James Motty v. First Student, Inc. et al, No. 2:2015cv07463 - Document 35 (C.D. Cal. 2016)
Court Description: ORDER DENYING MOTION FOR CLASS CERTIFICATION 29 by Judge Otis D. Wright, II. For the reasons discussed above, the Court DENIES Plaintiff's Motion for Class Certification. (lom)
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James Motty v. First Student, Inc. et al Doc. 35 O 1 2 3 4 5 6 7 United States District Court Central District of California 8 9 10 11 JAMES MOTTY, on behalf of himself and Case No. 2:15-CV-7463-ODW (E) 12 all others similarly situated, 14 ORDER DENYING MOTION FOR Plaintiff, 13 CLASS CERTIFICATION [29] v. 15 FIRST STUDENT, INC.; and DOES 1– 16 100, inclusive, 17 Defendants. 18 19 I. INTRODUCTION 20 Plaintiff James Motty, a former bus driver for Defendant First Student, Inc., 21 moves to certify a class consisting of all Pasadena Yard school bus drivers employed 22 by First Student since November 19, 2007. (Mot. for Class Cert. (“Mot.”) 3, ECF No. 23 29.) Plaintiff asserts that First Student’s drivers are paid based on the activities they 24 perform and not the hours they worked, and that this activity-based pay plan does not 25 account for rest breaks or non-driving tasks, as required by California law. Plaintiff 26 also contends that the drivers’ wage statements did not comply with California law. 27 First Student argues that Plaintiff lacks any evidentiary support for his claims and 28 cannot establish any of the requisite elements for class certification. For the reasons Dockets.Justia.com 1 discussed below, the Court DENIES Plaintiff’s Motion for Class Certification.1 (ECF 2 No. 29.) 3 II. 4 FACTUAL BACKGROUND 5 First Student is no stranger to this Court, and neither are Plaintiff’s class claims. 6 This Court previously declined to certify a class in a virtually identical prior action 7 against First Student. Vasquez v. First Student, Inc., No. 2:14-CV-06760-ODW EX, 8 2015 WL 1125643 (C.D. Cal. Mar. 12, 2015). Similarly, in Bowers v. First Student, 9 Inc., No. 2:14-CV-8866-ODW EX, 2015 WL 1862914 (C.D. Cal. Apr. 23, 2015), 10 another First Student bus driver brought the same claims on behalf of a putative class. 11 The Court, however, struck Bowers’ class claims after the plaintiffs in that action (and 12 their counsel, the same plaintiff’s counsel appearing here) failed to either timely move 13 for class certification or ask for an extension. Id. at *1. 14 With ample attention paid to the facts in those matters, the Court deems it 15 unnecessary to rehash the same underlying facts.2 Suffice it to say, First Student is a 16 transportation company providing school bus services to school districts across the 17 country. (Mot. 3; Opp’n 5, ECF No. 31.) The drivers operating out of First Student’s 18 Pasadena, California location provide busing services for both special education 19 students and traditional education students throughout the academic year. (Opp’n 5.) 20 During the 2011–12 school year, First Student employed approximately 4,000 drivers 21 across California. (Deposition of Elizabeth Sanchez (“Sanchez Depo.”) at 13:12–17, 22 Compendium of Evidence in Supp. of Class Cert. (“Plf.’s COE”), ECF No. 29.) At 23 issue are the methods by which First Student calculates its employees’ wages, as well 24 as what tasks are allegedly performed without compensation. (See Compl., Not. of 25 Removal, Ex. 1, ECF No. 1-1.) 26 1 27 28 After carefully considering the papers filed in support of and in opposition to the Motion, the Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15. 2 See Vasquez, 2015 WL 1125643, at *1–2, for a detailed recitation of First Student’s operations and written policies. 2 1 2 III. PROCEDURAL HISTORY 3 On August 18, 2015, Plaintiff filed his original class action complaint in the Los 4 Angeles Superior Court, alleging causes of action for: (1) willful failure to pay regular 5 wages, Cal. Lab. Code §§ 201–03; (2) failure to pay wages when due, id. § 204; (3) 6 failure to pay the required minimum wage, id. §§ 1194, 1194.2, 1198; Wage Order 7 No. 9-2001; (4) failure to furnish accurate wages; (5) waiting time penalties, Cal. Lab. 8 Code §§ 201–03; (6) Unfair Competition, Cal. Bus. & Prof. Code § 17200; and (7) 9 breach of oral contract. (Compl.) First Student removed the action to this Court on 10 September 23, 2015. (Not. of Removal, ECF No. 1.) 