Risinger v. SOC LLC

• Court: District Court, D. Nevada
• Decided: July 26, 2019
• Docket: 2:12-cv-00063
• Status: Unknown

Opinion

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 KARL E. RISINGER, Case No. 2:12-cv-00063-MMD-PAL 7 Plaintiff, ORDER v. 8 SOC LLC, et al., 9 Defendants. 10 11 I. SUMMARY 12 This is a class action involving a dispute over the terms of employment for armed 13 guards hired to work in Iraq. Before the Court are the following motions: (1) Defendants 14 SOC LLC; SOC-SMG, Inc.; and Day & Zimmermann, Inc.’s (collectively, “Defendants”) 15 motion to decertify class (“Decertification Motion”) (ECF No. 344); (2) Defendants’ second 16 motion for summary judgment (ECF No. 342); and (3) Plaintiff Karl E. Risinger’s 17 emergency motion to strike Defendants’ second motion for summary judgment (ECF No. 18 345). The Court has reviewed the relevant responses (ECF Nos. 353, 356) and replies 19 (ECF Nos. 354, 357) thereto.1 For the following reasons, the Court grants Defendants’ 20 Decertification Motion and denies the remaining motions as moot. 21 II. BACKGROUND 22 The Court certified a class in this case consisting “of armed guards who worked for 23 SOC in Iraq between 2006 and 2012.” (ECF No. 254 at 7 (citing ECF No. 155 at 19, 27).) 24 The Court later clarified that Reclassified Guards—individuals who held job titles other 25 than “Guard” during their employment with Defendants because Defendants changed their 26 /// 27 1The Court need not consider any response or reply to Defendants’ second motion 28 for summary judgment given that it will be denied as moot. (See also ECF No. 346 (staying the deadline for Plaintiff to respond to Defendants’ second motion for summary judgment).) 2 class because they were, in effect, “armed guards who worked for SOC in Iraq between 3 2006 and 2012.” (See ECF No. 281 at 2-4.) Defendants now move to decertify the class 4 because additional discovery purportedly has revealed that questions common to the 5 class members no longer predominate over questions affecting only individual members. 6 (ECF No. 344 at 8; see also Fed. R. Civ. P. 23(b)(3).) 7 III. LEGAL STANDARD 8 “An order that grants or denies class certification may be altered or amended before 9 final judgment.” Fed. R. Civ. P. 23(c)(1)(C). Thus, a “district court may decertify a class at 10 any time,” Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 966 (9th Cir. 2009), and in fact 11 must monitor “class decisions in light of the evidentiary development of the case.” NEI 12 Contracting & Eng’g, Inc. v. Hanson Aggregates, Inc., No. 12-CV-01685-BAS(JLB), 2016 13 WL 2610107, at *5 (S.D. Cal. May 6, 2016), aff’d sub nom. NEI Contracting & Eng’g, Inc. 14 v. Hanson Aggregates Pac. Sw., Inc., 926 F.3d 528 (9th Cir. 2019) (hereinafter “NEI 15 Contracting”) (quoting Richardson v. Byrd, 709 F.2d 1016, 1019 (5th Cir. 1983)). “In 16 evaluating whether to decertify the class, the court applies the same standard used in 17 deciding whether to certify the class initially.” Id. “Thus, a motion to decertify a class is not 18 governed by the standard applied to motions for reconsideration, and does not depend on 19 a showing of new law, new facts, or procedural developments after the original decision.” 20 Id. The plaintiff bears the burden of demonstrating that the requirements of Rule 23 are 21 satisfied, even in the context of a motion for decertification.2 Marlo v. United Parcel Serv., 22 Inc., 639 F.3d 942, 947 (9th Cir. 2011) (quoting United Steel Workers v. ConocoPhillips 23 Co., 593 F.3d 802, 807 (9th Cir. 2010)) (“Thus, as to the class-decertification issue, Marlo, 24 as ‘[t]he party seeking class certification [,] bears the burden of demonstrating that the 25 26 2While some district courts have continued to place the burden on the moving party post-Marlo, placement of the burden is not outcome-determinative in this case. 27 Defendants have carried any burden they have of demonstrating that the requirements of Rule 23 are not satisfied, and Plaintiff has failed to carry any burden he has of 28 demonstrating that they are. Moreover, Plaintiff has not disputed this issue as his opposition does not contain a legal standard section. (See ECF No. 356.) 2 870 F.3d 1170, 1182 (9th Cir. 2017), rev’d and remanded on other grounds, 139 S. Ct. 3 710 (2019) (citing Marlo, 639 F.3d at 947). 