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Payne v. Tri-State Careflight, LLC

United States District Court, D. New Mexico

September 16, 2019

WILLIAM D. PAYNE; NICOLE PAYNE; LESLIE B. BENSON; KEITH BASTIAN; JACQUELINE FERNANDEZ-QUEZADA; CASON N. HEARD; GREGORY OLDHAM AND SHERRY K. WELCH, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
TRI-STATE CAREFLIGHT, LLC and BLAKE A. STAMPER, Defendants. KRISTY BELL; DEBORAH BEREST; DANIEL BERGMAN; WILLIAM DALLAS BUNDRANT, JR; ROCKY H. BURROWS, II; CHASE CARTER; BRENDA CASAREZ; KARA CERVANTES; THOMAS CISLO; DAVID DANIELS; ADAM DOYLE; DARREN EEN; TOBY EICHER; LON ENOS; WALTER FABIAN; HAROLD JOSEPH FISHER; CHRISTINA FLEEMAN; LUKE FORSLUND; SALUSTIANO FRAGOSO; REHANNON GONZALES; KRISTEN GRADO; COURTNEY GUERRA; DARRIN HAMILTON; ALEXANDER HOWELL; DANIELLE IRVIN; ALLEN JACOBS; ALEX JONES; DONALD LUKE KEENAN; DANIEL KUHLER; SIMON LUCERO; RAPHAEL MAHAIM; NATHAN MAPLESDEN; ORLANDO MARQUEZ; CINDY D. MAXWELL; JENNIFER MAZZANTI; BETHANY MCCANDLESS; WILLIAM J. MCCONNELL; DAN MEEHAN; KEVIN NAPP; JAMES O'CONNOR; KATHY ONSUREZ-WILSON; ERIC PARKER; JASON PERRY; AMANDA PETERSEN; BRENT PLACE; JIMMY RONALD PRIMM, JR; PHILIP QUBAIN; PAUL RATIGAN; JOSEPH ROOT; DARON RUCKMAN; FREDERIC RUEBUSH; JENNIFER SALAVERRY; LAUREN SALAZAR; PAUL SERINO; CHRISTIAN SPEAKMAN; DANIEL ST. PETERS; IAN STEPHENS; USVALDO R. TRUJILLO; PAUL VACULA; GRACIELA VILLALOBOS; ERIC VOGT; GREG WALSH; TYLER WILKINS; VIRGINIA WILLIAMS; SARA YURKOVICH; TERRY ZACHARIAS and MICHAEL ZULASKI, Plaintiffs,
v.
TRI-STATE CAREFLIGHT, LLC and BLAKE A. STAMPER, Defendants.

          Christopher M. Moody Repps D. Stanford Alice Kilborn Moody & Stanford, P.C. Albuquerque, New Mexico Attorneys for the Plaintiffs and Intervenors

          Charles J. Vigil Melanie B. Stambaugh Jeffrey L. Lowry Rodey, Dickason, Sloan, Akin & Robb, P.A. Albuquerque, New Mexico Attorneys for the Defendants

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Plaintiffs' Motion for Class Certification & Supporting Memorandum, filed November 6, 2018 (Doc. 220[1])(“Motion”). The Court held a hearing on January 24, 2019. See Clerk's Minutes at 1, filed January 24, 2019 (Doc. 226). The primary issue is whether the Court should grant class certification pursuant to rule 23(b)(3) of the Federal Rules of Civil Procedure for the Plaintiffs'[2] two classes: (i) a class of flight nurses, flight paramedics, and pilots that brings a New Mexico Minimum Wage Act, N.M. Stat. Ann. §§ 50-4-19 to 50-4-30 (“NMMWA”), claim; and (ii) a class of pilots that brings a New Mexico common-law unjust enrichment claim. The Court grants in part and denies in part the Motion.

         The Court will deny the request that it certify the proposed NMMWA class, because the Court concludes that the class does not satisfy rule 23(a)'s commonality, typicality, or adequacy requirements, or rule 23(b)(3)'s predominance and superiority requirements. To determine the Defendants' liability to a NMMWA class, the Court would have to classify each individual class member as exempt or non-exempt from the statute, which defeats commonality. Furthermore, class representatives' differing statuses as exempt or non-exempt result in conflicting interests, which defeats typicality. Even if the Court finds all class members non-exempt, only certain class representatives will have any interest in litigating the exemption issue, defeating adequacy.

         The Court will certify the proposed unjust enrichment class to the extent that the Plaintiffs argue that the Defendants could not set the pilots' daily rate to account for hours worked over twelve hours a day given the pilots' twelve-hour shifts, because the Court concludes that this class satisfies all of rule 23's requirements. The Court will use the Plaintiffs' four designated class representatives for the certified unjust enrichment class. The other Plaintiffs in the unjust enrichment class will remain named Plaintiffs in this case for the NMMWA claim's purposes. Because the Defendants do not dispute Moody & Stanford, P.C.'s adequacy as class counsel, see Defendants' Response to Plaintiffs' Motion for Class Certification at 36, filed on December 6, 2018 (Doc. 223)(“Response”), the Court appoints the firm class counsel. The Court will not order that a notice in the form of the Notice of Class Action Lawsuit, filed November 6, 2018 (Doc. 220-18), which provides notice of both proposed classes, be sent to all class members, but will order that the Plaintiffs prepare a notice of the certified unjust enrichment class to be sent to all class members.

         FINDINGS OF FACT

         Both the Plaintiffs and the Defendants have submitted briefings on the Plaintiffs' Motion. See Motion; Response; and Plaintiffs' Reply To Motion for Class Certification, filed on January 11, 2019 (Doc. 224)(“Reply”). The Court has carefully considered all factual assertions, accepts some of them, rejects others, and finds some facts that no party brought to its attention.[3] The Court also liberally judicially notices background facts. See Fed.R.Evid. 201. All of these findings of fact are authoritative only on the question of class certification, and the parties may relitigate any of them at the merits stage. See Abbott v. Lockheed Martin Corp., 725 F.3d 803, 810 (7th Cir. 2013); In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 313 (3d Cir. 2008); Gariety v. Grant Thornton, LLP, 368 F.3d 356, 366 (4th Cir. 2004); Anderson Living Tr. v. WPX Energy Prod., LLC, 306 F.R.D. 312, 320 (D.N.M. 2015), adhered to on reconsideration, 312 F.R.D. 620 (D.N.M. 2015)(Browning, J.). The Court applied the Federal Rules of Evidence at the class certification hearing, ruled on several evidentiary objections, and considered only admissible evidence in finding these facts.

         1. The Defendants.

         1. Defendants Tri-State CareFlight, LLC, and Blake A. Stamper “owned and operated a medical transport service providing services in New Mexico, Colorado, and Arizona.” Seconded Amended Class Action Complaint ¶ 12, at 4, filed August 15, 2018 (Doc. 202)(“Complaint”).

         2. Tri-State CareFlight operates helicopters and fixed-wing aircraft at bases in Santa Fe, Taos, Truth or Consequences, Gallup, Tucumcari, Portales, Roswell, Artesia, Carlsbad, and Sandoval, in New Mexico. See Deposition of Tri-State CareFlight, LLC through Dayna Lokelani Mobley Blake at 9:6-10:3 (taken June 18, 2015), filed October 14, 2015 (Doc. 61-1)(“Tri-State Depo.”).

         3. Tri-State CareFlight defines its workweek as spanning from “12:00 a.m. on Saturday morning to 11:59 p.m. the following Friday evening.” Motion at 2 (citing Defendants' Objections and Answers to Plaintiff Kristy Bell's First Interrogatories, Interrogatory No. 4, at 2, filed November 6, 2018 (Doc. 220-3)(“Defs.' Answers to Bell's First Interrs.”)); see Tri-State Depo at 11:6-11.

         4. Before January 19, 2016, the Defendants sometimes required employees to work overtime. See Response at 29.

         2. Tri-State CareFlight's Policy and Practices Regarding Flight Crew.

         5. Tri-State CareFlight established an hourly rate for its flight paramedics and flight nurses, and paid its flight paramedics and flight nurses one and one-half times the hourly rate for hours worked in excess of ninety-six hours per two-week pay period. See Tri-State Depo. at 37:20-38:6.

         6. Tri-State CareFlight's flight nurses and flight paramedics uniformly worked twenty-four or forty-eight hour shifts; Tri-State CareFlight expected these employees to work ninety-six hours in a two-week, fourteen-day, pay period, and it paid the flight nurses and flight paramedics overtime only for work over ninety-six hours in a two-week pay period. See Tri-State Depo. at 11:6-11 (stating that flight nurses and flight paramedics work twenty-four or forty-eight hour shifts); id. at 15:14-21 (stating that Tri-State CareFlight expected flight nurses and paramedics to work ninety-six hours in a two-week, fourteen-day, period); id. at 37:20-38:6 (stating that since 2009, at least, Tri-State CareFlight pays flight nurses and flight paramedics for overtime only if they exceed ninety-six hours per pay period); Defendants' Answers to Plaintiffs' First Interrogatories, Interrogatory No. 3, at 2 (executed March 30, 2015), filed September 4, 2015 (“Doc. 48-2”)(“Defs. Answers to First Interrs.”)(describing that flight nurses and flight paramedics who work more than ninety-six hours in a two-week pay period are paid overtime); Defs.' Answers to Bell's First Interrs., Interrogatory No. 4, at 2 (stating that the pay period was for two weeks and that the workweek spanned from 12:00 a.m. on Saturday to 11:59 p.m. on Friday).

         7. Tri-State CareFlight's scheduling of flight nurses and flight paramedics sometimes resulted in flight nurses and flight paramedics working more than forty hours in a single workweek but not receiving overtime compensation for hours in excess of forty hours per workweek. See Motion at 4 (describing a situation in which a flight paramedic or flight nurse who worked three twenty-four hour shifts in one workweek would have “one workweek of seventy-two (72) hours with no overtime compensation for the additional thirty-two (32) hours worked over forty (40) in that first week”).

