2021 Supreme(US)(ca7) 67
COURT OF APPEALS FOR THE SEVENTH CIRCUIT
Scudder
Richard Anderson – Appellant
Versus
Weinert Enterprises Inc. – Respondent
United States Court of Appeals For the Seventh Circuit ____________________ No. 20-1030 RICHARD J. ANDERSON, Plaintiff-Appellant, v. WEINERT ENTERPRISES, INC., Defendant-Appellee. ____________________
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 1:18-cv-00901 — William C. Griesbach, Judge. ____________________
ARGUED SEPTEMBER 21, 2020 — DECIDED JANUARY 28, 2021 ____________________
Before WOOD, BRENNAN, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. Ample ink has been spilled dis-
cussing class action litigation and Federal Rule of Civil Proce-
dure 23. Rare are the cases analyzing the Rule’s numerosity
requirement. This is one of those cases.
Richard Anderson worked in northeast Wisconsin for a lo-
cal roofing company called Weinert Enterprises. Following a
dispute with the company over how Weinert calculated
2 No. 20-1030 overtime wages, Anderson brought suit in federal court in
Wisconsin. After his collective action under the Fair Labor
Standards Act failed to attract enough employee support, An-
derson withdrew the federal claim. But he still sought to pur-
sue Wisconsin state law claims as a class action. The district
court determined that Anderson’s proposed class would in-
clude no more than 37 members and, after finding that joinder
of those 37 members was not impracticable, denied the class
certification motion for failing to meet Rule 23’s numerosity
requirement. We affirm.
I
Richard Anderson worked as one of Weinert’s handful of
seasonal employees. Although the company maintained a
physical shop, employees worked mostly at job sites in the
Green Bay area. Because employees sometimes lived closer to
a job site than the shop, Weinert offered its employees the op-
tion to drive on their own to the project location or to carpool
from the shop using a company truck. If employees chose the
company carpool, Weinert paid travel time at time-and-a-half
the minimum wage rate. Because Weinert already paid travel
time this way, it did not count travel time hours toward an
employee’s 40-hour work week when calculating other over-
time hours. For example, if an employee accumulated six
hours of travel time and worked 40 hours at the job site, the
employee would not receive any overtime pay for the job site
work. This matters to Anderson because Weinert paid more
than minimum wage for job site work, meaning overtime
wages for job site work would be higher than what employees
received for travel time.
Anderson sued Weinert alleging that this policy violated
the Fair Labor Standards Act and Wisconsin labor laws.
No. 20-1030 3 Anderson initially sought to litigate his federal FLSA claim as
a collective action, see 29 U.S.C. § 216(b). After only three
other employees joined the action (only one of whom did so
timely), Anderson moved for leave to amend his complaint
and convert the collective action into an individual FLSA ac-
tion, which in time settled.
Having failed to generate enough support to sustain a col-
lective action for his FLSA claim, Anderson focused his efforts
on his state-law claims and certifying a class under Federal
Rule of Civil Procedure 23. 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 em-
ployees to include in the class. He also requested that the dis-
trict court include all employees Weinert expected to hire for
the 2019 season.
The dist