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COA upholds denial of motion for class action

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The Indiana Court of Appeals affirmed the denial of a motion for a class-action suit because a claimant seeking redress pursuant the Wage Claims Act has to first submit the claim to the Department of Labor before filing a lawsuit and can't bypass the statute if another member of the putative class has already submitted a claim.

Sherri Lemon was fired from her job at Wishard Health Services. She received her last regular wages on the following payday, but didn't receive her accumulated sick pay and paid time off until two paydays after she was let go. She sought a referral letter from the DOL granting permission to file a suit under the Wage Claims Act; the letter never mentioned widespread wage claim violations at Wishard.

Lemon filed a putative class-action suit in April 2007, claiming Wishard failed to pay her and at least 100 others in a timely fashioned as required by the Wage Claims Statute. The trial court denied her request for class action certification.

In her appeal in Sherri Lemon v. Wishard Health Services, No. 49A02-0804-CV-344, the Court of Appeals examined the Wage Claims Act, Indiana Code Section 22-2-9-2(a) and ruled a claimant under the statute has to first approach the DOL before he or she can file a lawsuit seeking unpaid wages or penalties, wrote Chief Judge John Baker. Lemon complied with the statute; other putative class members have not.

But the act of seeking class certification doesn't enable putative class members to avoid compliance with the statute, he continued. The act contemplates an individualized review of each claim and the DOL may then choose to pursue the claim, or refer it to the Attorney General who may refer it to a private attorney. The statute makes it clear a claim must work its way through these channels before it could be brought into court. The putative class also can't obtain a referral letter after a lawsuit was filed because the act requires a letter be obtained before the lawsuit is filed. In addition, there is a two-year statute of limitations that has passed for many of the putative class members, and despite Lemon's argument, there is no tolling of the statute of limitations, wrote the chief judge.

In a footnote in the opinion, the appellate court granted Wishard's motion to strike Lemon's reply brief. Even though she was not supposed to refer to a futility argument, Lemon's attorney did so and cited an unrelated deposition in support. The Court of Appeals found her attorney's accusation that Wishard was dishonest to "reflect a lack of professionalism."

"Even more indefensible are counsel's decisions to assert an argument not made to the trial court and to rely on information not in the record - in direct violation of our previous order," he wrote. Her attorney had been warned in the past about making incendiary statements. Because remanding for the trial court to calculate appellate attorney fees for Wishard would probably cost Wishard more preparing for the case than they would recoup, the Court of Appeals decided against it, but warned if Lemon's attorney's behavior reoccurred, it would award appellate attorney fees.

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  1. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  2. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  3. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  4. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  5. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

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