Abikar et al v. Bristol Bay Native Corporation et al, No. 3:2017cv01036 - Document 119 (S.D. Cal. 2018)

Court Description: ORDER Denying Plaintiffs' Motion for Certification of Class Action [ECF. No. 55 ]. Signed by Judge Gonzalo P. Curiel on 12/21/2018. (anh)

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Abikar et al v. Bristol Bay Native Corporation et al Doc. 119 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 Plaintiffs, 11 12 v. 13 BRISTOL BAY NATIVE CORPORATION, et al., 14 17 18 19 20 21 22 23 24 25 26 ORDER DENYING PLAINTIFFS’ MOTION FOR CERTIFICATION OF CLASS ACTION [ECF No. 55] Defendants. 15 16 Case No.: 3:17-cv-01036-GPC-AGS ABUCAR NUNOW ABIKAR, et al., Before the Court is Plaintiffs’ Motion for Certification of Class Action. ECF No. 55. Plaintiffs in this case are refugees from Africa and were formerly employed by Defendants to assist training Marines in African culture. In this litigation, Plaintiffs claim that Defendants harassed and discriminated against them based on their race, national origin, and religion. Plaintiffs now move to certify the proposed class. As discussed below, the Court finds that Plaintiffs have not carried their burden of demonstrating that they have satisfied all of the requirements for class certification. The Court thus denies Plaintiffs’ Motion for Certification of Class Action. The named Plaintiffs may pursue their claims on an individual basis. 27 28 1 3:17-cv-01036-GPC-AGS Dockets.Justia.com 1 2 I. BACKGROUND A. Factual Background 3 The following allegations are taken from Plaintiffs’ First Amended Class Action 4 Complaint (“FAC”). Plaintiffs are current or former employees of Defendants Glacier 5 Technical Solutions, LLC, Bristol Bay Native Corporation, and Workforce Resources. 6 FAC, ECF No. 5 ¶ 2. Bristol Bay is the parent company of Glacier Technical Solutions 7 (“GTS”) and Workforce Resources. Id. ¶¶ 30-32. Defendants operate as joint employers 8 with respect to the allegations in the FAC. Id. 9 Defendants contract with the U.S. Department of Defense to train Marines in 10 African, Iraqi, Afghani, and Filipino culture. Id. ¶ 3. Defendants employ East African 11 refugees to roleplay as shopkeepers, village elders, and insurgents in simulated villages. 12 Id. The simulations teach Marines how to conduct safe and effective counter-insurgency 13 operations. Id. This roleplay employment is temporary, part-time, and sporadic. Id. 14 Members of the proffered class have worked for Defendants since 2010. Id. The East 15 African refugees Defendants employ are either citizens or permanent residents of the 16 United States. Id. ¶ 4. 17 Defendants have a consistent history of treating East African role-players less 18 favorably than role-players who are not East African. Id. ¶ 6. Most of this treatment was 19 advanced and effected by the site manager Habit Tarzi, and was adopted and endorsed by 20 managers Carol Giannini, Weston Giannini, Atiq Hamid, and David Tarzi. Id. For years, 21 the East African employees complained to Defendants about receiving disparate 22 treatment and being subjected to discriminatory harassment. Id. ¶ 9. When the 23 employees objected to this abuse, Defendants increased the mistreatment and threatened 24 terminating their employment. Id. Defendants continued to treat East African 25 roleplayers differently and adversely than similarly situated role-players from Iraq, 26 Afghanistan, or the Philippines. Id. 27 28 Beginning in December 2015 to February 2016, dozens of East African roleplayers filed complaints of discrimination, harassment, and retaliation with the EEOC. 2 3:17-cv-01036-GPC-AGS 1 Id. ¶ 10. Defendants nonetheless persisted in their mistreatment. Id. On July 12, 2016, 2 as a group, the East African role-players filed an unfair labor practice charge with the 3 NLRB. Id. ¶ 11. Defendants still continued their adverse actions. Id. 4 The FAC presents three classes. The “East African Class” consists of female and 5 male refugees from Somalia, Ethiopia, the Democratic Republic of Congo, and Burundi. 6 Id. ¶ 13. The “Female Class” consists of female East African refugees. Id. The “Muslim 7 Class” consists of Muslim East African refugees. Id. 8 9 Plaintiffs claim that Defendants engaged in discrimination and harassment of the East African Class by: 1) subjecting them to insults, ridicule, scorn, and mockery directed 10 toward their race, color, national origin, language, culture and traditions; 2) requiring 11 them to perform janitorial duties outside of their job description and without 12 compensation but did not require similarly situated non-East African Class members to 13 perform those janitorial duties; 3) failing to provide them with promotional opportunities, 14 rest and meal breaks, food, and water to the same extent and in as favorable a manner as 15 provided to similarly situated non-East African Class members; and 4) retaliating against 16 them for complaining about the adverse treatment. Id. at 6-7. 17 Additionally, Plaintiffs claim that Defendants engaged in discrimination and 18 harassment of the Female Class based on gender/sex by: 1) subjecting them to insults, 19 ridicule, scorn, and mockery; 2) refusing to allow them to wear “traditional” clothing but 20 allowing non-Female Class members to wear traditional clothing; 3) requiring them to 21 perform “stereotypically female cleaning and housekeeping duties” outside their job 22 description and without compensation but not requiring non-Female Class members to do 23 so; 4) failing to provide them with promotional opportunities to the same extent as to 24 similarly situated non-Female Class members; and 4) retaliating against them for 25 complaint about the adverse treatment. Id. at 7-9. 26 Plaintiffs claim that Defendants engaged in discrimination against the Muslim 27 Class by: 1) failing to provide religious accommodation; 2) subjecting them to insults, 28 ridicule, scorn, and mockery; and 3) retaliating against them for complaining about the 3 3:17-cv-01036-GPC-AGS 1 adverse treatment. Id. at 8-9. 2 B. 3 Procedural History Plaintiffs filed their Complaint on May 19, 2017. ECF No. 1. On October 6, 2017, 4 Plaintiffs filed their First Amended Complaint.1 ECF No. 5. Count IV of the FAC 5 claimed that Defendants’ practices and policies constitute illegal race discrimination with 6 respect to the making, performance, and termination of contracts prohibited by 42 U.S.C. 7 § 1981. FAC at 29. In Counts VII – X, Plaintiffs claim under California Government 8 Code §§ 12940(a) and (j) that Defendants discriminated against and harassed Plaintiffs on 9 the basis of race, color, national origin, gender/sex, and religion. FAC at 31-35. In 10 Count XII, Plaintiffs claimed that Defendants failed to prevent discrimination and 11 harassment in violation of the California Fair Employment and Housing Act (“FEHA”). 12 Id. at 35. Count XIII advances a claim for retaliation in violation of FEHA. Id. at 36. 13 14 Plaintiffs have now filed a Motion for Class Certification. ECF No. 55. Plaintiffs request the Court certify a class 15 of all refugees living or formerly living in the United States, from Somalia, Ethiopia, the Democratic Republic of the Congo, Burundi, and other African countries (collectively, “East African” or “East African Countries”), who work or worked as role-players for any of the Defendants at any time between January 01, 2010 and the date of judgment in this action, who allege they were treated worse than their counterparts because of race, color, and national origin[.] 