Allied Waste v. LH Residential

2025 MT 203

• Court: Montana Supreme Court
• Decided: September 9, 2025
• Docket: DA 23-0721
• Status: Published

Opinion

09/09/2025

DA 23-0721 Case Number: DA 23-0721

IN THE SUPREME COURT OF THE STATE OF MONTANA 2025 MT 203

ALLIED WASTE SERVICES OF NORTH AMERICA, LLC, d/b/a REPUBLIC SERVICES OF MONTANA,

Defendant and Appellant,

v.

LH RESIDENTIAL LLC and OTIS STREET LLC, both d/b/a MONTANA CRESTVIEW,

Plaintiffs and Appellees.

APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 2022-1172 Honorable Jason Marks, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jeffrey M. Roth, William M. Morris, Crowley Fleck PLLP, Missoula, Montana

For Appellee:

Jesse C. Kodadek, Leah Trahan, Parsons Behle & Latimer, Missoula, Montana

Submitted on Briefs: October 23, 2024

Decided: September 9, 2025

Filed:

__________________________________________ Clerk Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Republic Services of Montana (“Republic”) appeals from the Fourth Judicial

District Court, Missoula County’s November 28, 2023 Order Granting Plaintiffs’ Motion

for Class Certification.

¶2 We restate the issues on appeal as follows:

Issue 1: Whether the District Court abused its discretion when it determined that common questions of law and fact predominated over any individual questions.

Issue 2: Whether the District Court erred when it failed to consider the ascertainibility of class members before certifying the classes.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Montana Crestview (“Crestview”) owns and operates several apartment buildings

in Missoula County. Republic is a waste management corporation that, until 2022, was the

sole waste management company authorized by the Public Service Commission to operate

in Missoula County. From 2003 to 2022, Crestview received waste management services

from Republic, which were initially governed by a signed service agreement. When that

agreement expired, services proceeded on an invoice-by-invoice basis. Crestview’s service

agreement stated that Republic would provide some of its properties with containers that

had a volume of three cubic yards (“3 YD containers”), and that Republic would empty

those containers at regular intervals that varied based on the building size. The service

agreement also stated that Republic could charge Crestview overages for any pickup that

exceeded the three-cubic-yard volume.

2 ¶4 As a result of a 2021 Public Service Commission hearing contesting Republic’s

monopoly in Missoula, Crestview learned that several of Republic’s 3 YD containers had

a volume of less than three cubic yards. Republic’s Capital #443 model, which constituted

a little over half of Republic’s 3 YD containers as of 2022, measured roughly 2.52 cubic

yards. Republic rotates containers between customers for maintenance purposes and does

not keep records of which customers had which model of container at which times. While

the parties dispute the details of Republic’s overage policy, it is undisputed that Republic

provided Crestview with Capital #443 containers at various points and charged Crestview

for overages found in those containers.

¶5 On October 19, 2022, Crestview sued Republic for breach of contract and requested

that it be designated a representative of a class including “all Republic customers within

Montana who have paid for ‘three-yard’ dumpster service where Republic has provided

dumpsters that are substantially smaller than three yards.” On January 10, 2023, the

District Court issued a Scheduling Order bifurcating discovery into two phases: one to

address class certification and the other on the merits. The District Court acknowledged

that phase one would include some inquiry into the merits to satisfy the requirements of

M. R. Civ. P. 23(a) and (b) but was intended to “limit detailed discovery into issues such

as the specific identity of every class member and their respective damages.” On March 15,

2023, Crestview filed an amended complaint that included an additional class action claim

for negligent misrepresentation and filed a Motion for Rule 23(b)(3) Class Certification on

3 June 26, 2023. In its motion for class certification, Crestview amended its proposed class

definition and divided them into two different definitions based on its two claims:

• Breach-of-Contract Class: All Republic Services customers in the Missoula County who paid for “three-yard” dumpster service from October 19, 2014 to the date the class is provided notice, or until judgment is entered.

• Negligent Misrepresentation Class: All Republic Services customers in Missoula County who paid for “three-yard” dumpster service and from October 19, 2019 until the date the class is provided notice, or until judgment is entered.