4 IV. DISCUSSION 5 Defendants argue that the class should be decertified because individual issues 6 predominate over questions common to the class and because the class is unmanageable 7 given that Plaintiff has failed to offer a classwide method for determining liability or 8 calculating damages. The Court agrees with Defendants and will decertify the class. The 9 Court discusses predominance before turning to the class’s manageability. 10 A. Predominance 11 Any certified class must satisfy the following prerequisites: “(1) the class is so 12 numerous that joinder of all members is impracticable; (2) there are questions of law or 13 fact common to the class; (3) the claims or defenses of the representative parties are 14 typical of the claims or defenses of the class; and (4) the representative parties will fairly 15 and adequately protect the interests of the class.” In re Hyundai & Kia Fuel Econ. Litig., 16 926 F.3d 539, 556 (9th Cir. 2019) (citing Fed. R. Civ. P. 23(a)). In addition, “the class 17 action must fall within one of the three types specified in Rule 23(b).” Id. The Court certified 18 this class under Rule 23(b)(3), which requires that “questions of law or fact common to 19 class members” must “predominate over any questions affecting only individual 20 members,” and the class action must be “superior to other available methods for fairly and 21 efficiently adjudicating the controversy.” Id. (quoting Fed. R. Civ. P. 23(b)(3)). 22 “The predominance inquiry under Rule 23(b)(3) ‘tests whether proposed classes 23 are sufficiently cohesive to warrant adjudication by representation.’” Id. at 557 (quoting 24 Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997)). “It ‘presumes that the 25 existence of common issues of fact or law have been established pursuant to Rule 26 23(a)(2),’ and focuses on whether the ‘common questions present a significant aspect of 27 the case and they can be resolved for all members of the class in a single adjudication’; if 28 so, ‘there is clear justification for handling the dispute on a representative rather than on 2 1998)). 3 “[I]mportant questions apt to drive the resolution of the litigation are given more 4 weight in the predominance analysis [than] individualized questions . . . of considerably 5 less significance.” Id. (quoting Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1132 (9th 6 Cir. 2016)). Thus, an action may be considered proper under Rule 23(b)(3) even if just 7 one common question predominates. Id. (citing Tyson Foods, Inc. v. Bouaphakeo, 136 S. 8 Ct. 1036, 1045 (2016)). Rule 23(b)(3) lists four matters pertinent to a finding of 9 predominance: “(A) the class members’ interests in individually controlling the prosecution 10 or defense of separate actions; (B) the extent and nature of any litigation concerning the 11 controversy already begun by or against class members; (C) the desirability or 12 undesirability of concentrating the litigation of the claims in the particular forum; and (D) 13 the likely difficulties in managing a class action.” 14 When initially certifying the class, the Court identified three common questions 15 driving this litigation: (1) whether SOC promised recruits a 72-hour workweek in order to 16 induce them to accept a job offer; (2) whether SOC knew that guards would in fact be 17 required to consistently work longer hours due to a preventable understaffing practice; and 18 (3)whether class members are entitled to damages for regularly working beyond 72 hours. 19 (ECF No. 155 at 22.) The Court found that Plaintiff adduced common proof of answers to 20 each of these questions. In answer to the first question, Plaintiff relied on call scripts 21 showing that SOC consistently promised recruits a 72-hour workweek. (Id. 22 (“Risinger . . . provided evidence indicating that class members received similar or 23 identical messages” about working “a shift of 6 days per week with 12-hour days.”).) In 24 answer to the second and third questions, Plaintiff relied on Defendants’ uniform practice 25 of understaffing, a practice suggested by “deposition testimony from one of SOC’s Rule 26 30(b)(6) designees acknowledging that SOC suffered a labor shortage and received 27 complaints from guards that they were working 7 days a week.” (Id. at 22-23.) 28 /// 2 questions because “the class members’ contract and quasi-contract claims are based on 3 the same uniform representations and standardized employment agreements.” (Id. at 25.) 