Parra, et al v. Bashas' Inc

Filing 317

ORDER - denying 309 Bashas' Motion for Reconsideration of Order Certifying Class on Plaintiffs' Pay Claim. Pursuant to the parties' stipulation (Doc. 316 ), the class definition is AMENDED and the class is defined as set forth in the attached Order. Within fourteen (14) days from the date of entry of this Order, in conformity with Fed.R.Civ. P. 23(c)(2)(B), the parties shall submit jointly an agreed upon form of notice, incorporating the amended class definition set forth i n the attached Order, a joint proposal for dissemination of the notice, and the time-line for opting out of the action. The plaintiffs must bear the costs of the notice, which shall include mailing by first-class mail. Signed by Senior Judge Robert C Broomfield on 3/31/2014.(TLB)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10

Gonzalo Estrada and Aurelia Martinez, on
behalf of themselves and all individuals
similarly situated,1

11
12
13
14

No. CV-02-00591-PHX-RCB
ORDER

Plaintiffs,
v.
Bashas' Incorporated,
Defendant.

15
16

Introduction

17

Currently pending before the court is a motion for reconsideration by defendant

18

Bashas’ Incorporated (Doc. 309). Bashas’ is seeking to have this court reconsider its

19

order in Parra v. Bashas’, Inc., 291 F.R.D. 360 (D.Ariz. 2013), granting plaintiffs’ motion

20

for class certification with respect to their pay claim. For the reasons set forth herein, the

21

court denies defendant Bashas’ motion.

22
23
24

Background
Pursuant to Fed.R.Civ.P. 23(b)(3), this court certified a class, defining it as
follows:
All Hispanic workers currently and formerly employed
by defendant Bashas' Inc. in an hourly position at any
Food [C]ity retail store since April 4, 1998, who have

25
26
27
28

1

“Originally, Jose Parra also was a named plaintiff, but he has since withdrawn, although
he remains a member of the putative class.” Parra, 291 F.R.D. at 365 n. 3 (citation omitted).
Accordingly, the court is omitting Mr. Parra from the caption.

1
2
3
4

been subject to the challenged pay policies and practices.
Id. at 403. Assuming familiarity with the detailed analysis in Parra, and the protracted
history of the issue of class certification in this case, the court will proceed directly to an
analysis of Bashas’ motion to reconsider.

5
6

Discussion
I. Standard of Review

7

Initially, Bashas’ did not indicate the basis for its reconsideration motion.

8

Nonetheless, it was clear to the plaintiffs, as it is to the court, that 7.2(g)(1) is the basis

9

for this motion.

Bashas’ acknowledges as much in its reply, contending that

10

reconsideration is “warranted” because the “plain requirements of LR Civ. 7.2(g)” are

11

met in this case. Reply (Doc. 314) at 1:25-26.

12

As pertinent here, in accordance with LR Civ. 7.2(g)(1), “[t]he Court will

13

ordinarily deny a motion for reconsideration . . . absent a showing of manifest error[.]”

14

LR Civ. 7.2(g)(1). The term “manifest error” is “an error that is plain and indisputable,

15

and that amounts to a complete disregard of the controlling law or the credible evidence

16

in the record.” Black's Law Dictionary 622 (9th ed. 2009) (“Black’s”). Rule 7.2(g)(1)

17

also requires, inter alia, that motions thereunder “point out with specificity the matters

18

that the movant believes were overlooked or misapprehended by the Court[.]” LR Civ.

19

7.2(g)(1).

20

argument made by the movant in . . . opposition to the motion that resulted in the Order.”

21

Id.

22

reconsideration for failure to comply therewith.

Additionally, Rule 7.2(g)(1) prohibits “repeat[ing] any oral or written

Lastly, Rule 7.2(g)(1) grants courts the discretion to deny a motion for

23

In addition to complying with LR Civ. 7.2(g)(1), a party moving for

24

reconsideration must take into account the narrow scope of such a motion.

25

“[D]issatisfaction or disagreement is not a proper basis for reconsideration[.]” Ellsworth

26

v. Prison Health Services Inc., 2013 WL 1149937, at *2 (D.Ariz. March 20, 2013)

27

(internal quotation marks and citations omitted); see also Dennis v. Ayers, 2008 WL

28

1989304, at *1 (N.D.Cal. May 6, 2008) (Petitioner's disagreement “with the Court's prior

-2-

1

resolution of the claim . . . is, of course, [an] insufficient [basis] for . . . grant[ing] a

2

motion for reconsideration.”) Likewise, a motion for reconsideration may not be used to

3

“ask[] this court to rethink what [it] . . . already thought through, rightly or wrongly.”