16 17 18 19 20 Pls.’ Mot. at 2. 21 Plaintiffs also ask the Court to appoint the named Plaintiffs as class 22 representatives, and appoint Marilyn Spencer and David Duchrow as co-lead counsel. Id. 23 II. DISCUSSION 24 A. 25 26 27 28 Legal Standard Class actions are governed by Federal Rule of Civil Procedure 23. Rule 23(a) 1 In an order on Defendants’ motion to dismiss the FAC, the Court dismissed Counts I, II, III, V, VI. ECF No. 18 4 3:17-cv-01036-GPC-AGS 1 allows a class to be certified only if: 2 (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. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fed. R. Civ. P. 23(a). In order to certify a class, each of the four requirements of Rule 23(a) must first be met. Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). Next, in addition to Rule 23(a)’s requirements, the proposed class must satisfy the requirements of one of the subdivisions of Rule 23(b). Zinser, 253 F.3d at 1186. Furthermore, Rule 23 requires that “a court that certifies a class must appoint class counsel.” Fed. R. Civ. P. 23(g)(1). “A plaintiff seeking class certification bears the burden of demonstrating that each element of Rule 23 is satisfied, and a district court may certify a class only if it determines that the plaintiff has met its burden.” Gray v. Golden Gate Nat. Recreational Area, 279 F.R.D. 501, 507 (N.D. Cal. 2011) (citing Gen. Tel. Co. v. Falcon, 457 U.S. 147, 158-61 (1982); Doninger v. Pac. Nw. Bell Inc., 564 F.2d 1304, 1308 (9th Cir. 1977)). B. Analysis 1. Numerosity Federal Rule of Civil Procedure 23(a)(1) requires that a class must be “so numerous that joinder of all members is impracticable.” “[C]ourts generally find that the numerosity factor is satisfied if the class comprises 40 or more members and will find that it has not been satisfied when the class comprises 21 or fewer.” Celano v. Marriott Int’l, Inc., 242 F.R.D. 544, 549 (N.D. Cal. 2007). See also Ikonen v. Hartz Mountain Corp., 122 F.R.D. 258, 262 (S.D. Cal. 1988) (finding a purported class of forty members sufficient to satisfy numerosity) (citation omitted). 5 3:17-cv-01036-GPC-AGS 1 Plaintiffs define the class as “all refugees living or formerly living in the United 2 States, from Somalia, Ethiopia, the Democratic Republic of the Congo, Burundi, and 3 other African countries . . . who work or worked as role-players for any of the Defendants 4 at any time between January 01, 2010[,] and the date of judgment in this action [.]” Pls.’ 5 Mot. at 2. Plaintiffs assert that there are approximately 100-125 members of the class. 6 Pls.’ Mem. at 9, ECF No. 55-1. In support of this assertion, Plaintiffs cite the 7 declarations of Said Abiyow and Spencer. Id. Said Abiyow asserts that he is aware that 8 Defendants “employed at least 100 to 125 people [] as African role players; these 9 individuals worked off and on between 2010 and 2017.” Abiyow Decl., ECF No. 55-26 10 at 14. Spencer asserts that approximately 100 individuals who worked for Defendants as 11 African role players have signed representation agreements with her firm. Spencer Decl., 12 ECF No. 55-26 at 19. 13 Plaintiffs define the proposed class as refugees from Africa. Pls.’ Mot. at 2. 14 However, Abiyow does not attest as to how many refugees Defendants employed as 15 African role players. Similarly, Spencer does not allege how many of the individuals 16 who signed representation agreements are refugees. 17 Moreover, while Abiyow asserts the number of employees from 2010 to 2017, this 18 range includes a period of time that is beyond the applicable statutes of limiations. 19 Plaintiffs filed their complaint on May 18, 2017. ECF No. 1. Plaintiffs raise claims 20 under 42 U.S.C. § 1981, which are subject to a four-year statute of limitations. Jones v. 21 R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004). Plaintiffs’ claims under FEHA 22 can only go as far back as one year before they filed their administrative complaints. See 23 Cal. Gov’t Code § 12960(d) (“No complaint may be filed after the expiration of one year 24 from the date upon which the alleged unlawful practice or refusal to cooperate 25 occurred[.]”). The earliest EEOC charge filed by Plaintiffs was filed on January 4, 2016. 26 ECF No. 7-4 at 8. Therefore, the class period for any FEHA claims would begin on 27 January 4, 2015. 28 Abiyow does not allege the number of East African role players Defendants 6 3:17-cv-01036-GPC-AGS 1 employed during the applicable statutes of limitations period. Spencer also does not 2 assert how many individuals she has retained who worked for Defendants during this 3 period. Such evidence is particularly important here as Plaintiffs allege in their complaint 4 that class members’ employment was “temporary” and “sporadic.” FAC ¶ 3. Plaintiffs 5 have not pointed the Court to evidence that the class so numerous that joinder is 6 impracticable of members that were employed by Defendants from May 18, 2013, 7 onward. See Jeffries v. Pension Trust Fund, 172 F.Supp.2d 389, 394 (S.D.N.Y. 2001) 8 (noting that while the court may make “common sense assumptions to support a finding 9 of numerosity,” it may not “do so on the basis of pure speculation without any factual 10 support,” where plaintiff alleged that a large number of union’s members were 11 unemployed but failed to proffer evidence of how many laid-off members suffered the 12 alleged injury). The Court finds that Plaintiffs have not demonstrated numerosity. 13 2. 14 Federal Rule of Civil Procedure 23(a)(2) requires that there be “questions of law or 15 fact common to the class.” Commonality requires that “the class members ‘have suffered 16 the same injury.’” Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-50 (2011) (quoting 17 Falcon, 457 U.S. at 157). “The existence of shared legal issues with divergent factual 18 predicates is sufficient, as is a common core of salient facts coupled with disparate legal 19 remedies within the class.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 20 1998). “Rule 23(a)(2) has been construed permissively. All questions of fact and law 21 need not be common to satisfy the rule.” Staton v. Boeing Co., 327 F.3d 938, 953 (9th 22 Cir. 2003). 23 Commonality Plaintiffs assert that there are common questions of law and fact affecting rights of 24 each members of the class. Pls.’ Mem. at 12. These include: whether Defendants 25 subjected class members to insults and scorn directed toward their race, color, and 26 national origin, whether East African role-players were required to perform janitorial 27 duties outside of their job description and without compensation, whether non-East 28 African role-players were not required to perform janitorial duties outside their job 7 3:17-cv-01036-GPC-AGS 1 description or without compensation, and whether East African role-players were not 2 provided promotional opportunities, breaks, water, and food to the same extent and in as 3 favorable a manner as provided to similarly situated non-East African role-players. Id. at 4 12-13. 5 Plaintiffs have therefore shown the existence of shared legal issues common to the 6 class members. The Court finds that the commonality requirement has been met. The 7 Court will note, however, that Plaintiffs do not assert that there are any common 8 questions of law or fact as it relates to any religious discrimination. 