#### Digna RUIZ, on behalf of herself and all others similarly situated, Dara SW Ho, Mark A. Turner, Frederick L. Winfield, individually and on behalf of all others similarly situated, Zulma G. Muniz, individually and on behalf of all others similarly situated, James Steffensen, Adoram Shen, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. CITIBANK, N.A., Defendant-Appellee.

Nos. 15-3941-cv, 15-3946-cv

United States Court of Appeals, Second Circuit.

April 14, 2017

FOR APPELLANTS: Murielle Steven Walsh, Pomerantz LLP, New York, NY (Gregory M. Egleston, Gainey McKenna <& Egleston, New York, NY; Timothy J. Mac-Fall, Rigrodsky & Long, P.A., Garden City, NY, on the brief).

FOR APPELLEE: Thomas A. Lin-thorst, Morgan Lewis <& Bockius LLP, Princeton, NJ (Stephanie R. Reiss, Morgan Lewis & Bockius LLP, Pittsburgh, PA; Sam S. Shaulson, Morgan Lewis & Bockius LLP, Princeton, NJ, on the brief).

PRESENT: PETER W. HALL, DEBRA ANN LIVINGSTON, CHRISTOPHER F. DRONEY, Circuit Judges.

SUMMARY ORDER

Plaintiffs-Appellants appeal from a decision of the district court denying class certification as to their state law claims for unpaid overtime.1 We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

I. Standard of Review

“We review a district court’s denial of class certification for abuse of discretion.” *Sergeants Benevolent Ass’n Health & Welfare Fund v. Sanofi-Aventis U.S. LLP,*806 F.3d 71, 86 (2d Cir. 2015). “This standard means that the district court ‘is empowered to make a decision—of its choosing— that falls within a range of permissible decisions,’ and we will only find ‘abuse’ when the district court’s decision ‘rests on an error of law ... or a clearly erroneous factual finding, or ... its decision ... cannot be located within the range of permissible decisions.’” *Myers v. Hertz Corp.,*624 F.3d 537, 547 (2d Cir. 2010) (quoting *40*Zervos v. Verizon N.Y., Inc.,*252 F.3d 163, 169 (2d Cir. 2001)).

II. Class Certification

The district court set forth its reasons for denying class certification in its well-reasoned and comprehensive Opinion and Order dated March 19, 2015. The district court clearly explained at length why the evidence presented by the Plaintiffs failed to demonstrate sufficient uniformity in the Defendant’s exercise of managerial discretion. The district court correctly concluded that this failure was fatal to the Plaintiffs’ ability to carry their burden with respect to commonality under Fed. R. Civ. P. 23(a)(2), and that class certification was therefore not appropriate. The district court also correctly concluded that even if the commonality requirement had been satisfied, the predominance requirement of Fed. R. Civ. P. 23(b)(3) remained unsatisfied on the record before it.

In its Opinion and Order dated August 4, 2015, the district court provided lucid and accurate analysis of the issue now before this Court and carefully explained why the Plaintiffs’ position rests on a misapprehension of the burden that the law imposes on them at the class certification stage. That is, under *Wal-Mart Stores, Inc. v. Dukes,*564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011), the “rigorous analysis” required at the class certification stage “will [frequently] entail some overlap with the merits of the plaintiffs underlying claim.” *Id.*at 351, 131 S.Ct. 2541. The district court also noted this Court’s precedent establishing that the burden borne by a party seeking class certification “is not lessened by overlap between a Rule 23 requirement and a merits issue, even a merits issue that is identical with a Rule 23 requirement.” *In re Initial Pub. Offerings Sec. Litig.,*471 F.3d 24, 41 (2d Cir. 2006).

We agree with the district court’s ruling for substantially the reasons set forth in its well-reasoned decisions. There was no abuse of discretion.

We have considered all of the Appellants’ arguments to the contrary and find them without merit. The decision of the district court is AFFIRMED. The Appellants’ motion for leave to supplement the appendix and the Appellee’s motion to strike portions of the briefs are DENIED as moot.

1

. The district court also decertified the provisionally certified collective action under the Fair Labor Standards Act. The Plaintiffs have not separately challenged the decertification decision on appeal, so we do. not address it.