68 F.4th 1003, 1007-09 (6th Cir. 2023) (citations omitted).

The question here, then, is whether Plaintiff can proceed with a Federal Rule 23

“opt-in” class action under the OMFWSA’s overtime provision or if § 4111.10(C)’s “opt-

out” collective action procedure must apply.

“It is a long-recognized principle that federal courts sitting in diversity apply state

substantive law and federal procedural law.” Shady Grove Orthopedic Assocs., P.A. v.

Allstate Ins. Co., 559 U.S. 393, 417 (2010) (quotation omitted) (Stevens, J., concurring);

Albright v. Christensen, 24 F.4th 1039, 1044 (6th Cir. 2022) (finding Justice Stevens's

concurrence controlling). “But not every federal rule of practice or procedure [] will

displace state law.” Shady Grove, 559 U.S. at 418. To determine whether Federal Rule 23

displaces § 4111.10(C), the Court must engage in a two-step inquiry. Id. at 398. The Court

must first determine whether Federal Rule 23 conflicts with § 4111.10(C). Id. If a direct

conflict exists, Federal Rule 23 governs “unless it exceeds statutory authorization or

Congress’s rulemaking power.” Id.

Looking to step one, Federal Rule 23 conflicts with § 4111.10(C). Federal Rule 23

allows a plaintiff to pursue a claim as a class action, so long as the rule’s criteria are met.

See Shady Grove, 559 U.S. at 339-40 (Stevens, J., concurring). In contrast, § 4111.10(C)

requires that a similarly situated employee first file written consent before joining a suit

brought under the OMFWSA’s overtime provision. See Ohio Rev. Code § 4111.10(C).

Thus, there is direct collision between Federal Rule 23 and § 4111.10(C). See Hine v.

OhioHealth Corp., No. 2:22-cv-3969, 2023 WL 5599666, at *3 (S.D. Ohio June 30, 2023)

(finding the same).

As conflict exists, Federal Rule 23 governs unless it exceeds statutory authority, as

established in the Rules Enabling Act (“REA”), or Congress’s rulemaking power. Shady

Grove, 559 U.S. at 398 (Stevens, J., concurring). “Federal Rule 23 does not exceed

Congress’s rulemaking power under the Constitution.” Hine, 2023 WL 5599, at *4 (citing

Shady Grove, 559 U.S. at 417-18 (Stevens, J., concurring)). So, the question is whether

Federal Rule 23 exceeds Congress’s statutory authority under the REA when applied

against § 4111.10(C). Id.

A federal rule of civil procedure violates the REA if its application “effectively

abridges, enlarges, or modifies a state-created right or remedy.” Shady Grove, 559 U.S. at

422 (Stevens, J., concurring). In some cases, a state procedural rule may be a part of a

state’s “framework of substantive rights or remedies” to warrant REA protection. Id. To

determine whether a state procedural rule is a part of a state’s “framework of substantive

rights or remedies,” courts consider (1) whether the state procedural rule exists in the

general code or in substantive law, (2) how broadly the state procedural rule is applied,

and (3) the state procedural rule’s legislative history. Id. at 417-36; Hine, 2023 WL 5599666,

at *4-7.

This is not the first time the Court has considered this issue. In fact, this Court has

previously determined that § 4111.10(C) is a part of Ohio’s “framework of substantive

rights” to warrant REA protection. See Hine, 2023 WL 5599666, at *4-7. The Hine Court

found that §4111.10(C) “define[d] the scope of remedies available for the substantive

rights” of the OMFWSA’s overtime provision. Id. at *6, In reaching this conclusion, the

Court considered the fact that the provision is (1) located within the text of the OMFWSA,

specifically in the liability and actions for payment portion of the statute, and (2) limited

in its application to only civil actions brought under the OMFWSA’s overtime provision.

Id. Based on the foregoing, § 4111.10(C) is “so bound up in the rights or remedies of

[Ohio’s] overtime liability scheme that it is substantive for [REA] purposes.” Id. Because

§ 4111.10(C) fit within Ohio’s “framework of substantive rights,” the Hine Court found

that Federal Rule 23 violated the REA when applied against § 4111.10(C). Id.

Plaintiff asks that this Court decline to follow Hine for several reasons. (Response

in Opp., Doc. 8, Pg. ID 60-66.) First, Plaintiff maintains that the Hine Court disregarded

the legislative history of § 4111.10(C). (Id. at Pg. ID 60-61.) In Shady Grove, Justice Stevens

discussed the legislative history of the relevant state procedural rule at length to

determine whether the state legislature intended the rule to fit within the state’s

“framework of substantive rights or remedies.” Shady Grove, 559 U.S. at 433-35 (Stevens,

J., concurring). In contrast, the Hine Court determined that the legislative history of §

4111.10(C) was “unhelpful” to the REA analysis. See Hine, 2023 WL 5599, at *6 n. 10. This

Court agrees, and notes that Plaintiff has not provided any substantive legislative history

of § 4111.10(C) to impact the REA analysis.