9 3. Typicality 10 To satisfy Federal Rule of Civil Procedure 23(a)(3), Plaintiffs’ claims must be 11 typical of the claims of the class. The typicality requirement is “permissive” and requires 12 only that Plaintiffs’ claims “are reasonably coextensive with those of absent class 13 members.” Hanlon, 150 F.3d at 1020. “The test of typicality ‘is whether other members 14 have the same or similar injury, whether the action is based on conduct which is not 15 unique to the named plaintiffs, and whether other class members have been injured by the 16 same course of conduct.’” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 17 1992) (quoting Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D. Cal. 1985)). “[C]lass 18 certification should not be granted if there is a danger that absent class members will 19 suffer if their representative is preoccupied with defenses unique to it.” Id. (citation 20 omitted and quotation marks omitted). “Typicality refers to the nature of the claim or 21 defense of the class representative, and not to the specific facts from which it arose or the 22 relief sought.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984 (9th Cir. 2011) 23 (citation omitted). 24 Plaintiffs assert that each member of the proposed class was required to perform 25 janitorial duties and was denied adequate water while working because of race, color, or 26 national origin. Pls.’ Mem. at 9-10. Plaintiffs have thus shown that the class members 27 have similar injuries, the claims are based on conduct not unique to the named Plaintiffs, 28 and that class members have been injured by the same conduct. 8 3:17-cv-01036-GPC-AGS 1 4. 2 Rule 23(a) requires that “the representative parties will fairly and adequately 3 protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “Resolution of two questions 4 determines legal adequacy: (1) do the named plaintiffs and their counsel have any 5 conflicts of interest with other class members and (2) will the named plaintiffs and their 6 counsel prosecute the action vigorously on behalf of the class?” Hanlon, 150 F.3d at 7 1020 (citing Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978)). Adequacy 8 The FAC names as representative plaintiffs: 1) Abucar Nunow Abikar; 2) Barkadle 9 Sheikh Muhamed Awmagan; 3) Arab Mursal Deh; 4) Majuma Madende; 5) Osman Musa 10 Mohamed; 6) Osman Musa Muganga; 7) Rukia Musa; and 8) Fatuma Somow. FAC ¶ 1. 11 Plaintiffs contend that the named Plaintiffs will fairly and adequately represent and 12 protect the interests of all members of the proffered class. In support of this contention, 13 Plaintiffs note that the named Plaintiffs participated in the EEOC and NLRB complaints, 14 appeared at the Early Neutral Evaluation, and participated in providing information to 15 counsel. Pls.’ Mem. at 11-12. 16 Defendants contend that Plaintiffs cannot establish adequacy of their 17 representation. Defendants assert that Awmagan, Deh, Mohamed, Muganga, and Musa 18 failed to sit for their duly-noticed depositions, and Madende appeared at hers but refused 19 to testify. However, there is nothing before the Court to impute fault to the Plaintiffs 20 themselves, rather than counsel. Specifically, with regard to Deh, Mohamed, Muganga, 21 and Musa, Plaintiffs did not appear at those depositions because Plaintiffs’ counsel was 22 not available on the dates the depositions were scheduled. There is nothing before the 23 Court to show that those Plaintiffs asserted that they were unavailable for depositions. 24 Defendants also contend that Said Abiyow, who is not a Plaintiff, is directing the 25 litigation. Defs.’ Mem. at 15. Defendants point to Plaintiffs’ counsel’s statement: “[H]e 26 is our contact. Without Mr. Abiyow, we don’t have anyone who has the history, has a 27 two-and-a-half history with this law firm, who has the contacts among the plaintiffs to 28 help get me evidence.” Hrg. Tr. at 9, ECF No. 66. Counsel’s assertion regarding 9 3:17-cv-01036-GPC-AGS 1 Abiyow was not to the effect that he was behind Plaintiffs’ prosecution of this case, but 2 rather, counsel relies on Abiyow to gather evidence. In appointing class counsel, this 3 Court must consider “the work counsel has done in identifying or investigating potential 4 claims in the action.” Fed. R. Civ. P. 23(g)(1)(A)(i). It thus appears that counsel has 5 engaged Abiyow to assist in properly investigating the claims in this case. Given the 6 language barriers between counsel and Plaintiffs, it is not unreasonable for counsel to 7 utilize Abiyow to gather evidence from class members. The Court is not persuaded that 8 Abiyow’s assistance in gathering evidence renders Plaintiffs inadequate. 9 10 5. Rule 23(b) “If all four prerequisites of Rule 23(a) are satisfied, the Court must also find that 11 Plaintiff ‘satisfies through evidentiary proof’ at least one of the three subsections of Rule 12 23(b).” Magadia v. Wal-Mart Assocs., Inc., 324 F.R.D. 213, 219 (N.D. Cal. 2018) 13 (quoting Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)). Rule 23(b) provides that a 14 class action may be maintained if: 15 25 (1) prosecuting separate actions by or against individual class members would create a risk of: (A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. 26 Plaintiffs, in their Notice of Motion, assert that they “incorporate the allegations of 16 17 18 19 20 21 22 23 24 27 Paragraphs 22 through 35 and 42 through 52, of their First Amended Complaint herein, 28 demonstrating compliance with all the requirements of Rule 23(a) and with the 10 3:17-cv-01036-GPC-AGS 1 requirements of subdivision (2) and (3) or Rule 23(b) for maintaining a class action under 2 that subdivision.” Mot. at 3. Plaintiffs do not cite, discuss, or even parrot the language of 3 Rule 23(b)(2) in their memorandum in support of the Motion. “It is not enough to assert 4 that the ‘law’ authorizes or prohibits a certain action; a party has to explain why.” United 5 States ex rel. Monsour v. Performance Accounts Receivable, LLC, No. 1:16CV38-HSO- 6 JCG, 2018 WL 4682343, at *18 (S.D. Miss. Sept. 28, 2018). Plaintiffs single citation to 7 Rule 23(b)(2) and brief assertion that their FAC demonstrates compliance with Rule 8 23(b)(2) is not enough to sustain Plaintiffs’ “burden of showing that the proposed class 9 satisfies the requirements of Rule 23(b)(2).” In re Yahoo Mail Litig., 308 F.R.D. 577, 10 11 598 (N.D. Cal. 2015). In their Reply, Plaintiffs cite authority analyzing Rule 23(b)(2) and also assert 12 “Rule 23(b)(2) [is] not moot.” Reply, ECF No. 95 at 13. District courts “need not 13 consider arguments raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 14 990, 997 (9th Cir. 2007) (citing Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003)). 15 See also Imageware Sys., Inc. v. M2SYS Tech., LLC, No. 13CV846 DMS (JMA), 2013 16 WL 12089935, at *1 n.1 (S.D. Cal. Aug. 27, 2013) (“Parties should not raise new issues 17 for the first time in their reply briefs.”). Plaintiffs did not sufficiently argue for class 18 certification under Rule 23(b)(2) in their Motion or corresponding memorandum. It is 19 Plaintiffs’ burden to demonstrate they have satisfied one of Rule 23(b)’s subsections. To 20 the extent Plaintiffs raise specific assertions supporting certification under Rule 23(b)(2) 21 for the first time in their Reply, the Court finds that such argument is waived. 