         3. Tri-State CareFlight's Policy and Practices Regarding Pilots.

         8. For every base except the base near Roswell, Tri-State CareFlight scheduled the pilots for seven days-on-and-seven-days-off shifts, and, for the Roswell bases, Tri-State CareFlight scheduled pilots for fourteen-days-on-and-fourteen-days-off shifts. See, e.g., Tri-State Depo. at 24:2-21 (stating that pilots work twelve-hour shifts with seven days on and seven days off); id. at 45:1-23 (stating that pilots are paid overtime only for additional twelve-hour shifts and not for time worked over forty hours); Defendant's Answers to Plaintiffs' Second Interrogatories to Defendants, Interrogatory Nos. 13, at 1-2, filed November 6, 2018 (Doc. 220-4)(“Defs.' Answers to Second Interrs.”)(describing that, except for pilots based at the Roswell base, pilots worked seven-days-on-and-seven-days-off, and that, at the Roswell base, pilots worked fourteen-days-on-and-fourteen-days-off shifts, and that pilots who worked more than seven days during their shifts received overtime pay).

         9. A minimum of 138 pilots worked or would have been scheduled to work this seven on/seven off schedule from June 19, 2009, through January 19, 2016. See Motion at 3 (citing Tri-State Depo. at 11:25-12:8).

         10. Tri-State CareFlight scheduled fixed wing pilots to work fourteen days on followed by fourteen days off. See Defs.' Answers to Second Interrs, Interrogatory Nos. 13, 17, 18, at 1-3.

         11. A minimum of fourteen fixed wing pilots would have been scheduled to work this fourteen on/fourteen off schedule from June 19, 2009, through January 19, 2016. See Defs.' Answers to Second Interrs., Interrogatory Nos. 13, 17, 18, at 1-3.

         12. Tri-State CareFlight scheduled pilots for twelve-hour shifts. See, e.g., Tri-State Depo. at 11:25-12:8 (stating that pilots are scheduled for twelve-hour shifts but that they might work 14 hours under the FAA); Declaration of William Dallas Bundrant. ¶¶ 3, 5-6, 8-9, at 1-3 (executed October 31, 2018), filed November 6, 2018 (Doc. 220-12)(“Bundrant Decl.”)(stating that he is a designated class representative and was a pilot paid on a daily rate and that he worked fourteen days on for twelve-hour shifts and fourteen days off; and that he did not receive overtime for time worked over forty hours a week or receive compensation for time worked over twelve hours a day); Deposition of David Daniels at 28:3-13 (taken August 8, 2018), filed November 6, 2018, (Doc. 220-9)(“Daniels Depo. 220-9”)(explaining that twelve hours was a scheduled shift and that he deserved compensation for time worked over that time); Deposition of Michael Zulaski at 20:1-22:3(taken August 15, 2018), filed November 6, 2018 (Doc. 220-11)(“Zulaski Depo. 220-11”) (describing the shift length as twelve hours); Declaration of Raphael Mahaim ¶¶ 3, 5-6, 8-9, at 2-3 (executed October 30, 2018), filed November 6, 2018 (Doc. 220-10)(“Mahaim Decl.”)(stating that he is a designated class member and was a pilot, that he worked twelve-hour shifts for seven days on and then had seven days off, and that he received compensation for a daily rate of twelve hours regardless whether he worked over twelve hours).

         13. Tri-State CareFlight paid pilots only for additional shifts that they worked in addition to their scheduled “on” shifts. See, e.g., Tri-State Depo. at 33:25-34:18 (stating that pilots are paid a daily rate for twelve to fourteen hours and scheduled to work seven days on and seven days off).

         14. Tri-State CareFlight contemplated and contracted with the pilots for a daily rate that accounted for fourteen-hour duty days, although the pilots generally worked twelve-hour shifts. See Tri-State Depo. at 24:7-10; EMS Helicopter Pilot Position Description at 1, filed December 6, 2018 (Doc. 223-1)(“Helicopter Pilot Position Description”)(stating that the daily rate is for fourteen-hour duty days); Daniels Depo. 220-9 at 28:15-16 (describing that twelve hours was a scheduled shift); id. at 25:22-25 (stating that he has not seen a document from Tri-State CareFlight identifying the duty time as anything other than fourteen-hour days).

         15. Tri-State CareFlight's scheduling of pilots could result in pilots working more than forty hours per week without overtime compensation. See Motion at 4 (describing how a pilot who started work on a “Wednesday and worked for fourteen (14) consecutive days [could work] thirty-six (36) hours in the first workweek (Wednesday through Friday); eighty-four (84) hours in the following workweek (Saturday through Friday); and forty-eight (48) hours in the workweek following that (Saturday through Tuesday)”).

         16. The clinical base managers and the lead pilots had a role in overseeing payroll, see Deposition of Kristy Bell at 45:21-46:3 (taken August 22, 2018), filed December 6, 2018 (Doc. 223-2)(“Bell Depo. Doc. 223-2”); Deposition of Benjamin Aguilar at 14:8-10 (taken August 28, 2018), filed November 6, 2018 (Doc. 220-13)(“Aguilar Depo. Doc. 220-13”); Deposition of Jason Perry at 14:2-8 (taken September 7, 2018), filed November 6, 2018 (Doc. 220-7)(“Perry Depo. 220-7”); Bell Depo. 223-2, at 46:17-19, and scheduling, see Deposition of Kristy Bell at 47:19-48:6 (taken August 22, 2018), filed November 6, 2018 (Doc. 220-14)(“Bell Depo. Doc. 220-14”); id. at 64:17-65:23; Deposition of Satoshi Mori at 17:11-20 (taken August 16, 2018), filed December 6, 2018 (Doc. 223-2)(“Mori Depo. 223-2”)); Perry Depo. 220-7 at 15:7-14; Tri-State Tr. at 14:11-16:13; Deposition of Nathan Maplesden at 22:19-20 (taken August 15, 2018), filed November 6, 2018 (Doc. 220-15)(“Maplesden Depo. Doc. 220-15”); id. at 59:9-13.

         4.Clinical Base Managers and Lead Pilots.

         17. For payroll, the clinical base managers and the lead pilots verified that employees reported their time, and approved the time that they reported, and then the clinical base managers and the lead pilots transmitted the reports to Tri-State CareFlight's corporate office. See Bell Depo. 223-2, at 45:21-46:3; Aguilar Depo. 220-13, at 14:8-10; Perry Depo. 220-7 at 14:2-8; Bell Depo. 223-2 at 46:17-19.

         18. For scheduling, the clinical base managers and the lead pilots followed Tri-State CareFlight's existing scheduling requirements, which Tri-State CareFlight created. See Tri-State Depo. at 15:14-21 (describing the flight nurses' and flight paramedics' schedules); Defs.' Answers to First Interrs., Interrogatory No. 3, at 2 (same); Tri-State Depo. at 24:3-21 (describing the pilots' schedule); Defs.' Answers to Second Interrs., Interrogatory No. 13, at 1-2 (same).

         19. The clinical base managers and the lead pilots applied these policies when they created the schedules. See Bell Depo. 220-14, at 47:19-48:6 (describing the flight nurses' and flight paramedics' schedules, and noting that everyone followed that rotation and that, as a clinical base manager, she filled holes in the schedule); id. at 64:17-65:23 (stating that, as a clinical base manager, she would input employees' regular shifts into a spreadsheet, and that she would find someone to fill a shift if no one was available or fill the shift herself if needed); Maplesden Depo. 220-15, at 59:9-13 (stating that the employees had a regular schedule, and that he mainly completed holes left by vacations and sick employees); Aguilar Depo. 220-13, at 18:3-7 (describing that flight nurses and flight paramedics signed up for their two days of shifts a week).

         20. The clinical base managers did not have the final say in the schedules' creation; the clinical services manager reviewed the clinical base managers' proposed schedules, and then the medical program director approved all the schedules. See Tri-State Depo. at 4:16-17; id. at 13:24-14:21.

         21. The clinical base managers and the lead pilots had no authority to hire or fire employees. See Perry Depo. 220-7, at 50:1-2.

         5.The Plaintiffs.

         22. The Plaintiffs bring this case on behalf of themselves and similarly situated individuals whom the Defendants employed as “Flight Paramedics, Flight Nurses, and Pilots (rotary and fixed wing) at various times between June 19, 2009 and, upon information and belief, July 2016.” Complaint ¶ 10, at 4.

         23. The Plaintiffs have designated the following former Tri-State CareFlight employees as class representatives: Erin Johnson, Jason Perry, Alexander Howell, Ian Stephens, David Daniels, Raphael Mahaim, Michael Zulaski, and William Dallas Bundrant.

         24. Tri-State CareFlight employed Johnson as a flight nurse on an hourly basis from July 6, 2008, to January 19, 2016. See Deposition of Erin Johnson at 12:9-12 (taken August 13, 2018), filed November 6, 2018 (Doc. 220-6)(“Johnson Depo. 220-6”)(stating that she was a flight nurse).

         25. Tri-State CareFlight employed Perry as a flight nurse on an hourly basis from April 8, 2013, to January 19, 2016. See Perry Depo. 220-7, at 9:3-6; id. at 9:18-20; id. at 30:11-25.

         26. Tri-State CareFlight also employed Perry as a clinical base manager, but she received hourly pay “at all times material hereto.” Perry Depo. 220-7, at 13:2-8, id. at 16:17-17:13.

         27. Tri-State CareFlight employed Howell as a flight paramedic on an hourly basis from approximately July, 2012, to January 19, 2016. See Deposition of Alexander Howell at 4:15-24 (taken August 21, 2018), filed November 6, 2018 (Doc. 220-5)(“Howell Depo. 220-5”); id. at 9:13-16; id. at 11:11-13 28. Tri-State CareFlight employed Stephens as a flight paramedic on an hourly basis from May, 2012, to August, 2014. See Declaration of Ian Stephens ¶¶ 5, 6, 7, at 2 (executed October 30, 2018), filed November 6, 2018 (Doc. 220-8)(“Stephens Decl.”)

         29. Tri-State CareFlight employed Daniels as an EMS rotary wing (helicopter) pilot on a daily rate basis from approximately December, 2010, to January 19, 2016. See Daniels Depo. 220-9 at 9:19-10:3; id. at 10:10-12; id. at 35:5-7.