Republic filed a brief in opposition to Crestview’s motion on August 4, 2023.

¶6 On October 16, 2023, Crestview filed a Notice of Proposed Amended Class

Definitions based on information in Republic’s opposition briefing. The notice proposed

the following class definitions:

• Breach-of-Contract Class: All Republic Services customers in Missoula County who paid for “three-yard” dumpster service but were provided one or more dumpsters measuring 2.6 cubic yards or less, at any time from October 19, 2014 until the date the class is provided notice, or until judgment is entered.

• Negligent Misrepresentation Class: All Republic Services customers in Missoula County who paid for “three-yard” dumpster service but were provided one or more dumpsters measuring 2.6 cubic yards or less, at any time from October 19, 2019 until the date the class is provided notice, or until judgment is entered.

¶7 After oral argument the District Court certified the two classes as defined in

Crestview’s October 16, 2023 notice. It determined that Crestview had presented sufficient

evidence to meet the requirements of M. R. Civ. P. 23(a) and (b)(3), including that

questions common to all class members predominate over any individual questions in the

4 case and that class litigation was superior to individual litigation for resolving these

questions.

STANDARD OF REVIEW

¶8 We review a district court order granting class certification for an abuse of

discretion. Kramer v. Fergus Farm Mut. Ins. Co., 2020 MT 258, ¶ 11, 401 Mont. 489, 474

P.3d 310 (citing Knudsen v. Univ. of Mont., 2019 MT 175, ¶ 6, 396 Mont. 443, 445 P.3d

834). When reviewing class certification, we afford the trial court the broadest discretion

because it “‘is in the best position to consider the most fair and efficient procedure for

conducting any given litigation.’” Kramer, ¶ 11 (quoting Sangwin v. State, 2013 MT 373,

¶ 10, 373 Mont. 131, 315 P.3d 279). To the extent that the ruling on a M. R. Civ. P. 23

requirement is supported by a finding of fact, that finding, like any other finding of fact, is

reviewed under the clearly erroneous standard; and to the extent that the ruling involves an

issue of law, review is de novo. Kramer, ¶ 12 (citing Jacobsen v. Allstate Ins. Co., 2013

MT 244, ¶ 25, 371 Mont. 393, 310 P.3d 452). We are reluctant to interfere with

discretionary orders in the early stages of litigation. Diaz v. State, 2013 MT 219, ¶ 20, 371

Mont. 214, 308 P.3d 38.

DISCUSSION

¶9 For certification of a class action, the class must satisfy the four preliminary

requirements set forth in M. R. Civ. P. 23(a)—numerosity, commonality, typicality, and

adequate representation—and satisfy any subsection of M. R. Civ. P.23(b). Kramer, ¶ 14

(citing Knudsen, ¶ 7). The party seeking class certification must prove “‘in fact’” the

5 requirements of Rule 23(a) and “‘satisfy through evidentiary proof’” any individual

provision of Rule 23(b). Kramer, ¶ 15 (quoting Comcast Corp. v. Behrend, 569 U.S. 27,

33, 133 S. Ct. 1426, 1432 (2013)).

¶10 Issue 1: Whether the District Court abused its discretion when it determined that common questions of law and fact predominated over any individual questions.

¶11 Under M. R. Civ. P. 23(b)(3), the court must determine that “questions of law or

fact common to the class members predominate over any questions affecting only

individual members.” As we have explained:

The predominance inquiry focuses on the relationship between the common and individual issues and tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. Rule 23(b)(3)’s predominance and superiority requirements were added to cover cases in which a class action would achieve economies of time, effort, and expense, and promote . . . uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results. Accordingly, a central concern of the Rule 23(b)(3) predominance test is whether adjudication of common issues will help achieve judicial economy.

Kramer, ¶ 18 (quoting Mattson v. Mont. Power Co., 2012 MT 318, ¶ 39, 368 Mont. 1, 291

P.3d 1209).