4 Defendants argued that individual questions regarding whether each class member relied 5 on the 72-hour-workweek representation would overwhelm the litigation, but the Court 6 reasoned—in light of evidence that the representations were identical or nearly identical— 7 that reliance would be presumed: “[c]ommon sense would suggest that recruits 8 considering whether to work as armed guards in a warzone would find the promise of an 9 occasional day off relevant to their decision to accept employment.” (Id. at 26.) 10 Newly presented evidence shows that—despite the existence of these common 11 questions of law—individual questions about whether and why class members actually 12 worked more than 72 hours now predominate. The newly presented evidence consists of 13 class member testimony showing that (1) some class members never worked more than 14 72 hours; (2) the effect of any uniform understaffing practice varied based on each class 15 members’ assigned location; and (3) the effect of any uniform understaffing practice varied 16 based on class members’ own choices. 17 As a threshold matter, Plaintiff argues that the Court should not consider any of the 18 newly presented evidence because it was obtained in violation of the Court’s discovery 19 orders. (See ECF No. 356 at 14.) Plaintiff bases his argument on the bifurcated discovery 20 schedule in this case. (Id. at 14-15; see also ECF No. 77.) The first phase (“Phase I”) was 21 reserved for “all discovery with the exception of class damages discovery, and punitive 22 damages discovery should the district judge grant a motion to certify a class.” (ECF No. 23 77 at 4.) The second phase (“Phase II”) was reserved for “cleanup damages discovery, if 24 the district judge certifies a Class.” (ECF No. 78 at 14.) Plaintiff essentially contends that 25 Defendants cloaked liability questions as damages questions during Phase II in order to 26 surreptitiously revisit Phase I in contravention of the discovery schedule. (See ECF No. 27 356 at 14-15.) 28 /// 2 the testimony that Defendants rely upon when it was being taken.3 Moreover, despite the 3 bifurcation, damages and liability are intertwined in the context of Plaintiff’s claims. (See 4 ECF No. 155 at 6, 14 (listing damages as an element of Plaintiff’s fraud claim as well as 5 Plaintiff’s breach of contract claim).) As Defendants’ counsel asserted at the hearing, it 6 was impossible for Defendants to avoid learning that some class members had no 7 damages—and therefore no viable fraud or breach of contract claims—when they were 8 conducting damages discovery. Accordingly, the Court will consider the newly presented 9 evidence. 10 The Court finds that the newly presented evidence persuasively demonstrates that 11 individualized issues of liability predominate over the common questions identified at the 12 outset of this litigation. Significantly, the evidence shows that some class members never 13 worked more than 72 hours. The evidence also shows that Plaintiff’s common proof of 14 overwork—Defendants’ practice of understaffing—is fatally flawed: the effects of any 15 uniform understaffing practice varied widely depending on class members’ locations, 16 vehicle conditions, weather conditions, and personal work preferences.4 17 1. Whether Class Members Worked More Than Promised 18 Defendants have produced evidence that some class members never worked more 19 than 72 hours per week. (See ECF No. 344 at 16-17.) For example, class member Lance 20 Muth testified that he always got a day off and never worked more than 12 hours in the 13 21 months he worked for SOC during the class period, including the three months he worked 22 at the same site as Risinger. (ECF No. 344-2 at 3, 6-8.) Defendants also cite to the 23 deposition testimony of two other class members—Bryce Light and Carl Childs—who did 24 not work more than 72 hours per week. (ECF No. 344 at 16; ECF No. 344-3 at 3 (Light 25 26 3Defendants’ counsel argued this point at the hearing, and Plaintiff did not rebut her assertion. This assertion also is borne out by the record. 27 4While Plaintiff’s unrebutted common proof might be sufficient to show 28 commonality, it is insufficient to establish predominance in light of the evidence Defendants now present. 2 deposition testimony of class members who only worked extra hours occasionally—not 3 regularly. (See ECF No. 344 at 16-17.) For example, class member Todd Dupont testified 4 that he worked a seventh day just four times in a year. (ECF No. 344-30 at 8, 12.) 5 Defendants cannot be liable to class members who did not work more than 72 hours per 6 week because they suffered no damages. And it seems that the only way to determine 7 which class members worked more than 72 hours per week is to ask them individually. 8 See infra Section IV(B)(1). 