         30. Tri-State CareFlight employed Mahaim as a rotary wing pilot on a daily rate basis from November 25, 2014, to January 19, 2016. See Mahaim Decl. 220-10 ¶¶ 7-9, at 2-3.

         31. Tri-State CareFlight employed Zulaski as a fixed wing pilot on a daily rate basis from April, 2015, to January 19, 2016. See Zulaski Depo. 220-11, at 10:8-10; id. at 13:8-13; id. at 13:21-14:1; id. at 19:14-20.

         32. Tri-State CareFlight employed Bundrant as a fixed wing pilot on a daily rate basis from July, 2014, to January 19, 2016. See Bundrant Decl. ¶ 5, at 2.

         33. Several deposed class members live in New Mexico. See, e.g., Howell Depo. 220-5 at 4:8-10 (giving a current address in Santa Fe); Johnson Depo. 220-6, at 10:1-2 (stating that she currently resides in Santa Fe); Perry Depo. 220-7, at 4:7-9 (giving a current address in Rio Rancho, New Mexico); Daniels Depo. 220-9, at 4:8-10 (giving a current address in Santa Fe); Aguilar Depo. 220-13, at 4:10-12 (giving an address in Alto, New Mexico).

         34. Johnson, Howell, and Stephens worked twenty-four and forty-eight hour shifts, and ninety-six hours a pay period, with overtime compensation only for time worked over ninety-six hours in a two-week pay period. See Howell Depo. 220-5, at 4:15-16 (stating he was a flight paramedic); id. at 22:9-23:10 (describing that flight paramedics worked forty-eight-hour shifts during a two-week pay period and worked ninety-six hours in that pay period); id. at 24:9-5:8 (stating that flight paramedics received overtime pay for shifts that they “picked up” over ninety-six hours); id. at 30:4-11 (explaining that the pay period went from Saturday until the Friday two weeks later); Johnson Depo. 220-6, at 12:9-12 (describing that she was a flight nurse); id. at 24:1-7 (describing that flight nurses worked twenty-four and forty-eight hour shifts, and that they built their own schedule); id. at 26:25-27:6 (describing that Tri-State CareFlight paid overtime for time worked in excess of ninety-six hours in two weeks); Stephens Decl. ¶¶ 5-9, at 2 (stating that he is a designated class representative and was a flight paramedic who worked one forty-eight hour shift a week and received overtime when he worked over ninety-six hours in a two-week pay period).

         35. Daniels, Mahaim, and Zulaski worked twelve-hour shifts with either seven or fourteen days on, and seven or fourteen days off, and received overtime compensation only for working additional shifts. See Daniels at 22:14-19 (stating that he did not receive overtime and that he received the same pay for all fourteen days which he worked); id. at 29:25-30:7 (stating that pilots received overtime for working extra shifts); Zulaski Depo. 220-11 at 15:15-19, 22:14-19 (stating that he worked twelve-hour shifts for two weeks on and two weeks off, and did not receive overtime); Mahaim Decl. ¶¶ 3, 5-7, at 2-3 (stating that he is a proposed class representative and was a pilot, that he worked twelve-hour shifts for seven days on and then had seven days off, and that he did not receive compensation for hours worked over forty hours a week).

         36. Daniels, Bundrant, and Mahaim worked twelve-hour shifts, and received no additional compensation for time worked over twelve hours. See Bundrant Decl. ¶¶ 3, 5-6, 8-9, at 1-3 (stating that he is a proposed class representative and was a pilot paid on a daily rate, that he worked fourteen days on for twelve-hour shifts and had fourteen days off, and that he did not receive overtime for time worked over forty hours a week or receive compensation for time worked over twelve hours a day); Daniels Depo. 220-9 at 28:3-13 (explaining that twelve hours was a scheduled shift and that he deserved compensation for time worked over that time); id. at 29:25-30:7 (stating that pilots received overtime for working extra shifts); Zulaski Depo. 220-11 at 20:1-22:3 (describing the shift length as twelve hours long); id. at 22:14-19 (stating that he did not receive overtime and that he received the same pay for all fourteen days that he worked); Mahaim Decl. ¶¶ 3, 5-6, 8-9, at 2-3 (stating that he is a proposed class representative and was a pilot, that he worked twelve-hour shifts for seven days on and then had seven days off, and that he received compensation for a daily rate of twelve hours regardless whether he worked over twelve hours).

         37. Flight Nurses, Flight Paramedics, and Pilots were “sometimes scheduled and expected to work overtime” before Tri-State CareFlight's acquisition. Response at 29.

         6.Post-Acquisition Changes.

         38. Air Methods Corporation purchased Tri-State CareFlight and the acquisition transaction closed on January 19, 2016. See Response at 4 (citing Declaration of Alexxandria Goeglein ¶ 3, at 1 (executed December 3, 2018), filed December 6, 2018 (Doc. 223-1)).

         39. On January, 19, 2016 -- the date of the acquisition -- Stamper ceased his relationship with Tri-State CareFlight because of Air Methods Corporation's acquisition of Tri-State CareFlight. See Response at 4.

         40. After January 19, 2016, pay practices changed. See Response at 4.

         41. After January 19, 2016, pilots immediately became “subject to a collective bargaining agreement.” Response at 5 (citing Declaration of Raj Helweg ¶¶ 4-5, at 2 (executed December 3, 2018), filed December 6, 2018 (Doc. 223-1)).

         42. Some of the designated class representatives continued to work for Air Methods after the acquisition. See Response at 5.

         PROCEDURAL BACKGROUND

         1. The Plaintiffs seek to recover on behalf of themselves and similarly situated individuals unpaid overtime compensation under the NMMWA. See Second Amended Representative and Class Action Complaint for Damages for Violation of New Mexico Minimum Wage Act and New Mexico Common Law ¶¶ 116-28, at 14-16, filed January 28, 2016 (Doc. 100)(“Second Amended Complaint”). Former Tri-State CareFlight employee Plaintiffs Bundrant, Jr., Chase Carter, Thomas Cislo, Adam Doyle, Darren Een, Toby Eicher, Lon Enos, Harold Joseph Fisher, Salustiano Fragoso, Allen Jacobs, Mahaim, Nathan Maplesden, Dan Meehan, Jimmy Ronald Primm, Jr., Daniel St. Peters, Usvaldo R. Trujillo, Paul Vacula, Tyler Wilkins, Virginia Williams, Terry Zacharias, Zulaski, Satoshi Mori, Shailendra Basnet, Shane Engelauf, Shane Herron, Matthew Jansson, William Mallonee, and Josh Martinez seek to recover on behalf of themselves and similarly situated individuals unpaid compensation for time worked beyond twelve hours in their shifts under a New Mexico common law theory of unjust enrichment. See Second Amended Complaint ¶¶ 129-42, at 16-20.

         2. Bell v. Tri-State CareFlight, LLC, No. CIV 17-0796 JB\CG (“Bell”), has a long and complicated procedural history, and this history intersects with that history of Payne v. Tri-State CareFlight, LLC, No. CIV 14-1044 JB\KBM (“Payne”). The Court recited this procedural history in its Memorandum Opinion and Order, 327 F.R.D. 433, filed June 21, 2018 (Doc. 198)(“Consolidation MOO”). The Court incorporates that recitation below. The Court also includes footnotes from the Consolidation MOO.