¶12 Republic argues that the District Court abused its discretion when it determined that

common questions of law and fact predominated over any questions affecting only

individual members of the proposed class. Republic asserts that Crestview cannot prove

that common questions predominate in the determination of Republic’s liability to each

class member because each class member would have to demonstrate an individualized

injury. Crestview responds that the District Court correctly determined that the common

6 questions of “whether Republic breached its contracts or committed tortious acts by

providing undersized dumpsters” predominate over individual issues.

¶13 The dispute between the parties boils down to two disagreements: (1) the nature of

the breach Crestview is alleging and (2) the legal standard for predominance. Crestview

asserts the breach it is concerned with is Republic’s breach of its agreement to provide

containers that hold at least three cubic yards of space. Republic asserts the breach it is

being accused of is erroneously charging customers for overfilling their undersized

containers. Neither party is entirely correct because Crestview alleges both breaches in

paragraphs 64 and 65 of its amended complaint. This is important because, while the

question of whether Republic provided undersized containers predominates in the analysis

of the first alleged breach, it is not as clear whether that question predominates in the

analysis of the second. If, as Republic alleges, it did not charge an overage to every

customer that received an undersized container, then a narrower class might need to be

identified for the claims that rely on the second breach theory.1

¶14 The parties’ disagreement about the proper theory of breach boils down to a

disagreement over what the parties contracted for in the first place. The District Court

found that “Republic does not dispute that every customer had to specify the size of

dumpster service desired as a part of signing up for its services.” But given the shifting

nature of the contractual relationship between Crestview and Republic, as evidenced by the

1 For instance, the proper class might contain “all Republic customers in Missoula County who paid for three-yard dumpster service but were provided one or more dumpsters measuring 2.6 cubic yards or less and were charged overage fees.”

7 different agreements, invoices, and proposed agreements in the record, there are lingering

questions in the case about whether Republic was obligated to provide certain containers

or merely the capacity to haul away certain volumes of garbage. Neither party has asked

the District Court to interpret Republic’s contractual responsibilities at this early stage. As

a result, the proper theory of breach on which to base a class is on a long list of unresolved

questions in this case—a list that includes the nature of Republic’s overage policy, whether

and to what extent overage charges were assessed, and what records Republic kept.

¶15 This lack of clarity highlights the reason why “[w]e are particularly reluctant to

interfere with discretionary orders in the early stages of litigation . . . when the facts are

disputed and discovery incomplete.” Diaz, ¶ 20. Because there are often lingering

questions relevant to class certification “we apply deference to a district court’s preliminary

determinations.” Diaz, ¶ 20. A district court does not abuse its discretion when it makes

the preliminary determination to certify a class based on sparse information, only when it

acts “‘arbitrarily without conscientious judgment or exceed[s] the bounds of reason.’”

Diaz, ¶ 20 (quoting Chipman v. Nw. Healthcare Corp., 2012 MT 242, ¶ 17, 366 Mont. 450,

288 P.3d 193). If the District Court, with the benefit of a more complete record, later

discovers that a more specific class is required for some of Crestview’s claims, M. R.

Civ. P. 23(c)(1)(C) gives it “flexibility to modify its certification order[ ].” Diaz, ¶ 20.

Until then, we will “refrain from micromanaging [the District Court’s] administration of

[this] class action.” Diaz, ¶ 20.

8 ¶16 Republic argues that Crestview also cannot prove predominance because no matter

the theory of breach, each putative class member’s damages will need to be determined

individually to establish liability. Republic relies significantly on two cases in support of

its argument: Sangwin and Lara v. First Nat’l Ins. Co. of Am., 25 F.4th 1134 (9th Cir.

2022). In Sangwin, we held that common questions did not predominate because the

district court would have to determine whether an insurer had breached the terms of its

contract by denying each insured’s claim to determine liability. Sangwin, ¶¶ 36-37. In

Lara, the Ninth Circuit Court of Appeals held that the district court did not abuse its

discretion when it determined that common questions did not predominate because the

district court would have to determine whether each individual insured had been given the

correct value of their vehicle by their insurer. Lara, 25 F.4th at 1137-38.

