Seventh Circuit Endorses 40-Person Rule of Thumb for Rule 23 Numerosity, Holds That 37 Was Too Few

In Anderson v. Weinert Enterprises Inc., No. 20-1030 (7th Cir. Jan. 28, 2021), the panel affirms denial of class certification under Fed. R. Civ. P. 23, where the proposed class fell below the 40-person threshold normally considered the standard for numerosity.

The putative class was a state-law wage-and-hour case against a roofing company in northeast Wisconsin. Putative class representative “Anderson defined the proposed class as consisting of ‘[a]ll hourly employees who worked on the jobsite for the Defendant on or after June 14, 2016.’ At the time he moved for class certification in April 2019, Anderson had identified 37 former or current Weinert employees to include in the class.”

The district court denied class certification, holding that “Anderson had failed to show that joinder of these employees in a single lawsuit (with multiple named plaintiffs) would be impracticable, as required by Rule 23(a). Anderson had not identified any difficulty in locating or contacting potential class members. Going further, the court found that all but two of the potential class members lived ‘within a 50-mile radius in the Eastern District of Wisconsin’—illustrating that the class lacked the geographical spread that other courts have found rendered joinder impracticable.”

The Seventh Circuit affirms. Noting that “[r]are are the cases analyzing the Rule’s numerosity requirement,” the panel says that the plaintiff’s burden on this element is to show “that it is extremely difficult or inconvenient to join all the members of the class” (quoting 7A C. WRIGHT & A. MILLER, FEDERAL PRACTICE & PROCEDURE § 1762 (3d ed.)). “Our cases have recognized that ‘a forty-member class is often regarded as sufficient to meet the numerosity requirement’ …. But a class of 40 or more does not guarantee numerosity.”

Indeed, the panel notes that there is nothing magic about the 40-member figure: the key is practicality of joinder, not numbers per se. “Though Anderson’s putative class of 37 comes close to crossing the benchmark numerosity threshold, a closer look at the circumstances of the likely class members and the nature of the claim at issue under Wisconsin law persuades us that Rule 23(a)(1) is not satisfied.” In particular, nearly all of the putative class members were within close range of the federal district court and there was no evidence that the few outliers couldn’t be coordinated.

It also notes that the district court did not abuse its discretion in excluding a group of 2019 hires from the class that might have raised the group beyond the 40-person threshold. “Anderson, who shoulders the burden of illustrating the propriety of class certification, failed to present the court with any definitive evidence showing that Weinert hired seasonal employees in 2019.” And even if he had, a putative class over 40 is not inevitably endowed with numerosity status. The obligation imposed by Rule 23(a) remains: a plaintiff seeking to certify a class must show that joinder would be impracticable. Anderson failed to make this showing. He never demonstrated that naming as plaintiffs each of the predominantly local, current, and former employees of a northeast Wisconsin roofing company would be impracticable.”

The panel closes by reiterating that are “no immovable benchmarks for meeting Rule 23(a)’s numerosity requirement. Though we have recognized that 40 class members will often be enough to satisfy numerosity, in no way is that number etched in stone. The controlling inquiry remains the practicability of joinder. Some classes may involve such large numbers of potential members that volume alone will make joinder impracticable. In other circumstances, it may be that smaller classes than the one proposed here will face such high barriers to joinder that the impracticability required by Rule 23(a)(1) will exist. The inquiry is fact and circumstance dependent, and future cases will require this careful line drawing.”

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