Plaintiff solely points to § 4111.10(C)’s Local Impact Statement, written by a senior

budget analyst, to argue that § 4111.10(C) is purely procedural. (See Response in Opp.,

Doc. 8, Pg. ID 60-61; Impact Statement, Doc. 8-1, Pg. ID 69-70.) Plaintiff primarily quotes

one portion of this document, in which the analyst notes that § 4111.10(C) is a “procedural

change” that will impact “the size, and potentially, the complexity and outcome of

[OMWFSA] cases.” (Id.) But, this limited evidence does not show that the Ohio

Legislature was solely considering procedure—and not a limitation on the OMFWSA’s

rights or remedies — when crafting § 4111.10(C). Cf. Shady Grove, 559 U.S. at 434-35. Thus,

Plaintiff's first argument is not well taken.

Next, Plaintiff maintains that the Hine Court gave too much weight to the location

of and limitations on § 4111.10(C). (Response in Opp., Doc. 8, Pg. ID 61-62.) To be sure,

Justice Stevens does not place particular emphasis on the textual location of the relevant

state procedural rule. Shady Grove, 559 U'S. at 416 (Stevens, J., concurring) (simply noting

that the state procedural rule was “not part of [the state’s] substantive law”). Still, while

the location of § 4111.10(C) may not be dispositive, courts have often found the location

of a state’s procedural rule relevant for REA purposes. See, e.g., Roberts v. C.R. England,

Inc., 321 F. Supp. 3d 1251, 1258 (D. Utah 2018); In re Digital Music Antitrust Litig., 812 F.

Supp. 2d 390, 416 (S.D.N.Y.2011) (The relevant state procedural rule was “not contained

in a generally applicable procedural rule but, rather, in the same paragraph of the same

statute that create[d] the underlying substantive right.”). Thus, the Hine Court

appropriately considered the location of § 4111.10(C) in its REA analysis.

Further, the limitations on a state’s procedural rule are paramount to the REA

analysis. The procedural rule in Shady Grove applied not only to the specific state’s law,

but also federal law and the laws of every other state. Shady Grove, 559 U.S. at 432

(Stevens, J., concurring). In considering this factor, Justice Stevens noted that it was “hard

to see how [the state procedural rule] could be understood as a rule that, though

procedural in form, serve[d] the function of defining [the state’s] rights or remedies.” Id.

In contrast, § 4111.10(C) applies only to OMFWSA overtime claims. Ohio Rev. Code §

4111.10(C). This limited applicability suggests that § 4111.10(C) is intended to solely

impact the rights and remedies available under the OMFWSA’s overtime provision.

Thus, the Hine Court properly considered the location and limitation of § 4111.10(C) and

Plaintiff's argument is not well taken.

Third, Plaintiff argues that, regardless of the factors considered by Hine, §

4111.10(C) is not, in and of itself, a substantive right. (Response in Opp., Doc. 8, Pg. ID

62-63.) But, the question is not whether the procedural rule itself is a substantive right.

Rather, the inquiry is whether the procedural rule “is so intertwined with a state right or

remedy that it functions to define the scope of the state-created right.” Shady Grove, 559

USS. at 423 (Stevens, J., concurring). And, as this Court has previously found, § 4111.10(C)

“defines the scope of remedies available for the substantive rights” of the OMFWSA’s

overtime provision. Hine, 2023 WL 5599, at *6. Thus, Plaintiff's third argument is not well

taken.

Fourth, Plaintiff argues that the Hine Court should not have considered forum-

shopping in its REA analysis. (Response in Opp., Doc. 8, Pg. ID 64-65.) Justice Stevens

explicitly notes that forum-shopping is not an appropriate consideration for determining

a REA problem. Shady Grove, 559 U.S. at 435-36 (Stevens, J., concurring). But, the Hine

Court did not consider forum-shopping in its REA analysis. See Hine, 2023 WL 5599666,

at *6. Rather, after concluding that Federal Rule 23 violates the REA when applied against

§ 4111.10(C), the Hine Court noted the “absurd” forum-shopping results that would occur

if the Court were to hold otherwise. See id. (“[A] contrary conclusion here would permit

a plaintiff to circumvent the plain restrictions in both the FLSA and Ohio law by simply

bringing the Ohio overtime claim in federal court.”). Thus, forum-shopping had no

impact on the Hine Court’s REA analysis and Plaintiff's argument is not well taken.

Finally, Plaintiff argues that, taken as a whole, the Court’s analysis in Hine fails to

meet the “high bar” for finding a REA problem. (Response in Opp., Doc. 8, Pg. ID 66-67.)

