In the

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 discussing class action litigation and Federal Rule of Civil Procedure 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 local 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, Anderson withdrew the federal claim. But he still sought to pursue Wisconsin state law claims as a class action. The district 

court determined that Anderson’s proposed class would include 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 option 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 overtime 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 action, which in time settled.

Having failed to generate enough support to sustain a collective 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 employees to include in the class. He also requested that the district court include all employees Weinert expected to hire for 

the 2019 season. 

The district court denied class certification, first finding 

that any employees hired in a future period (foremost the 

2019 summer season) could not be included in the class, especially given that Anderson did not seek any injunctive relief. 

Having limited the class size to the 37 employees who 

worked for Weinert between June 14, 2016 and December 31, 

2018, the district court then determined 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 
4 No. 20-1030 

District of Wisconsin”—illustrating that the class lacked the 

geographical spread that other courts have found rendered 

joinder impracticable. 

Finally, the district court rejected Anderson’s contention 

that the small damages awards available under Wisconsin law 

for any successful plaintiff eliminated an individual employee’s incentive to sue Weinert. Prevailing under the Act, 

the court explained, allowed a plaintiff to recover attorneys’ 

fees and costs, thereby offsetting some of the disincentive created by the small damages available. Even more, the district 

court explained that the numerosity requirement focuses on 

whether joinder would be impracticable, not whether each 

potential class member could bring a separate lawsuit. Because joining a relatively small number of local plaintiffs was 

feasible, the court denied class certification.

Anderson now appeals.

II

A 

Class actions claim a long history in English and American 

jurisprudence having developed in the courts of equity as a 

way of allowing multiple individual plaintiffs to pool their 

claims for prosecution. See Christopher v. Brusselback, 302 U.S. 

500, 505 (1938) (describing the equitable roots of representative suits); Supreme Tribe of Ben Hur v. Cauble, 255 U.S. 356, 363 

(1921), overruled on other grounds by Toucey v. New York Life 

Ins. Co., 314 U.S. 118 (1941) (“Class suits have long been recognized in federal jurisprudence.”). In basic definitional 

terms, a class action is “a lawsuit in which the court authorizes a single person or a small group of people to represent 

the interests of a larger group.” Class Action, BLACK’S LAW 
No. 20-1030 5 

DICTIONARY (11th ed. 2019). But class actions remain the “exception to the usual rule that litigation is conducted by and 

on behalf of the individual named parties only.” Wal-Mart 

Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011) (quoting Califano 

v. Yamasaki, 442 U.S. 682, 700–01 (1979)).

Federal Rule of Civil Procedure 23(a) imposes the requirements that all putative classes must meet before a court can 

certify a class. Courts and practitioners alike shorthand these 

basic prerequisites as numerosity, commonality, typicality, 

and adequacy of representation. See FED. R. CIV. P. 23(a); WalMart, 564 U.S. at 349.

The focus here is on numerosity. Anderson must show 

that his proposed “class is so numerous that joinder of all 

members is impracticable.” FED. R. CIV. P. 23(a)(1). While “impracticable” does not mean “impossible,” a class representative must show “that it is extremely difficult or inconvenient 

to join all the members of the class.” 7A C. WRIGHT & A.

MILLER, FEDERAL PRACTICE & PROCEDURE § 1762 (3d ed.). Mere 

allegations that a class action would make litigation easier for 

a plaintiff are not enough to satisfy Rule 23(a)(1). As the party 

seeking class certification, Anderson bears the burden of 

proving by a preponderance of evidence that his proposed 

class is sufficiently numerous. See Chicago Teachers Union, Local No. 1 v. Bd. of Educ. of City of Chicago, 797 F.3d 426, 433 

(7th Cir. 2015). 

