                   In the Missouri Court of Appeals
                           Eastern District
                                                DIVISION FOUR
BRAD FRANK, ET AL.,                                        )    No. ED107426
                                                           )
           Appellants,                                     )
                                                           )    Appeal from the Circuit Court of
                                                           )    Jefferson County
           vs.                                             )    Cause No. 15JE-CC00416
                                                           )
ENVIRO-TECH SERVICES,                                      )    Honorable Dianna L. Bartels
                                                           )
           Respondent.                                     )    Filed: June 18, 2019

                                                     OPINION

           Brad Frank, Patrick Rigney, Matthew Ross, and Daniel Bishop (collectively, “Class

Representatives”) appeal the trial court’s denial of their amended motion for class certification in

their action against Enviro-Tech Services (“Enviro-Tech”) involving claims that Enviro-Tech

failed to properly pay its employees (such as Class Representatives) overtime compensation as

required by § 290.505.1 Class Representatives raise two points on appeal. In their first point,

Class Representatives argue that the trial court erred in denying their amended motion to certify

their proposed class for their class action claims against Enviro-Tech because the trial court

incorrectly determined that Class Representatives did not meet the numerosity requirement of

Rule 52.08(a).2 Specifically, Class Representatives argue that the trial court erroneously


1
    All references are to Mo. Rev. Stat. Cum. Supp. 2015.
2
    All references are to Missouri Supreme Court Rules (2015), unless otherwise noted.

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evaluated the numerosity element based upon the number of affidavits produced by Class

Representatives instead of the number of potential class members. And in their second point,

Class Representatives argue that the trial court erred in denying their amended motion for class

certification because they presented evidence demonstrating that the proposed class satisfied all

of the elements required for a class to be certified under Rule 52.08(a). We find that the trial

court erred in denying Class Representatives’ amended motion for class certification based upon

a lack of numerosity. We therefore reverse the judgment of the trial court in regards to its finding

that Class Representatives did not fulfill the numerosity requirement, and remand with

instructions for the trial court to find that Class Representatives satisfied the numerosity

requirement, to make findings and conclusions on the remaining three requirements of Rule

52.08(a), and for further proceedings not inconsistent with this opinion.

                               I.        Factual and Procedural Background

          On May 29, 2015, Class Representatives filed their petition asserting a class action claim

against Enviro-Tech, alleging that Enviro-Tech violated § 290.505 by failing to pay its

employees (the putative class) overtime compensation.3 Class Representatives also individually

filed affidavits supporting the facts alleged in their petition. The trial court thereafter ordered

Enviro-Tech to produce documentation of the job locations and recorded work hours for its

employees. After Enviro-Tech produced these documents, Class Representatives filed their

amended motion for class certification, arguing that their proposed class (which consisted of 82

former and current Enviro-Tech employees) should be certified because it met the requirements



3
  Matthew Ross was not named as a plaintiff in Class Representatives’ petition, but was later added as a named
plaintiff. Additionally, two parties who were named as plaintiffs in the petition were later dismissed by the trial
court for failure to comply with discovery requests and failure to prosecute; the two parties who were dismissed did
not appeal their dismissal and are not parties to this appeal. The four named Class Representatives were the
remaining named plaintiffs at the time the trial court denied their motion for class certification and are the appellants
on appeal.

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for a class as set forth by Rule 52.08(a). In their amended motion for class certification and

memorandum in support of their amended motion, Class Representatives argued that certification

of their proposed class was appropriate because (1) the class was so numerous that joinder of all

its members was impracticable; (2) there were questions of law and fact common to the class

(specifically, whether Enviro-Tech violated § 290.505 by failing to pay its employees overtime

compensation); (3) the claims of Class Representatives were typical of the claims of the class;

and (4) Class Representatives would fairly and adequately protect the interests of the class.