4

Morgal v. Maricopa County Bd. of Sup’rs, 2012 WL 2368478, at *1 (D.Ariz. June 21,

5

2012) (internal quotation marks and citations omitted).

6

not the place for parties to make new arguments not raised in their original briefs.”

7

Motorola, Inc. v. J.B. Rodgers Mech. Contractors, 215 F.R.D. 581, 582 (D.Ariz. 2003)

8

(citing Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th

9

Cir. 1988)). Thus, as is evident, “‘[m]otions for reconsideration are disfavored and should

10

be granted only in rare circumstances.’” Ellsworth, 2013 WL 1149937, at *1 (quoting

11

Morgal, 2012 WL 2368478, at *1 (other quotation marks and citation omitted). It is

12

against this legal backdrop that the court will consider Bashas’ reconsideration motion.2

Reconsideration motions “are

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2

Before doing so, however, there is one preliminary issue arising from Bashas’ reliance
upon portions of deposition testimony, which it acknowledges were not part of its opposition to class
certification. See Reply (Doc. 314) at 6:25-28, n. 2. Bashas’ is relying upon those deposition excerpts to
argue that it is “entitled to a trial on each of the pay equalization measures [it] took over a several-year
period.” Reply (Doc. 314) at 6:1 (emphasis omitted).
Bashas’ contends that it is entitled to supplement the record in that regard because “on remand
from the Ninth Circuit[]” the plaintiffs modified their class definition. Id. at 6:26-27, n. 2. Actually, the
plaintiffs modified their class definition, not “on remand,” but, rather, when they decided not to pursue
“on appeal” the “so-called [] Subject Placement claim[.]” See Parra, 291 F.R.D. at 373 (internal
quotation marks and citation omitted).
Of arguably more import is the fact that United States v. $405,089.23 U.S. Currency, 122 F.3d
1285 (9th Cir. 1997), Bashas’ sole legal authority for allowing it to supplement the record, is wholly
distinguishable. Based upon evidence obtained after the institution of that action, the district court found
that the Government had established probable cause for the forfeiture of the targeted assets. Finding to
the contrary, the Ninth Circuit reversed. Instead of remanding with instructions to grant summary
judgment in favor of the claimants, the Ninth Circuit instructed the district court to give the Government
an opportunity to supplement the record. Id. at 1291-1292.
The Ninth Circuit did so for two reasons. First, after the district court had granted summary
judgment in the Government’s favor, there was an intervening Ninth Circuit decision making clear that in
this Circuit the Government is prevented from relying upon evidence obtained after the institution of
forfeiture proceedings to support a probable cause finding. Second, the Ninth Circuit relied upon the
Government’s representations that it possessed evidence obtained prior to the institution of that forfeiture
proceeding to establish the necessary probable cause. It is patently obvious that neither of those
relatively unique circumstances is present here. Thus, $405,089.23 U.S. Currency does not provide a
basis for allowing Bashas’ to supplement the record at this late stage. This is all the more so given the
possible prejudice to plaintiffs which would occur by allowing Bashas’ to supplement the record in its
reply. Accordingly, the court is not considering the three exhibits attached to Bashas’ reply.

-3-

1

II. Analysis

2

Bashas’ diffuse approach makes it difficult to ascertain the precise grounds which

3

it claims warrant reconsideration. What is readily ascertainable though is that Bashas’

4

has not met the demanding standards necessary to warrant granting the extraordinary

5

remedy of reconsideration.

6

Procedure § 2810.1 (2d ed.1995) (The granting of a motion for reconsideration “is an

7

extraordinary remedy which should be used sparingly.”)

See 11 C. Wright & A. Miller, Federal Practice and

8

Despite LR Civ. 7.2(g)(1)’s prohibition against repetitive arguments, at the outset

9

Bashas’ essentially concedes that it is repeating its argument that there are facts in dispute

10

precluding a finding of class-wide liability. See Mot. (Doc. 309) at 1:20-21 (“As Bashas’

11

explained in its prior briefs, there are facts in dispute, which preclude deciding liability

12

on a class-wide basis.”) This is not the only argument which is repetitive, and hence is an

13

improper basis for reconsideration. Bashas’ motion and reply include a litany of other

14

arguments which are all too familiar to this court.
Just as it did in opposing class certification, Bashas’ argues that “individual issues

15
16
17
18
19
20
21
22
23
24
25
26
27
28

predominate over any common ones.” Compare Mot. (Doc. 309) at 4:21-22 (emphasis
omitted) with Resp. to Mot. for Class Certification (Doc. 190) at 72-76; and Supp.
Opening Br. (Doc. 301) at 19:9-20. Of course, after a fairly in-depth analysis, this court
found to the contrary. See Parra, 291 F.R.D. at 390-393.