9 Plaintiff argues that the three common questions the Court identified at the outset 10 of the litigation continue to predominate based on the common proof that Plaintiff offers to 11 answer those questions: testimony by Defendants’ 30(b)(6) designees that (1) recruiters 12 would follow an identical script informing potential recruits to expect a six-day/12-hour 13 workweek; (2) contracts given to class members were standardized and contained no 14 mention of any differential between in-country and out-of-country pay or reduced pay for 15 vacations; and (3) Defendant’s offer of employment and employment agreement specified 16 an annual salary of $65,000 and 42 vacation days per year. (ECF No. 356 at 19 (citing 17 ECF No. 121 at 7-9).) Plaintiff also relies on Defendants’ bidding documents showing that 18 they bid the contract in such a way that they could not give days off.5 (Id. at 21 (citing ECF 19 No. 151 at 6-10).) 20 But much of Plaintiff’s common proof is unrelated to what has now become the 21 essential question in this case—whether Defendants are liable to every class member 22 because every class member worked more than 72 hours. Plaintiff’s common evidence of 23 representations that SOC made to recruits does not establish that class members actually 24 worked more than 72 hours. And Plaintiff’s common evidence of a uniform practice of 25 understaffing also does not in itself establish that every class member actually worked 26 /// 27 5Plaintiff refers to the method of bidding Defendants used as “bidding to the man”— 28 “an approach to staffing that eliminate[s] rotational personnel (i.e. people in reserve to relieve the weary and infirm).” (ECF No. 151 at 8.) 2 they did not. In addition, Plaintiff’s evidence does not conclusively show that all sites were 3 understaffed. Class members worked at 22 sites throughout Iraq. (ECF No. 344 at 9 n.1.) 4 Defendants’ 30(b)(6) witnesses only testified as to the existence of an understaffing 5 problem generally, and one of them testified that there was a “staffing issue or a 6 scheduling issue at LBS,” the site where Plaintiff worked and one of the nine sites 7 associated with a multi-base complex called Victory Base Complex (“VBC”). (See ECF 8 No. 119 at 9 (quoting ECF No. 119-2 at 10-11); ECF No. 104-11 at 8, 17-18; ECF No. 344 9 at 9 n.1.) It is not clear from this testimony—particularly in light of the evidence obtained 10 in Phase II that individuals at certain sites never worked more than 72 hours6—that all 11 sites were understaffed and that all class members at those sites actually worked more 12 than 72 hours. 13 Thus, what initially appeared to be a uniform practice of understaffing that uniformly 14 resulted in overwork now seems to be a limited practice that affected only class members 15 at certain sites. The Court finds persuasive Defendants’ cited decision of Autozone, 2016 16 WL 4208200, in which the court decertified a class under similar circumstances. There, 17 the court initially certified a class of hourly paid employees of California Autozone stores 18 asserting that Autozone’s rest break policies violated California law. Id. at *1. The court 19 found that common questions predominated over individual questions because the claims 20 were based entirely on the legality of Autozone’s uniform written rest break policy. Id. at 21 *2. But discovery revealed that the policy was not in place throughout the entire class 22 period and that there were no audit records or any other time records of when class 23 members took rest breaks. Id. at *9. Discovery also revealed that some employees were 24 allowed to take rest breaks in compliance with California law. Id. at *11. The court 25 decertified the class based on these evidentiary changes, reasoning that “[b]ecause there 26 27 6(See, e.g., ECF No. 344-28 at 4 (class member Joshua Axmaker’s testimony that he never observed anyone at Taji [one of the SOC sites] work more than 12 hours in a 28 day); ECF No. 344-4 at 13 (class member Nathan Seegmiller’s testimony that guards at Adder [another of the SOC sites] worked six days a week and 12 hours a day).) 2 of denying rest breaks during that time, Plaintiffs have failed to demonstrate that ‘questions 3 of law or fact common to class members predominate over any questions affecting only 4 individual members.’” Id. at *13 (quoting Fed. R. Civ. P. 23(b)(3)). 