22 Plaintiffs also recite the language of Rule 23(b)(3) in their memorandum. Pls.’ 23 Mem. at 14. Rule 23(b)(3) has two requirements, referred to as predominance and 24 superiority: “common questions must ‘predominate over any questions affecting only 25 individual members,’ and class resolution must be ‘superior to other available methods 26 for the fair and efficient adjudication of the controversy.’” Hanlon, 150 F.3d at 1022 27 (quoting Fed. R. Civ. P. 23(b)(3)). 28 With regard to superiority, Plaintiffs assert that no other actions by individual 11 3:17-cv-01036-GPC-AGS 1 members of the class have been initiated, and no likely or foreseeable difficulties exist in 2 the management of the case as a class action. Pls.’ Mem. at 15. 3 “The Rule 23(b)(3) predominance inquiry is meant to test whether proposed 4 classes are sufficiently cohesive to warrant adjudication by representation.” Dukes, 564 5 U.S. at 376 (citation and quotation marks omitted). The predominance test of Rule 6 23(b)(3) is “far more demanding” than the commonality test under Rule 23(a)(2). 7 Amchem, 521 U.S. at 624. See also Hanlon, 150 F.3d at 1022 (“[T]he presence of 8 commonality alone [under 23(a)(2)] is not sufficient to fulfill Rule 23(b)(3).”). 9 Though common issues need not be “dispositive of the litigation,” In re Lorazepam 10 & Clorazepate Antitrust Litig., 202 F.R.D. 12, 29 (D.D.C. 2001), they must “present a 11 significant aspect of the case [that] can be resolved for all members of the class in a 12 single adjudication” so as to justify “handling the dispute on a representative rather than 13 an individual basis,” Hanlon, 150 F.3d at 1022. Whether the predominance requirement 14 is satisfied in a particular case “turns on close scrutiny of ‘the relationship between the 15 common and individual issues.’” In re Wells Fargo Home Mortg. Overtime Pay Litig., 16 571 F.3d 953, 958 (9th Cir. 2009) (quoting Hanlon, 150 F.3d at 1022). 17 “The predominance inquiry begins ‘with the elements of the underlying cause of 18 action.’” Clay v. CytoSport, Inc., No. 3:15-CV-00165-L-AGS, 2018 WL 4283032, at *5 19 (S.D. Cal. Sept. 7, 2018) (quoting Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 20 804, 809 (2011)). “In determining whether common questions predominate, the Court 21 identifies the substantive issues related to plaintiff’s claims (both the causes of action and 22 affirmative defenses); then considers the proof necessary to establish each element of the 23 claim or defense; and considers how these issues would be tried.” Gaudin v. Saxon 24 Mortg. Servs., Inc., 297 F.R.D. 417, 426 (N.D. Cal. 2013). “The predominance inquiry 25 requires that plaintiff demonstrate that common questions predominate as to each cause 26 of action for which plaintiff seeks class certification.” Id. (citing Amchem, 521 U.S. at 27 620). “Predominance requires that the common issues be both numerically and 28 qualitatively substantial in relation to the issues peculiar to individual class members.” In 12 3:17-cv-01036-GPC-AGS 1 re Dynamic Random Access Memory (DRAM) Antitrust Litig., No. M 02-1486, 2006 WL 2 1530166, at *6 (N.D. Cal. June 5, 2006) (internal quotation omitted). 3 If common questions “present a significant aspect of the case and they can be 4 resolved for all members of the class in a single adjudication,” then “there is clear 5 justification for handling the dispute on a representative rather than on an individual 6 basis,” and the predominance test is satisfied. Hanlon, 150 F.3d at 1022. “If the main 7 issues in a case require the separate adjudication of each class member’s individual claim 8 or defense, a Rule 23(b)(3) action would be inappropriate.” Zinser, 253 F.3d at 1190 (9th 9 Cir. 2001). This is because, inter alia, “the economy and efficiency of class action 10 treatment are lost and the need for judicial supervision and the risk of confusion are 11 magnified.” Id. 12 Plaintiffs have not sustained their burden under Rule 23(b)(3) for two reasons. 13 First, the only argument Plaintiffs make is the conclusory assertion that “[t]he questions 14 of law and fact common to the members of the class predominate over any questions 15 affecting only individual members.” Pls.’ Mem. at 14. “Conclusory assertions are not 16 enough” for Plaintiffs to meet their burden. Life Techs. Corp. v. Biosearch Techs., Inc., 17 No. C-12-00852 WHA JCS, 2012 WL 1604710, at *7 (N.D. Cal. May 7, 2012). 18 Plaintiffs must “satisfy through evidentiary proof” Rule 23(b), yet Plaintiffs point the 19 Court to no evidence in support of their Rule 23(b)(3) assertion. Though analyzing 20 predominance “begins, of course, with the elements of the underlying cause of action,” 21 Halliburton, 563 U.S. at 809, Plaintiffs’ predominance assertion makes no reference to 22 their underlying claims. 23 Even diving into those claims, the Court is not persuaded that common questions 24 would predominate over any questions affecting individual members. Under § 1981, 25 individuals who bring private complaints of racial discrimination against an employer 26 bear the burden of establishing a prima facie case of discrimination. McDonnell Douglas 27 Corp. v. Green, 42 U.S. 792 (1973). A plaintiff can establish a prima facie case of 28 employment discrimination under McDonnell Douglas by showing that: (1) he is a 13 3:17-cv-01036-GPC-AGS 1 member of a protected class; (2) he was qualified for his job and satisfactorily performed 2 the functions of his position; (3) he experienced an adverse employment action; and (4) 3 the employer treated other similarly situated individuals outside of the protected class 4 more favorably. Hawn, 615 F.3d at 1156. Alternatively, a plaintiff can provide more 5 direct evidence suggesting that there was discriminatory animus behind the adverse 6 employment decision. Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1148-1149 (9th 7 Cir. 1997). “Direct evidence is ‘evidence which, if believed, proves the fact [of 8 discriminatory animus] without inference or presumption.’” Vasquez v. Cty. of Los 9 Angeles, 349 F.3d 634, 640 (9th Cir. 2003) (citation omitted). 10 To state a claim for employment discrimination under FEHA, Plaintiffs must show 11 that: (1) they are members of a protected class; (2) they were performing their jobs in a 12 satisfactory manner; (3) they suffered an adverse employment decision; and (4) they were 13 treated differently than similarly situated persons outside their protected class. 14 Alatraqchi v. Uber Techs., Inc., No. C-13-03156 JSC, 2013 WL 4517756, at *6 (N.D. 15 Cal. Aug. 22, 2013) (citing McDonnell Douglas, 411 U.S. at 802; Schechner v. KPIX–TV, 16 686 F.3d 1018, 1023 (9th Cir. 2012)). 