Salazar v. Driver Provider Phoenix LLC

Opinion

1 WO 2

6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

9 Kelli Salazar, et al., No. CV-19-05760-PHX-SMB 10 Plaintiffs, ORDER 11 v. 12 Driver Provider Phoenix LLC, et al., 13 Defendants. 14

15 Before the Court is Plaintiffs’ Motion for Rule 23 Certification. (Doc. 331.) 16 Defendants filed a Response (Doc. 342), and Plaintiffs filed a Reply (Doc. 379). Oral 17 argument was held on January 11, 2023. After reviewing the parties’ arguments and the 18 relevant law, the Court will grant Plaintiffs’ Motion in part, and deny in part, for the reasons 19 set forth below. 20 I. BACKGROUND 21 Plaintiffs’ Motion seeks class certification on Count II of the Fourth Amended 22 Complaint—violation of the Arizona Wage Act (“AWA”), A.R.S. § 23-350, et seq.—and 23 Count III of the Fourth Amended Complaint—violation of the Arizona Minimum Wage 24 Act (“AMWA”), A.R.S. § 23-362, et seq. (See Docs. 114; 331.) Prior to ruling on this 25 Motion, the Court dismissed Plaintiffs’ AWA claim with leave to amend. (See Doc. 26 forthcoming). Therefore, the Court will deny without prejudice Plaintiffs’ Motion as to 27 the AWA claim, as it is currently moot. Regarding the AMWA claim, Plaintiffs allege that 28 Defendants previously and continuously fail to pay their employed drivers a minimum 1 wage under state law and fail to maintain accurate payroll records of hours worked. (Doc. 2 331 at 2.) The Court will grant Plaintiffs’ Motion to certify Plaintiffs’ AMWA class 3 because it meets the requirements of Rule 23(a) and (b)(3). 4 II. LEGAL STANDARD 5 “Parties seeking class certification bear the burden of demonstrating that they have 6 met each of the four requirements of Federal Rule of Civil Procedure 23(a) and at least one 7 of the requirements of Rule 23(b).” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 979– 8 80 (9th Cir. 2011) (citing Zinser v. Accufix Rsch. Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 9 2001)). Rule 23(a)–(b) read as follows: 10 (a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: 11 (1) the class is so numerous that joinder of all members is 12 impracticable; (2) there are questions of law or fact common to the class; 13 (3) the claims or defenses of the representative parties are typical of 14 the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the 15 interests of the class. 16 (b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if: 17 (1) prosecuting separate actions by or against individual class 18 members would create a risk of: (A) inconsistent or varying adjudications with respect to 19 individual class members that would establish incompatible 20 standards of conduct for the party opposing the class; or (B) adjudications with respect to individual class members 21 that, as a practical matter, would be dispositive of the interests 22 of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect 23 their interests; (2) the party opposing the class has acted or refused to act on grounds 24 that apply generally to the class, so that final injunctive relief or 25 corresponding declaratory relief is appropriate respecting the class as a whole; or 26 (3) the court finds that the questions of law or fact common to class 27 members predominate over any questions affecting only individual members, and that a class action is superior to other available methods 28 for fairly and efficiently adjudicating the controversy. The matters 1 pertinent to these findings include: (A) the class members’ interests in individually controlling the 2 prosecution or defense of separate actions; 3 (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; 4 (C) the desirability or undesirability of concentrating the 5 litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. 