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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. Living in South Bend, I travel to Michigan a lot. Virtually every gas station sells cold beer there. Many sell the hard stuff too. Doesn't seem to be a big deal there.

  2. Mr. Ricker, how foolish of you to think that by complying with the law you would be ok. Don't you know that Indiana is a state that welcomes monopolies, and that Indiana's legislature is the one entity in this state that believes monopolistic practices (such as those engaged in by Indiana Association of Beverage Retailers) make Indiana a "business-friendly" state? How can you not see this????

  3. Actually, and most strikingly, the ruling failed to address the central issue to the whole case: Namely, Black Knight/LPS, who was NEVER a party to the State court litigation, and who is under a 2013 consent judgment in Indiana (where it has stipulated to the forgery of loan documents, the ones specifically at issue in my case)never disclosed itself in State court or remediated the forged loan documents as was REQUIRED of them by the CJ. In essence, what the court is willfully ignoring, is that it is setting a precedent that the supplier of a defective product, one whom is under a consent judgment stipulating to such, and under obligation to remediate said defective product, can: 1.) Ignore the CJ 2.) Allow counsel to commit fraud on the state court 3.) Then try to hide behind Rooker Feldman doctrine as a bar to being held culpable in federal court. The problem here is the court is in direct conflict with its own ruling(s) in Johnson v. Pushpin Holdings & Iqbal- 780 F.3d 728, at 730 “What Johnson adds - what the defendants in this suit have failed to appreciate—is that federal courts retain jurisdiction to award damages for fraud that imposes extrajudicial injury. The Supreme Court drew that very line in Exxon Mobil ... Iqbal alleges that the defendants conducted a racketeering enterprise that predates the state court’s judgments ...but Exxon Mobil shows that the Rooker Feldman doctrine asks what injury the plaintiff asks the federal court to redress, not whether the injury is “intertwined” with something else …Because Iqbal seeks damages for activity that (he alleges) predates the state litigation and caused injury independently of it, the Rooker-Feldman doctrine does not block this suit. It must be reinstated.” So, as I already noted to others, I now have the chance to bring my case to SCOTUS; the ruling by Wood & Posner is flawed on numerous levels,BUT most troubling is the fact that the authors KNOW it's a flawed ruling and choose to ignore the flaws for one simple reason: The courts have decided to agree with former AG Eric Holder that national banks "Are too big to fail" and must win at any cost-even that of due process, case precedent, & the truth....Let's see if SCOTUS wants a bite at the apple.

  4. I am in NJ & just found out that there is a judgment against me in an action by Driver's Solutions LLC in IN. I was never served with any Court pleadings, etc. and the only thing that I can find out is that they were using an old Staten Island NY address for me. I have been in NJ for over 20 years and cannot get any response from Drivers Solutions in IN. They have a different lawyer now. I need to get this vacated or stopped - it is now almost double & at 18%. Any help would be appreciated. Thank you.

  5. I am in NJ & just found out that there is a judgment against me in an action by Driver's Solutions LLC in IN. I was never served with any Court pleadings, etc. and the only thing that I can find out is that they were using an old Staten Island NY address for me. I have been in NJ for over 20 years and cannot get any response from Drivers Solutions in IN. They have a different lawyer now. I need to get this vacated or stopped - it is now almost double & at 18%. Any help would be appreciated. Thank you.

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