5 This case presents similar circumstances. Just as class member testimony in 6 Autozone contradicted the existence of a consistent break policy or practice, the class 7 member testimony here contradicts the existence of a uniform understaffing practice 8 uniformly resulting in overwork. Some class members worked more than 72 hours per 9 week; some did not. In the absence of common proof, individual inquiries are necessary 10 to determine whether class members actually worked more than 72 hours so as to give 11 rise to liability. Common questions do not predominate over individual inquiries of more 12 than 1,000 class members to determine liability. 13 2. Whether Effect of Uniform Practice Varied 14 Defendants also have adduced evidence that the effect of any understaffing 15 practice varied based on the location where a class member was staffed as well as the 16 class member’s individual decisions about whether and why to work more than 72 hours 17 per week. 18 Regarding location, class member testimony demonstrates that individuals at some 19 sites never worked more than 72 hours per week while some individuals at other sites— 20 the VBC sites, and especially LBS—consistently worked more than 72 hours per week. 21 (See ECF No. 344 at 17-18.) For instance, one class member testified that his shifts were 22 “always 12 hours” and that he “[a]lways had [his] day off” at Perfume Palace. (ECF No. 23 344-9 at 23.) Another testified that he “worked six days a week, ten hours a day,” and 24 “[a]lways” had Sundays off at Camp Slayer. (ECF No. 344-13 at 3.) Still another worked 25 “12-hour shifts” at Camp Victory, where it was “pretty rare” to miss a day off. (ECF No. 26 344-33 at 3-4.) It is apparent from the record that LBS was uniquely demanding—so much 27 so that guards working at LBS received an additional $500 for each full month at the site. 28 (ECF No. 344 at 11.) Nevertheless, even at LBS, some class members did not work more 2 shift or 6 days in a week at LBS. (ECF No. 344-2 at 3, 6.) 3 Those class members who worked more than 72 hours per week did not 4 necessarily do so based on a uniform policy of understaffing. For instance, class member 5 Robert Flores testified that his “responsibilities increased” during one period because “a 6 sandstorm came in, and [command personnel] were stuck [in Kuwait] for two or three 7 weeks.”7 (ECF No. 344-22 at 6.) Class members Christopher Cooper and Calvin Rouse 8 recalled shifts at LBS going longer because of “weather conditions” (ECF No. 344-13 at 9 13) and “[v]ehicle problems,” since “if [LBS] had any kind of rain . . . you got stuck in the 10 mud” (ECF No. 344-9 at 12). In addition, some guards remained at LBS or asked to work 11 at LBS in order to obtain the $500 monthly bonus that was only paid to guards at that site. 12 (ECF No. 344 at-16 at 4; ECF No. 344-5 at 5; ECF No. 344-14 at 4.) 13 This case thus resembles Marlo, 639 F.3d 942. There, the district court initially 14 certified a class of full-time UPS supervisors who alleged they did not receive overtime 15 pay because they were misclassified as employees who were exempt from overtime pay. 16 Id. at 944. In certifying the class, the district court relied on the plaintiff’s common proof— 17 a uniform overtime exemption policy. Id. at 945. The district court granted summary 18 judgment in favor of UPS, the plaintiff appealed, and the Ninth Circuit reversed and 19 remanded. Id. On remand, the district court decertified the class because the plaintiff had 20 not adduced common evidence that each of the 1,200 full-time supervisors actually was 21 misclassified as exempt. Id. The court found that the “existence of a uniform policy 22 classifying [full-time supervisors] as exempt is insufficient absent evidence of 23 misclassification.” Id. The court also found that the plaintiff had “relied heavily on a survey 24 that was neither reliable nor representative of the class.” Id. 25 On yet another appeal the Ninth Circuit found that the district court did not abuse 26 its discretion in decertifying the class. Id. at 946. The court rejected the plaintiff-appellee’s 27 28 7Though the record does not expressly indicate that Flores worked more than 72 hours per week during this time, it is a fair inference to draw. 2 policy may have accurately classified some employees and misclassified others.” Id. at 3 948. The court then rejected the plaintiff-appellee’s argument that UPS’s policies and 4 procedures established sufficient evidence of predominance because those policies and 5 procedures—requiring full-time supervisors to follow certain procedures or perform certain 6 tasks—did not establish whether they were actually “primarily engaged” in exempt 7 activities during the course of the workweek. Id. The court also found the plaintiff- 8 appellee’s remaining evidence of predominance—an annual employee survey conducted 9 by UPS and a telephone survey—unpersuasive because neither was methodologically 10 reliable. Id. at 948-49. The former was not limited to full-time supervisors, and the latter 11 did not survey a representative sample. Id. at 949. 