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Risinger v. SOC LLC

United States District Court, D. Nevada

July 9, 2019

KARL E. RISINGER, Plaintiff,
v.
SOC LLC, et al., Defendants.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         This is a class action involving a dispute over the terms of employment for armed guards hired to work in Iraq. Before the Court are the following motions: (1) Defendants SOC LLC; SOC-SMG, Inc.; and Day & Zimmermann, Inc.'s (collectively, “Defendants”) motion for reconsideration (ECF Nos. 319, 337 (motion for leave to file supplemental memorandum in support)) and (2) Defendants' contempt motion (ECF No. 320). The Court has reviewed the relevant responses (ECF Nos. 321, 322, 350) and replies (ECF Nos. 325, 326, 352) thereto. For the following reasons, the Court denies Defendants' motion for reconsideration and contempt motion.

         II. BACKGROUND

         Plaintiff plans to introduce the results of a survey at trial through an expert witness- William Buckley-to prove the class's damages. (ECF No. 281 at 4.) The survey essentially asked respondents to estimate how often they worked more than six 12-hour days per week. (See ECF No. 268-7 at 7-8.) In an earlier motion, Defendants sought to exclude the survey results as unreliable under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). (ECF No. 268 at 2.) The Court found that the survey results were admissible but precluded Buckley from extrapolating the survey results (from 159 respondents) to the entire class (consisting of about 1000 individuals). (ECF No. 281 at 12.) The motions pending before the Court relate to the admissibility of these survey results.

         III. DEFENDANTS' MOTION FOR RECONSIDERATION (ECF NO. 319)

         A. Legal Standard

         A motion to reconsider must set forth “some valid reason why the court should reconsider its prior decision” and set “forth facts or law of a strongly convincing nature to persuade the court to reverse its prior decision.” Frasure v. United States, 256 F.Supp.2d 1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this Court “(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J v. AC&S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). “A motion for reconsideration is not an avenue to re-litigate the same issues and arguments upon which the court already has ruled.” Brown v. Kinross Gold, U.S.A., 378 F.Supp.2d 1280, 1288 (D. Nev. 2005).

         B. Discussion

         Defendants move for reconsideration-on the basis of newly discovered evidence-of the Court's order finding the survey results admissible. The newly discovered evidence consists of Facebook messages exchanged between Risinger and certain other class members in a group thread that purportedly demonstrate class counsel's substantive involvement in the survey's administration as well as bias in the results. (See ECF No. 319 at 6.) While Plaintiff contends that the Facebook messages do not support a different outcome, there is no serious dispute that the messages constitute newly discovered evidence. (See ECF No. 321 at 5-6.) Accordingly, the Court will consider the merits of Defendants' motion.

         Defendants first argue that the Facebook messages show that class counsel-not Plaintiff's expert witness, William Buckley-conducted the survey, rendering the results biased and unreliable. (See ECF No. 319 at 15-19.) The Court previously rejected this argument because the evidence at the time showed that class counsel's involvement was “merely ministerial (e.g., mailing and collecting the surveys).” (ECF No. 281 at 9; see also ECF No. 268 at 16-17 (portion of Defendants' earlier motion arguing that class counsel conducted the survey).) Defendants' newly discovered evidence does not persuade the Court otherwise.

         Defendants rely on an exchange primarily between Risinger and another class member, Chris Hedberg. (ECF No. 319 at 16.) In those messages, Hedberg asked for clarification about the survey: “Hey Karl, [ ]just got this soc questionnaire from our lawyers. Are they counting from pickup time to drop off time as ‘shift time'? From weapon pickup to drop off or what? Filling it out now and if it's pickup to drop off, it'll be 100%, 13-14 hours. Lol.” (ECF No. 310-8 at 8.) Risinger confirmed Hedberg's assumption: “Yes, pickup to drop off.” (Id.) Another class member-Matt Olson-also confirmed: “Yep 14 hours is about right. And then include training which easily extended. Also I remember Karl specifically having to come in on a ‘day off' for training. As I'm sure many of us did.” (Id.) Hedberg wondered if he was underestimating his survey responses: “Yup[.] I said between 30-40% of the time I worked 7 days a week, I was there for 15 months. I know for a fact I worked the first 5 weeks straight! Is that lowballing it Karl?” (Id.) Risinger opined: “Definitely lowballing. Considering the time sheets I turned in. We went 3-4 months straight without a day off and then sporadic week to week with a day off here and there.” (Id.) Hebderg asked: “So more like 60-70%?” (Id. at 7-8.) Risinger responded: “Yeah, 2/3d.” (Id. at 7.)

         Even assuming that class counsel was feeding responses to Risinger behind-the-scenes, [1] the messages do not show that the survey was unreliable or biased. As the Court has previously explained: “Hedberg merely sought confirmation about his estimates. Neither Risinger nor Olson encouraged Hedberg to fabricate or inflate his responses. Rather, Risinger reassured Hedberg that Hedberg's own estimates were accurate. Olson reminded Hebderg that he may have had training on a ‘day off.'” (ECF No. 343 at 5.) To the extent that a factfinder might view Risinger and Olson's messages as coaching Hedberg, Defendants remain free to argue that point to the jury. The Facebook messages now before the Court do not demonstrate that the survey results are so tainted by class counsel's involvement that they are biased and unreliable.

         Defendants' second argument relates to Risinger's distribution of the survey via the Facebook group thread. Risinger sent out the Word version of the questionnaire and said: “If you have not received this yet, please fill out and follow the instructions to return to our lawyers. Please pass it along to everyone you know that is not in this group. Thanks!” (ECF No. 310-8 at 7.) Defendants argue that the participants in the Facebook group thread are not representative of the typical class member because they worked at LBS-a particularly demanding site-and had expressed particular interest in the litigation by joining the Facebook group thread.[2] (ECF No. 319 at 17.) Thus, their responses to the survey skewed the results. (Id.) Defendants ignore, however, that Plaintiff intended to conduct a census of all class members-Plaintiff did not intend to draw a probability sample. (See ECF No. 279 at 8; ECF No. 321 at 11.) And Plaintiff will be unable to use the results as a probability sample at trial based on the Court's previous order. (ECF No. 281 at 12 (precluding Buckley from extrapolating the survey results to the entire ...


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