11 The parties stipulated to an extension of time for Plaintiff to conduct discovery 12 and to move for class certification, which the Court granted. (ECF Nos. 24–25.) On 13 February 22, 2016, Plaintiff filed this Motion proposing to certify a class consisting 14 of: “All current and former bus drivers who were employed by First Student at its 15 Pasadena Yard since November 19, 2007. The Pasadena Yard includes at least three 16 locations, known as the Montana Lot, the Lincoln Lot, and the South Lot.” (Mot. 3.) 17 First Student timely opposed (ECF No. 31), and Plaintiff timely replied (ECF No. 33). 18 In addition to its Opposition, First Student moved to strike Plaintiff’s evidence in 19 support if his Motion, and Plaintiff filed his own objection to the strike motion. (ECF 20 Nos. 30, 32.) The matter is now before the Court for decision. 21 22 23 24 IV. LEGAL STANDARD Under Federal Rule of Civil Procedure 23(a), a party seeking class certification must initially meet four requirements: 25 (1) the class is so numerous that joinder of all members is impracticable; 26 (2) there are questions of law or fact common to the class; 27 (3) the claims or defenses of the representative parties are typical of the 28 claims or defenses of the class; and 3 1 (4) the representative parties will fairly and adequately protect the 2 interests of the class. 3 The proposed class must also satisfy at least one of the three requirements listed 4 in Rule 23(b). Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 346 (2011). Rule 5 23(b)(3) states that a class may be maintained where “questions of law or fact 6 common to class members predominate over any questions affecting only individual 7 members,” and a class action would be “superior to other available methods for fairly 8 and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). 9 The plaintiff bears the burden of demonstrating that the putative class satisfies 10 each of Rule 23(a)’s elements along with one component of Rule 23(b). Conn. Ret. 11 Plans & Trust Funds v. Amgen Inc., 660 F.3d 1170, 1175 (9th Cir. 2011). In that 12 regard, “Rule 23 does not set forth a mere pleading standard. A party seeking class 13 certification must affirmatively demonstrate his compliance with the Rule—that is, he 14 must be prepared to prove that there are in fact sufficiently numerous parties, common 15 questions of law or fact, etc.” Dukes, 564 U.S. at 350. 16 A district court must perform a “rigorous analysis” to ensure that the plaintiff 17 has satisfied each of Rule 23(a)’s prerequisites. Id.; Ellis v. Costco Wholesale Corp., 18 657 F.3d 970, 980 (9th Cir. 2011). In many cases, “that ‘rigorous analysis’ will entail 19 some overlap with the merits of the plaintiff’s underlying claim. That cannot be 20 helped.” Dukes, 564 U.S. at 350. When resolving such factual disputes in the context 21 of a class-certification motion, district courts must consider “the persuasiveness of the 22 evidence presented.” Ellis, 657 F.3d at 982 (holding that a district court must judge 23 the persuasiveness and not merely the admissibility of evidence bearing on class 24 certification). Ultimately the decision to certify a class reposes within the district 25 court’s discretion. Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th 26 Cir. 2001). 27 28 4 V. 1 DISCUSSION 2 A failure to meet one of Rule 23’s requirements dooms a litigant’s class 3 certification request. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997) 4 (plaintiff bears burden of affirmatively satisfying each element of the Rule 23 5 analysis); see also Dukes, 564 U.S. at 350. Because the Court finds that Plaintiff’s 6 counsel has not met the adequacy requirement, the Court need not address the other 7 Rule 23 elements. Plaintiff has failed to show that his counsel can adequately fight for 8 the interests of those similarly situated, as counsel’s track record in this action and 9 those related show a clear inability to diligently represent the interests of their client or 10 the putative class members. 