2 DISTRICT OF NEVADA
3 * * *
4 KARL E. RISINGER, Case No. 2:12-cv-00063-MMD-PAL
5 Plaintiff, ORDER v. 6 SOC LLC, et al., 7 Defendants. 8
9 I. SUMMARY 10 This is a former class action involving a dispute over the terms of employment for 11 armed guards hired to work in Iraq. Before the Court is Plaintiff Karl E. Risinger’s motion 12 for reconsideration (“Motion”) (ECF No. 370) of the Court’s order decertifying the class 13 (ECF No. 362), as well as Plaintiff’s motion to seal exhibits attached to the Motion (ECF 14 No. 371). The Court finds it unnecessary to consider additional briefing related to the 15 Motion. For the following reasons, the Court denies Plaintiff’s Motion. The Court agrees 16 with Plaintiff that compelling reasons exist to seal the exhibits designated as confidential 17 under the Protective Order and will grant the motion to seal. 18 II. BACKGROUND 19 The Court certified a class in this case consisting “of armed guards who worked for 20 SOC in Iraq between 2006 and 2012.” (ECF No. 254 at 7 (citing ECF No. 155 at 19, 27).) 21 The Court later clarified that certain guards known as Reclassified Guards were members 22 of the class. (See ECF No. 281 at 2-4.) The Court then decertified the class after 23 Defendants introduced evidence showing that some class members had no damages, and 24 Plaintiff failed to offer any feasible method for identifying and removing those individuals 25 from the class. (See generally ECF No. 362.) The Court’s decision was predicated on the 26 legal conclusion that damages and liability are intertwined in the context of Plaintiff’s 27 claims. (Id. at 6; see also ECF No. 155 at 6, 14 (listing damages as an element of Plaintiff’s 28 fraud claim as well as Plaintiff’s breach of contract claim).) Given that legal context, the 2 questions and that the class was unmanageable besides. (See generally ECF No. 362.) 3 III. LEGAL STANDARD 4 A motion to reconsider must set forth “some valid reason why the court should 5 reconsider its prior decision” and set “forth facts or law of a strongly convincing nature to 6 persuade the court to reverse its prior decision.” Frasure v. United States, 256 F. Supp. 7 2d 1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this Court “(1) is presented 8 with newly discovered evidence, (2) committed clear error or the initial decision was 9 manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 10 1J v. AC&S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). “A motion for reconsideration is not 11 an avenue to re-litigate the same issues and arguments upon which the court already has 12 ruled.” Brown v. Kinross Gold, U.S.A., 378 F. Supp. 2d 1280, 1288 (D. Nev. 2005). 13 IV. DISCUSSION 14 The Court addresses Plaintiff’s arguments related to predominance before 15 addressing Plaintiff’s arguments related to manageability and the creation of subclasses. 16 A. Predominance 17 The Court found that individualized questions regarding liability predominated over 18 common questions based on Defendants’ undisputed evidence that some class members 19 never worked more than the 6-day/12-hour work schedule in conjunction with Plaintiff’s 20 failure to offer a feasible way to isolate and extract those individuals from the class. (See 21 ECF No. 362 at 7.) 22 Plaintiff first argues that the Court committed clear error by weighing the evidence. 23 (ECF No. 370 at 12.) According to Plaintiff, the Court weighed the testimony of class 24 members who did not work more than the 6-day/12-hour work schedule against the 25 testimony of Defendants’ 30(b)(6) designees and the declarations of 24 class members 26 who did work more than the 6-day/12-hour work schedule. (See id. at 12-13.) 27 It was not necessary for the Court to weigh any evidence to conclude that individual 28 questions of liability predominate over common questions in this case. It is undisputed that 2 others did so for a variety of reasons, including personal choice. (See ECF No. 362 at 6- 3 12.) Plaintiff’s purportedly common proof that class members worked more than the 6- 4 day/12-hour work schedule (a uniform policy of understaffing) turned out not to be common 5 at all. Defendants introduced evidence that class members at many sites never worked 6 more than the 6-day/12-hour work schedule. (See id. at 6-8.) Plaintiff did not dispute the 7 evidence, nor did Plaintiff’s purported common proof rebut it. It was not necessary for the 8 Court to evaluate credibility or consider the weight of competing evidence. Rather, it was 9 clear and undisputed that some class members never worked more than the 6-day/12- 10 hour work schedule. And Plaintiff failed to offer a feasible method for weeding those 11 individuals out of the class. Plaintiff suggested that the Court hire a special master to 12 conduct more than 1,000 individualized inquiries. The Court found that those 13 individualized inquiries would predominate over any common questions. (ECF No. 362 at 14 9.) 