Our cases have recognized that “a forty-member class is 

often regarded as sufficient to meet the numerosity requirement.” Orr v. Shicker, 953 F.3d 490, 498 (7th Cir. 2020) (quoting 

Mulvania v. Sheriff of Rock Island County, 850 F.3d 849, 859 

(7th Cir. 2017)). But a class of 40 or more does not guarantee 

numerosity. See Pruitt v. City of Chicago, 472 F.3d 925, 926 
6 No. 20-1030 

(7th Cir. 2006) (recognizing that “[s]ometimes ‘even’ 40 plaintiffs would be unmanageable”). 

The key numerosity inquiry under Rule 23(a)(1) is not the 

number of class members alone but the practicability of joinder. Answering that question requires evaluation of “the nature of the action, the size of the individual claims, and the 

location of the members of the class or the property that is the 

subject matter of the dispute.” WRIGHT & MILLER, supra, at

§ 1762. 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.

B 

The district court applied this exact framework and determined that Anderson failed to show it would be impracticable 

to join approximately 37 class members. In doing so, the court 

considered the proposed class’s geographic dispersion, overall size of the class, small dollar amounts involved with each 

individual claim, and Anderson’s ability to easily contact the

class members. We cannot say the district court abused its discretion in deciding that these factors weighed against certifying the class.

All but two of the class members lived within a 50-mile 

radius of the courthouse in the Eastern District of Wisconsin 

where Anderson filed suit. And Anderson presented no evidence showing that coordinating with the two out-of-state 

class members would present such difficulties that joinder of 

approximately 40 local employees of a small roofing company 

would be impracticable. Nor did the district court err in 
No. 20-1030 7 

acknowledging that statutorily authorized attorneys’ fees 

would lower the barrier to suit caused by the small damage 

awards at stake in the case. 

We also cannot say that the district court’s decision to exclude any seasonal employees Weinert hired in 2019 reflected 

error. To be sure, the district court may have been mistaken 

in labeling these 2019 hires as “future class members” instead 

of “unidentified class members.” Regardless, 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. This shortcoming is especially notable given that the 

district court did not decide the class certification motion until 

August 2019, well into Weinert’s typical hiring season. It is 

true that Anderson showed that Weinert hired between 8 and 

12 seasonal employees each of the previous three years. And 

while the district court reasonably could have inferred from 

this that Weinert would take on a similar number of employees in 2019, it did not abuse its discretion by declining to make 

this inference in the face of Anderson’s sparse evidentiary 

showing. See Orr, 953 F.3d at 498 (affirming district court finding of commonality “[a]lthough others may have seen things 

differently”).

Our reasoning does not require a plaintiff to identify the 

exact number of class members at the certification stage. See 

Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989). But 

in order to have any 2019 hires included in the proposed class 

and related numerosity analysis, it was not unreasonable for 

the district court to conclude that Anderson needed to do 

more than speculate about how many employees Weinert 
8 No. 20-1030 

would (or, in fact, did) hire for the 2019 season. See Szabo v. 

Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir. 2001). 

Anderson claims that any failure of proof should be attributed to Weinert, asserting that the company failed to update its initial discovery disclosures. Anderson did not raise 

this point in the district court, though. Nor does the record 

indicate he sought this information from Weinert or requested 

the district court’s assistance in obtaining any discovery. As 

the party with the burden of proof, Anderson needed to attend diligently in the district court to the demands of Rule 23. 

See Marcial, 880 F.2d at 957 (explaining that a plaintiff “cannot 

rely on conclusory allegations that joinder is impractical or on 

speculation as to the size of the class in order to prove numerosity”) (citing Valentino v. Howlett, 528 F.2d 975, 978 (7th Cir. 

1976)). 

An alternative observation warrants underscoring. Even if 

Anderson’s proposed class encompassed potential or actual 

2019 hires and therefore would have included a few more 

than 40 employees, 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 district court did not abuse its discretion in evaluating the practicability of joinder based on the evidence before it.
No. 20-1030 9 

III

Our holding imposes 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.

With this closing observation, we AFFIRM.