Continuing to maintain that

individual issues predominate, Bashas’ reiterates that some unspecified class members
were not harmed by its two-tiered wage scale. More specifically, Bashas’, as it did
previously, asserts that “there were Food City employees in job categories which had
higher wage rates than those paid to their counterparts at Bashas’.” Compare Mot. (Doc.
309) at 1:24-26 (emphasis in original) with Supp. Opening Br. (Doc. 301) at 4:10-11
(emphasis added) (“Some Food City pay rates were the same or actually higher than
those used at Bashas’ or A.J.’s stores.”); id. at 14:1-3 (emphasis added) (“The reality is
that there were differences in pay scales between formats, and some Food City employees
(Hispanic or not) fared better than their A.J.’s and Bashas’ counterparts while others did
not.”)
-4-

1

Additionally, Bashas’ continues to argue that because its wage scales were

2

equalized over time, there will need to be separate liability trials for “many” of the pay

3

steps. See Mot. (Doc. 309) at 6:6. This, too, is an argument which has previously been

4

made to this court, and hence is not a proper basis for seeking reconsideration.

5

Supp. Opening Br. (Doc. 301) at 5:20-22; and at 5: 8-9 (“[T]o determine whether – and to

6

what extent -- any Food City employees was paid less than a counterpart at Bashas’ or

7

A.J.’s, assuming such a counterpart existed, would turn on these assorted individual

8

variables[,]” including “the equalization of pay rates for different positions occur[ring] at

9

different paces[.]”).

See

10

Bashas’ argument that manager discretion may have favored Hispanics is yet

11

another example of Bashas’ repeating a previously made argument. Compare Mot. (Doc.

12

309) at 2:24-28 (“[D]epending on what a particular store manager values in a new

13

employee . . . , a Food City employee could have been placed higher on the pay scale

14

than he would have been placed had he applied at a Bashas’ store run by a different

15

manager with different priorities and different (and evolving) needs.”) with Supp.

16
17
18
19
20
21
22
23
24
25
26
27
28

Opening Br. (Doc. 301) at 14:6-7 (“[I]n some instances, employees may have benefited
from this discretionary practice while, in others, they may have not[.]”) As an aside, the
court observes, as the plaintiffs note, that the record evidence is that “[i]n every year
studied, Hispanics are paid less than whites assigned to the same position at the time of
hire and the differences are statistically significant in every year, except 1999.” Rebuttal
Report of Dr. Richard Drogin, Ph.D. (Sept. 3, 2004) at 2, ¶ 6 (emphasis added). Thus,
not only is Bashas’ asserting an improper basis for reconsideration, but the record as
presently constituted substantively undermines its manager discretion argument.
The foregoing arguments are by no means the only repetitious arguments made by
Bashas’, but they are illustrative and highlight Bashas’ dissatisfaction or disagreement
with Parra, 291 F.R.D. 360. Such repetitious arguments also readily show that essentially
Bashas’ is asking this court to rethink Parra. Neither is a proper basis for a motion to
reconsider, however. See discussion supra at 2-3.
Especially because Bashas’ motion and reply are rife with repetitive arguments,
-5-

1

the court would be well within its discretion in denying reconsideration on that basis

2

alone, as LR Civ. 7.2(g)(1) contemplates. There is another equally compelling reason for

3

denying reconsideration, however: Bashas’ has not shown manifest error so as to warrant

4

reconsideration pursuant to LR Civ. 7.2(g)(1). It is not enough to simply incant the

5

phrase “manifest error.” See Mot. (Doc. 309) at 1:17. Bashas’ must identify each such

6

error and explain how it is “plain and indisputable[,] . . . amount[ing] to a complete

7

disregard of the controlling law or the credible evidence in the record.” See Black’s.

8

Bashas’ has not done that.