15 Plaintiff next argues that the Court clearly erred by extrapolating to the entire class 16 the testimony of four class members who did not work more than the 6-day/12-hour work 17 schedule. (ECF No. 370 at 13-14.) The Court did not extrapolate their testimony to the 18 entire class. Rather, the presence of some members in the class to whom Defendants 19 have no liability—in conjunction with Plaintiff’s failure to offer a way to identify them— 20 demonstrates that individualized questions about liability predominate over common 21 questions. Moreover, Plaintiff ignores the undisputed (and sweeping) testimony of certain 22 class members that guards at entire sites never worked more than the 6-day/12-hour work 23 schedule. (See ECF No. 362 at 8 n.6 (citing testimony that guards at Taji and Adder did 24 not work more than the 6-day/12-hour work schedule).) The undisputed evidence showed 25 that far more class members than the four Plaintiff identifies did not work more than the 6- 26 day/12-hour schedule. No statistical extrapolation was necessary to see that. 27 Plaintiff further argues that the Court clearly erred in finding that the need for 28 individualized damages calculations destroyed predominance. (ECF No. 370 at 16.) But 2 questions about liability (not the amount of damages) predominated over common 3 questions because some class members had no damages (an element of their breach of 4 contract claims), and Plaintiff failed to offer a feasible way to identify those class members. 5 The cases Plaintiff relies on only show that individualized determinations about the 6 amount—not the existence—of damages are capable of class wide resolution. See 7 Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1167 (9th Cir. 2014); In re Deepwater Horizon, 8 739 F.3d 790, 815 (5th Cir. 2014) (“‘[e]ven wide disparity among class members as to the 9 amount of damages’ does not preclude class certification”) (alteration in original) 10 (emphasis added) (quoting Bell Atlantic Corp. v. AT&T Corp., 339 F.3d 294, 306 (5th Cir. 11 2003)). 12 B. Manageability 13 The Court found that the class was unmanageable because Plaintiff failed to offer 14 any feasible way to determine liability or damages on a class-wide basis. (ECF No. 362 at 15 13-14.) 16 Plaintiff argues that the Court clearly erred in finding that Plaintiff failed to offer a 17 way to determine liability on a class wide basis. (ECF No.
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2 DISTRICT OF NEVADA
3 * * *
4 KARL E. RISINGER, Case No. 2:12-cv-00063-MMD-PAL
5 Plaintiff, ORDER v. 6 SOC LLC, et al., 7 Defendants. 8
9 I. SUMMARY 10 This is a former class action involving a dispute over the terms of employment for 11 armed guards hired to work in Iraq. Before the Court is Plaintiff Karl E. Risinger’s motion 12 for reconsideration (“Motion”) (ECF No. 370) of the Court’s order decertifying the class 13 (ECF No. 362), as well as Plaintiff’s motion to seal exhibits attached to the Motion (ECF 14 No. 371). The Court finds it unnecessary to consider additional briefing related to the 15 Motion. For the following reasons, the Court denies Plaintiff’s Motion. The Court agrees 16 with Plaintiff that compelling reasons exist to seal the exhibits designated as confidential 17 under the Protective Order and will grant the motion to seal. 18 II. BACKGROUND 19 The Court certified a class in this case consisting “of armed guards who worked for 20 SOC in Iraq between 2006 and 2012.” (ECF No. 254 at 7 (citing ECF No. 155 at 19, 27).) 21 The Court later clarified that certain guards known as Reclassified Guards were members 22 of the class. (See ECF No. 281 at 2-4.) The Court then decertified the class after 23 Defendants introduced evidence showing that some class members had no damages, and 24 Plaintiff failed to offer any feasible method for identifying and removing those individuals 25 from the class. (See generally ECF No. 362.) The Court’s decision was predicated on the 26 legal conclusion that damages and liability are intertwined in the context of Plaintiff’s 27 claims. (Id. at 6; see also ECF No. 155 at 6, 14 (listing damages as an element of Plaintiff’s 28 fraud claim as well as Plaintiff’s breach of contract claim).) Given that legal context, the 2 questions and that the class was unmanageable besides. (See generally ECF No. 362.) 