12 In the same way that UPS’s policies and procedures did not necessarily show 13 whether all full-time supervisors were actually engaged in activity that would qualify them 14 as exempt in Marlo, Defendants’ alleged uniform practice of understaffing does not 15 necessarily show that guards actually worked more than 72 hours per week. Some guards 16 may have worked more than 72 hours per week; some might not have. And that is exactly 17 what the newly presented evidence shows. Plaintiff has offered no way to weed out class 18 members who did not work more than 72 hours per week. And just as in Marlo, Plaintiff’s 19 additional evidence of damages (from which the Court might theoretically infer classwide 20 injury) consists of a survey whose results cannot reliably be extrapolated to the whole 21 class. (See ECF No. 281 at 12.) 22 This case also resembles Wright v. Renzenberger, Inc., 656 F. App’x 835 (9th Cir. 23 2016). There, the district court declined to certify a class of employees who drove railroad 24 crews between and within railroad yards. Id. at 837. The members of the proposed class 25 alleged that their employer’s rest break policies violated California law. Id. The district 26 court denied class certification for lack of commonality, reasoning that the plaintiffs did not 27 present a common injury or resolution when the employer’s policies plainly complied with 28 California law. Id. The Ninth Circuit found that the district court abused its discretion on 2 was a common question, whatever its merits.” Id. Nevertheless, the Ninth Circuit affirmed 3 the denial because common questions did not predominate. Id. at 838. The employer’s 4 policies provided for one paid 10-minute rest break for every four hours worked but 5 counted waiting time and time in between yard moves as rest breaks. Id. at 837. The 6 employees argued that these policies did not provide the statutorily required rest breaks 7 because the employer did not guarantee any minimum amount of waiting time or time in 8 between yard moves and made no effort to know in advance whether or when those 9 waiting times would actually occur or how long they would last. Id. at 837. But the 10 employees conceded that the amount of waiting time and time in between yard moves 11 varied each day depending on numerous factors, such as the number of drivers, the 12 number of trains, how far a driver has to travel, the number of vans available, whether 13 there was a train derailment, and traffic. Id. at 838. Considering this variability, the Ninth 14 Circuit found that the employer’s policies did “not uniformly deprive employees of rest 15 breaks; the effect of the policies depends instead on their interaction with these variables, 16 which differ for each class member.” Id. “Because these individualized determinations 17 predominate over the common questions,” the Ninth Circuit affirmed the district court. Id. 18 Just as the uniform rest break policies in Wright did not necessarily deprive drivers 19 of rest breaks, any uniform understaffing practice here did not necessarily require guards 20 to work more than 72 hours as further discovery has revealed. Rather, guards worked 21 overtime for various reasons—e.g., weather, interest in extra pay—that “differ[ed] for each 22 class member.” Id. Those guards who worked more than 72 hours based on their interest 23 in extra pay are particularly problematic for class litigation—their consent to work more 24 than 72 hours precludes Defendants’ liability to them. Plaintiff has offered no means for 25 weeding out these class members, leaving only the possibility of individualized inquiries. 26 Thus, individual questions predominate over common questions. 27 /// 28 /// 2 “In addition to predominance, Rule 23(b)(3) requires a court to find that ‘a class 3 action is superior to other available methods for fairly and efficiently adjudicating the 4 controversy.’” Autozone, 2016 WL 4208200, at *13 (quoting Fed. R. Civ. P. 23(b)(3)). 5 “Pertinent to that determination are ‘the likely difficulties in managing a class action.’” Id. 6 (quoting Fed. R. Civ. P. 23(b)(3)(D)). 