    15-3941-cv (L)
    Ruiz et al. v. Citibank, N.A.

                                    UNITED STATES COURT OF APPEALS
                                        FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on
    the 14th day of April, two thousand seventeen.

    PRESENT:
                        PETER W. HALL,
                        DEBRA ANN LIVINGSTON,
                        CHRISTOPHER F. DRONEY,
                             Circuit Judges.

    Digna Ruiz, on behalf of herself and all others
    similarly situated, Dara SW Ho, Mark A. Turner,
    Frederick L. Winfield, individually and on behalf
    of all others similarly situated, Zulma G. Muniz,
    individually and on behalf of all others similarly
    situated, James Steffensen, Adoram Shen,
    individually and on behalf of all others similarly
    situated,
                             Plaintiffs-Appellants,

                        v.                                     Nos. 15-3941-cv, 15-3946-cv

    Citibank, N.A.,
                             Defendant-Appellee.


    FOR APPELLANTS:                                      MURIELLE STEVEN WALSH, Pomerantz LLP,
                                                         New York, NY (Gregory M. Egleston,
                                                         Gainey McKenna & Egleston, New York,
                                                         NY; Timothy J. MacFall, Rigrodsky & Long,
                                                         P.A., Garden City, NY, on the brief).
FOR APPELLEE:                                                   THOMAS A. LINTHORST, Morgan Lewis &
                                                                Bockius LLP, Princeton, NJ (Stephanie R.
                                                                Reiss, Morgan Lewis & Bockius LLP,
                                                                Pittsburgh, PA; Sam S. Shaulson, Morgan
                                                                Lewis & Bockius LLP, Princeton, NJ, on the
                                                                brief).



    Appeal from an order of the United States District Court for the Southern District of New York

(Failla, J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

    Plaintiffs-Appellants appeal from a decision of the district court denying class certification as

to their state law claims for unpaid overtime.1 We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

    I. Standard of Review

    “We review a district court's denial of class certification for abuse of discretion.” Sergeants

Benevolent Ass'n Health & Welfare Fund v. Sanofi-Aventis U.S. LLP, 806 F.3d 71, 86 (2d Cir.

2015). “This standard means that the district court ‘is empowered to make a decision—of its

choosing—that falls within a range of permissible decisions,’ and we will only find ‘abuse’ when

the district court’s decision ‘rests on an error of law . . . or a clearly erroneous factual finding, or .

. . its decision . . . cannot be located within the range of permissible decisions.’” Myers v. Hertz

Corp., 624 F.3d 537, 547 (2d Cir. 2010) (quoting Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169

(2d Cir. 2001)).


1
 The district court also decertified the provisionally certified collective action under the Fair Labor Standards Act.
The Plaintiffs have not separately challenged the decertification decision on appeal, so we do not address it.
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   II. Class Certification

   The district court set forth its reasons for denying class certification in its well-reasoned and

comprehensive Opinion and Order dated March 19, 2015. The district court clearly explained at

length why the evidence presented by the Plaintiffs failed to demonstrate sufficient uniformity in

the Defendant’s exercise of managerial discretion. The district court correctly concluded that this

failure was fatal to the Plaintiffs’ ability to carry their burden with respect to commonality under

Fed. R. Civ. P. 23(a)(2), and that class certification was therefore not appropriate. The district

court also correctly concluded that even if the commonality requirement had been satisfied, the

predominance requirement of Fed. R. Civ. P. 23(b)(3) remained unsatisfied on the record before it.

   In its Opinion and Order dated August 4, 2015, the district court provided lucid and accurate

analysis of the issue now before this Court and carefully explained why the Plaintiffs’ position

rests on a misapprehension of the burden that the law imposes on them at the class certification

stage. That is, under Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), the “rigorous analysis”

required at the class certification stage “will [frequently] entail some overlap with the merits of the

plaintiff’s underlying claim.” Id. at 351. The district court also noted this Court’s precedent

establishing that the burden borne by a party seeking class certification “is not lessened by overlap

between a Rule 23 requirement and a merits issue, even a merits issue that is identical with a Rule

23 requirement.” In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006).

   We agree with the district court’s ruling for substantially the reasons set forth in its

well-reasoned decisions. There was no abuse of discretion.



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   We have considered all of the Appellants’ arguments to the contrary and find them without

merit. The decision of the district court is AFFIRMED. The Appellants’ motion for leave to

supplement the appendix and the Appellee’s motion to strike portions of the briefs are DENIED as

moot.

                                            FOR THE COURT:
                                            Catherine O’Hagan Wolfe, Clerk




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