3 III. LEGAL STANDARD 4 A motion to reconsider must set forth “some valid reason why the court should 5 reconsider its prior decision” and set “forth facts or law of a strongly convincing nature to 6 persuade the court to reverse its prior decision.” Frasure v. United States, 256 F. Supp. 7 2d 1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this Court “(1) is presented 8 with newly discovered evidence, (2) committed clear error or the initial decision was 9 manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 10 1J v. AC&S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). “A motion for reconsideration is not 11 an avenue to re-litigate the same issues and arguments upon which the court already has 12 ruled.” Brown v. Kinross Gold, U.S.A., 378 F. Supp. 2d 1280, 1288 (D. Nev. 2005). 13 IV. DISCUSSION 14 The Court addresses Plaintiff’s arguments related to predominance before 15 addressing Plaintiff’s arguments related to manageability and the creation of subclasses. 16 A. Predominance 17 The Court found that individualized questions regarding liability predominated over 18 common questions based on Defendants’ undisputed evidence that some class members 19 never worked more than the 6-day/12-hour work schedule in conjunction with Plaintiff’s 20 failure to offer a feasible way to isolate and extract those individuals from the class. (See 21 ECF No. 362 at 7.) 22 Plaintiff first argues that the Court committed clear error by weighing the evidence. 23 (ECF No. 370 at 12.) According to Plaintiff, the Court weighed the testimony of class 24 members who did not work more than the 6-day/12-hour work schedule against the 25 testimony of Defendants’ 30(b)(6) designees and the declarations of 24 class members 26 who did work more than the 6-day/12-hour work schedule. (See id. at 12-13.) 27 It was not necessary for the Court to weigh any evidence to conclude that individual 28 questions of liability predominate over common questions in this case. It is undisputed that 2 others did so for a variety of reasons, including personal choice. (See ECF No. 362 at 6- 3 12.) Plaintiff’s purportedly common proof that class members worked more than the 6- 4 day/12-hour work schedule (a uniform policy of understaffing) turned out not to be common 5 at all. Defendants introduced evidence that class members at many sites never worked 6 more than the 6-day/12-hour work schedule. (See id. at 6-8.) Plaintiff did not dispute the 7 evidence, nor did Plaintiff’s purported common proof rebut it. It was not necessary for the 8 Court to evaluate credibility or consider the weight of competing evidence. Rather, it was 9 clear and undisputed that some class members never worked more than the 6-day/12- 10 hour work schedule. And Plaintiff failed to offer a feasible method for weeding those 11 individuals out of the class. Plaintiff suggested that the Court hire a special master to 12 conduct more than 1,000 individualized inquiries. The Court found that those 13 individualized inquiries would predominate over any common questions. (ECF No. 362 at 14 9.) 15 Plaintiff next argues that the Court clearly erred by extrapolating to the entire class 16 the testimony of four class members who did not work more than the 6-day/12-hour work 17 schedule. (ECF No. 370 at 13-14.) The Court did not extrapolate their testimony to the 18 entire class. Rather, the presence of some members in the class to whom Defendants 19 have no liability—in conjunction with Plaintiff’s failure to offer a way to identify them— 20 demonstrates that individualized questions about liability predominate over common 21 questions. Moreover, Plaintiff ignores the undisputed (and sweeping) testimony of certain 22 class members that guards at entire sites never worked more than the 6-day/12-hour work 23 schedule. (See ECF No. 362 at 8 n.6 (citing testimony that guards at Taji and Adder did 24 not work more than the 6-day/12-hour work schedule).) The undisputed evidence showed 25 that far more class members than the four Plaintiff identifies did not work more than the 6- 26 day/12-hour schedule. No statistical extrapolation was necessary to see that. 27 Plaintiff further argues that the Court clearly erred in finding that the need for 28 individualized damages calculations destroyed predominance. (ECF No. 370 at 16.) But 2 questions about liability (not the amount of damages) predominated over common 3 questions because some class members had no damages (an element of their breach of 4 contract claims), and Plaintiff failed to offer a feasible way to identify those class members. 5 The cases Plaintiff relies on only show that individualized determinations about the 6 amount—not the existence—of damages are capable of class wide resolution. See 7 Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1167 (9th Cir. 2014); In re Deepwater Horizon, 8 739 F.3d 790, 815 (5th Cir. 2014) (“‘[e]ven wide disparity among class members as to the 9 amount of damages’ does not preclude class certification”) (alteration in original) 10 (emphasis added) (quoting Bell Atlantic Corp. v. AT&T Corp., 339 F.3d 294, 306 (5th Cir. 11 2003)). 