Joseph Perez v. Safelite Group Inc

Opinion

FILED UNITED STATES COURT OF APPEALS MAR 07 2014

MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

JOSEPH PEREZ, on behalf of himself and No. 12-55657 others similarly situated, D.C. No. 2:10-CV-08653-RGK- Plaintiff - Appellant, FFM Central District of California, v. Los Angeles

SAFELITE GROUP INC, ORDER AMENDNG Defendant - Appellee. MEMORANDUM DISPOSITION AND DENYING PETITION FOR REHEARING AND REHEARING EN BANC

Before: D.W. NELSON, WARDLAW, and RAWLINSON, Circuit Judges.

The Memorandum Disposition filed January 21, 2014, is amended as

follows:

At page two, the first sentence of the second paragraph is deleted and the following

is inserted in its place:

The district court’s denial of Perez’s extension of time requests as well as its failure to set an initial scheduling conference effectively denied Perez the opportunity to engage in precertification discovery, which constitutes an abuse of discretion.

“First,” the beginning word of the second sentence of the same paragraph is

deleted, and the sentence now begins with: The

At page three, the first word of the first full sentence, “Second,” is deleted and

replaced with:

Further

With these amendments, the members of the panel that decided this case

voted unanimously to deny the petition for rehearing. Judges Wardlaw and

Rawlinson voted to deny the petition for rehearing en banc. Judge Nelson

recommended denial of the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no

judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P.

35.

The petition for rehearing, and the petition for rehearing en banc, are

DENIED.

No further petitions shall be entertained. NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAR 07 2014

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

JOSEPH PEREZ, on behalf of himself and No. 12-55657 others similarly situated, D.C. No. 2:10-CV-08653-RGK- Plaintiff - Appellant, FFM

v. AMENDED MEMORANDUM* SAFELITE GROUP INC,

Defendant - Appellee.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Argued and Submitted December 5, 2013 Pasadena, California

Before: D.W. NELSON, WARDLAW, and RAWLINSON, Circuit Judges.

Joseph Perez appeals from the district court’s denial of his class certification

motion. We have jurisdiction under 28 U.S.C. § 1291, and we vacate the denial of

class certification and remand for further proceedings.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Perez, wishing to engage in discovery prior to class certification, stipulated

with Safelite to extend the class certification deadline. The district court denied the

stipulation without reasoning. Perez then moved to continue the class certification

deadline in order to engage in precertification discovery. The district court denied

the motion without reasoning. Perez then filed a timely motion to certify the class,

and again stated that precertification discovery was appropriate. The district court

denied the class certification motion because there was insufficient evidence to

establish the job duties performed by class members other than Perez. The district

court did not address the need for precertification discovery.

The district court’s denial of Perez’s extension of time requests as well as its

failure to set an initial scheduling conference effectively denied Perez the

opportunity to engage in precertification discovery, which constitutes an abuse of

discretion. The plaintiff in a class action “bears the burden of . . . showing that . . .

discovery is likely to produce substantiation of the class allegations.” Mantolete v.

Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985). Once this showing is made, it is an

abuse of discretion to deny precertification discovery. Id. (citing Doninger v. Pac.

Nw. Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977)). Perez submitted

documentation and testimony concerning his employment with Safelite, and has

met his burden to show that discovery is likely to substantiate the class allegations

2 by showing that Perez’s experiences are common to those of other employees with

the same job title. Further, failing to allow precertification discovery where it is

necessary to determine the existence of a class is an abuse of discretion. Kamm v.

Cal. City Dev. Co., 509 F.2d 205, 210 (9th Cir. 1975). The district court denied

class certification because Perez did not have evidence about other employees with

his job title, which shows that discovery is necessary to determine the existence of

a class in this case. Perez is therefore entitled to precertification discovery on

remand.

Perez’s challenge to Central District of California Local Rule 23-3 is without

merit because the timing of class certification is committed to the discretion of the

district judge and Rule 23-3 allows extension of the 90-day certification deadline

by order of the court. See Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1092-94

(9th Cir. 2011).

VACATED and REMANDED.