In September, 2014, William D. Payne and Nicole Payne, “on behalf of themselves and all others similarly situated, ” filed their original complaint against Tri-State CareFlight and Stamper. Representative Action Complaint for Damages for Violation of New Mexico Minimum Wage Act and Unjust Enrichment at 1, Payne, D-101-CV-2014-02048 (First Judicial District, County of Santa Fe, State of New Mexico)(Montes, J.), filed November 17, 2014 in federal court (Doc. 1-1)(“Original Complaint”). Tri-State CareFlight and Stamper removed the case to federal court on November 17, 2014. See Notice of Removal, filed November 17, 2014 (Doc. 1)(“Notice of Removal”). They based removal on the Court's diversity jurisdiction. See Notice of Removal ¶ 4, at 2.
On August 24, 2015, W. Payne and N. Payne moved to amend the Original Complaint to: (i) eliminate a claim for certain uncompensated travel time from the Original Complaint; and (ii) add an additional named Plaintiff -- Leslie B. Benson. See Plaintiffs' Amended Opposed Motion for Leave to File First Amended Complaint, filed August 24, 2015 (Doc. 44)(“First Motion to Amend”). On September 4, 2015, W. Payne and N. Payne filed Plaintiffs' Motion for and Brief in Support of Class Certification, filed September 4, 2015 (Doc. 48)(“First Motion for Class Cert.”).[4] The Court held a hearing on the First Motion to Amend on October 28, 2015. See Clerk's Minutes, filed October 28, 2015 (Doc. 67)(“Oct. 28th Clerk's Minutes”). At the October 28, 2015, hearing, the Court granted the First Motion to Amend. See Oct. 28th Clerk's Minutes at 1; Order at 1, filed March 14, 2016 (Doc. 112). Later that day, W. Payne and N. Payne filed their First Amended Representative Action Complaint for Damages for Violation of New Mexico Minimum Wage Act, filed October 28, 2015 (Doc. 68)(“Amended Complaint”).[5]
By November, 2015, W. Payne, N. Payne, and Benson resolved their individual claims against the Defendants. On November 19, 2015, the Paynes reached a settlement with the Defendants in which the Defendants agreed to provide them with full relief under the NMMWA, i.e., all the relief they requested in the Amended Complaint. See Memorandum Opinion and Order at 47, 2016 WL 9738302, at *25, filed August 12, 2016 (Doc. 138)(“Intervenor MOO”). Benson, meanwhile, signed a global release of his claims against Tri-State CareFlight and Stamper on October 22, 2015. See Settlement Agreement and General Release at 1-3 (dated October 22, 2015), filed December 9, 2015 (Doc. 71-1).
With W. Payne, N. Payne, and Benson's claims resolved, a new set of named Plaintiffs -- Keith Bastian, Cason N. Heard, Gregory Oldham, Sherry K. Welch, and Jacqueline Fernandez-Quezada -- sought to keep [Payne] alive by intervening pursuant to rule 24 of the Federal Rules of Civil Procedure. See Opposed Motion to Intervene as Parties Plaintiff and Class Representatives at 1, filed December 15, 2015 (Doc. 73)(“First Intervention Motion”). In the First Intervention Motion, the intervenors asserted:
[N]one of the currently named Plaintiffs will be able to pursue this matter either individually or on behalf of the putative class members who were deprived of overtime pay pursuant to Defendants' uniform and unlawful overtime policies applicable to flight nurses, flight paramedics and pilots. Intervenors seek to pick up the prosecution of this lawsuit where the current Plaintiffs are soon to depart.
First Intervention Motion at 2.
As the First Intervention Motion was pending, the Defendants moved the Court, pursuant to rule 56 of the Federal Rules of Civil Procedure, to enter summary judgment in their favor, and to dismiss all claims in the Second Amended Complaint in their entirety and with prejudice. See Defendants Tri-State CareFlight, LLC, and Blake A. Samper's Motion for Summary Judgment and Memorandum Brief in Support at 1, filed March 1, 2016 (Doc. 110)(“MSJ”). The Defendants argued that federal law preempts the Named Plaintiffs' state-law claim for the alleged NMMWA violation and the state-law claim for unjust enrichment. See MSJ at 1. The Named Plaintiffs opposed the Defendants' MSJ, and also filed their Motion to Exclude Consideration of New Law or New Argument Raised in Defendants' Reply to the Motion for Summary Judgment or, in the Alternative, to Permit Plaintiff to File a Surreply, filed on May 2, 2016 (Doc. 123)(“Motion to Exclude”), as a result of the Defendants' MSJ.
On August 12, 2016, the Court, pursuant to rule 24(b) . . ., granted the First Intervention Motion, permitting Bastian, Heard, Oldham, Welch, and Fernandez-Quezada [(hereinafter, the Bastian Plaintiffs)] to intervene as Plaintiffs. See Intervenor MOO at 1-2. The Court determined, among other things, that the apparent resolution of W. Payne, N. Payne, and Benson's claims “did not render this case moot under Article III because the personal stake of the indivisible class may inhere prior to a definitive ruling on class certification.” Intervenor MOO at 41 (citing Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1244-47 (10th Cir. 2011)).
In October, 2016, the Court denied the Defendants' MSJ, concluding that Congress “has not preempted the field of labor regulation for railroad and airline workers, and the present dispute does not involve the interpretation of a collective bargaining agreement.” Memorandum Opinion and Order at 2 . . . 2016 WL 6396214, at *1 . . ., filed October 25, 2016 (Doc. 147)(“MSJ MOO”). In the same ruling, the Court also determines that “the Defendants raised a new issue of law in their reply in support of their Motion for Summary Judgment, to which the Named Plaintiffs may reply with a surreply should they deem it appropriate.” MSJ MOO at 2.
On November 2, 2016, the Defendants offered, under rule 68 of the Federal Rules of Civil Procedure, to pay the [Bastian Plaintiffs] a specific amount of money plus their pre-offer “[attorneys' fees and costs actually and reasonably incurred.” Offer of Judgement at 1 (dated November 2, 2016), filed November 17, 2016 (Doc. 149-1)(“Offer of Judgment”). The Offer of Judgment states: “By accepting this Offer of Judgment, Plaintiffs agree to the entry of the attached form of final judgment.” Offer of Judgment at 2. The Defendants informed the Court, on November 17, 2016, that [the Bastian Plaintiffs] accepted the Defendants' rule 68 offer. See Notice of Acceptance of Rule 68 Offer of Judgment at 1, filed November 17, 2016 (Doc. 149)(“Acceptance Notice”). See also Email from Chris Moody, to Charles Vigil at 1 (dated November 16, 2016), filed November 17, 2016 (Doc. 149-1)(“Plaintiffs accept your offer of judgment.”). The Acceptance Notice states:
Defendants hereby notify the Court that Plaintiffs have accepted Defendants' Rule 68 Offer of Judgment. A copy of the accepted Offer of Judgment is attached as Exhibit A, a copy of the Form of Judgment incorporated by reference into the Offer is attached as Exhibit B, and Plaintiffs [sic] acceptance of the offer is attached as Exhibit C.
Acceptance Notice at 1. Six days later, the Court took the Defendants' proposed final judgment and entered it with no changes. See Final Judgment at 1, filed November 23, 2016 (Doc. 150).
On November 29, 2016, seventeen people sought to intervene in [Payne] as named Plaintiffs.[6] See Opposed Fed.R.Civ.P. 24(b) Motion and Supporting Memorandum to Intervene as Parties Plaintiff and Class Representatives, filed November 29, 2016 (Doc. 151)(“Motion to Intervene”). On June 27, 2017, fifty-two more people sought to intervene as named Plaintiffs into [Payne (all intervenors are, hereinafter, the “Basnet Intervenors”)].[7] See Opposed Fed.R.Civ.P. 24(B) Supplemental Motion and Supporting Memorandum to Intervene as Parties Plaintiffs and Class Representatives, filed June 27, 2017 (Doc. 166)(“Supp. Motion to Intervene”).
On August 3, 2017, while the Court considered the Motion to Intervene and the Supp. Motion to Intervene, “a number of the proposed Plaintiffs/Intervenors filed a separate, but essentially duplicative” complaint in [Bell in] the United States District Court for the District of New Mexico, apparently to cover their bases vis-à-vis tolling concerns. [Plaintiffs' Opposed Fed.R.Civ.P. 42(a)(1) & (a)(2) Motion to Consolidate at 1, filed October 19, 2017 (Doc. 178)(“Motion to Consolidate”)]. See [Bell]. Tri-State CareFlight and Stamper moved to transfer . . . Bell . . . from the Honorable Kenneth J. Gonzales, United States District Judge for the District of New Mexico, to the Court. See Bell Defendants' Motion to Transfer Related Case to Honorable James O. Browning, filed September 26, 2017 (Doc. 11)(“Motion to Transfer”). In the Motion to Transfer, the Defendants state: “Pursuant to Rule 42(a)(3) of the Federal Rules of Civil Procedure, Defendants Tri-State CareFlight, LLC and Blake A. Stamper respectfully move the Court to transfer the above-captioned case to the Honorable James O. Browning.” Motion to Transfer at 1.
On September 30, 2017, the Court granted the Motion to Intervene and the Supp. Motion to Intervene, which added sixty-[eight] current and former Tri-State CareFlight employees as named Plaintiffs [in Payne]. See Memorandum Opinion and Order at 60, 322 F.R.D. 647, 683, filed September 30, 2017 (Doc. 175)(“Intervention MOO”). In the Intervention MOO, the Court states:
. . . Second, the Named Plaintiffs' settlement agreement did not render the Proposed Intervenors claims moot, because their personal stake in the class -- and, therefore, an Article III case or controversy -- inhered at the action's beginning. . . .
Intervention MOO at 2, 322 F.R.D. at 654.
. . . .
The Court did not make a determination regarding whether the intervening Plaintiffs could proceed, notwithstanding the Court's Final Judgment, without obtaining relief from that Final Judgment via a motion under rule 60(b) of the Federal Rules of Civil Procedure.
. . . .
Following the Intervention MOO, the parties' counsel began discussing a stipulated order to be filed in Bell vis-à-vis the Transfer Motion. On October 3, 2017, the Defendants' counsel wrote to the Plaintiffs' counsel:
What are your thoughts, in light of your agreement to not oppose consolidation, on the parties filing a joint motion with [the Honorable Carmen E. Garza, United States District Judge for the District of New Mexico] asking to vacate the JSR deadline and the scheduling conference?
Email from Charles J. Vigil, to Christopher M. Moody and Repps D. Stanford at 3 (dated October 3, 2017), filed October 19, 2017 (Doc. 178-1). The Plaintiffs' counsel responded:
On our call we said that we would not oppose consolidation so long as there is no appeal of the intervention order. Thinking about it, I don't think you would have an appeal anyway so assuming that you agree not to try an interlocutory appeal, we are not opposing consolidation. If we are not opposing consolidation I think it makes sense to ask Judge Garza to vacate the JSR/scheduling conference and we submit an order of consolidation and then proceed with case scheduling before Judge Browning. In our experience Judge Garza is pretty available by phone so we might want to approach it that way.
Email from Christopher M. Moody, to Charles J. Vigil and Repps D. Stanford at 3 (dated October 3, 2017), filed October 19, 2017 (Doc. 178-1). The Defendants responded: “Ok. Makes sense. We are not appealing the intervention order.” Email from Charles J. Vigil, to Christopher M. Moody and Repps D. Stanford at 3 (dated October 3, 2017), filed October 19, 2017 (Doc. 178-1).

Payne v. TriState CareFlight, LLC, Consolidation MOO at 2-10, 327 F.R.D. 433 at 436-40 ([sic] added in Consolidation MOO).