11 Rule 23’s adequacy requirement asks Plaintiff to demonstrate that he and his 12 counsel will “adequately protect the interests of those absent class members [he] 13 purport[s] to represent.” Allied Orthopedic Appliances, Inc. v. Tyco Healthcare Grp. 14 L.P., 247 F.R.D. 156, 177 (C.D. Cal. 2007). This requirement aims to protect all 15 members’ constitutional due process rights, as “absent class members must be 16 afforded adequate representation before entry of a judgment that binds them.” Hanlon 17 v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). Resolution of two questions 18 determines legal adequacy: (1) does the named plaintiff and his or her counsel have 19 any conflicts of interest with other class members; and (2) will the named plaintiffs 20 and their counsel prosecute the action vigorously on behalf of the class? Id. (citing 21 Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir.1978)). 22 While First Student also challenges the adequacy of Plaintiff as class 23 representative, the Court finds no conflict of interest to preclude him serving in such a 24 role. Though it does appear that Motty has not been adequately prepared for the 25 litigation journey ahead,3 his lack of preparedness is not, alone, enough to conclude 26 3 27 28 In his deposition testimony, Motty admits that he has not read the complaint that bears his name, only vaguely knows that the suit deals with “wages,” and does not understand the role or responsibilities attendant to class representation. (Deposition of James Motty (“Motty Dep.”) at 20:2–21:6, Def’s Compendium of Evidence (“Def’s COE), Dow Decl. Ex. A, ECF No. 31.) Per 5 1 that he is an inadequate representative. See Jimenez v. Domino’s Pizza, Inc., 238 2 F.R.D. 241, 249 (C.D. Cal. 2006) (noting that evidence of a plaintiff’s lack of 3 familiarity with the proceedings alone will not violate Rule 23(a)(4)) (citing Byes v. 4 Telecheck Recovery Servs., Inc., 173 F.R.D. 421, 429 (E.D. La. 1997)). Plaintiff was 5 a bus driver in the Pasadena lot throughout the class period, and even if he cannot 6 articulate the legal claims at issue, he does have personal experience regarding the 7 allegations and “at the least a general familiarity with the case.” Jimenez, 238 F.R.D. 8 at 249. 9 As to Plaintiff’s counsel, however, the Court finds Rule 23(a)(4) unsatisfied. 10 Class counsel must pursue the litigation “vigorously,” and while “there are no fixed 11 standards by which ‘vigor’ can be assayed, considerations include competency of 12 counsel.” Hanlon, 150 F.3d at 1021. Courts should look to “the actual progress of the 13 proceedings to that point,” including evidence of delays in seeking class certification, 14 failures to timely prosecute the litigation, and any failures to comply with reasonable 15 disclosure obligations or discovery requests. 16 F.R.D. 630, 634 (C.D. Cal. 2010) (citing E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 17 431 U.S. 395, 405 (1977) (failure to move for class certification before trial indicated 18 that representative was inadequate); Andrews v. Bechtel Power Corp., 780 F.2d 124, 19 130–31 (1st Cir. 1985) (long delay in prosecution of case demonstrates plaintiff’s 20 indifference to protecting class interests); McGowan v. Faulkner Concrete Pipe Co., 21 659 F.2d 554, 559 (5th Cir. 1981) (failure to conduct adequate discovery in 22 preparation for trial rendered representation inadequate)). Courts should also consider 23 the quality of counsel’s work up to that point in the litigation. Sweet v. Pfizer, 232 24 F.R.D. 360, 371 (C.D. Cal. 2005). Kandel v. Brother Int’l Corp., 264 25 26 27 28 Plaintiff, his main concern is that his wages are not “itemized,” so therefore he cannot know for certain if he was paid for all work performed—yet he also cannot know for certain that he was not paid for his services. (Id. at 20:2–25, 157:7–158:7.) 