6 A plaintiff seeking class certification must “affirmatively demonstrate his 7 compliance with the Rule—that is, he must be prepared to prove that there are in fact 8 sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart Stores, 9 Inc. v. Dukes, 564 U.S. 338, 350 (2011). Likewise, when considering class certification 10 courts must engage in “a rigorous analysis.” Id. at 350–51 (quoting Gen. Tel. Co. of Sw. v. 11 Falcon, 457 U.S. 147, 161 (1982)). The Rule 23 analysis may “entail some overlap with 12 the merits of the plaintiff’s underlying claim,” id. at 351, but it “grants courts no license to 13 engage in free-ranging merits inquiries at the certification stage.” Amgen Inc. v. Conn. Ret. 14 Plans & Tr. Funds, 568 U.S. 455, 466 (2013). “Merits questions may be considered to the 15 extent—but only to the extent—that they are relevant to determining whether the Rule 23 16 prerequisites for class certification are satisfied.” Id.; see also United Steel, Paper & 17 Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int’l Union, AFL-CIO v. 18 ConocoPhillips Co., 593 F.3d 802, 808 (9th Cir. 2010) (“Although certification inquiries 19 such as commonality, typicality, and predominance might properly call for some 20 substantive inquiry, the court may not go so far . . . as to judge the validity of these claims.” 21 (cleaned up)). In fact, “[n]either the possibility that a plaintiff will be unable to prove his 22 allegations, nor the possibility that the later course of the suit might unforeseeably prove 23 the original decision to certify the class wrong, is a basis for declining to certify a class 24 which apparently satisfies [Rule 23].” United Steel, 593 F.3d at 809 (quoting Blackie v. 25 Barrack, 524 F.2d 891, 901 (9th Cir. 1975)). 26 Nevertheless, “plaintiffs must prove the facts necessary to carry the burden of 27 establishing that the prerequisites of Rule 23 are satisfied by a preponderance of the 28 1 evidence.” Olean Wholesale Grocery Coop., Inc., v. Bumble Bee Foods LLC, 31 F.4th 2 651, 665 (9th Cir. 2022). “Failure to meet any one of the requirements set forth in Rule 23 3 precludes class certification.” Miller v. Am. Standard Ins. Co. of Wis., 759 F. Supp. 2d 4 1144, 1146 (D. Ariz. 2010). 5 III. DISCUSSION 6 A. Rule 23(a) 7 1. Numerosity 8 Plaintiffs argue numerosity is met, and Defendants do not object. (See Docs. 331 at 9 8; 342.) Under the numerosity requirement, a proposed class of at least 40 members is 10 typically satisfactory. See USAA Cas. Ins. Co., 266 F.R.D. 360, 365 (D. Ariz. 2009). Here, 11 Plaintiffs cite to Defendants’ assertions that as of May 18, 2022, there are 356 chauffeur 12 drivers within the limitations period for AMWA violations under A.R.S. § 23-364(H).1 13 (See Doc. 331 at 8.) The Court finds the numerosity requirement satisfied. See Vega v. All 14 My Sons Bus. Dev. LLC, 583 F. Supp. 3d 1244, 1264 (D. Ariz. 2022) (finding the 15 numerosity requirement satisfied for an Arizona unpaid wages class of potentially 200 16 members); see also Juvera v. Salcido, 294 F.R.D. 516, 521 (D. Ariz. 2013) (finding 17 numerosity satisfied with AMWA class of “approximately 200” members). 18 2. Commonality 19 Plaintiffs next argue commonality is met, and Defendants do not object. (See Docs. 20 331 at 8–11; 342.) To prove commonality, there must be a “common contention” that is 21 “of such a nature that it is capable of classwide resolution—which means that 22 determination of its truth or falsity will resolve an issue that is central to the validity of 23 each one of the claims in one stroke.” Wal-Mart, 564 U.S. at 350. A plaintiff need only 24 present “a single common question of law or fact that resolves a central issue.” Castillo v. 25 Bank of Am., NA, 980 F.3d 723, 728 (9th Cir. 2020). To satisfy the requirement, not every 26 issue of law and fact need to be common. Juvera, 294 F.R.D. at 521. “The existence of 27

28 1 Plaintiffs note that Defendants have not updated these numbers since May 18, 2022, and that Plaintiffs believe the number is higher. (Doc. 331 at 8 n.3.) 1 shared legal issues with divergent factual predicates is sufficient, as is a common core of 2 salient facts coupled with disparate legal remedies within the class. Id. (quoting Meyer v. 3 Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1041–42 (9th Cir. 2012)). “However, 4 [i]f there is no evidence that the entire class was subject to the same allegedly [illegal] 5 practice, there is no question common to the class.” Vega, 583 F. Supp. 3d at 1261 (quoting 6 Ellis, 657 F.3d at 983) (internal quotation marks omitted). Yet, “[a] common contention 7 need not be one that ‘will be answered, on the merits, in favor of the class.’” Alcantar v. 8 Hobart Serv., 800 F.3d 1047, 1053 (9th Cir. 2015) (quoting AmGen, 568 U.S. at 459). 