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Risinger v. SOC LLC

United States District Court, D. Nevada

July 26, 2019

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



         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 to decertify class (“Decertification Motion”) (ECF No. 344); (2) Defendants' second motion for summary judgment (ECF No. 342); and (3) Plaintiff Karl E. Risinger's emergency motion to strike Defendants' second motion for summary judgment (ECF No. 345). The Court has reviewed the relevant responses (ECF Nos. 353, 356) and replies (ECF Nos. 354, 357) thereto.[1] For the following reasons, the Court grants Defendants' Decertification Motion and denies the remaining motions as moot.


         The Court certified a class in this case consisting “of armed guards who worked for SOC in Iraq between 2006 and 2012.” (ECF No. 254 at 7 (citing ECF No. 155 at 19, 27).) The Court later clarified that Reclassified Guards-individuals who held job titles other than “Guard” during their employment with Defendants because Defendants changed their job title and/or salaries upon, or shortly after, their arrival in Iraq-were members of the class because they were, in effect, “armed guards who worked for SOC in Iraq between 2006 and 2012.” (See ECF No. 281 at 2-4.) Defendants now move to decertify the class because additional discovery purportedly has revealed that questions common to the class members no longer predominate over questions affecting only individual members. (ECF No. 344 at 8; see also Fed. R. Civ. P. 23(b)(3).)


         “An order that grants or denies class certification may be altered or amended before final judgment.” Fed.R.Civ.P. 23(c)(1)(C). Thus, a “district court may decertify a class at any time, ” Rodriguez v. W. Publ'g Corp., 563 F.3d 948, 966 (9th Cir. 2009), and in fact must monitor “class decisions in light of the evidentiary development of the case.” NEI Contracting & Eng'g, Inc. v. Hanson Aggregates, Inc., No. 12-CV-01685-BAS(JLB), 2016 WL 2610107, at *5 (S.D. Cal. May 6, 2016), aff'd sub nom. NEI Contracting & Eng'g, Inc. v. Hanson Aggregates Pac. Sw., Inc., 926 F.3d 528 (9th Cir. 2019) (hereinafter “NEI Contracting”) (quoting Richardson v. Byrd, 709 F.2d 1016, 1019 (5th Cir. 1983)). “In evaluating whether to decertify the class, the court applies the same standard used in deciding whether to certify the class initially.” Id. “Thus, a motion to decertify a class is not governed by the standard applied to motions for reconsideration, and does not depend on a showing of new law, new facts, or procedural developments after the original decision.” Id. The plaintiff bears the burden of demonstrating that the requirements of Rule 23 are satisfied, even in the context of a motion for decertification.[2] Marlo v. United Parcel Serv., Inc., 639 F.3d 942, 947 (9th Cir. 2011) (quoting United Steel Workers v. ConocoPhillips Co., 593 F.3d 802, 807 (9th Cir. 2010)) (“Thus, as to the class-decertification issue, Marlo, as ‘[t]he party seeking class certification [, ] bears the burden of demonstrating that the requirements of Rules 23(a) and (b) are met.'”); see also Lambert v. Nutraceutical Corp., 870 F.3d 1170, 1182 (9th Cir. 2017), rev'd and remanded on other grounds, 139 S.Ct. 710 (2019) (citing Marlo, 639 F.3d at 947).


         Defendants argue that the class should be decertified because individual issues predominate over questions common to the class and because the class is unmanageable given that Plaintiff has failed to offer a classwide method for determining liability or calculating damages. The Court agrees with Defendants and will decertify the class. The Court discusses predominance before turning to the class's manageability.

         A. Predominance

         Any certified class must satisfy the following prerequisites: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” In re Hyundai & Kia Fuel Econ. Litig., 926 F.3d 539, 556 (9th Cir. 2019) (citing Fed.R.Civ.P. 23(a)). In addition, “the class action must fall within one of the three types specified in Rule 23(b).” Id. The Court certified this class under Rule 23(b)(3), which requires that “questions of law or fact common to class members” must “predominate over any questions affecting only individual members, ” and the class action must be “superior to other available methods for fairly and efficiently adjudicating the controversy.” Id. (quoting Fed.R.Civ.P. 23(b)(3)).

         “The predominance inquiry under Rule 23(b)(3) ‘tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.'” Id. at 557 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997)). “It ‘presumes that the existence of common issues of fact or law have been established pursuant to Rule 23(a)(2),' and focuses on whether the ‘common questions present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication'; if so, ‘there is clear justification for handling the dispute on a representative rather than on an individual basis.'” Id. (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998)).

         “[I]mportant questions apt to drive the resolution of the litigation are given more weight in the predominance analysis [than] individualized questions . . . of considerably less significance.” Id. (quoting Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1132 (9th Cir. 2016)). Thus, an action may be considered proper under Rule 23(b)(3) even if just one common question predominates. Id. (citing Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036, 1045 (2016)). Rule 23(b)(3) lists four matters pertinent to a finding of predominance: “(A) the class members' interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.”

         When initially certifying the class, the Court identified three common questions driving this litigation: (1) whether SOC promised recruits a 72-hour workweek in order to induce them to accept a job offer; (2) whether SOC knew that guards would in fact be required to consistently work longer hours due to a preventable understaffing practice; and (3) whether class members are entitled to damages for regularly working beyond 72 hours. (ECF No. 155 at 22.) The Court found that Plaintiff adduced common proof of answers to each of these questions. In answer to the first question, Plaintiff relied on call scripts showing that SOC consistently promised recruits a 72-hour workweek. (Id. (“Risinger . . . provided evidence indicating that class members received similar or identical messages” about working “a shift of 6 days per week with 12-hour days.”).) In answer to the second and third questions, Plaintiff relied on Defendants' uniform practice of understaffing, a practice suggested by “deposition testimony from one of SOC's Rule 30(b)(6) designees acknowledging that SOC suffered a labor shortage and received complaints from guards that they were working 7 days a week.” (Id. at 22-23.)

         The Court found that these common questions predominated over any individual questions because “the class members' contract and quasi-contract claims are based on the same uniform representations and standardized employment agreements.” (Id. at 25.) Defendants argued that individual questions regarding whether each class member relied on the 72-hour-workweek representation would overwhelm the litigation, but the Court reasoned-in light of evidence that the representations were identical or nearly identical- that reliance would be presumed: “[c]ommon sense would suggest that recruits considering whether to work as armed guards in a warzone would find the promise of an occasional day off relevant to their decision to accept employment.” (Id. at 26.)

         Newly presented evidence shows that-despite the existence of these common questions of law-individual questions about whether and why class members actually worked more than 72 hours now predominate. The newly presented evidence consists of class member testimony showing that (1) some class members never worked more than 72 hours; (2) the effect of any uniform understaffing practice varied based on each class members' assigned location; and (3) the effect of any uniform understaffing practice varied based on class members' own choices.

         As a threshold matter, Plaintiff argues that the Court should not consider any of the newly presented evidence because it was obtained in violation of the Court's discovery orders. (See ECF No. 356 at 14.) Plaintiff bases his argument on the bifurcated discovery schedule in this case. (Id. at 14-15; see also ECF No. 77.) The first phase (“Phase I”) was reserved for “all discovery with the exception of class damages discovery, and punitive damages discovery should the district judge grant a motion to certify a class.” (ECF No. 77 at 4.) The second phase (“Phase II”) was reserved for “cleanup damages discovery, if the district judge certifies a Class.” (ECF No. 78 at 14.) Plaintiff essentially ...

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