United States District Court, D. Nevada
KARL E. RISINGER, Plaintiff,
SOC LLC, et al., Defendants.
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
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. For the following reasons, the Court
grants Defendants' Decertification Motion and denies the
remaining motions as moot.
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.
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. 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).
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.
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)).
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)).
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.”
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
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.)
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.
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