9 Here, Plaintiffs argue that: 10 Whether Defendants were required to keep records under Arizona law of all hours worked, whether they failed to do so, whether Defendants failed to pay 11 required minimum wages . . . are common contentions . . . to each member 12 of the class such that “determination of [their] truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” 13 (Doc. 331 at 9) (quoting Wal-Mart, 564 U.S. at 350.) In Vega, the court determined the 14 class’s common question was whether the defendants’ policies “violate state law by failing 15 to timely compensate helpers for overtime and by routinely requiring helpers to perform 16 unpaid work thereby failing to pay them minimum wage.” 583 F. Supp. 3d at 1265; see 17 also Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 963 (9th Cir. 2013) (finding 18 commonality when there was a “significant question of law” faced by the class on the 19 legality of defendant’s policy). Plaintiffs here share a similar common question: Under the 20 AMWA, whether Defendants were required to keep payroll records, and if so, failed to so, 21 and whether Plaintiffs are therefore owed unpaid minimum wages. If determined, it would 22 provide answers sought by the entire proposed class. For these reasons, the Court agrees 23 that commonality is satisfied. 24 3. Typicality 25 Typicality requires that “the claims or defenses of the representative parties are 26 typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). These requirements 27 tend to merge, as “[b]oth serve as guideposts for determining whether under the particular 28 1 circumstances maintenance of a class action is economical and whether the named 2 plaintiff’s claim and the class claims are so interrelated that the interests of the class 3 members will be fairly and adequately protected in their absence.” Falcon, 457 U.S. at 4 157 n.13. “Under the rule’s permissive standards, representative claims are ‘typical’ if 5 they are reasonably co-extensive with those of absent class members; they need not be 6 substantially identical.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). 7 In reviewing for typicality, courts must determine “whether other members have the same 8 or similar injury, whether the action is based on conduct which is not unique to the named 9 plaintiffs, and whether other class members have been injured by the same course of 10 conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). Thus, 11 “[t]ypicality refers to the nature of the claim or defense of the class representative, and not 12 to the specific facts from which it arose or the relief sought.” Id. (cleaned up). 13 Here, Plaintiffs argue typicality because: 14 Named Plaintiffs allege that they and members of the punitive Rule 23 Class were harmed by Defendants’ uniform policies and practices that required 15 them to perform untracked and unpaid work that resulted in the violations of 16 the Arizona Wage Statutes and that the Named Plaintiffs’ claims are typical of those same wage violations harming all Rule 23 Class members. 17 (Doc. 331 at 11.) Defendants refute typicality by contending that “there are certain facts 18 that are unique to the named Plaintiffs” that prevent a typicality finding. (Doc. 342 at 17.) 19 The four named Plaintiffs in this matter are Salazar, Carpenter, Lopez, and Hanna. 20 First, Defendants note that Carpenter cites no minimum wage damages. (See Docs. 342 at 21 17; 332-3 at 54.) This strikes against typicality because Carpenter does not represent the 22 proposed class’s AMWA claim. Second, Defendants cites to one of Lopez’s depositions 23 by Lopez, which states that: 24 Nearly all my compensation was determined as a percentage of the amount 25 charged to The Driver Provider’s customers, which was usually a flat-fee, or on occasion, an hourly rate charged to the customer. The amount paid to the 26 Driver was based on the “level” assigned to the Driver by The Driver 27 Provider. New hires were listed as a “Level 1.” The highest level was “Level 3” with a mid-level being “Level 2.” During the time I worked at Driver 28 Provider, it was never explained to me, nor have I ever able to find out, how 1 The Driver Provider determined a Driver’s “level.” Yet, pay was determined, in part, on which level a Driver, including myself, was rated. 