         3. On October 4, 2017, the Basnet Intervenors filed the Third Amended Representative and Class Action Complaint for Damages for Violations of New Mexico Minimum Wage Act and New Mexico Common Law, filed October 14, 2017 (Doc. 177)(“Third Amended Complaint”). See Third Amended Complaint at 18. The same day,

the Defendants' counsel emailed the Plaintiffs' counsel a draft of the Stipulated Order, asking for the Plaintiffs' counsel's thoughts. See Email from Jeffrey L. Lowry, to Christopher M. Moody and Repps D. Stanford at 6 (dated October 4, 2017), filed October 19, 2017 (Doc. 178-1). The Plaintiffs' counsel responded: “The order looks fine except that we think it should refer to Rule 42(a)(2) rather than (a)(3). That's the part of the rule implicated in all the class cases involving consolidation that we have seen.” Email from Christopher M. Moody, to Jeffrey L. Lowry and Repps D. Stanford at 6 (dated October 4, 2017), filed October 19, 2017 (Doc. 178-1). The Defendants' counsel explained:
The motion cited Rule 42(a)(3) because it allows the most flexibility given the unusual circumstances and status of the two cases. Nevertheless, I don't know that we need to get hung up on the subparagraph. If we revise the order to cite Rule 42 without reference to any particular part of that rule, would that be acceptable?
Email from Jeffrey L. Lowry, to Christopher M. Moody at 6 (dated October 4, 2017), filed October 19, 2017 (Doc. 178-1). Later that day, Defendants' counsel emailed Plaintiffs' counsel: “Here are the motion and order to vacate the Bell deadlines and scheduling conference as well as the final version of the stipulated order on the motion to transfer case. With your approval, I'll file/submit these today.” Email from Jeffrey L. Lowry, to Christopher M. Moody at 9 (dated October 4, 2017), filed October 19, 2017 (Doc. 178-1). The Plaintiffs' counsel replied: “Looks good.” Email from Repps D. Stanford, to Jeffrey L. Lowry and Christopher M. Moody at 9-10 (dated October 4, 2017), filed October 19, 2017 (Doc. 178-1).
On October 6, 2017, [Judge Gonzales], approved Bell, Stipulated Order Granting Defendants' Motion to Transfer Related Case to Honorable James O. Browning, filed October 6, 2017 (Doc. 15)(“Transfer Order”). The Transfer Order states that the “Plaintiffs do not oppose” Tri-State FlightCare's Motion to Transfer and that Judge Gonzalez grants the Motion to Transfer. Transfer Order at 1. The Transfer Order concludes with the following: “Accordingly, pursuant to Rule 42 of the Federal Rules of Civil Procedure, IT IS HEREBY ORDERED that the above captioned case be transferred to the Honorable James O. Browning, who shall preside over all future proceedings.” Transfer Order at 1-2.
On October 16, 2017, the Plaintiffs' counsel's paralegal, Anne Chavez, spoke with the Court's Courtroom Deputy, Michelle Behning, to determine whether Bell and [Payne] had been consolidated. See Declaration of Anne Chavez ¶¶ 4-6, at 1 (dated November 15, 2017), filed November 15, 2017 (Doc. 181-2)(“Chavez Decl.”). Behning “confirmed that the cases had not formally been consolidated, and suggested that a motion to consolidate be filed if that was the direction Counsel wished to take.” Chavez Decl. ¶ 6, at 1. That same day, the Plaintiffs' counsel emailed the Defendants' counsel:
My paralegal spoke with Michelle at Judge Browning's chambers this morning regarding consolidation. We filed our reply brief on Friday only in the Bell case because we have not received any order consolidating the two cases from Judge Browning (just the notice from the clerk reassigning the Bell case to Judge Browning). Michelle told us that the two cases (Bell and Bastian or whatever we are calling it now) are not consolidated and that if we want them consolidated we need to file a motion. What do you think?
Email from Christopher M. Moody, to Charles J. Vigil and Jeffrey L. Lowry at 10 (dated October 16, 2017), filed October 19, 2017 (Doc. 178-1). The Defendants' counsel responded:
Many thanks. Not being party to your paralegal's ex parte communications with Judge Browning's chambers, it is difficult for me to comment. We filed a motion to transfer the Bell case to Judge Browning and that is what was approved by Judge Gonzales. And, that is what has happened -- the Bell case is no[w] assigned to Judge Browning. It was most certainly never a motion to consolidate . . . In any event, we believe consolidation is improper. To the extent Plaintiffs are entertaining making of such a motion, please be advised that the Defendants oppose and will oppose any motion to consolidate the two cases.
Email from Charles J. Vigil, to Christopher M. Moody and Jeffrey L. Lowry at 10 (dated October 16, 2017), filed October 19, 2017 (Doc. 178-1)(emphasis in original).

Payne v. TriState CareFlight, LLC, Consolidation MOO at 10-12, 327 F.R.D. at 440-41.

         4. The Basnet Intervenors then filed the Basnet, asking to consolidate Payne and Bell. See Motion to Consolidate at 1. Thirteen days later, the Defendants filed the Defendants' Motion to Strike or Dismiss Third Amended Complaint, filed November 1, 2017 (Doc. 180)(“Motion to Strike”), arguing that, because Payne is closed, the Basnet Intervenors could not prosecute the Third Amended Complaint. See Motion to Strike at 1. In the Consolidation MOO, the Court granted the Basnet Intervenors' request to consolidate. See Consolidation MOO at 2, 29-30, 33-36, 327 F.R.D. at 436, 450, 452-54. The Court left the Third Amended Complaint on file until the Basnet Intervenors demonstrated that they did not need to satisfy rules 59 or 60 of the Federal Rules of Civil Procedure before they prosecuted the Third Amended Complaint, or that rule 59 or rule 60 permitted Payne to proceed. See Consolidation MOO at 37-38, 327 F.R.D. at 453. Under the Court's Consolidation MOO, the Defendants did not need to file an answer to the Third Amended Complaint until the Court and the parties determined whether the Basnet Intervenors could prosecute Payne. See Consolidation MOO at 37-38, 327 F.R.D. at 453.

         1.The Motion.

         5. The Plaintiffs filed the Motion on November 6, 2018. See Motion at 41. The Plaintiffs begin by outlining the two pay practices on which their disputes rest: (1) Tri-State CareFlight not paying flight crew members overtime compensation for hours worked in excess of forty hours per week and (2) Tri-State CareFlight only paying pilots for twelve hours of work per day regardless of hours worked in excess of twelve hours per day. See Motion at 2.

         6. Before addressing the classes for which they seek certification, the Plaintiffs note that the NMMWA claim has a three-year statute of limitations period and that the unjust enrichment claim has a four-year statute of limitations period. See Motion at 6. According to the Plaintiffs, the NMMWA claim may include claims dating to June 19, 2009, and the unjust enrichment claims may date back to September 11, 2010, four years before Payne's filing on September 11, 2014. See Motion at 6. The Plaintiffs also assert that the Court should grant “equitable tolling on both claims asserted under the [Second Amended Complaint]under American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974)[(“American Pipe”)], as expanded by Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345 (1983).” Motion at 6.

         7. The Plaintiffs seek to certify two classes: (i) a class of “all persons employed as flight crew members (Flight Paramedics, Flight Nurses and Pilots) by Tri-State CareFlight in New Mexico at any time from June 19, 2009, through January 19, 2016”; and (ii) a class of “all persons employed as Pilots in New Mexico at any time from September 11, 2010, through January 19, 2016.” Motion at 7. The Plaintiffs propose in the alternative splitting the first class into two classes: “one consisting of Flight Paramedics and Flight Nurses and the other consisting only of Pilots.” Motion at 7.

         8. The Plaintiffs then apply the class certification requirements to their proposed classes. See Motion at 10. According to the Plaintiffs, to grant the request for class certification, the Court must determine “whether a claim satisfies the Rule 23(a) [of the Federal Rules of Civil Procedure] requirements of numerosity, commonality, typicality, and adequacy of representation.” Motion at 10.

         9. The Plaintiffs assert that they satisfy the numerosity requirement. See Motion at 12-13. The Plaintiffs state in a footnote that, although many former Tri-State CareFlight employees have joined the lawsuit, several hundred others have not, that the Plaintiffs have joined ninety former Tri-State CareFlight employees in this lawsuit, because “they had to find a strategic way to stave off Defendants' efforts to pick off the named class representatives during the pendency of the class certification motion, ” and that the “Defendants, however, should not be permitted to pervert Plaintiffs' strategy to argue for the practicability of joinder.” Motion at 12 n.50. The Plaintiffs explain that the overtime class contains around 300 people whom Tri-State CareFlight employed as “Flight Paramedics, Flight Nurses and Pilots.” Motion at 12.

         10. In a footnote, the Plaintiffs explain that they take the position that the class includes around 300 people based on the Defendants' discovery responses, which include employee lists that identify 139 flight nurses and flight paramedics, and 103 pilots, and the Defs.' Answers to Second Interrs., which identifies 138 pilots. Motion at 12 n.51. The Plaintiffs aver that, even if the Court divides the proposed NMMWA class into flight nurses and flight paramedics, and pilots, the class of flight nurses and flight paramedics would have 139 employees, and the class of pilots would have 138 pilots. See Motion at 12-13. According to the Plaintiffs, the unjust enrichment class of Pilots includes at least 135 Pilots. See Motion at 13.

         11. The Plaintiffs turn to the issue of whether there are common questions of fact or law. See Motion at 13. They list a series of common questions in this case:

1. Whether Defendant Tri-State is an “employer” within the meaning of the NMMWA. [Second Amended Complaint]¶ 117[, at 14]; Answer [to Second Amended Class Action Complaint] ¶ 117, [at 13, filed August 29, 2018 (Doc. 208)(“Answer”)](denying allegation);
2. Whether Defendant Stamper is an “employer” within the meaning of the NMMWA. [Second Amended Complaint] ¶ 117[, at 14]; Answer ¶ 117[, at 13] (denying allegation);
3. Whether the class members were employees of Defendants during the relevant time period. [Second Amended Complaint] ¶ 118[, at 14]; Answer ¶ 118[, at 13] (denying allegation);
4. Whether class members were exempt or non-exempt from the overtime provisions of the NMMWA. [Second Amended Complaint] ¶ 119[, at 14]; Answer ¶ 119[, at 13] (denying non-exempt status of class members either specifically or because of lack of sufficient knowledge/information);
5. Whether Defendants' policy and practice of only paying flight nurses and flight paramedics premium overtime compensation for hours over ninety-six (96) in a two-week pay period violated the NMMWA's requirement in Section 50-4-22(D) that employees be paid overtime compensation for all hours worked over forty (40) in a seven (7) day work week. [Second Amended Complaint] ¶¶ 120, 128[, at 14, 16]; Answer ¶¶ 120, 128[, at 13, 14] (directly denying any and all claims of any NMMWA violations);
6. Whether Defendants' policy and practice of paying Pilots premium overtime pay only for working shifts other than their regularly scheduled shifts (either seven on/seven off or fourteen on/fourteen off) violated the NMMWA's requirement that employees be paid overtime compensation for all hours over forty in a work week. [Second Amended Complaint] ¶¶ 120, 128[, at 14, 16]; Answer ¶¶ 120, 128[, at 13, 14] (directly denying any and all claims of any NMMWA violations);
7. Whether Defendants knew or should have known that Flight Nurses, Flight Paramedics and Pilots were working in excess of forty hours per week such that overtime compensation was due to them. [Second Amended Complaint] ¶ 123[, at 15]; Answer ¶ 123[, at 14] (directly denying allegation);
8. Whether Defendants exerted any pressure on Flight Nurses, Flight Paramedics and Pilots to work in excess of forty hours per week such that they were “required” to work overtime under Section 50-4-22; [Second Amended Complaint] ¶¶ 120, 128[, at 14, 16]; Answer ¶¶ 120, 128[, at 13, 14] (denying any and all liability);
9. Whether Defendant Tri-State is exempt from application of the NMMWA under pre-emption principles; Answer ¶13[8] (claiming exemption); and
10. Whether, and to what extent, the aggrieved employees are entitled to American Pipe tolling based on the filing of the underlying Payne and current Bell lawsuits.