6 1 As detailed above, wage and hour claims against First Student are far from new 2 in this Court. Bus driver Imelda Vasquez first brought such claims in August 2014 3 and, after this Court denied class certification in March 2015 and parties failed to 4 appear for the final pretrial conference, the case was dismissed and Vasquez appealed 5 this Court’s class certification order. See Vasquez v. First Student, Inc., 2:14-cv- 6 06760-ODW-E (C.D. Cal.), ECF Nos. 44, 47, 48. Similarly, Corliss Bowers (also a 7 First Student bus driver) raised the same wage and hour claims in his complaint. See 8 Compl., Bowers v. First Student, Inc., 2:14-cv-08866-ODW-E (C.D. Cal. Oct. 21, 9 2014), ECF No. 1. Bowers failed to file a timely motion for class certification, and 10 the Court thus struck the class and Private Attorney General Act allegations from his 11 complaint. Bowers, ECF No. 23 (Apr. 23, 2015). 12 Five months after denying class certification in Vasquez and four months after 13 striking the class allegations in Bowers, the plaintiff in this action, James Motty, filed 14 suit. (ECF No. 1, Ex. A.) 15 Counsel in both this action and the Bowers action are one and the same. Counsel have 16 also filed wage and hour actions against First Student on behalf of drivers Shade 17 Chapman and Manuel Chavez in two related actions filed in June 2016, both of which 18 are also pending before this Court. See Compl., Chapman v. First Student, Inc., 2:16- 19 cv-04031-ODW-E (C.D. Cal. June 6, 2016), ECF No. 1; Compl., Chavez v. First 20 Student, Inc., 5:16-cv-01269-ODW-E (C.D. Cal. June 14, 2016), ECF No. 1. In 21 neither action did plaintiffs’ counsel manage to file a timely motion for class 22 certification—or even ask for an extension before the deadline—just as in Bowers. Again, the wage and hour claims are strikingly similar. 23 That Plaintiff’s counsel filed this putative class action after another firm’s 24 attempt failed, has offered no distinguishing facts to support a different result here, 25 and did not timely move for class certification in three of their four related cases 26 against First Student does not give the Court much confidence in the quality of their 27 representation. 28 7 1 Yet it is their actions in the instant case that gives the Court the greatest pause. 2 Counsel has not abided by the Court’s meet-and-confer requirements. (Declaration of 3 David Dow (“Dow Decl.”) ¶¶ 2–3, Def.’s COE, Ex. 1, ECF No. 31.) Nor has counsel 4 taken advantage of the additional time to conduct class-related discovery before filing 5 this Motion; even with a sixty-day extension to move for class certification, Plaintiff’s 6 counsel made no discovery requests. (See ECF Nos. 24–25; Dow Decl. ¶ 6.) The 7 only deposition testimony offered in support of the motion at bar comes from First 8 Student’s deposition of Plaintiff and four-year-old depositions from a related state 9 court action. (See Dow Decl. ¶ 7; Plf’s COE, Exs. 8–9.) Plaintiff’s only declaration 10 in support of their theory comes from their single named plaintiff, and they offer no 11 corroborating testimony from other drivers in the class. (See Motty Decl., Plf’s COE, 12 Ex. 3.) Moreover, if these examples were not enough to show a lack of due diligence, 13 Plaintiff’s failure to even make initial disclosures surely cements counsel’s 14 inadequacy.4 (See Def.’s Mot. to Strike Evidence in Support of Plf.’s Motion for 15 Class Cert. 1, ECF No. 30.) 16 In response, Plaintiff’s counsel simply states that they have experience litigating 17 class actions, but does not address First Student’s arguments relating to the case at 18 bar. (See Reply 5, ECF No. 33.) Just because Plaintiff’s counsel has a history 19 pursuing class actions does not mean the work currently before the Court is of 20 sufficient quality to ensure that the class members’ rights and interests will be 21 properly protected. In sum, because Plaintiff’s counsel will not adequately serve the 22 interests of the class members they seek to represent, the Court DENIES Plaintiff’s 23 Motion for Class Certification. (ECF No. 29.) 24 // 25 // 26 // 27 4 28 What is more, Plaintiff’s counsel even admits that they did not make the required disclosures, and instead rest on the argument that their failures are harmless. (Plf.’s Opp’n to Mot. to Strike 1–2, ECF No. 32.) 8 VI. 1 2 3 CONCLUSION For the reasons discussed above, the Court DENIES Plaintiff’s Motion for Class Certification. (ECF No. 29.) 4 5 IT IS SO ORDERED. 6 7 August 26, 2016 8 9 10 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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