2 (Doc. 38-3 at 7–8 ¶ 26.) Defendants argue that Lopez conceded that he had no expectation 3 to be paid any way other than a percentage of the amount charged to Defendants’ 4 customers. However, Lopez is also claiming $2,750 in minimum wage damages. (Doc. 5 332-3 at 54.) Likewise, Defendants point to Hanna’s signing an agreement to work for 6 commission. (Doc. 38-4 at 60–62.) But Hanna is also claiming $564 in minimum wage 7 damages. (Doc. 332-3 at 54.) Finally, although Defendants do not raise any concerns with 8 Salazar under the AMWA, the Court notes Salazar claims $1,156 in minimum wage 9 damages. (Id.) 10 It remains a question of law and fact whether the Named Plaintiffs are entitled to 11 their alleged minimum wage damages. Nevertheless, three out of four Named Plaintiffs 12 allege such damages, satisfying the requirement that their claims be “typical” of the absent 13 AMWA class members. Typicality is satisfied. Hanlon, 150 F.3d at 1020. 14 4. Adequacy 15 To determine if the class representatives will fairly and adequately represent the 16 interests of the class, the court must determine that the representatives have no conflicts 17 with the class, have a common interest with the class, and that the named plaintiffs will 18 prosecute the action vigorously on behalf of the class. Id.; Ellis, 657 F.3d at 985. In 19 opposition, Defendants assert the same objections they raised towards typicality. (See Doc. 20 342 at 17.) The Court does not find these persuasive. Of the named representatives, three 21 out of four allege minimum wage damages. Therefore, a majority of the class 22 representatives represent the proposed AMWA class. Furthermore, the Court notes that of 23 the eighty-one FLSA opt-in plaintiffs, all but twenty-two individuals claim unpaid 24 minimum wages. (See Doc. 332-3 at 54–56.) Plaintiffs have also provided evidence that 25 at a minimum, Defendants attest there are 356 opt-out Plaintiffs in the proposed AMWA 26 class as of May 18, 2022. (See Doc. 331 at 8.) 27 Moreover, Plaintiffs argue the named representatives have actively pursued this 28 1 litigation for almost three years, have been deposed, and have provided written discovery. 2 (Id. at 11.) Plaintiffs also argue the class representatives have no interests adverse to the 3 class members and have actively pursued the rights of the class. (Id.) Defendants do not 4 dispute this, and the Court finds no evidence to the contrary. Likewise, the evidence 5 supports a finding that the class representatives are adequately seeking the same relief 6 sought by the class—unpaid minimum wages. For these reasons, the Court finds that the 7 class representatives are adequately representing the class. Ellis, 657 F.3d at 985; Hanlon, 8 150 F.3d at 1020. 9 In conclusion, Plaintiffs have satisfied Rule 23(a). 10 B. Rule 23(b) 11 Along with satisfying Rule 23(a)’s requirements, Plaintiffs must also satisfy at least 12 one requirement under Rule 23(b). 13 1. Rule 23(b)(1) Certification 14 Plaintiffs argue they satisfy Rule 23(b)(1)(A) which allows for class certification if 15 “prosecuting separate actions by or against individual class members would create a risk 16 of . . . inconsistent or varying adjudications with respect to individual class members that 17 would establish incompatible standards of conduct for the party opposing the class.” Fed. 18 R. Civ. P. 23(b)(1)(A). Specifically, they argue that certification under the rule “is 19 appropriate to avoid the risk that prosecution of separate actions by individual Rule 23 20 Class Members could impose conflicting requirements on Defendants.” (Doc. 331 at 13.) 21 However, Defendants point out that certification requires more “than a risk that separate 22 judgments would oblige the opposing party to pay damages to some class members but not 23 to others or to pay them different amounts.” Zinser, 253 F.3d at 1193. Rather, the Rule 24 only applies if “different results in separate actions would impair the opposing party’s 25 ability to pursue a uniform continuing course of conduct.” Id. (cleaned up). As such, the 26 Ninth Circuit has repeatedly held that Rule 23(b)(1)(A) is not appropriate in actions where 27 plaintiffs seek to recover damages. See, e.g., id.; In re N. Dist. of Cal., Dalkon Shield IUD 28 Prods. Liab. Litig., 693 F.2d 847, 851 (9th Cir. 1982), as amended (July 15, 1982); Green 1 v. Occidental Petroleum Corp., 541 F.2d 1335, 1340 (9th Cir. 1976); McDonnell-Douglas 2 Corp. v. U.S. Dist. Ct. For Cent. Dist. Cal., 523 F.2d 1083, 1086 (9th Cir. 1975). 3 Plaintiffs refute Defendants’ characterization that the nature of their claim’s risk is 4 damages rather than the “numerous daily tasks Defendants require Drivers to perform that 5 are neither tracked nor compensated.” (Doc. 379 at 2.) But Plaintiffs do not refute the 6 Ninth Circuit’s precedent establishing that Rule 23(b)(1)(A) certification is inappropriate 7 for classes seeking damages. Here, Plaintiffs exclusively seek minimum wage damages 8 under the AMWA. Thus, the Court finds Plaintiffs do not satisfy Rule 23(b)(1)(A). 