Specifically, in regards to the numerosity requirement of Rule 52.08(a), Class Representatives

argued that “[Enviro-Tech] has employed approximately 82 individuals who could be class

members,” and that “[b]ased upon these facts, there is no doubt that numerosity is present in this

suit….”

       On December 7, 2018, the trial court entered its order denying Class Representatives’

amended motion for class certification on the grounds that Class Representatives did not meet

the numerosity requirement of Rule 52.08(a). The trial court reasoned that “Of the 80 employees,

[Class Representatives] ha[ve] provided two additional affidavits of former employees. This

makes the potential pool of employees to join the lawsuit five. The definition of numerosity is;

multitudinoisness.-. [sic] a very large number. The court finds that five does not meet the

numerosity requirement.” On December 17, 2018, Class Representatives filed their petition for

leave to appeal the trial court’s denial of their class action certification motion with this Court,

pursuant to Rule 84.035. Our Court entered our order granting Class Representatives’ petition for

leave to appeal the trial court’s denial of their amended motion for class certification on January

17, 2019.

       This appeal follows.



                                                  3
                                    II.     Standard of Review

       “The determination of class certification under Rule 52.08 lies within the trial court’s

sound discretion.” Doyle v. Fluor Corp., 199 S.W.3d 784, 787 (Mo. App. E.D. 2006). We

therefore review the grant or denial of a motion for class certification for abuse of discretion.

Meyer ex rel. Coplin v. Fluor Corp., 220 S.W.3d 712, 715 (Mo. banc 2007). “We will find an

abuse of discretion only if the trial court’s ruling is so arbitrary and unreasonable as to shock

one’s sense of justice and indicate a lack of careful consideration.” Karen S. Little, L.L.C. v.

Drury Inns, Inc., 306 S.W.3d 577, 580 (Mo. App. E.D. 2010).

                                          III.   Discussion

       In their first point on appeal, Class Representatives argue that the trial court erred in

denying their motion for class certification based upon its finding that the numerosity

requirement of Rule 52.08(a) was not met. Finding that the trial court abused its discretion in

denying Class Representatives’ amended motion for class certification based upon its erroneous

finding that the numerosity element was not satisfied, we grant Class Representatives’ Point I.

       In determining whether to certify a proposed class, “a court should err in favor of, and not

against, allowing maintenance of the class action” because “class certification is subject to later

modification.” Hale v. Wal-Mart Stores, Inc., 231 S.W.3d 215, 222 (Mo. App. W.D. 2007)

(further noting that “Rule 52.08(c)(1) provides for de-certification of a class before a decision on

the merits”); see also Karen S. Little, L.L.C., 306 S.W.3d at 580. Rule 52.08(a) establishes that:

       One or more members of a class may sue or be sued as representative parties on
       behalf of all only if (1) the class is so numerous that joinder of all members is
       impracticable, (2) there are questions of law or fact common to the class, (3) the
       claims or defenses of the representative parties are typical of the claims or defenses
       of the class, and (4) the representative parties will fairly and adequately protect the
       interests of the class.




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The first element of Rule 52.08(a), known as “numerosity,” requires that plaintiffs show that

“[j]oinder of all members [of a putative class] is ‘impracticable’ for purposes of the rule when it

would be inefficient, costly, time-consuming and probably confusing.” Dale v. DaimlerChrysler

Corp., 204 S.W.3d 151, 167 (Mo. App. W.D. 2006). “A plaintiff does not have to specify an

exact number of class members to satisfy the numerosity prerequisite for class certification, but

must show only that joinder is impracticable through some evidence or reasonable, good faith

estimate of the number of purported class members.” Elsea v. U.S. Eng’g Co., 463 S.W.3d 409,

418 (Mo. App. W.D. 2015) (quoting Dale, 204 S.W.3d at 167).