17 Courts have denied class certification in discrimination cases on grounds that the 18 plaintiffs failed to meet the predominance requirement. In Jackson v. Motel 6 19 Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir. 1997), plaintiffs sought class 20 certification for a class of African-American customers claiming that Motel 6 21 discriminated against its customers on the basis of race by denying accommodations or 22 providing them with substandard accommodations. The plaintiffs’ claims required them 23 to show that “(1) a Motel 6 employee denied him a room (or rented him a substandard 24 room) on the basis of his race and either (2) that that employee had the general authority 25 to rent motel rooms or (3) that that employee was acting in accordance with a Motel 6 26 policy or practice of racial discrimination.” Id. at 1006 n.13. The court of appeals held 27 that “the single common issue” in the case of “whether Motel 6 has a practice or policy of 28 discrimination” was not “predominant over all the other issues that will attend the 14 3:17-cv-01036-GPC-AGS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jackson plaintiffs’ claims.” Id. at 1006. The Jackson plaintiffs’ claims will require distinctly case-specific inquiries into the facts surrounding each alleged incident of discrimination. The issues that must be addressed include not only whether a particular plaintiff was denied a room or was rented a substandard room, but also whether there were any rooms vacant when that plaintiff inquired; whether the plaintiff had reservations; whether unclean rooms were rented to the plaintiff for reasons having nothing to do with the plaintiff's race; whether the plaintiff, at the time that he requested a room, exhibited any non-racial characteristics legitimately counseling against renting him a room; and so on[.] These issues are clearly predominant over the only issue arguably common to the class—whether Motel 6 has a practice or policy of racial discrimination. Indeed, we expect that most, if not all, of the plaintiffs’ claims will stand or fall, not on the answer to the question whether Motel 6 has a practice or policy of racial discrimination, but on the resolution of these highly casespecific factual issues. Id. See also Rustein v. Avis Rent-A-Car Sys., Inc. 211 F.3d 1228 (11th Cir. 2000) (common issues in discrimination action brought by Jewish clients did not predominate because of need to determine damages for every plaintiff and identical discrimination was highly unlikely). Courts have also found a lack of predominance specifically in the employment discrimination context. In Harris v. Initial Security, Inc., the plaintiffs moved to certify a class consisting of “all black and dark-skinned employees of Defendant, . . . who were either terminated, passed over for promotion, subject to discipline, harassed and/or retaliated against on the basis of their race or color.” No. 05 CIV. 3873 (GBD), 2007 WL 703868, at *7 (S.D.N.Y. Mar. 7, 2007) at *2. The plaintiffs claimed that they and twenty-five other black security guards were terminated because of the defendant’s “policy of discriminating against non-Hispanics.” Id. The plaintiffs also alleged that “two black guards . . . did not receive promotions despite being more qualified than Hispanic guards who did,” and “four Hispanic guards who . . . were unqualified for promotions but were nonetheless promoted ahead of more qualified black guards.” Id. The plaintiffs claimed “that several black security guards . . . were forced by a Hispanic 15 3:17-cv-01036-GPC-AGS 1 supervisor to work overtime, even though they had young children to care for at home, 2 while similarly situated Hispanic guards were not.” Id. Finally, the plaintiffs alleged that 3 the manager “made several racist remarks towards blacks.” Id. The district court denied 4 class certification because 5 6 7 8 9 10 11 12 13 there are no questions of law or fact common to the members of the proposed class so that a class action would be superior to Plaintiffs adjudicating their claims individually. At best, Plaintiffs have individual claims for discriminatory termination. They seek to represent a class of other plaintiffs who might also have claims for discrimination in promotions, overtime assignments, and discipline. Each individual claim would have its own provable set of facts and measure of damages. Therefore, class certification would be inappropriate. Id. at *7. Looking to the issues raised by Plaintiffs in this case, the Court is not convinced that common questions would predominate. To the extent Plaintiffs’ claim that they were 14 subjected to insults, such as that their “food smells bad,” ECF No. 55-13 at 3, “the 15 speaker’s meaning may depend on various factors including context, inflection, tone of 16 voice, local custom, and historical usage.” Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 17 (2006). See also Barabin v. Aramark Corp., 210 F.R.D. 152, 162 (E.D. Pa. 2002), aff’d, 18 No. 02-8057, 2003 WL 355417 (3d Cir. Jan. 24, 2003) (“[W]hile all of the plaintiffs aver 19 that they were ‘subjected to frequent harassment and unjustified disciplinary sanctions by 20 21 22 23 24 25 26 Caucasian supervisors not imposed on similarly situated Caucasian employees,’ the circumstances under which those acts of discrimination were committed and the resultant injuries are unique to each individual plaintiff.”). Plaintiffs also claim that they were required to perform janitorial duties that were outside of their job description. Plaintiffs have not pointed to any “evidence that the duties of the job are largely defined by comprehensive corporate procedures and policies.” Damassia v. Duane Reade, Inc., 250 F.R.D. 152 (S.D.N.Y. 2008). It therefore 27 appears that there would be an individualized determination as to job descriptions. 28 Plaintiffs similarly claim that they were required to perform janitorial duties without 16 3:17-cv-01036-GPC-AGS 1 compensation. But Plaintiffs have not explained if there was a uniform policy of how 2 Defendants paid the employees their wages, i.e. whether they were paid on an hourly or 3 salary basis. There would have to be individualized determinations as to how Defendants 4 paid the class members and if the employee was on the clock for the time they were 5 doing janitorial work. 6 For Plaintiffs’ claims of denial of promotions, it would be a highly individualized 7 determination as to whether a particular class member was denied a promotion, what the 8 criteria were for the promotion, whether members were qualified for the promotion, and 9 whether non-class members who were considered for the promotion were qualified. “An 10 individual’s qualifications, experience, and background for a particular job or contract 11 must be considered in any case where discrimination is alleged.” Reid v. Lockheed 12 Martin Aeronautics Co., 205 F.R.D. 655, 684 (N.D. Ga. 2001). “This is especially true 13 where the plaintiffs’ claims involve allegations of discrimination in promotions and 14 hostile work environment, which are by their very nature extremely individualized and 15 fact-intensive claims.” Id. 16 With regard to the denial of breaks, Plaintiffs fail to show how “[l]iability [can] be 17 established without individual trials for each class member to determine why each class 18 member did not clock out for a full 30-minute meal break on any particular day.” Kenny 19 v. Supercuts, Inc., 252 F.R.D. 641, 646 (N.D. Cal. 2008). See also Flores v. Supervalu, 20 Inc., 509 F. App’x. 593, 594 (9th Cir. 2013) (holding that district court correctly found 21 that plaintiff’s claim that supervisors compelled employees to forego breaks “required 22 examination of a number of human factors and individual idiosyncrasies having little to 23 do with an overarching policy and thus failed to satisfy Rule 23(b)(3)”) (citation and 24 quotation marks omitted). Nor have Plaintiffs “rais[ed] an inference of class-wide 25 discrimination through the use of statistical analysis.” Dukes, 509 F.3d at 1180. 