Commercial Division Blog

Posted: July 27, 2014 / Categories Commercial, Class Actions, Motion to Dismiss; Motion for Judgment on the Pleadings

Class Not Certified When Plaintiff's Evidence of Class Size is Insufficient

On June 24, 2014, Justice Platkin of the Albany County Commercial Division issued an opinion in Picard v. Bigsbee Enterprises, Inc., 2014 NY Slip Op. 51113(U), denying a motion for class certification for failure to establish numerosity.

In Picard, the plaintiff brought a class action "premised on alleged violations of New York Labor Law § 196-d." The court denied the plaintiff's motion for class certification on the ground that the plaintiff had not established the numerosity element for certification as a class action, explaining:

The first prerequisite to certification is that the class be so numerous that joinder of all members is impracticable. In seeking to establish this essential element, plaintiff offers the following averment: "Based on the number of servers employed, I believe it is probable that over the last six years, defendants employed more than 100 servers."

Defendants recognize that it generally is accepted that a putative class of forty members is sufficiently numerous for certification. However, defendants assert that plaintiff has failed to come forward with an adequate evidentiary basis upon which to find numerosity.

The Court concludes that plaintiff has not met his burden of establishing numerosity on the present record. Plaintiff fails to offer a sufficient foundation for his belief as to the number of servers employed by defendants at pertinent times. Indeed, plaintiff was not employed by defendants during the first four years of the proposed class period, and plaintiff's affidavit does not demonstrate personal knowledge of that period. Further, the equivocal nature of plaintiff's averment — a mere belief regarding probability — is problematic. And contrary to the contention of plaintiff's counsel, it is not defendants' burden to establish the absence of numerosity, even if the relevant data may be within their possession. In fact, plaintiff was given the opportunity to take limited discovery on issues pertaining to class certification, but did not pursue data concerning numerosity. Finally, plaintiff may not offer new evidence for the first time in reply to meet his initial burden.

Accordingly, while it may well be that the proposed class is sufficiently numerous that the joinder of all members is impracticable, this essential prerequisite to certification has not been established on the present record.

(Internal quotations and citations omitted) (emphasis added).

This decision illustrates the importance of going beyond mere allegations and gathering (and presenting) factual support for any claim or relief, such as class certification.