       In this case, the trial court denied Class Representatives’ amended motion for class

certification based solely upon its finding that they had failed to meet the numerosity

requirement of Rule 52.08(a). The trial court specifically reasoned that “Of the 80 employees,

[Class Representatives] ha[ve] provided two additional affidavits of former employees. This

makes the potential pool of employees to join the lawsuit five. The definition of numerosity is;

multitudinoisness.-. [sic] a very large number. The court finds that five does not meet the

numerosity requirement.” We find that the trial court’s stated rationale for denying Class

Representatives’ amended motion for class certification is erroneous.

       Trial courts may determine whether class action plaintiffs fulfill the numerosity

requirement by examining the briefs submitted by the parties, affidavits, and other evidence.

Dale, 204 S.W.3d at 167 (citing State ex rel. Byrd v. Chadwick, 956 S.W.2d 369, 380 (Mo. App.

W.D. 1997)). Additionally, “[t]o support a finding of the numerosity prerequisite of Rule

52.08(a)(1), the trial court can accept ‘common sense assumptions.’” Elsea, 463 S.W.3d at 418.

Here, in addition to the affidavits submitted by Class Representatives (the named plaintiffs in

this action), documentation was produced by Enviro-Tech showing that there is a putative class



                                                 5
of 82 former and current employees who were potentially not paid overtime compensation, as

Class Representatives argued in their petition. “Although putative class size alone is not

necessarily determinative, it is an important consideration in satisfying the numerosity

requirement.” Doyle, 199 S.W.3d at 792. However, despite this evidence showing that there were

potentially 82 members of the class proposed by Class Representatives, the trial court found that

Class Representatives had not met the numerosity requirement because they had only produced

five affidavits attesting that those putative class members had (a) worked for Enviro-Tech, and

(b) not been compensated for overtime work.

        The trial court is mistaken that class representatives in class action cases are required to

provide evidence demonstrating that most or all individual putative class members wish to be

party to the suit in order for the class to be certified; indeed, the trial court’s statement that

individual class members must “join the lawsuit” by filing affidavits is contradictory of Rule

52.08(a)’s numerosity language (“the class is so numerous that joinder of all members is

impracticable”) (emphasis added). As indicated by the language of Rule 52.08(a), requiring each

individual class member to file an affidavit (to “join” the suit) in order for a class to be certified

would be impracticable—especially in those cases where a potential class has hundreds or

thousands of members. “[T]he fact that a class may initially include persons who do not have

claims or who do not wish to assert claims against [a defendant] is not important at this stage of

the litigation, unless it can be shown that most, if not all of the potential class members have no

claims to be asserted by the class representatives.” Doyle, 199 S.W.3d at 792. Enviro-Tech has

made no showing here that the potential class members of the class proposed by Class

Representatives have no claims to be asserted by Class Representatives.




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        Further, federal class action caselaw (which Missouri courts consider informative in

interpreting and applying Rule 52.08)4 emphasizes that whether the numerosity requirement is

met is largely determined by “the potential number of plaintiffs” (emphasis added). In re

Modafinil Antitrust Litig., 837 F.3d 238, 249–50 (3d Cir. 2016) (stating that “[w]hile no

minimum number of plaintiffs is required to maintain a suit as a class action, our Court has said

that generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds

40,” the numerosity requirement has been met); In re Whirlpool Corp. Front-Loading Washer

Prods. Liab. Litig., 722 F.3d 838, 852 (6th Cir. 2013). “[A] plaintiff must ordinarily demonstrate

some evidence or reasonable estimate of the number of purported class members.” Ibe v. Jones,

836 F.3d 516, 528 (5th Cir. 2016). To make a determination on the numerosity requirement, “a

court must be presented with evidence that would enable the court to do so without resorting to

mere speculation.” Mielo v. Steak ‘n Shake Operations, Inc., 897 F.3d 467, 484 (3d Cir. 2018).