7 Defendants argue that Plaintiff cannot meet the manageability requirement of Rule 8 23(b)(3)(D) because Plaintiff has offered no classwide method for calculating damages. 9 (See ECF No. 344 at 21-23.) Plaintiff argues that questions of individualized damages 10 cannot be used to overcome class certification. (ECF No. 356 at 24-27.) The Court agrees 11 with Defendants that the case has become unmanageable. 12 1. Liability 13 Plaintiff has offered no way to determine liability on a classwide basis. Plaintiff relies 14 on Defendants’ alleged uniform practice of understaffing, but as explained supra, any such 15 practice did not have uniform results. Some class members worked more than 72 hours; 16 some did not. Plaintiff has failed to offer any methodology for determining which is which. 17 Plaintiff suggests that the Court could make individualized determinations in the damages 18 phase (see ECF No. 356 at 27), but Plaintiff presupposes liability as to each class member. 19 That is not a foregone conclusion in light of Defendants’ evidence that some class 20 members never worked more than 72 hours per week. Thus, mini-trials of over 1,000 class 21 members would be necessary—and unmanageable. “[S]omehow Plaintiff must 22 demonstrate that [Defendants are] liable as to each class member,” and Plaintiff has 23 identified no way of doing so. See Autozone, 2016 WL 4208200, at *15. Thus, the Court 24 faces a “nightmare” scenario of Plaintiff “call[ing] each class member into court to testify.” 25 Id. at 19. This class is not manageable. 26 2. Damages 27 Plaintiff also has not offered any methodology for calculating damages on a 28 classwide basis. Damages must be “capable of measurement on a classwide basis.” Doyle 2 Behrend, 133 S. Ct. 1426, 1433 (2013)). And while Plaintiff correctly points out that “the 3 need for individualized findings as to the amount of damages does not defeat class 4 certification,” id. (quoting Vaquero v. Ashley Furniture Indus., Inc., 824 F.3d 1150, 1155 5 (9th Cir. 2016)), it is not the individualized amount of damages that is problematic here— 6 the question is whether some class members are owed any damages at all. Moreover, the 7 Ninth Circuit has recognized that cases where a common methodology exists for 8 calculating damages are different from cases where it does not. See id. 9 Here, Plaintiff has offered no methodology for calculating damages on a classwide 10 basis. It is clear from the record that Plaintiff intended to offer the results of a census 11 survey, but that did not pan out. (See ECF No. 281 at 12.) Plaintiff received 159 responses 12 from a class of over 1,000 guards. (Id.) The Court already has determined that the results 13 of that survey cannot reliably be extrapolated to the entire class. (Id.) Since that time, 14 Plaintiff has failed to offer any alternative methodology for calculating damages. Plaintiff 15 has not identified, for example, a “computerized payroll and time-keeping database [that] 16 would enable the court to accurately calculate damages . . . for each claim.” Leyva v. 17 Medline Indus. Inc., 716 F.3d 510, 514 (9th Cir. 2013). Instead, Plaintiff suggests that a 18 special master conduct over 1,000 individualized inquiries. This proposal further compels 19 a finding of lack of manageability. 20 Accordingly, the Court finds that common questions do not predominate in this 21 action and that the class would be unmanageable even if they did. The Court will grant 22 Defendants’ motion for decertification. 23 V. CONCLUSION 24 The Court notes that the parties made several arguments and cited to several cases 25 not discussed above. The Court has reviewed these arguments and cases and determines 26 that they do not warrant discussion as they do not affect the outcome of the motions before 27 the Court. 28 /// 1 It is therefore ordered that Defendants’ motion to decertify class (ECF No. 344) is 2 || granted. 3 It is further ordered that the following motions are denied as moot: Defendants’ 4 || second motion for summary judgment (ECF No. 342) and Plaintiff's emergency motion to 5 || strike Defendants’ second motion for summary judgment (ECF No. 345). 6 The parties are instructed to file a joint status report within 7 days to advise the 7 || Court whether this case should be referred to the magistrate judge for settlement before 8 || the Court sets the deadline for filing the proposed joint pretrial order. 9 DATED THIS 26" day of July 2019. 10 J a" MIRANDA M. DU 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15