9 2. Rule 23(b)(2) Certification 10 Rule 23(b)(2) permits certification “if the party opposing the class has acted or 11 refused to act on grounds that apply generally to the class, so that final injunctive relief or 12 corresponding declaratory relief is appropriate respecting the class as a whole.” However, 13 neither party raises this rule because it is inapplicable here. “Rule 23(b)(2) is appropriate 14 only where the primary relief sought is declaratory or injunctive.” Ellis, 657 F.3d at 986 15 (quoting Zinser, 253 F.3d at 1195). Although Plaintiffs request some declaratory relief, it 16 is not the primary relief sought. For these reasons, the Court will not engage in an analysis 17 under this rule. 18 3. Rule 23(b)(3) Certification 19 Under Rule 23(b)(3), class certification is permitted if “the court finds that the 20 questions of law or fact common to class members predominate over any questions 21 affecting only individual members, and that a class action is superior to other available 22 methods for fairly and efficiently adjudicating the controversy.” “Rule 23(b)(3) requires a 23 showing that questions common to the class predominate, not that those questions will be 24 answered, on the merits, in favor of the class.” Amgen, 568 U.S. at 459. Furthermore, the 25 predominance requirements under the rule require more than a finding of mere 26 commonality, but “[w]hen common questions present a significant aspect of the case and 27 they can be resolved for all members of the class in a single adjudication, there is clear 28 justification for handling the dispute on a representative rather than on an individual basis.” 1 Vega, 583 F. Supp. 3d at 1263 (quoting LaCross v. Knight Transp. Inc., No. CV-15-00990- 2 PHX-JJT, 2022 WL 101196, at *4 (D. Ariz. Jan. 11, 2022)). 3 Lastly, before Rule 23(b)(3) certification can occur, the court must consider the 4 superiority factors which include: 5 (A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation 6 concerning the controversy already begun by or against class members; (C) 7 the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) and the likely difficulties in managing a class 8 action. 9 (quoting Fed. R. Civ. P. 23(b)). See LaCross, 2022 WL 101196, at *6 (“A consideration 10 of these factors requires the court to focus on the efficiency and economy elements of the 11 class action so that cases allowed under subdivision (b)(3) are those that can be adjudicated 12 most profitably on a representative basis.” (quoting 7A Charles Alan Wright, Arthur R. 13 Miller & Mary Kay Kane, Federal Practice and Procedure § 1780 at 562 (2d ed. 1986))). 14 a. Predominance 15 Plaintiffs argue class certification is appropriate under Rule 23(b)(3) because the 16 common questions of law and fact predominate for the class. However, Defendants argue 17 that even if Plaintiffs succeed in proving a common policy that led to Plaintiffs’ alleged 18 minimum wage damages, individual liability issues exist and predominate. (Doc. 342 at 19 6.) Defendants cite Pryor v. Aerotek Sci. to argue this case is predominated by a question 20 of individual liability. 278 F.R.D. 516, 532 (C.D. Cal. 2011). Specifically, Defendants 21 cite to Pryor’s discussion that: 22 Once the factfinder determines what Aerotek’s policies are, that does not answer the ultimate question in the case—whether Aerotek’s time reporting 23 policies resulted in the under-compensation of and failure to pay overtime to 24 putative class members. This is not merely a question of damages, it is a question of liability. 25 Id. Defendants further urge this Court to follow Pryor because not every class member is 26 asserting minimum wage damages, so proof of a common policy will not prove liability 27 owed to the entire class. Defendants support this argument with two cases where many 28 class members asserted no damages. See Owen v. Regence Bluecross Blueshield of Utah, 1 388 F. Supp. 2d 1318, 1334 (D. Utah 2005) (“[T]he proposed definition of the class is 2 overbroad because many of the proposed class members have suffered no damages.”); 3 Moriarty v. Am. Gen. Life Ins. Co., No. 3:17-cv-1709-BTM-WVG, 2022 WL 6584150, at 4 *4 (S.D. Cal. Sept. 27, 2022) (“It would be misguided to certify a damages class where 5 most class members have no damages.”). 