In this case, the affidavits submitted by Class Representatives combined with the documentation

produced by Enviro-Tech revealed that there were 82 former and current Enviro-Tech employees

(whose identities and locations were easily ascertainable) who would be potential plaintiffs in

Class Representatives’ proposed class action suit. Such evidence is sufficient to fulfill the

numerosity requirement of Rule 52.08(a) because it showed that there were 82 former and

current employees of Enviro-Tech who might be entitled to overtime compensation pursuant to

§ 290.505, as asserted by Class Representatives in their petition. See Elsea, 463 S.W.3d at 418;

Dale, 204 S.W.3d at 167; Mielo, 897 F.3d at 484–86.




4
 “Because Rule 52.08 is identical to Fed.R.Civ.P. 23, we may consider federal interpretations of Rule 23 in
applying Rule 52.08.” Doyle, 199 S.W.3d at 788; see also Ressler v. Clay Cnty., 375 S.W.3d 132, 136 (Mo. App.
W.D. 2012); State ex rel. Union Planters Bank, N.A. v. Kendrick, 142 S.W.3d 729, 735 n. 5 (Mo. banc 2004).

                                                       7
         Moreover, by requiring all or most of the members of the putative class to file an

affidavit in order to fulfill the numerosity element, the trial court is essentially requiring said

class members to “opt in” to the class action filed by Class Representatives.5 Rule 52.08(c)

specifically provides potential plaintiffs the option to be excluded from or “opt out” of the class

action, and does not require potential plaintiffs to opt in, as the trial court suggests. The rationale

for allowing potential plaintiffs to opt out of class action suits instead of requiring that they opt

in is that “[r]equiring the individuals affirmatively to request inclusion in the lawsuit would

result in freezing out the claims of people—especially small claims held by small people—who

for one reason or another, ignorance, timidity, unfamiliarity with business or legal matters, will

simply not take the affirmative step.” Hale, 231 S.W.3d at 231 (quoting Kern v. Siemens Corp.,

393 F.3d 120, 124 (2d Cir. 2004)).6 By implicitly demanding that Class Representatives produce

affidavits for most or all of their proposed class, the trial court is requiring that potential

plaintiffs take an affirmative step to join the lawsuit—something that is not required of class

action plaintiffs under Rule 52.08. See id.

         We find that the trial court abused its discretion in denying Class Representatives’

amended motion for class certification based upon its rationale that Class Representatives did not

meet the numerosity requirement because they only produced five affidavits from members of

their proposed class. We therefore grant Class Representatives’ Point I. Because the trial court

concluded that Class Representatives did not fulfill the numerosity requirement of Rule 52.08(a),

and therefore did not proceed to make findings and conclusions on the remaining three



5
  We analogize the trial court’s decision in this case to requiring class action putative class members to “opt in” to
class action lawsuits because the trial court specifically noted that “This makes the potential pool of employees to
join the lawsuit five” (emphasis added).
6
  We note that, while both Hale and Kern addressed “opt-in” requirements in regards to the maintainability of class
action suits during the liability stage of litigation, the rationale provided in those cases equally applies to the
numerosity context of the case before us.

                                                           8
requirements of Rule 52.08(a), remand is necessary for the trial court to evaluate the remaining

three requirements. For that reason, we do not address Class Representatives’ Point II.

                                        IV.     Conclusion

       We find that the trial court erred in denying Class Representatives’ amended motion for

class certification based upon its incorrect finding that Class Representatives did not meet the

numerosity requirement of Rule 52.08(a). We therefore reverse the judgment of the trial court in

regards to its finding that Class Representatives did not fulfill the numerosity requirement, and

remand with instructions for the trial court to find that Class Representatives satisfied the

numerosity requirement, to make findings and conclusions on the remaining three requirements

of Rule 52.08(a), and for further proceedings not inconsistent with this opinion.



                                              _______________________________
                                              Colleen Dolan, Judge

Kurt S. Odenwald, P.J., concur.
Gary M. Gaertner, Jr., J., concur.




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