United States District Court, D. Nebraska
EZEQUIEL OLIVARES ABARCA, individually and on behalf of all those similarly situated, ALFREDO ALESNA JR., individually and on behalf of all those similarly situated, DAVID CAGLE, individually and on behalf of all those similarly situated, STEPHEN L. DAVIS, individually and on behalf of all those similarly situated, FRANK EADS, individually and on behalf of all those similarly situated, and KENNETH J. SURMAN, individually and on behalf of all those similarly situated, Plaintiffs,
WERNER ENTERPRISES, INC., and DOES 1-100, inclusive, Defendants. WILLIAM SMITH, on behalf of himself, all others similarly situated, and on behalf of the general public, Plaintiff,
WERNER ENTERPRISES, INC., a corporation, and DOES 1-100, inclusive, Defendants.
MEMORANDUM AND ORDER
E. STROM, United States District Court Senior Judge.
matter is before the Court on two motions filed by the
parties. The plaintiffs move for class certification (Filing
No. 135). The defendants move for leave to submit new
authority in opposition to plaintiffs' motion for class
certification (Filing No. 146). The matters have been fully
briefed by the parties. See Filing Nos. 136, 141,
143, 146, 147. After review of the motions, the
parties' briefs, and the applicable law, the Court finds
case arises out of plaintiffs' pursuit of a class action
suit. Plaintiffs allege eight causes of action against Werner
Enterprises, Inc. (“Werner”), Does 1-100,
inclusive, and Drivers Management, LLC (collectively
“defendants”). See Filing No.
80. Plaintiffs “assert violations of
California law” and “violations of Nebraska
law” causing “some form of injury” due to
uniform policy and practice [of] . . . not paying all wages
owed, not paying for all time worked . . . making improper
deductions from pay for work performed, not providing
properly itemized pay statements that accurately reflect
hours worked, applicable hourly rates . . . and, according to
[p]laintiff's information and belief, not maintaining
records that accurately reflect hours worked and applicable
(Id. at 6).
4, 2014, Antonia Russell filed a putative class action
against Werner under California wage and hour law in a
California state court. After the named plaintiffs in the
current action joined and Ms. Russell dismissed her claims
without prejudice, Werner removed the case from the
California state court to the United States District Court
for the Northern District of California. The case was then
transferred to this Court pursuant to 28 U.S.C. §
1404(a). See Filing No. 23. On March 18, 2015,
plaintiffs filed a joint stipulation for leave to file a
second amended complaint (Filing No. 50). On March 30,
2015, the Court approved and adopted the stipulation in part
allowing plaintiffs to file a second amended complaint
(Filing No. 51) on or before April 6, 2015, and gave
defendants twenty days after the filing of the amended
complaint to respond. On September 16, 2015, with no
objection from the defendants, the Court again permitted
plaintiffs to amend their complaint (Filing No. 79). The
latest complaint added a nation-wide class (the
“Nebraska Class”), in addition to the California
class. See Filing No. 80. Defendants filed an answer
to the third amended complaint on September 30, 2015 (Filing
November 19, 2015, the Court granted Werner's motion to
consolidate the above-captioned case with Smith v.
Werner, et al., Case No. 8:15CV287 (“Smith”)
(Filing No. 119). Case No. 8:14CV319 was designated the
“Lead Case” on January 22, 2016 (Filing No. 131).
On April 1, 2016, the plaintiffs moved for class
certification (Filing No. 135). On May 31, 2016, after the
matter was fully briefed, defendants moved for leave to
submit new authority in opposition to plaintiffs' motion
for class certification (Filing No. 146).
certification of a class under Federal Rule of Civil
Procedure 23, plaintiffs must show that:
(1) the class is so numerous that joinder of all members is
(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.
Fed. R. Civ. P. 23(a).
addition, plaintiffs must satisfy one of the three
requirements in Rule 23(b). In the present case, plaintiffs
claim class action status under Rule 23(b)(3) for which the
Court must find “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.” Fed.R.Civ.P.
23(b)(3). Plaintiffs also claim class action status under
23(b)(2) for which the Court must find that “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.” Fed.R.Civ.P.
23(b)(2). Plaintiffs lastly “request certification of a
hybrid class under both Rules 23(b)(2) and
23(b)(3).” (Filing No. 143 at 28) (emphasis in
action “may only be certified if the trial court is
satisfied, after a rigorous analysis, that the prerequisites
of Rule 23(a) have been satisfied.” Gen. Tel. Co.
of Sw. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72
L.Ed.2d 740 (1982). Such analysis cannot be conducted
“without reasonable specificity” to the
plaintiffs' pleadings. Falcon, 457 U.S. at 161
(quoting Johnson v. Georgia Hwy Express, Inc., 417
F.2d 1122, 1126 (5th Cir. 1969)). In addition, a rigorous
analysis “may require the court to resolve disputes
going to the factual setting of the case, and such disputes
may overlap the merits.” Blades v. Monsanto
Co., 400 F.3d 562, 567 (8th Cir. 2005).
“Nonetheless, such disputes may be resolved only
insofar as ...