26 It also appears that damages determinations would be highly individualized. The 27 “Supreme Court has held that the plaintiff bears the burden of providing a damages 28 model showing that ‘damages are susceptible of measurement across the entire class for 17 3:17-cv-01036-GPC-AGS 1 purposes of Rule 23(b)(3).’” Grace v. Apple, Inc., No. 17-CV-00551-LHK, 2018 WL 2 4468825, at *12 (N.D. Cal. Sept. 18, 2018) (quoting Comcast, 569 U.S. at 35). “The 3 damages model ‘must measure only those damages attributable to’ the plaintiff’s theory 4 of liability.” Id. (quoting Comcast, 569 U.S. at 35). Plaintiffs have provided no damages 5 model to the Court that is susceptible of measurement across the entire class. 6 Plaintiffs contend that compensatory and punitive damages are common questions. 7 Pls.’ Mem. at 13. “Assuming arguendo that [Defendants] operated in a discriminatory 8 manner, calculating compensatory and punitive damages, as opposed to simply back pay, 9 for [dozens] of class members would prove to be quite an individualized task.” Reap v. 10 Cont’l Cas. Co., 199 F.R.D. 536, 549 (D.N.J. 2001). To the extent Plaintiffs seek back 11 pay, Plaintiffs have not shown that Defendants are not “entitled to individualized 12 determinations of each employee’s eligibility for backpay.” Dukes, 564 U.S. at 366. In 13 sum, Plaintiffs have not sustained their burden under Rule 23(b)(3). 14 6. 15 Rule 23(g)(2) provides that if “one applicant seeks appointment as class counsel, Adequacy of Class Counsel 16 the court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1) 17 and (4).” Rule 23(g)(1) states that in appointing class counsel, the Court: 18 19 20 21 22 23 24 25 26 27 28 (A) must consider: (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel's knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class; (B) may consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class[.] Fed. R. Civ. P. 23(g)(1). Rule 23(g)(4) requires that class counsel “fairly and adequately represent the interests of the class.” “[I]n this Circuit, adequacy of counsel is a valid and relevant basis for denying a motion for class certification.” Varela v. Indus. Prof’l & Tech. Workers, 18 3:17-cv-01036-GPC-AGS 1 No. CV 08-1012 SVW (RZX), 2009 WL 10670788, at *3 (C.D. Cal. Oct. 28, 2009). 2 “Plaintiffs must show at this stage the presence on the field of adequate class counsel; the 3 Court cannot certify a class action with counsel to follow.” Rambarran v. Dynamic 4 Airways, LLC, No. 14-CV-10138 KBF, 2015 WL 4523222, at *10 (S.D.N.Y. July 27, 5 2015). 6 The Court first needs to sort out who has properly applied to be class counsel. In 7 their Motion for Class Certification, Plaintiffs request that Spencer and Duchrow be 8 named as co-lead counsel and that Johnson and McCammon be named as co-associate 9 counsel. On September 18, 2018, Plaintiffs asserted to the Court that they “are in the 10 process of selecting additional counsel to add to their legal team and anticipates the 11 additional attorneys will file their appearances within two weeks. At that time, attorney 12 Thomas J. McCammon will reduce his role in this case.” ECF No. 76 at 3. At a hearing 13 on the Motion for Certification, Plaintiffs’ counsel clarified that McCammon 14 communicates with the class members, but is not involved in any other aspects of the 15 litigation. 16 In their Reply filed on October 19, 2018, Plaintiffs stated that they “are associating 17 in additional counsel, as indicated in a separate pleading, incorporated herein by 18 reference.” Reply, ECF No. 95 at 10. Plaintiffs do not identify which “separate 19 pleading” that is. Attached as an exhibit to Plaintiffs’ Reply is the Declaration of Neil 20 Pedersen. Pedersen Decl., ECF No. 95-4. Notably, Plaintiffs’ Reply did not include an 21 exhibit list or refer to the Pedersen’s Declaration. 22 On November 28, 2018, Plaintiffs filed their Notice of Association of Counsel, 23 ECF No. 106, asserting that attorneys Neil Pedersen, Michael Baltaxe, and Timothy 24 Sottile have entered the case as co-counsel for Plaintiffs. On December 4, 2018, 25 Plaintiffs filed a Supplemental Points and Authorities in Support of Class Certification. 26 ECF No. 108. Plaintiffs attached declarations from these attorneys “in support of class 27 certification,” and requested the Court consider “the increased strength of Plaintiffs’ legal 28 team in deciding their certification motion.” Id. at 1. Plaintiffs did not seek leave to file 19 3:17-cv-01036-GPC-AGS 1 supplemental briefing. Plaintiffs’ new contentions raised in their Reply and supplemental 2 briefing in support of their motion for class certification are simply untimely and 3 improper. This Court “need not consider arguments raised for the first time in a reply 4 brief.” Zamani, 491 F.3d at 997. 5 Proffering this evidence after their Reply gave Defendants no chance to respond as 6 to whether counsel is adequate. Plaintiffs offer no reason to the Court why they could not 7 have retained these attorneys on this case prior to filing their motion for class 8 certification. The Court will therefore not consider Pedersen, Baltaxe, and Sottile for 9 purposes of Plaintiffs’ motion for class certification. 10 11 a. The work counsel has done in identifying or investigating potential claims in the action 12 Spencer asserts that in March 2016, members of the proposed class first contacted 13 her, and she has worked on this case since. Spencer Decl., ECF No. 55-26 at 19. At that 14 time, Spencer began to represent the class members in the EEOC proceedings. Id. at 20. 15 Moreover, in July 2016, Spencer filed charges to the NLRB. Id. 16 17 b. Counsel’s Experience Spencer asserts that she has practiced exclusively in the areas of employment and 18 labor law, and has been lead attorney or second chair for 35 trials and arbitrations. 19 Spencer Decl., ECF No. 55-26 at 21-22. Spencer also asserts that she has handled 20 21 22 23 24 25 26 approximately 25 multi-plaintiff discrimination cases. Duchrow asserts that he has litigated four class action cases. Duchrow Decl., ECF No. 55-26 at 28. Johnson states that she practices employment law. Johnson Decl., ECF No. 55-26 at 36. Moreover, she has been lead attorney for approximately 20 trials and arbitrations, many of which involved discrimination, retaliation, or wage disputes. Id. at 37. As Defendants note, Johnson has been previously warned by a court in this district after months of delay in obtaining a declaration that “[t]he Court will not permit further 27 gamesmanship of the court system and opposing counsel in this manner.” Evenflo Co., 28 Inc. v. Augustine, No. 14CV1630 AJB (JLB), 2015 WL 13106024, at *3 (S.D. Cal. Jan. 20 3:17-cv-01036-GPC-AGS 1 7, 2015). Defendants also note that Duchrow has been sanctioned by another court. In 2 Glass v. Intel Corp., Inc., No. CV-07-1835PHXMHM, 2009 WL 4050875 (D. Ariz. Nov. 3 20, 2009), Duchrow represented plaintiff Glass. Defendant brought a motion for 4 attorney’s fees, arguing that “Plaintiff’s action was frivolous, unreasonable, or without 5 foundation.” Id. at *1. The district court agreed. The court noted that Glass had brought 6 three discrimination, harassment, and retaliation lawsuits against his former employer, 7 and none of them “came even remotely close to presenting a meritorious claim for relief.” 8 Id. The court thus ordered attorney’s fees to Intel. 