Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Panwar v. Access Therapies, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

January 22, 2015

RITURAJ SINGH PANWAR and MICHAEL RICHARD BAUTISTA AGUSTIN, Plaintiffs,
v.
ACCESS THERAPIES, INC, RN STAFF INC doing business as REHABILITY CARE, RAMON VILLEGAS, HARVINDER DHANI MANUEL GARCIA, and RAMON VILLEGAS, Defendants. RN STAFF INC, Counter Claimant,
v.
RITURAJ SINGH PANWAR on behalf of himself and all others similarly situated, Counter Defendant

For RITURAJ SINGH PANWAR, MICHAEL RICHARD BAUTISTA AGUSTIN, Plaintiffs: Andrew P. Wirick, HUME SMITH GEDDES GREEN & SIMMONS, Indianapolis, IN; Daniel Aaron Kotchen, PRO HAC VICE, KOTCHEN & LOW LLP, Washington, DC; Michael F. Brown, PRO HAC VICE, DVG LAW PARTNER LLC, Neenah, WI.

For ACCESS THERAPIES, INC, RN STAFF INC, doing business as REHABILITY CARE, RAMON VILLEGAS, HARVINDER DHANI, MANUEL GARCIA, RAMON VILLEGAS, Defendants: G. John Cento, CENTO LAW LLC, Indianapolis, IN.

ENTRY ON MOTION TO CERTIFY CLASS

Hon. Tanya Walton Pratt, United States District Judge.

This matter is before the Court on a Motion to Certify Class filed by Plaintiffs Rituraj Singh Panwar (" Mr. Panwar") and Michael Richard Bautista Agustin (" Mr. Agustin") (collectively, " Plaintiffs") (Filing No. 178). Plaintiffs allege that Access Therapies, Inc., RN Staff Inc. (d/b/a Rehability Care), Ramon Villegas, Harvinder Dhani, and Manuel Garcia (collectively, " Defendants"), forced their continued labor in violation of the Trafficking Victims Protection Act, 18 U.S.C. § 1581, et seq . (" TVPA"), and underpaid them in violation of the Indiana Statutory Wage Law, Ind. Code § 22-2-5-2 (" Indiana Wage Law"). They also assert a claim for breach of contract under Indiana common law. Plaintiffs seek to represent a class of individuals who they claim were also subjected to Defendants' alleged unlawful conduct. For the reasons set forth below, Plaintiffs' Motion to Certify is DENIED.

I. BACKGROUND

The facts of this case are set forth in detail in the Court's prior entry on Defendants' Motion to Dismiss (Filing No. 129), and thus will only be summarized in this Entry. Access Therapies and RN Staff/Rehability Care operate nationwide physical therapist placement services. Defendants recruit and hire immigrants, and sponsor these individuals for H-1B visas[1] and, in some cases, for lawful permanent resident status. Access Therapies and RN Staff share several of the same officers, including Prithvi Dhani, who is President of both Access Therapies and RN Staff, and Manuel Garcia, who is listed as an incorporator of both RN Staff and Vice President of Access Therapies.

Mr. Panwar is a citizen of India and came to the United States on a student visa. He earned a Master's degree in Kinesiology from Southeastern Louisiana University, and a second Master's degree in Hospital Management from the University of New Orleans. Following graduation, Mr. Panwar obtained an H-1B visa by accepting a position with RN Staff as a physical therapist assistant in April 2010. Although Mr. Panwar was originally hired as a physical therapist, because he had not yet passed his licensing examination he could only do work as an assistant.

Mr. Agustin is from the Philippines and earned a Bachelor's degree in Physical Therapy from Far Eastern University in Quezon City, Philippines. He applied for a position with Access Therapies in 2009, and they agreed to hire him and sponsor his H-1B visa. Mr. Agustin was employed as a physical therapist with Access Therapies.

Both Mr. Panwar and Mr. Agustin, as well as the other employees they seek to represent, were required to sign an employment contract, which set forth the employment term and the wage, as well as a promissory note corresponding with the contract's liquidated damages/recovery of expenses provision. All of the contracts provided that if an employee left his employment before the completion of the initial term of employment, the employee was required to pay the amount of the promissory note to cover the employer's expenses and lost revenues. In May 2012 Plaintiffs filed this action alleging that Defendants failed to pay employees their contracted rate of pay, and that if an employee complained about the underpayment or sought to quit, Defendants would threaten the employees with promissory note penalties, visa loss, revocation of lawful permanent resident application sponsorship, and deportation. Plaintiffs also allege that Defendants often failed to assign employees paid positions as promised by the employment agreements, but they were unable to leave their employment because of the threat to their immigration status and the amount they would have to pay under the promissory note for breaching the employment agreement. Simply stated, Plaintiffs allege that Defendants participated in a " forced labor and underpayment scheme" in which Defendants " ensnared hundreds of individuals in an impossible situation...." See (Filing No. 195-3).

II. LEGAL STANDARD

To certify a plaintiff class under Federal Rule of Civil Procedure 23, the plaintiffs must first satisfy all four elements of Rule 23(a) by demonstrating that: (1) the class is too numerous to join all members; (2) there are questions of law or fact common to the class; (3) the claims or defenses of representative parties are typical of those of the class members; and (4) the representative parties will fairly and adequately represent the class. As the Seventh Circuit has noted, the plaintiffs must satisfy the trial court, " after a rigorous analysis, " that the prerequisites of Rule 23(a) have been satisfied. Davis v. Hutchins, 321 F.3d 641, 649 (7th Cir. 2003) (quoting General Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 160-61, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). If these requirements are met, the plaintiffs must also satisfy at least one subsection of Rule 23(b). Rule 23(b)(2) applies if " the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed.R.Civ.P. 23(b)(2). Rule 23(b)(3) applies if the court finds " that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed R. Civ. P. 23(b)(3).

The parties seeking class certification bear the burden of proof in establishing each of the requirements under Rule 23. Susman v. Lincoln Am. Corp., 561 F.2d 86, 90 (7th Cir. 1977). The failure to satisfy any one of these elements precludes certification. Retired Chi. Police Ass'n v. City of Chi., 7 F.3d 584, 596 (7th Cir. 1993). In deciding whether to certify a class, the court is not required to accept the allegations in the complaint as true. The court should make any factual and legal inquiries needed to ensure that the requirements for class certification are satisfied, even if the underlying considerations overlap with the merits of the case. Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir. 2001); In re Bromine Antitrust Litigation, 203 F.R.D. 403, 407 (S.D. Ind. 2001). In evaluating class certification, the court must take into consideration the substantive elements of the plaintiff's cause of action, inquire into the proof necessary for the various elements, and envision the form that trial on the issues would take. Cima v. WellPoint Health Networks, Inc., 250 F.R.D. 374, 377 (S.D. Ill. 2008).

Throughout this analysis, the court bears in mind that a principal purpose of class certification is to save the resources of both the courts and the parties by permitting an issue potentially affecting every class member to be litigated in an economical manner. See Falcon, 457 U.S. at 155. In doing so, Rule 23 gives the district courts " broad discretion to determine whether certification of a class-action lawsuit is appropriate." Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir. 2008) (internal quotation omitted). That ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.