Richey v. Matanuska-Susitna Borough

Filing 56

ORDER AND OPINION: RE 53 Motion for Reconsideration is DENIED. (See order for details). Signed by Judge John W. Sedwick on 04/30/2015. (CME, COURT STAFF)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ALASKA 10 11 12 Andrea Richey, et al., 13 14 15 Plaintiffs, vs. Matanuska-Susitna Borough, 16 Defendant. ) ) ) ) ) ) ) ) ) ) 3:14-cv-00170 JWS ORDER AND OPINION [Re: Motion at Docket 53] 17 18 I. MOTION PRESENTED 19 At docket 53 plaintiffs Andrea Richey, et al. (collectively, “plaintiffs”) move 20 pursuant to District of Alaska Local Civil Rule (“Local Rule”) 59.11 for reconsideration of 21 the court’s order at docket 49 denying their motion for class certification. The court has 22 not asked defendant Matanuska-Susitna Borough (“the Borough”) to respond to 23 plaintiffs’ motion. 24 25 26 27 28 1 Plaintiffs also cite Ninth Circuit Rule 27-10, but that rule applies only to cases before the Ninth Circuit. See Fed. R. App. P. 1; Circuit Rule 1-2. 1 II. STANDARD OF REVIEW 2 “A federal district court has inherent power over interlocutory orders and may 3 modify, vacate, or set aside these orders ‘when it is consonant with justice to do so.’” 2 4 “Because of the interest in finality, however, courts should grant motions for 5 reconsideration sparingly.”3 Pursuant to Local Rule 59.1, a party may move the court to 6 reconsider its non-appealable orders. Local Rule 59.1 does not prov ide criteria for 7 when reconsideration is appropriate, but case law from within the Ninth Circuit does. 8 According to that case law, reconsideration should be granted in three circumstances: 9 First, upon the discovery of material facts that were previously unavailable or 10 undiscoverable through reasonable diligence4; second, if the court overlooked material 11 facts that were presented to it before it made its decision5; and third, if there is a change 12 in the law after the court’s decision. 6 A motion will not be granted if it simply repeats 13 arguments that were made, or could have been made, when the court reached its 14 original decision.7 15 16 17 18 19 20 21 2 Rottmund v. Cont’l Assur. Co., 813 F.Supp. 1104, 1107 (E.D. Pa. 1992) (quoting United States v. Jerry, 487 F.2d 600, 605 (3d Cir.1973) ). 22 3 23 4 24 25 26 27 28 Id. Motorola, Inc. v. J.B. Rodgers Mech. Contractors, Inc., 215 F.R.D. 581, 586 (D. Ariz. 2003). 5 Id. 6 Id. 7 Wade v. Ilisagvik Coll., No. A05-86CV(JWS), 2005 WL 2704979, at *1 (D. Alaska Oct. 11, 2005). See also 11 C. Wright & A. Miller, Federal Practice and Procedure § 2810.1 (3d ed. 2004). -2- 1 2 3 III. DISCUSSION A. Plaintiffs Have Not Demonstrated The Existence of an Ascertainable Class The primary reason why the court denied plaintiffs’ class certification motion was 4 because plaintiffs had not demonstrated that identifying class members would be 5 administratively feasible. The court ruled that the seven-part class definition that 6 plaintiffs proposed is unwieldy and does not definitively identify the class. The court 7 also ruled that plaintiffs’ alternative class definition—all Borough employees “who have 8 worked [or are working] the requisite number hours, pursuant to AS 39.35.680(32) and 9 (33) and the Borough’s Participation Agreement”8—lacks sufficient definitiveness 10 because plaintiffs did not explain how the court might determine, under 11 AS 39.35.680(32) and (33), which Borough employees “regularly” worked either 15 or 12 30 hours per week without performing individualized inquiries.9 13 Plaintiffs now assert that PERS eligibility is based exclusively on whether an 14 employee’s “average weekly hours” exceeded either 15 or 30, in which case they 15 necessarily qualified as either a permanent full-time or permanent part-time employee 16 under AS 39.35.680(32) and (33), respectively. Determining an employee’s average 17 weekly hours, plaintiffs correctly assert, is as simple as dividing the employee’s annual 18 hours by 52 weeks. Therefore, according to plaintiffs, all employees who work more 19 than 780 hours annually qualify as permanent part-time employees, and all employees 20 who work more than 1,560 hours annually qualify as permanent full-time employees.10 21 This argument in unavailing because it is one that plaintiffs could have asserted 22 in their original briefing, but did not. Even if this were not true, plaintiffs’ interpretation of 23 AS 39.35.680(32) and (33) is unpersuasive. Plaintiffs cite no authority to support their 24 25 26 27 28 8 Doc. 41 at 1 (emphasis added). 9 Doc. 49 at 6-7. 10 Doc. 53 at 1 n.2. (“A.S. 39.35.680(32) [and] (33), uses [sic] ‘average weekly hours.’ To simplify, Plaintiffs have used annual hours of 780 or 1560; [15hrs X 52wks=780hrs/yr; or 30hrs X 52wks=1560hrs/yr], to trigger PERS-eligibility.”). -3- 1 claim that an employee qualifies as a permanent part-time or full-time employee under 2 AS 39.35.680(32) and (33) based solely on his average weekly hours. To the contrary, 3 the statute states that an employee qualifies as a “permanent full-time” employee if she 4 “is occupying a permanent position that regularly requires working 30 or more hours a 5 week”11 and as a “permanent part-time” employee if she “is occupying a permanent 6 position that regularly requires working at least 15 hours but less than 30 hours a 7 week.”12 Regular is not synonymous with average. Just because an employee works 8 780 or 1,560 hours annually does not necessarily mean he occupies a permanent 9 position that regularly requires working a certain number of hours weekly. 10 To illustrate, take two employees who worked 1,560 hours last year. Employee 11 Number 1 worked 30 hours every week and therefore qualified as a “permanent full- 12 time” employee under AS 39.35.680(32). But Employee Number 2 worked 10-hour 13 shifts, 6 days per week, for 6 months and then was unemployed the remaining 6 14 months.13 Both employees worked the same number of annual hours, but there were 15 just as many weeks where Employee Number 2 worked 0 hours as there were where 16 she worked more than 30. It is unclear whether such an employee “regularly” worked 17 more than 30 hours a week. 18 Using annual hours as a proxy for “regular” weekly hours is even more dubious 19 with respect to part-time employees. Under the same example above, Employee 20 Number 2’s annual hours would equal 780 even if she only worked 13 weeks out of the 21 year. Plaintiffs would have the court treat her position as one that “regularly requires 22 working at least 15 hours but less than 30 hours a week” despite the fact that there was 23 not a single week where she worked between 15 and 30 hours. 24 25 26 27 28 11 AS 39.35.680(32). 12 AS 39.35.680(33). 13 This hypothetical does not appear to be far-fetched. Plaintiff Andrea Richey states that she commonly worked as many as 60 hours per week. Doc. 26 at 15 ¶ 5. -4- 1 In sum, plaintiffs have not shown that their new method for determining class 2 membership—based solely on annual hours worked—is a consistently reliable method 3 for identifying the class members.14 4 5 IV. CONCLUSION 6 Based on the preceding discussion, plaintiffs’ motion for reconsideration is 7 8 DENIED. DATED this 30th day of April 2015. 9 /s/ JOHN W. SEDWICK SENIOR UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 Relatedly, although the Borough does not contest plaintiffs’ assertion that numerosity is satisfied, this does not relieve the court of its duty to determine whether certification is appropriate. See Newberg on Class Actions § 7:3 (5th ed. 2014). -5-

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