9 10 11 12 13 14 15 16 However, rather than making Kevin Glass solely responsible for this award, the Court will also award fees against Glass’ attorney, Mr. David J. Duchrow. The Court notes that Mr. Duchrow represented Glass in all three of these now dismissed frivolous federal cases. In the Court’s estimation, Mr. Duchrow played a critical role in enabling the continuation of Glass’ litigation-which amounted to a tremendous waste of both the Court's time and the funds of Intel’s shareholders. Mr. Duchrow’s action is therefore sanctionable under 28 U.S.C. § 1927 and the Court's inherent power. Id. at *2. Duchrow asserts that those three cases later settled, and Duchrow then filed a 17 motion for reconsideration of the sanctions order. Duchrow Decl. ¶ 7, ECF No. 95-1. 18 The district court granted the motion for reconsideration, but later issued a nearly 19 identical order as the prior sanctions order. Id. Duchrow appealed to the Ninth Circuit, 20 and the parties settled. Id. While Duchrow emphasizes that no sanctions were paid as a 21 result of the settlement, Duchrow has not shown that the district court erred in 22 sanctioning him. However, Duchrow asserts that the district court’s issuance of sanctions 23 was the only such occurrence in his 36 years of practicing as an attorney. 24 25 c. Counsel’s knowledge of the applicable law Based on Plaintiffs’ motion practice with respect to this instant motion, the Court 26 questions counsel’s knowledge of the applicable law. The class certification motion itself 27 is noticeably deficient, providing no clear explanation of Federal Rule of Civil Procedure 28 23, the rule that governs class certification. As discussed above, Plaintiffs’ argument 21 3:17-cv-01036-GPC-AGS 1 under Rule 23(b) was woefully deficient. For issues such of typicality, numerosity, and 2 adequacy, which are essential requirements that Plaintiffs bear the burden of meeting, 3 Plaintiffs give the Court no case law to demonstrate how to analyze whether Plaintiffs 4 have satisfied these elements. Plaintiffs’ analysis is also lacking with respect to the 5 substantive law of their claims. Plaintiffs did not explain to the Court the elements of 6 their substantive claims. According to Plaintiffs, Duchrow “was responsible for drafting 7 the motion for class certification, which he then provided to co-counsel . . . Spencer and . 8 . . Johnson to complete with facts from the declarations.” ECF No. 83-1 at 1. The Court 9 is not persuaded that counsel has adequate knowledge of the applicable law. See Kurczi 10 v. Eli Lilly & Co., 160 F.R.D. 667, 679 (N.D. Ohio 1995) (“Not only has the proposed 11 class failed to research legal issues adequately and to construct thoughtful pleadings, they 12 have proved to be incapable of handling the workload involved in processing the 13 extensive discovery material which necessarily arises in an action such as this.”). 14 15 d. Resources that counsel will commit to representing the class The Court questions whether counsel has sufficient resources to commit to 16 representing the class in this case. Even with three or four attorneys assigned to this case, 17 counsel has routinely asked the Court to push back deadlines or asked defense counsel to 18 reschedule discovery matters based on Plaintiffs’ counsel unavailability. See e.g., Joint 19 Stipulation Re: Requested Continuance of Case Management Conference, ECF No. 27. 20 21 22 23 24 25 26 e. Any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class “In determining the adequacy of counsel, the court looks beyond reputation built upon past practice and examines counsel’s competence displayed by present performance.” Bolanos v. Norwegian Cruise Lines Ltd., 212 F.R.D. 144, 156 (S.D.N.Y. 2002) (citation omitted). This case began poorly for counsel. Plaintiffs filed their original complaint on May 18, 2017. ECF No. 1. Though a summons was issued the 27 next day, Plaintiffs failed to serve Defendants for four months, well beyond the deadline 28 set by Federal Rule of Civil Procedure 4(m). It was not until October 4, 2017, that 22 3:17-cv-01036-GPC-AGS 1 counsel began the process of litigating this case. ECF No. 4. In an Order entered on July 2 20, 2018, the Court cataloged counsel’s pattern of consistently failing to meet Court 3 deadlines and failing to follow Court rules. Order, ECF No. 45 at 9. 4 Counsel’s filing of this motion for class certification has furthered revealed 5 counsel’s inadequacy. The Magistrate Judge set a deadline of July 27, 2017, to file a 6 motion for class certification. ECF No. 33 at 2. On the deadline, Plaintiffs’ counsel 7 Spencer filed a defective motion that was incomplete and filled with redline edits intact. 8 ECF No. 49 at 8. On July 30, 2018, Spencer called chambers and asserted that the 9 defective filing was caused by her using the wrong web browser. Order, ECF No. 58 at 10 1-2. Plaintiffs finally filed the corrected motion for class certification on August 2, 2018. 11 ECF No. 55. 12 Unfortunately, as this Court has previously noted: 13 This is not the first time Attorney Spencer has “mistakenly” filed a draft filing near a deadline set by this Court. After Defendants filed a motion to dismiss and strike Plaintiffs’ complaint, the Court set a response deadline of November 24, 2017. On the afternoon of November 22, Attorney Spencer called this Court’s chambers suggesting that she might file a motion to extend Plaintiffs’ response deadline. No such motion was filed. Rather, at 11:54 p.m. on November 24, Attorney Spencer filed a document purported to be a response to Defendants’ motion. The document Attorney Spencer filed, however, was an incomplete draft. The following Monday, Attorney Spencer filed a completed version of the opposition. Three days later, she filed a motion for leave to file her untimely corrected response. In that motion, Attorney Spencer claimed that on the evening of November 24 she had trouble uploading her response because she was unable to find the hyperlink responsible for uploading documents. Shortly before midnight, the previously hidden link returned on her browser, permitting her to upload a document. In a hurry to file her response timely, however, Attorney Spencer claimed she accidentally filed a “much earlier draft.” When she realized this mistake a few minutes later, the link to upload a document was, according to Attorney Spencer, nowhere to be found. The Court granted the motion for leave to file her untimely filing. Another similar incident occurred in May 2018. After several hiccups in the case management conference process—resulting at least in part from what appears to be Plaintiffs’ failure to make initial disclosures—Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 3:17-cv-01036-GPC-AGS 1 Schopler issued a scheduling order setting the deadline for any motion to amend Plaintiffs’ complaint at May 18, 2018. At midnight on the evening of May 18, Attorney Spencer filed a motion to amend the complaint. She filed her proposed Second Amended Complaint in the early morning of May 19. Contrary to this Court’s rules, Attorney Spencer failed to (1) obtain a hearing date on this motion, and (2) file a redline version of the proposed Second Amended Complaint demonstrating the differences between the operative complaint and the proposed version. On May 22, Attorney Spencer refiled her motion after obtaining a hearing date. She did not file the redlined version of the Second Amended Complaint until July 7. In denying Plaintiffs’ motion without prejudice, the Court acknowledged Attorney Spencer’s “pattern of conduct” relating to her failing to meet Court-ordered deadlines, and it warned that the Court “is unlikely to grant a last-minute (or untimely) request to extend the deadline for filing any further motion to amend the complaint.” 