12 B. Manageability 13 The Court found that the class was unmanageable because Plaintiff failed to offer 14 any feasible way to determine liability or damages on a class-wide basis. (ECF No. 362 at 15 13-14.) 16 Plaintiff argues that the Court clearly erred in finding that Plaintiff failed to offer a 17 way to determine liability on a class wide basis. (ECF No. 370 at 17-18.) Plaintiff relies on 18 the following purported common proof: representative testimony from class members, 19 bidding documents showing that Defendants bid to the man (resulting in insufficient 20 rotational staff), uniform call scripts, standardized contracts, and destruction of records 21 showing the daily manning reports (which allegedly would establish who did and did not 22 work on a particular day). (Id. at 18.) Plaintiff also notes that “even a well-defined class 23 may inevitably contain some individuals who have suffered no harm as a result of a 24 defendant’s unlawful conduct.” (Id. (quoting Torres v. Mercer Canyons Inc., 835 F.3d 1125, 25 1136 (9th Cir. 2016)).) 26 While the presence of some unharmed individuals in the class does not preclude 27 certification, it is Plaintiff’s failure to offer a feasible way to identify these individuals that 28 makes the class unmanageable. The only solution Plaintiff offers is a series of over 1,000 2 re: Autozone, Inc., No. 3:10-MD-02159-CRB, 2016 WL 4208200, at *19 (N.D. Cal. Aug. 3 10, 2016). 4 Plaintiff also argues that the Court clearly erred in finding that Plaintiff failed to offer 5 a class wide method for calculating damages. (ECF No. 370 at 18-19.) Plaintiff contends 6 that he did offer such a method: a formula that multiplies rate of pay by the number of 7 hours worked above 72. (Id. at 19.) But the Court made clear in its order that it was not 8 concerned about individualized findings regarding the amount of damages. Rather, the 9 Court was concerned about mini-trials to determine whether some class members were 10 owed any damages at all. And while Plaintiff contends that there would be one liability trial 11 and 1,000 damages trials, the reality is that liability and damages go hand-in-hand in this 12 case. Because some individuals have no damages and Defendants are not liable to those 13 individuals, there can be no “single trial on liability.” (ECF No. 370 at 20.) 14 C. Subclasses 15 Plaintiff argues for the first time that the Court should have created subclasses for 16 the VBC bases. (ECF No. 370 at 21.) But the Court already noted that Plaintiff failed to 17 request the certification of a smaller class or subclasses in his opposition to the motion to 18 decertify. (ECF No. 361 at 41.) A district court may decline to consider claims and issues 19 that were not raised until a motion for reconsideration. See Hopkins v. Andaya, 958 F.2d 20 881, 887 n. 5 (9th Cir. 1992), impliedly overruled on other grounds in Federman v. County 21 of Kern, 61 F. App’x 438, 440 (9th Cir. 2003). It is not an abuse of discretion to refuse to 22 consider new arguments in a reconsideration motion even though “dire consequences” 23 might result. See Schanen v. United States Dept. of Justice, 762 F.2d 805, 807-08 (9th 24 Cir. 1985) (subsequent history omitted). The Court declines to consider Plaintiff’s request 25 when the issue of subclasses could have and should have been raised in connection with 26 Defendants’ motion to decertify, particularly given the extent of the issues litigated in this 27 case as well as the resources expended by the parties and the Court in addressing issues 28 relating to certification and decertification and the need for this case to be timely resolved 1 || onthe merits. Under the circumstances here, it would be unfair to allow Plaintiff a do-over 2 || via reconsideration. 3 Accordingly, the Court will deny Plaintiff's motion for reconsideration. V. CONCLUSION 5 The Court notes that the parties made several arguments and cited to several cases 6 || not discussed above. The Court has reviewed these arguments and cases and determines 7 || that they do not warrant discussion as they do not affect the outcome of the motion before 8 || the Court. 9 It is therefore ordered that Plaintiff's motion for reconsideration (ECF No. 370) is 10 || denied. 11 It is further ordered that Plaintiff's motion to seal (ECF No. 371) is granted. 12 DATED THIS 30" day of September 2019. 13 oN 14 J GL IRANDA M. DU 15 CHIEF UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28