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Abarca v. Werner Enterprises, Inc.

United States District Court, D. Nebraska

October 28, 2016

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,
v.
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,
v.
WERNER ENTERPRISES, INC., a corporation, and DOES 1-100, inclusive, Defendants.

          MEMORANDUM AND ORDER

          LYLE E. STROM, United States District Court Senior Judge.

         This 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.[1] After review of the motions, the parties' briefs, and the applicable law, the Court finds as follows.

         BACKGROUND

         This 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 defendants'

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 hourly rates.

(Id. at 6).

         On June 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).[2] 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 No. 87).

         On 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).

         LAW

         For 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 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.

Fed. R. Civ. P. 23(a).

         In 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 original).

         A class 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). ‚ÄúNonetheless, such disputes may be resolved only insofar as ...


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