         Motion at 14-15.

         12. The Plaintiffs summarize that their proposed common issues 1 through 4 relate to the proposed class members' relationship to the Defendants and whether the NMMWA covers the proposed class members' claims. See Motion at 15.

         13. The Plaintiffs indicate that issues 1 and 2 especially relate to whether the NMMWA applies to the proposed class. See Motion at 15. The Plaintiffs aver that these issues will require classwide analyses whether the NMMWA applies and indicate that particularly the issue of Stamper's individual liability is a “central, material issue” that applies to the class; according to the Plaintiffs, “the material issue of statutory coverage will necessitate discovery, full briefing and a detailed memorandum Opinion and Order from this Court on just this lone, common class issue. . . . [T]his issue alone suffices to support commonality under Rule 23(a)(2).” Motion at 17. See Motion at 15-17.

         14. The Plaintiffs add that issues 3 and 4 relate to whether the proposed class members meet the NMMWA's statutory definition of employee and “can be resolved by classwide reference to job descriptions, testimony of Plaintiffs and putative class members and payroll records.” Motion at 17.

         15. The Plaintiffs then argue that issues 5 and 6 are “the core, material issues in the overtime claim, namely whether the pay practices of Defendants violated the NMMWA.” Motion at 17. According to the Plaintiffs, the Defendants contest this issue, and the issue “will necessitate a motion for summary judgment and a Memorandum Opinion and Order from this Court to resolve. That resolution will apply equally and uniformly across the entire class.” Motion at 17.

         16. The Plaintiffs explain that issue 7 implicates the statutory issue whether Tri-State CareFlight required the Plaintiffs and the proposed class members to work over forty hours a week without compensation. See Motion at 17. The Plaintiffs contend: “This issue too, can be resolved on a classwide basis by examining policies regarding employee scheduling, the payroll reports, the employees' actual weekly clock in/clock out documents and by testimony of Defendant Stamper, Plaintiffs and class members.” Motion at 17.

         17. The Plaintiffs explain that issue 8 relates to Tri-State CareFlight's and Stamper's knowledge that the Plaintiffs and the proposed class members were working over forty hours in a workweek, and the Plaintiffs identify this inquiry as a central element of the NMMWA claim. See Motion at 18. According to the Plaintiffs, “[t]he same evidence used to support Issue 7 will likewise inform this issue on a common, classwide basis and advance the lawsuit.” Motion at 18. The Plaintiffs then aver, regarding issue 9,

whether Defendants Tri-State and Dr. Stamper are altogether free from NMMWA coverage is an issue of law, the resolution of which will apply equally across the overtime class or classes. It is obviously an issue central to the overtime claim because its resolution will determine the viability of the overtime claim in its entirety. While the issue of pre-emption under the Railway Labor Act has already been raised and resolved, Defendants continue to assert the affirmative defense of pre-emption.

         Motion at 18.

         18. The Plaintiffs contend, regarding issue 10: “Issue 10 tests the application of American Pipe tolling across the entire class and the answer to its applicability in this lawsuit will apply to the class in a common, uniform manner.” Motion at 18.

         19. The Plaintiffs argue that Menocal v. GEO Group, Inc., 882 F.3d 905, counsels a finding of commonality here, because, in that case, where “a group of plaintiffs sued the defendant, a contract detention facility for Immigration and Customs Enforcement, for unjust enrichment and violations of the Trafficking Victims Protection Act, 18 U.S.C. § 1589 (‘TVPA'), ” the Tenth Circuit concluded that commonality existed,

in at least three (3) common areas: “(1) whether the Sanitation Policy “constitutes improper means of coercion” under § 1589, (2) whether GEO “knowingly obtain[s] detainees' labor using [the Sanitation Policy]”, and (3) whether a civic duty exception exempts the Sanitation Policy from § 1589. Because the class based the claim on single policies applicable to the class, the Tenth Circuit (and the District Court) correctly determined that the answers to those three (3) questions would materially advance the litigation.

         Motion at 19 (quoting Menocal, 882 F.3d at 917-18).

         20. The Plaintiffs add that, in Daye v. Community Financial Service Centers, LLC, 313 F.R.D. 147 (D.N.M. Feb. 9, 2016)(Browning, J.)(“Daye”), the Court certified a class where the plaintiff alleged a violation of New Mexico laws which govern payday loans, and the Court identified five common questions:

1. Whether [the] loans are payday loans under the Small Loan Act[, N.M. Stat. Ann. §§ 58-15-1 to -39 (“Small Loan Act”)];
2. Whether [the] loans complied with the Small Loan Act's requirements for payday loans;
3. Whether [the] loans violated the [New Mexico Unfair Practices Act, N.M. Stat. Ann. §§ 57-12-1 to -26 (“UPA”)] with regard to their violation of the Small Loan Act;
4. Whether [the] loans are void or it would otherwise be inequitable for [the lender] to retain or collect unlawful interest;
5. Whether [the lender] conditioned loans on ACH[9] withdrawals in violation of the [Electronic Funds Transfer Act, 15 U.S.C. §§ 1693i-693r (“EFTA”)].

         Motion at 19-20 (quoting Daye, 313 F.R.D. at 176-77).

         21. The Plaintiffs state that, like the Plaintiffs in these other cases, they have identified ten common questions that will “materially advance the litigation” and that the question whether the Defendants violated the NMMWA alone provides grounds for commonality, especially because, as in Menocal and Daye, a single policy is at issue. Motion at 20. The Plaintiffs add that, as in Menocal, the material elements of knowledge and of a statutory exception are at issue. See Motion at 25.

         22. The Plaintiffs contend that the question whether the Defendants required the proposed class members to work overtime “butresse[s]” commonality. Motion at 20. According to the Plaintiffs, “[p]ayroll records, scheduling reports, pay stubs and testimony will all provide common evidence to show that Defendants knew of the overtime work of the class members, consented and then exerted pressure on employees to work overtime without adequate compensation. In sum, commonality is present on the NMMWA claim.” Motion at 20.

         23. The Plaintiffs next argue that common questions exist on their unjust enrichment claims. See Motion at 21. The Plaintiffs list as common issues:

1. Whether Defendants' “daily rate” for Pilots can legally cover more than the twelve hours Pilots were regularly scheduled to work each work day. [Second Amended Complaint] ¶¶ 130, 131[, at 16-17]; Answer ¶¶ 130, 131[, at 14] (denying claim);
2. Whether Pilots were regularly expected to work more than twelve hours per shift. [Second Amended Complaint] ¶¶ 135[, at 17-18]; Answer ¶¶ 135[, at 15] (denying claim);
3. Whether Defendants knew or should have known that Pilots would on occasion be required to work more than twelve hours per shift. [Second Amended Complaint] ¶¶ 135, 139[, at 17-19]; Answer ¶¶ 135, 139[, at 15](denying claim);
4. Whether Defendants' policy and practice of expecting Pilots to work more than twelve hours per shift for no additional compensation caused Defendants to unjustly reap the benefits of failing to pay Pilots for hours worked over twelve per shift. [Second Amended Complaint] ¶ 135[, at 17-18]; Answer ¶ 135[, at 15](denying claim);
5. Whether Defendants' failure to pay Pilots additional compensation for hours worked over twelve per shift was malicious, willful, reckless, wanton, fraudulent or in bad faith. [Second Amended Complaint] ¶¶ 135, 142[, at 17, 18, 20]; Answer ¶¶ 135, 142[, at 15] (denying claim); and
6. Whether, and to what extent, the aggrieved employees are entitled to American Pipe tolling based on the filing of the underlying Payne and current Bell lawsuit.

Motion at 21.

         24. The Plaintiffs explain that issues 1 through 4 “relate to the material elements of an unjust enrichment claim.” Motion at 21 (quoting New Mexico Department of Labor v. Echostar Communications Corporation, 2006-NMCA-047, ¶¶ 7-9, 12, 16, 134 P.3d 780, 782-84) (“Echostar”).[10] According to the Plaintiffs, “[i]ssue 1 speaks to whether the ‘daily rate' paid to Pilots can legally cover just the twelve hours Pilots were scheduled to work or instead can cover up to fourteen hours.” Motion at 21. To support their argument that this issue is a question, the Plaintiffs cite Echostar, for the holding that a “‘regular rate of pay' for calculating overtime compensation [is] not permitted to fluctuate depending on length of work week, but must instead be based on standard forty-hour work week.” Motion at 22 (citing Echostar at ¶¶ 7-9, 12, 16).

         25. The Plaintiffs then argue that, “[b]ecause unjust enrichment requires proof that one party has knowingly benefitted at the other's expense in such a manner that to allow the other to retain the benefit would be unjust, Issues 2 & 3 delve into the heart of the material elements of an unjust enrichment claim.” Motion at 22. In the Plaintiffs' view, the Defendants' knowledge regarding their benefit is essential to the claim and can be established on a classwide basis. See Motion at 22. The Plaintiffs add that issues 2 and 4 can also be shown through classwide proof, and relate to key elements of the unjust enrichment claim, because they relate to whether the Plaintiffs were required to work over twelve hours and whether the Defendants knew of that situation. See Motion at 22.