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order, ECF No. 58 at 2-3 (internal ECF citations omitted). While the Court attributed these deficiencies to Spencer, this conduct is reflective of Plaintiffs’ counsel as a whole, including Johnson and Duchrow, given that Duchrow entered his Notice of Appearance in this case on April 6, 2018, (and appeared on case captions even beforehand ). Most recently, the Court was made aware that due to counsel’s conduct, five named Plaintiffs failed to appear for their duly-noticed depositions, and one named Plaintiff refused to testify because counsel believed (with no evidentiary proof) that an interpreter for a different language would be present. Based on counsel’s conduct in this litigation, the Court does not find that counsel is adequate.2 2 See e.g. Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346 (9th Cir. 1984) (denying certification because counsel failed to timely move for certification, failed to properly respond to discovery, failed to hire local counsel and submitted pleadings with “assembly line” quality); McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 559 (5th Cir. 1981) (class certification denied where counsel displayed “lack of competency” in completing discovery); Kingsepp v. Wesleyan Univ., 142 F.R.D. 597, 602 (S.D.N.Y. 1992) (denying class certification where “[counsel’s] documented failures to comply with a variety of court orders, statutory requirements, and the Federal Rules of Civil Procedure indicate[d] that he [was] not an attorney who should be entrusted to conduct the proposed litigation”); Sicinski v. Reliance Funding Corp., 82 F.R.D. 730, 734 & n. 2 (S.D.N.Y. 1979) (class certification denied where 24 3:17-cv-01036-GPC-AGS 1 7. 2 Plaintiffs request that if the Court denies their motion, “that it be denied without Leave to reassert class certification 3 prejudice to allow additional facts to be included.” Pls.’ Mem. at 15. Federal Rule of 4 Civil Procedure 23(c)(1)(C) provides that “[a]n order that grants or denies class 5 certification may be altered or amended before final judgment.” District courts “have 6 ample discretion to consider (or to decline to consider) a revised class certification 7 motion after initial denial.” In re Initial Pub. Offering Sec. Litig., 483 F.3d 70, 73 (2d 8 Cir. 2007). “Even after a certification order is entered, the judge remains free to modify 9 it in the light of subsequent developments in the litigation.” Gen. Tel. Co. of Sw. v. 10 Falcon, 457 U.S. 147, 160 (1982). However, courts generally require “materially 11 changed or clarified circumstances” in order to reconsider class certification. Hartman v. 12 United Bank Card, Inc., 291 F.R.D. 591, 597 (W.D. Wash. 2013) (citation omitted). “In 13 the absence of subsequent developments warranting a revision, however, the Court 14 ordinarily has little reason to revisit the issue of the propriety of its original 15 determination.” Friend v. Hertz Corp., No. C–07–5222 MMC, 2014 WL 4415988, at *2 16 (N.D. Cal. Sept.8, 2014). “Rule 23(c)(1) provides Plaintiffs with a limited opportunity to 17 adduce additional facts: It is not a Trojan Horse by which Plaintiffs may endlessly 18 reargue the legal premises of their motion.” Gardner v. First Am. Title Ins. Co., 218 19 F.R.D. 216, 218 (D. Minn. 2003). 20 Moreover, it is not clear that the discovery of new evidence would automatically 21 allow Plaintiffs to file another motion for class certification. In addition to any such 22 newly produced evidence, the Court must also consider the interest of “actually 23 proceeding to the merits of the case.” Burkhead v. Louisville Gas & Elec. Co., No. 24 CIV.A.3:06CV–282–H, 2008 WL 1805487, at *1 (W.D. Ky. Apr. 18, 2008). Revisiting 25 26 27 counsel’s performance in commencing the action and proceeding with discovery had been unsatisfactory). 28 25 3:17-cv-01036-GPC-AGS 1 the class certification issue might postpone resolution of this case. The Proposed Final 2 Pretrial Conference Order is due by April 26, 2019. ECF No. 33 at 5. Having the Court 3 review a second motion for class certification would possibly induce a continuance of the 4 pretrial conference, which in turn would continue the trial date. 5 The Court must also weigh any undue delay or undue prejudice to Defendants. See 6 Cabrera v. Gov’t Emps. Ins. Co., No. 12-61390-CIV, 2015 WL 464237, at *4-7 (S.D. 7 Fla. Jan. 16, 2015); Kerns v. Caterpillar Inc., No. 3:06–1113, 2011 WL 1598830, at *2 8 (M.D. Tenn. Apr. 27, 2011) (stating that the ability to alter a class certification order 9 under Rule 23(c)(1)(C) should be “balanced with ‘other concerns’ including avoiding 10 ‘unnecessarily protracted’ litigation.”). Defendants provided initial disclosures on March 11 7, 2018. ECF No. 31 at 3. On April 26, 2018, the Court entered a Scheduling Order 12 Regulating Discovery and Other Pretrial Proceedings. ECF No. 33. The Order set a July 13 27, 2018 deadline to file the motion for class certification. Id. at 2. The Court also 14 ordered that discovery shall be completed by December 5, 2018. Moreover, the Court 15 directed the parties to “front-load fact discovery with requests and depositions related to 16 class certification.” Id. Plaintiffs were on notice that they had three months to prioritize 17 class certification discovery. In the event Plaintiffs seek to renew their class certification 18 motion based on evidence discovered after they filed their initial motion, the Court would 19 have to evaluate what reasons, if any, Plaintiffs put forth as to they did not obtain such 20 newly discovered facts prior to the class certification deadline. See Hartman, 291 F.R.D. 21 at 595-96 (plaintiff’s realization, based on 20/20 hindsight that plaintiff should have 22 conducted more discovery for class certification, was not sufficient to alter class 23 certification order). “As such, plaintiffs must show some justification for filing a second 24 motion, and not simply a desire to have a second or third run at the same issues.” D.C. by 25 & through Garter v. Cty. of San Diego, No. 15CV1868-MMA (NLS), 2018 WL 692252, 26 at *2 (S.D. Cal. Feb. 1, 2018) (citation and quotation marks omitted). 27 28 As of now, Plaintiffs’ Motion for Certification of Class is denied, and the Court declines to read the tea leaves to decide whether any future motions would be proper in 26 3:17-cv-01036-GPC-AGS 1 light of the considerations identified above. 2 3 III. CONCLUSION The Court finds that Plaintiffs have not carried their burden of demonstrating that 4 questions of law or fact common to class members predominate over any questions 5 affecting only individuals, that the class is so numerous that joinder of all members is 6 impracticable, or that class counsel is adequate. Plaintiffs’ Motion for Certification of 7 Class Action is DENIED. 8 9 IT IS SO ORDERED. Dated: December 21, 2018 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27 3:17-cv-01036-GPC-AGS

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