6 In contrast, Plaintiffs argue the Supreme Court has found that there are often 7 elements of individual inquiry in any class, particularly when it comes to damages, but that 8 does not equate to individual inquiries predominating over the class. See Tyson Foods, 9 Inc., v. Bouaphakeo, 577 U.S. 442, 452–53 (2016) (“When one or more of the central issues 10 in the action are common to the class and can be said to predominate, the action may be 11 considered proper under Rule 23(b)(3) even though other important matters will have to be 12 tried separately, such as damages or some affirmative defenses peculiar to some individual 13 class members.”). 14 Moreover, Plaintiffs argue that in Vaquero, the Ninth Circuit affirmed the 15 predominance requirement in a wage and hour class action alleging violations of state law, 16 and noted that wage and hour actions are well suited to satisfy this requirement regardless 17 of the individuality of damage because: 18 In a wage and hour case, unlike in an antitrust class action, the employer- defendant’s actions necessarily caused the class members’ injury. 19 Defendants either paid or did not pay their sales associates for work 20 performed. No other factor could have contributed to the alleged injury. Therefore, even if the measure of damages proposed here is imperfect, it 21 cannot be disputed that the damages (if any are proved) stemmed from 22 Defendants’ actions. 23 Vaquero v. Ashley Furniture Indus., Inc., 824 F.3d 1150, 1155 (9th Cir. 2016); see also 24 Leyva v. Medline Indus. Inc., 716 F.3d 510, 513–14 (9th Cir. 2013) (asserting that “[i]n 25 [the Ninth Circuit] . . . damage calculations alone cannot defeat certification.” (quoting 26 Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087, 1094 (9th Cir. 2010)). 27 The Court finds Defendants’ arguments unpersuasive. First, calculating damages 28 for individual class members is not the predominating questions here—it is whether 1 Defendants had a duty to maintain a payroll record, whether they failed to do so under the 2 law, and whether Plaintiffs are owed the alleged minimum wage damages. The fact that 3 there may be individual damages calculations is not dispositive for the predominance 4 factor. See Tyson Foods, 577 U.S. at 452. And as previously stated, the Court finds 5 Defendants’ arguments here, that a high proportion of the class assert no minimum wage 6 damages, unsupported by the evidence 7 Finally, Plaintiffs note that Defendants offer no arguments against certification 8 regarding Plaintiffs’ claim for failing to maintain records, see A.R.S. § 23-364(D), under 9 the AMWA. (Doc. 379 at 6.) Defendants merely argue that the claim is not “cognizable,” 10 but make no attempt to refute that it is a predominate question amongst the class. The 11 Court agrees with Plaintiffs that the question of Defendants’ record keeping duties and 12 actions under the law are predominate, as anyone whose records were not maintained are 13 entitled to up $1,000 under A.R.S. § 23-364(F). The Court also finds the claim cognizable, 14 as other courts have awarded damages under the statute. See Senne v. Kansas City Royals 15 Baseball Corp., No. 14-00608, 2022 WL 783941, at *89 (N.D. Cal. Mar. 15, 2022) (finding 16 damages under A.R.S. § 23-364(F) “for every Arizona class member whose payroll records 17 were not maintained by Defendants”). 18 For these reasons, the Court finds the class predominately shares the same common 19 questions for their asserted claims under the AMWA. 20 b. Superiority Factors 21 Under the first factor, the Court must weigh the interest of the class members in 22 “individually controlling the prosecution or defense of separate actions. Fed. R. Civ. P. 23 23(b)(3)(A). Here, there are at least 356 drivers who have chosen not to opt-out of the 24 AMWA class. Therefore, the Court finds that the class members do not wish to 25 individually control the prosecution of separate actions for their AMWA claims. 26 Second is “the extent and nature of any litigation concerning the controversy already 27 commenced by or against members of the class.” Fed. R. Civ. P. 23(b)(3)(B). At present, 28 this Court is not aware of any duplicative lawsuits. This factor thus weighs in favor of 1 certifying the class. 