         26. The Plaintiffs note too:

Issue 5 relates to punitive damages on the unjust enrichment claim. Whether Defendants' failure to pay Pilots additional compensation for hours worked over twelve per shift was malicious, will[ful], reckless, wanton, fraudulent or in bad faith can be proved with testimony from Defendants -- primarily Defendant Stamper. Proof that Defendants acted maliciously applies across the class.

Motion at 22.

         27. The Plaintiffs explain that issue 6 relates to whether “the class members are able to obtain American Pipe tolling in light of the underlying Payne case.” Motion at 22.

         28. The Plaintiffs aver that Menocal also supports the commonality arguments for the unjust enrichment claim, because, in Menocal

the plaintiff asserted a claim for unjust enrichment predicated on the benefit of cheaper labor that the contracting entity obtained. . . . [T]he Tenth Circuit hesitated little in finding commonality. The question of whether the defendant obtained a benefit from the workers' labor alone was sufficient to create a common question capable of being answered across the class because it would resolve an essential element of the claim in one broad stroke.

Motion at 23 (citing Menocal 882 F.3d at 924).

         29. The Plaintiffs next argue the issue of typicality. See Motion at 23. The Plaintiffs argue, regarding the NMMWA claim, that they and the putative class members have the same overtime claim -- that they worked over forty hours in a seven-day workweek and did not receive the compensation that the NMMWA requires. See Motion at 24.

         30. The Plaintiffs indicate that the designated class representations whom Tri-State CareFlight employed as flight nurses or flight paramedics worked over ninety-six hours per two-week pay period, and did not receive overtime compensation, and that all other flight nurses and flight paramedics have the same claims. See Motion at 24.

         31. The Plaintiffs aver that the designated class representatives whom Tri-State CareFlight employed as pilots “were subjected to a policy that paid them overtime compensation only for shifts they worked in addition to their regularly scheduled shifts” and “were not paid overtime for regular shifts even when those regular shifts resulted in them working more than forty (40) hours in a week.” Motion at 24. According to the Plaintiffs, “[t]he putative class members who were pilots have exactly those claims.” Motion at 24.

         32. The Plaintiffs also argue that the unjust enrichment claim satisfies the typicality requirement. See Motion at 24. The Plaintiffs explain that all the pilots share the same claim of not being paid for hours worked over twelve hours in a twelve-hour shift. See Motion at 24. According to the Plaintiffs, the “Defendants have confirmed in discovery that approximately one hundred and thirty-five (135) pilots worked in that manner at some point. Each and every one of them suffered the same type of injury from application of Defendants' policy of not paying compensation for hours worked over twelve (12) in a shift.” Motion at 24. The Plaintiffs add that the designated class representatives share the same claim and injury. See Motion at 24.

         33. The Plaintiffs next argue that they satisfy the adequacy requirement. See Motion at 25. They note that the adequacy inquiry involves two questions: “(i) whether the named plaintiffs and their counsel have any conflicts with other class members; and (ii) whether the named plaintiffs and their counsel will vigorously prosecute the action on behalf of the class.” Motion at 25.

         34. Beginning with the first question, the Plaintiffs state that they do not know of “any actual or substantially inherent conflicts that would render them inadequate representatives.” Motion at 25. According to the Plaintiffs, their interests are aligned with the proposed class members' interests and they have no conflicts, see Motion at 25-26.

“They served as Flight Nurses, Flight Paramedics or Pilots and they share a common bond with the other similarly situated persons who were employed by Defendants as Flight Nurses, Flight Paramedics or Pilots who were not paid overtime for all hours worked in excess of forty (40) in a work week and, in the case of Pilots, who were not paid compensation for hours worked in excess of twelve (12) in a shift.”

Motion at 25.

         35. The Plaintiffs address the Defendants' argument that any designated class representative who served as a base clinical manager or a lead pilot would be in conflict with the rest of the class because base clinical managers and lead pilots scheduled other class members to work over forty hours per week. See Motion at 25-26. The Plaintiffs describe this argument as meritless because the lawsuit focuses on the Defendants' pay policies, not scheduling, and because Stamper, not the base clinical managers or lead pilots, created the policies dictating pay. See Motion at 26 (citing Howell Depo. 220-5 at 31:5-32:13; Perry Depo. 220-7, at 27:14-30:10; id. at 51:8-13).

         36. The Plaintiffs explain further that the clinical base managers and lead pilots mainly scheduled employees to ensure that each crew had the requisite members and had no role in determining pay policies, see Motion at 26 (citing Perry Depo. 220-7, at 14:2-8; id. at 23:2-24:2; id. at 49:7-10; id. at 51:1-7; id. at 53:20-54:18; Daniels Depo. 220-9 at 15:1-13; id. at 17:25-18:6; Aguilar Depo. 220-13, at 16:2-17:3; id. at 17:10-19:8; id. at 38:17-19; Bell Depo. 220-14, at 45:3-7; id. at 45:14-46:19; id. at 47:15-48:16; id. at 63:21-65:23; id. at 63:14-20; id. at 65:24-66:9; Maplesden Depo. 220-15, at 22:16-23:22; id. at 57:12-58:1; id. at 58:10-59:13), and that the clinical base managers and lead pilots also received hourly or daily rate pay, “exercised no supervisory authority, and . . . failed to receive overtime pay . . . just like every other employee and putative class member, ” Motion at 26-27 (citing Perry Depo. 220-7, at 13:2-8); id. at 25:4-10; id. at 40:17-25; id. at 49:11-50:25; id. at 57:15-58:14; id. at 60:4-12; Aguilar Depo. 220-13, at 29:23-24; Bell Depo. 220-14, at 54:1-9; id. at 63:21-64:16; id. at 66:10-67:9; Maplesden Depo. 220-15, at 43:5-44:16; id. at 56:5-9; id. at 56:21-57:11. The Plaintiffs support their argument regarding the clinical base managers and lead pilots with a string cite:

See Williams v. Mann, 2017-NMCA-012, ¶ 30[, 388 P.3d 295, ] (accepting that “the Department of Labor's regulations defining the MWA's exemption for administrative, executive, and professional employees control over evaluation of Plaintiff's MWA claims”); NMSA 1978, § 50-4-21(C)(2) (exempts from coverage “an individual employed in a bona fide executive, administrative or professional capacity and forepersons, superintendents and supervisors”); 29 C.F.R. 541.100 (executive must, inter alia, be paid on salary basis); 11.1.4.7 NMAC (“[f]orepersons, superintendents and supervisors”, as used in Section 50-4-1(C)(2) of the Minimum Wage Act means an employee who meets all of the following requirements: (1) their primary duty is to perform non-manual work related to management of the business; (2) they are to exercise discretion; (3) they regularly assist executives or perform specialized work or special assignments; and (4) they perform less than twenty percent manual work”); 29 CFR 541.102 (defining “management” under executive prong, i.e. supervisory duties); 1978, § 50-4-21(C)(2) (exempts from coverage “an individual employed in a bona fide executive, administrative or professional capacity and forepersons, superintendents and supervisors”).

Motion at 27.

         37. In a footnote, the Plaintiffs note that, although the New Mexico Department of Workforce Solutions created the N.M. Admin. Code definition in 2017, the Code follows case law defining supervisory status, which, according to the Plaintiffs provides: “a ‘supervisor' is one that the ‘employer has empowered . . . to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Motion at 27 n.58 (quoting Vance v. Ball State Univ., 570 U.S. 421, 431 (2013)).

         38. According to the Plaintiffs, the clinical base managers and the lead pilots had no authority to affect employment status. See Motion at 27 n.58. The Plaintiffs also emphasize that “the class representatives who served as clinical base managers and lead pilots suffered the exact same injury as everyone else by being deprived of overtime pay and/or not receiving additional pay for working over twelve (12) hours a day (i.e. pilots).” Motion at 27. According to the Plaintiffs, these designated class representatives seek the same redress as the proposed class members and gained no benefits from the wage and hour practices, so they and the proposed class members share interests and injuries. See Motion at 27-28.

         39. Turning to the second question, the Plaintiffs aver that their counsels' experience litigating wage-and-hour suits, and class action suits, satisfies the adequacy question. See Motion at 33. The Plaintiffs aver that their counsel have the “necessary skills, background and experience” to represent the class. Motion at 28 (citing generally Declaration of Christopher M. Moody (executed November 6, 2018), filed November 6, 2018 (Doc. 220-16); Declaration of Repps D. Stanford (executed November 6, 2018), filed November 6, 2018 (Doc. 220-17)). The Plaintiffs explain that their counsel have litigated the case “vigorously” since its beginning and that they will continue to do so. Motion at 28.

         40. The Plaintiffs also indicate that each designated class representative has stated his or her willingness “to represent the interests of the class appropriately, ” so each individual “is ready, willing and able to serve as an adequate class representative for the proposed classes.” Motion at 28. The Plaintiffs also indicate that the designated class representative's depositions and declarations reveal their basic familiarity with the claims at issue, and note that class representatives do not need a “sophisticated understanding of the law.” Motion at 28-29 (citing Howell Depo. 220-5, at 43:11-21; id at 44:14-45:24; id at 48:14-49:15; id at 51:12-15; id at 52:15-53:9; id at 56:5-14; id at 56:23-57:24; id at 70:19-71:23; Johnson Depo. 220-6, at 37:20-38:3; id at 38:7-9; id at 39:22-40:16; id at 41:6-9; id at 44:8-45:15; id at 45:22-46:17; id at 46:15-17; id at 47:21-48:24; id at 49:19-51:17; Perry Depo. 220-7, at 39:17-40:25; id at 41:6-42:17; id at 43:18-44:3; Stevens Decl., ¶¶ 2-4, 9, at 1-3; Daniels Depo. 220-9, at 27:20-28:18; id at 29:25-30:7; id at 30:22-24; id at 34:10-35:7; id at 35:10-12; id at 35:16-36:6; id at 36:22-37:16; id at 38:1-5; id at 47:17-49:24; Mahaim Decl. ¶¶ 2-4, 10, at 1-3; Zulaski Depo. 220-11, at 24:21-24; id at 25:2-7; id at 25:14-26:1; id at 26:21-27:9; id at 29:13-19; id at 30:13-18; id at 44:18-46:3; id at 46:19-48:15; id at 48:23-25; id at 49:4-14; id at 50:21-51:4; Bundrant Decl. ¶¶ 2-4, 10, at 1-3). The Plaintiffs summarize that the eight designated class representatives satisfy the requirements for adequate representation. See Motion at 29-30.