The Court disagrees. Shady Grove established that “[w]hen a [s]tate chooses to use

traditionally procedural vehicle as a means of defining the scope of substantive rights or

remedies, federal courts must recognize and respect that choice.” Shady Grove, 559 U.S. at

420 (Stevens, J., concurring). Section 4111.10(C) does just that. Section 4111.10(C) provides

that an employee’s claim can be litigated only when that employee first consents in

writing to be bound by the lawsuit. In turn, employers have a right to not be sued in

representative actions absent each plaintiff-employee’s consent. This procedure impacts

the remedies that an employer may be liable for. Thus, the “high bar” of the REA analysis

has been met and the Hine Court properly found that Federal Rule 23 violated the REA

when applied against § 4111.10(C).

Plaintiff cites to a handful of cases to argue that Federal Rule 23 does not violate

the REA when applied against § 4111.10(C), but those cases are not on point. (See

Response in Opp., Doc. 8, Pg. ID 54-59.) Unlike Hine, most of the cases cited by Plaintiff

are from courts outside of this district and concern different states’ opt-in procedural

rules. (See id.) In contrast, Hine was decided by this Court and concerns the exact rule in

question, § 4111.10(C). See Hine, 2023 WL 5599666.

Plaintiff notified the Court of two cases that found that Federal Rule 23 did not

violate the REA when applied against § 4111.10(C), but these cases fail to sway this Court

to abandon Hine. (See Notice, Doc. 10-1.) In the first case, Jessica Heppard v. Dunham's

Athleisure Corp., the Eastern District of Michigan declined to follow Hine or consider the

REA factors laid out by Shady Grove, finding that doing so would require a court to hold

that “a state law [was] procedural only if it precisely matche[d] the characteristics of

Shady Grove's [state] law.” (See Heppard v. Dunham's Athleisure Corp., No. 23-cv-10834, at

*5 (E.D. Mich. Dec. 8, 2023); Doc. 10-1, Pg. ID 103.) But, for years, courts have applied

Shady Grove's REA analysis without issue, reaching different outcomes depending on the

different procedural rules being considered. See, e.g., Roberts v. C.R. England, Inc., 321 F.

Supp. 3d 1251, 1257-59 (D. Utah 2018) (finding state’s opt-in provision procedural);

Driscoll v. George Washington Univ., 42 F. Supp. 3d 52, 62 (D.D.C. 2012) (finding state’s opt-

in provision substantive). The Court, therefore, disagrees with Heppard and finds that the

Hine Court appropriately applied the REA analysis laid out in Shady Grove.

In the second case cited by Plaintiff, Benjamin Marcy v. Select Med. Corp., the Middle

District of Pennsylvania also found that § 4111.10(C) was procedural for REA purposes.

In reaching this conclusion, the Marcy Court declined to follow Hine and instead relied

on a Third Circuit Court of Appeals decision that explicitly found the FLSA’s “opt-in”

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mechanism procedural. (Marcy v. Select Med. Corp., No. 1:23-cv-469, at *1 (M.D. Pa. Dec.

6, 2023); Doc. 10-1, Pg. ID 116.) But, this Court is not bound by that Third Circuit holding.

In turn, the Court need not follow the analysis laid out in Marcy. The cases cited by

Plaintiff are therefore not persuasive.

Thus, the Court concurs with Hine and finds that permitting a Federal Rule 23 class

to proceed under Plaintiff's OMFWSA’s overtime claim would violate the REA. Section

4111.10(C) defines the scope of remedies available for the substantive rights of the

OMFWSA’s overtime provision. Applying a Federal Rule 23 class action to Plaintiff's

OMFWSA claims-would “abridge, enlarge, or modify a state-created right or remedy.”

Shady Grove, 559 U.S. at 422 (Stevens, J., concurring). In turn, permitting a Federal Rule

23 class action brought under the OMFWSA’s overtime provision to proceed would

violate the REA.

II. Striking Federal Rule 23 Allegations

The Court now returns its attention to Defendant’s Motion to Strike (Doc. 5). As

noted above, Defendant requests that this Court strike Plaintiff's Rule 23 class allegations

brought in relation to her OMFWSA claim. (See Motion to Strike, Doc. 5.) In her

Complaint, Plaintiff presents an entire section dedicated to allegations outlining a Rule

23 class to be brought under her OMFWSA overtime claim. (See Compl., Doc. 1, 4] 52-

60.) But, as detailed above, a Federal Rule 23 class cannot proceed on Plaintiff's OMFWSA

claim. Consequentially, Plaintiff's allegations relating to a Federal Rule 23 class brought

under the OMFWSA are immaterial, impertinent, and should be stricken.

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CONCLUSION

Based on the foregoing, the Court ORDERS the following:

1. Defendant's Motion to Strike Rule 23 Allegations (Doc. 5) is GRANTED;

and

2. Paragraphs 52 through 60 of Plaintiff's Complaint (Doc. 1) are hereby

STRICKEN.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

Wwe

By:

JUDGE MATTHEW W. McFARLAND

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