2 Third is “the desirability or undesirability of concentrating the litigation of the 3 claims in the particular forum.” Fed. R. Civ. P. 23(b)(3)(C). The Court has already 4 conditionally certified Plaintiffs’ Fair Labor Standards Act (“FLSA”) class (Doc. 91), and 5 this case has been before the Court for over three years. (See Doc. 1.) Considering judicial 6 economy, the extensive litigation and resources both parties have expended, and the 7 familiarity the Court has with the case, there is desirability to maintain the litigation in the 8 present forum. 9 Lastly is “the difficulties likely to be encountered in the management of the class 10 action.” Fed. R. Civ. P. 23(b)(3)(D). As previously noted, the Court has conditionally 11 certified Plaintiffs’ FLSA claim. At present, Defendants have filed a motion to decertify 12 the FLSA class, and Plaintiffs filed for supplemental FLSA conditional certification—both 13 of which are not ripe for review. Nevertheless, the Court does not currently perceive 14 barriers preventing Plaintiffs from managing this class. 15 With both predominance and the superiority factors weighing in favor of 16 certification, the Court finds Rule 23(b)(3) satisfied. 17 C. Class Counsel Certification 18 Under Rule 23(g)(1), once a Court certifies a class, it must also appoint class 19 counsel. In doing so, the Court must consider: 20 “(i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other 21 complex litigation, and the types of claims asserted in the action; (iii) 22 counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class.” 23 The Court finds that Martin & Bonnett, P.L.L.C. has the necessary experience in 24 employment, wage and hour, and class action litigation to represent this class, has 25 committed the necessary resources to this litigation, and has sufficiently demonstrated their 26 capability to understand the law and claims at hand. The Court thus certifies Martin & 27 Bonnett, P.L.L.C. as Class Counsel. 28 1 V. CONCLUSION 2 Accordingly, 3 IT IS ORDERED that Plaintiffs’ Motion for Rule 23 Class Certification is granted 4 on Claim III of the Fourth Amended Complaint, violation of the AMWA, and denied 5 without prejudice as moot on Claim II of the Fourth Amended Complaint, violation of the 6 AWA. (Doc. 331.) 7 IT IS FURTHER ORDERED: 8 (a) The Rule 23 Count III Claim is hereby certified as a class action pursuant to Fed. 9 R. Civ. P. 23(b)(1) with respect to the following class: 10 All current and former employees of The Driver Provider who performed chauffeur services in Arizona at any time from December 6, 2016 to the 11 present. Excluded from the class are all owners, managers, supervisors, 12 dispatchers, or other employees whose primary job responsibilities were not the provision of chauffeur services. 13 (b) The named Plaintiffs are appointed class representatives for purposes of the Rule 14 23 Class claims alleged in Count III of the Fourth Amended Complaint. (Doc. 15 114.) 16 (c) The law firm of Martin & Bonnett, P.L.L.C. is appointed Class Counsel for 17 purposes of the Rule 23 Class claims alleged in Count III of the Fourth Amended 18 Complaint. (Doc. 114.) 19 (d) Within fourteen (14) days after entry of this Order, Defendants shall provide 20 Plaintiff’s Counsel with a list of all current and former employees and workers 21 as described by Paragraph (a) that includes the names, position(s) held, 22 employment dates, employment location(s), the entity for whom the employee 23 worked or works, the last known address, e-mail address, telephone number(s) 24 (home and cell, if applicable), date of birth, and social security number (the 25 “Rule 23 List”). The Rule 23 List should be transmitted to Class Counsel in 26 searchable Microsoft Excel File format. Class Counsel is authorized to verify 27 mailing addresses and contact information through the USPS NCOA database. 28 ! (e) The parties shall confer on and file a joint proposed notice to the Rule 23 Class 2 within ten (10) days of this Order. If the parties are unable to agree on a notice, 3 the parties are directed to file separate proposed notices within fourteen (14) 4 days of this Order. > (f) Within twenty-one (21) days after entry of this Order, Defendants shall produce 6 to Plaintiffs complete trip data, pay records, and time records for all members of the Rule 23 Class. Dated this 30th day of January, 2023.

10 —_—_— ose 12 onorable Susan M, Brnovich B United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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