         41. The Plaintiffs move to the rule 23(b)(3) requirements. See Motion at 30. The Plaintiffs first address the requirement that common questions of fact or law predominate. See Motion at 3 5. For the NMMWA claims, the Plaintiffs argue that the overtime claim “can be proved entirely by common evidence.” Motion at 30. The Plaintiffs summarize: “This will consist of evidence showing that Defendants were not exempt from the coverage of the NMMWA, that the Plaintiffs and putative class members were employees of Defendants, evidence of Defendants' policies regarding when it paid Flight Nurses, Flight Paramedics and Pilots overtime and when it did not, including the Rule 30(b)(6) deposition testimony of Defendant Tri-State, and evidence that Defendants knew that employees, including Plaintiffs and putative class members, worked more than forty (40) hours per week, indeed authorized such work, but were not paid overtime compensation.” Motion at 30-31. The Plaintiffs indicate that all the issues that they list in their argument on commonality are “susceptible to classwide proof and will predominate the time, energy, and effort of the Court.” Motion at 31. The Plaintiffs repeat that the Court will face dispositive motions on Stamper's individual liability, on the Defendants' liability, on the American Pipe tolling, and on the preemption issues. See Motion at 31. The Plaintiffs argue that the Defendants' boilerplate affirmative defenses do not mean that common issues do not predominate, that several of the defenses can be resolved on a classwide basis, and that some of the defenses do not apply to this case at all. See Motion at 31-32.

         42. The Plaintiffs aver that only issues of the amount of “individual overtime compensation, double damages and interest” are individual, but that the Tenth Circuit has held that “the need to calculate individual damages” does not defeat predominance. Motion at 37 (citing Menocal, 882 F.3d at 922-23). The Plaintiffs note:

In another context this Court concluded that the effect of the holding of Comcast Corp. v. Behrend, 569 U.S. 27 . . . (2013), is threefold: (1) at the class certification stage the Court cannot ignore the issue of how individual damages are to be decided; (2) the method by which individual damages are calculated needs to be common for all class members or, if not, the differences need to be taken into account in the predominance analysis; and (3) even if the methodology is common for the class, it needs to operate in a consistent way for each class member. Anderson [Living Tr. v. WPX Energy Prod., LLC], 306 F.R.D. at 388. Even if this is correct, despite the apparent language to the contrary in Menocal, all of these factors are satisfied here.

Motion at 34. The Plaintiffs explain regarding the Court's first element that “a uniform formula and some basic arithmetic” will yield the unpaid overtime compensation. Motion at 34. The Plaintiffs explain that the “Defendants have recently produced payroll data for the named Plaintiffs in Excel and PDF format that covers most, if not all, of the entire class period and have represented that similar data for putative class members exist.” Motion at 34. According to the Plaintiffs, calculating the unpaid overtime compensation will involve basic calculations. See Motion at 34-35. The Plaintiffs explain that they will “incur the substantial time, effort and expense” of calculating the unpaid overtime compensation, that they will need to provide the Defendants such information in discovery, that calculating the unpaid overtime compensation will be a mechanical process, and that they cannot see how a dispute will arise over the calculations, because the “regular hourly rate and the .5 multiplier are all known and the mechanical overtime formula is only capable of generating a fixed, undisputed number.” Motion at 35.

         43. The Plaintiffs indicate that the same method for calculating the unpaid overtime compensation will apply to all class members: “calculations of hours worked per work week, the hours worked over forty (40) for which overtime was paid or not paid and the amount due for the overtime hours for which premium compensation was not paid.” Motion at 35. The Plaintiffs note in a footnote: “The fact that the calculation for Pilots will have one additional step -- a determination of hours worked for which no compensation was paid -- is immaterial. This step likewise will be automated and does not fundamentally change the methodology.” Motion at 40 n.64.

         44. Third, the Plaintiffs explain that the “damages methodology will be consistent for all class members.” Motion at 40. They elaborate that they will not need to develop different models to calculate each putative class members' damages. See Motion at 40. They repeat that the damages calculations will involve “straightforward arithmetic calculations.” Motion at 36.

         45. The Plaintiffs explain for the unjust enrichment claim: “the elements of an unjust enrichment claim are that (1) one party has knowingly benefitted at the other's expense (2) in a manner that to allow the other to retain the benefit would be unjust.” Motion at 36 (citing Ontiveros Insulation Co. v. Sanchez, 2000-NMCA-051, ¶ 11, 3 P.3d 695, 698-99). The Plaintiffs explain their contention regarding the unjust enrichment claim:

Defendant Tri-State's payment scheme for Pilots, which consisted of paying them a “daily rate”, was, in reality, payment of an hourly wage rate which must have been for a fixed shift, and that because Pilots were scheduled to work twelve (12) hour shifts, the “daily rate” must be read as payment for twelve (12) hours of work even though Pilots occasionally worked additional hours.

Motion at 36. The Plaintiffs summarize that all of the evidence to support their contention can be shown on a classwide basis, that this argument predominates the lawsuit, and that this evidence shows that:

(1) Defendant Tri-State's own policies and procedures set out a standard twelve (12) hour shift for Pilots; (2) testimony from Tri-State officials and Defendant Stamper confirm twelve (12) hours as the basic shift for Pilots; (3) Pilots were sometimes required to work more than twelve (12) hours in a shift without additional compensation; and (4) Defendants knew Pilots were sometimes required to work more than twelve (12) hours in a shift without being paid any additional compensation.

         Motion at 36. The Plaintiffs explain that this evidence will show whether the Defendants knowingly benefitted from the pilots' work without overtime compensation, and that the final question for the unjust enrichment claim -- whether the Defendants benefited unjustly -- is a legal question that the Court will decide as applied to the class. See Motion at 37.

         46. The Plaintiffs explain that the Defendants' pay policies resembled a fluctuating workweek schedule, which the Court of Appeals of New Mexico has “condemned”:

Plaintiffs contend that the terms of the NMMWA do not permit Defendants to utilize a variation on the fluctuating work week method of payment, where employees are paid a “salary” that covers however many hours they work each week, which results in a lower hourly rate (and, thus, lower overtime compensation) the more hours the employees work. Defendants' conception of the “daily rate” paid to Pilots is the same: Pilots are scheduled to work twelve (12) hours and the “daily rate” is for that work, but if Pilots have to work more hours in a shift, the “daily rate” covers that too. Just like the fluctuating work week method of calculating overtime which has been condemned by the New Mexico Court of Appeals, this method would result in a declining hourly rate the more hours the employees work.

Motion at 37.

         47. The Plaintiffs then explain that the methods for calculating the unpaid overtime compensation will not vary across the class. See Motion at 37. The Plaintiffs explained that they will take the number of hours a pilot worked over twelve hours a shift and then multiply that amount by the pilot's hourly rate. See Motion at 37-38. The Plaintiffs contend that the multipliers are fixed and that they can obtain the necessary information from the Defendants' payroll records. See Motion at 38. The Plaintiffs add that they, and not the Court, will do the mathematics. See Motion at 38. The Plaintiffs argue that the calculations here will be even simpler than the arithmetic in Menocal, in which “[t]he Tenth Circuit [commented] that ‘the district court reasonably found that individual damages in this case should be easily calculable using a simple formula based on number of hours worked, type of work performed, and fair market value of such work.'” Motion at 38 (quoting Menocal, 882 F.3d at 927).

         48. The Plaintiffs add that the last issue on the unjust enrichment claim -- punitive damages -- likewise depends on conduct common across the class. See Motion at 38.

         49. The Plaintiffs then turn to the second 23(b)(3) element to argue that a class action here is a superior method to resolve this case. See Motion at 38. According to the Plaintiffs, [t]he Rule directs the Court to consider the following non-exclusive factors:

(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.

Motion at 38 (quoting Fed.R.Civ.P. 23(b)(3)). The Plaintiffs aver that all four factors counsel a class action here. See Motion at 39.

         50. The Plaintiffs contend that the first element is met, because common interests in liability are present, the class members have the ability to opt-out of the monetary relief and pursue claims in a remedial phase, and the individual claims in this case are small. See Motion at 39. The Plaintiffs note that wage-and-hour cases typically have a modest recovery, so class members frequently do not want to pursue separate proceedings. See Motion at 39. Second, the Plaintiffs note that no competing cases are pending. See Motion at 39. Third, the Plaintiffs indicate that this lawsuit involves only New Mexico employees so proceeding in this forum is logical. See Motion at 39. Last, the Plaintiffs explain that the Court has handled larger class actions than this case and that proceeding with a class action in this case is superior to handling smaller cases, because it provides uniformity of decisions and prevents inconsistent determinations. See Motion at 40.

         51. The Plaintiffs aver that, because the proposed classes are small, minimal proof issues will arise and that a class action will be more efficient than individual cases. See Motion at 40. The Plaintiffs also ask that the Court “order that a Notice in the form attached as [Notice of Class Action Lawsuit] be sent to all class members and that Moody & Stanford, P.C., be designated as class counsel, along with any other relief warranted under Rule 23.” Motion at 41.

         2. The Response.

         52. The Defendants respond. See Defendants' Response to Plaintiffs' Motion for Class Certification at 1-49, filed December 6, 2018 (Doc. 223)(“Response”). The Defendants begin by pointing the Court to several elements of this case's procedural history. See Response at 2.

         53. First, the Defendants indicate that, in the Original Complaint, which William D. Payne and Nicole Payne filed in September, 2014, W. Payne and N. Payne did not include an unjust enrichment claim for pilots. See Response at 2. The Defendants explain that W. Payne and N. Payne were not pilots and that W. Payne and N. Payne included an unjust enrichment claim that they based on a theory related to compensation for travel time, and discarded that theory following the New ...


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