¶17 Republic’s reliance on Sangwin and Lara are misplaced. Sangwin is distinct from

this case because it concerned individualized breach determinations, not individualized

damages, as Republic acknowledges are at issue here. As for Lara, we have held that

“individualized questions of damages typically do not negate class certification as to

contractual liability.” Kramer, ¶ 20 (citing Knudsen, ¶ 22). This is because answering

common questions of contractual duty and breach as a class “will move the litigation

forward” in a more efficient manner than having to hold a trial on those issues for each

individual class member. Kramer, ¶ 22. This advances the purpose of the predominance

test, which is not designed to determine whether a class action is a perfect fit, but “whether

adjudication of common issues will help achieve judicial economy.” Mattson, ¶ 39.

9 ¶18 The District Court found that there was at least one issue common to all members

of the breach-of-contract class and another common to all members of the

negligent-misrepresentation class. Those questions go to whether Republic breached its

contractual or legal obligations by providing undersized containers to all of the class

members and contain several common factual and legal sub-questions of duty, contract

terms, and oral and written representations. The District Court did not abuse its discretion

when it determined that answering these questions with respect to a class would move the

litigation forward more efficiently than answering them repeatedly in separate trials.

¶19 Issue 2: Whether the District Court erred when it failed to consider the ascertainibility of class members before certifying the classes.

¶20 Republic argues that the District Court erred by failing to consider whether the class

members under its definitions would be ascertainable, citing, again, our decision in

Sangwin. Steve Sangwin sued his medical insurer for wrongfully denying his insurance

claim as experimental. Sangwin, ¶¶ 5-7. The district court granted Sangwin’s motion for

class certification, defining the class as “[a]ll persons who were participants, subscribers

and/or beneficiaries of the State of Montana Employee Health Plan . . . who have had

medical benefits denied . . . based on the contention that the benefits were

experimental . . . unless such medical benefits were ‘for research.’” Sangwin, ¶ 8. We

held that the district court improperly certified the class because common questions did not

predominate when it would have to make an individualized determination about whether

each benefits claim was “for research.” Sangwin, ¶¶ 36-37. Republic argues that this

holding in Sangwin identified an ascertainability requirement in M. R. Civ. P. 23(b)(3) that

10 a “class’s membership be able to be presently and readily ascertainable by reference to

objective criteria.” Republic asserts that such a requirement is essential to “eliminat[ing]

serious administrative burdens that are incongruous with the efficiencies expected in a class

action.”

¶21 Instead of demonstrating that we have already identified a free standing

ascertainability requirement in M. R. Civ. P. 23(b)(3), Sangwin highlights that the rule

already contains other mechanisms to ensure efficiency. Rules 23(a)(2) and (b)(3) require

the plaintiff to prove that all proposed class members are linked by predominating common

facts. Rule 23(b)(3) requires the plaintiff to prove that a class action is superior to “other

available methods for . . . adjudicating the controversy.” Rule 23(d) permits the district

court to “prescribe measures to prevent undue repetition or complication in presenting

evidence or argument,” “impose conditions on the representative parties,” require

amendment of pleadings to “eliminate allegations about representation of absent persons,”

and “deal with similar procedural matters.” M. R. Civ. P. 23(d)(1)(A), (C)-(E).

¶22 District courts have “broad discretion in determining” what to consider when

determining how to apply these efficiency mechanisms. Fink v. Williams, 2012 MT 304,

¶ 18, 367 Mont. 431, 291 P.3d 1140. We have held that such considerations may include

whether class members are ascertainable, see Diaz, ¶ 36, but have never held that such a

consideration is mandatory. The District Court did not err by not considering the

ascertainibility of the class members.

11 CONCLUSION

¶23 The District Court did not abuse its discretion by granting Crestview’s motion for

class certification. The District Court’s November 28, 2023 Order is affirmed.

/S/ JAMES JEREMIAH SHEA

We Concur:

/S/ INGRID GUSTAFSON /S/ LAURIE McKINNON /S/ BETH BAKER /S/ JIM RICE