9

Although Bashas’ claims that Parra contains “at least two manifest errors[,]” it

10

only explicitly identifies one. See Mot. (Doc. 309) at 1:17. In its reply Bashas’ declares:

11

“This alone is manifest error: [This] Court[] assume[d] that, where a pay step at Food

12

City is lower than the same pay step at Bashas’, more Hispanic employees occupy that

13

pay step at Food City than White employees.” Reply (Doc. 314) at 5:14-16 (citation

14

omitted). Even assuming arguendo that the court explicitly or implicitly made such an

15

assumption (which it did not), Bashas’ has not explained how that assumption “amounts

16
17
18
19
20
21
22
23
24
25
26
27
28

to a complete disregard of the controlling law or the credible evidence in the record.”
See Black’s (emphasis added).

Furthermore, the foregoing does not, as Bashas’

presupposes, equate to an assumption that the plaintiffs established a prima facie case of
disparate impact. That determination must await another day.
Additionally, it appears as though Bashas’ also is claiming that the “finding [in
Parra, 291 F.R.D. 360] that the pay scales at Bashas’ and A.J.’s stores were higher than
those at Food City[]” was manifest error. See Mot. (Doc. 309) at 1:26-27 (internal
quotation marks omitted). This is because Bashas’ asserts that that “finding . . . is not
true for the entire class[]” in that there were “Food City employees who earned more than
their counterparts at Bashas’ stores[.]”

Id. at 1:27-2:1.

Those employees, Bashas’

argues, “cannot recover damages” in that “they actually benefitted from the pay scales.”
Id. at 2:1-2.
Bashas’ has not met its burden of showing that that finding constitutes manifest
error. First, that finding is based upon one of “‘three significant . . . conce[ssions]’” by
-6-

1

Bashas’. Parra v. Bashas’ Inc., 291 F.R.D. 360, 374 (D.Ariz. 2013) (quoting Parra v.

2

Bashas’ Inc., 536 F.3d 975, 979 (9th Cir. 2008) (other citation omitted).

3

specifically, this court recited that “the pay scales at Bashas’ and A.J.’s stores were

4

higher than those at Food City during the period 1998-2000[.]” Id. (emphasis added).

5

It is difficult if not impossible to see how a previous concession by Bashas’, adopted by

6

the Ninth Circuit and this court, can support a finding of manifest error, i.e., a complete

7

disregard of the credible evidence.

More

8

Second, Bashas’ has not shown a complete disregard of the controlling law on this

9

point. The court did not hold, as Bashas’ implies, that class members who were not

10

actually harmed or did not sustain an actual injury can recover monetary damages. This

11

court simply held that the plaintiffs had “provide[d] the ‘convincing proof of a

12

companywide discriminatory pay . . . policy’ missing from Dukes[]” to support a finding

13

of commonality. Parra, 291 F.R.D. at 374 (quoting Wal-Mart Stores, Inc. v. Dukes, 564

14

U.S. ----, ----, 131 S.Ct. 2541, 2556, 180 L.Ed.2d 374 (2011)).

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Bashas’ other reconsideration theories likewise are unavailing.

In its reply,

Bashas’ clarifies that its first “dispositive” reconsideration argument is that the
“[p]laintiffs have not established a prima facie case of discrimination with respect to any
of the proposed class members[.]” Reply (Doc. 314) at 1:16-18. Bashas’ does not
correlate this argument to its motion for reconsideration though. It does not, for example,
explain how plaintiffs’ alleged shortcomings in proof translate to manifest error, or
otherwise justify reconsideration here, and the court declines to speculate.
Suffice it to say that neither of the cases to which Bashas’ cites, Moran v. Selig,
447 F.3d 748 (9th Cir. 2006) (disparate treatment), and Garcia v. Spun Steak Co., 998
F.2d 1480 (9th Cir. 1993) (disparate impact), stand for the proposition that at the class
certification stage it is incumbent upon the plaintiffs in the first instance to make a prima
facie showing of discrimination stage.

Rather, in both of those cases, the courts were

examining the sufficiency of plaintiffs’ prima facie proof at the summary judgment stage.
Consequently, neither Moran nor Garcia advance Bashas’ reconsideration argument on
this issue.
-7-

1

Further, and in keeping with the controlling law, in Parra this court expressly

2

declined to “‘turn the[] class certification proceedings into a dress rehearsal for the trial

3

on the merits.’”

4

HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012) (citations omitted)). That “prohibition

5

on requiring Plaintiffs to establish their claims at the class certification stage was . . .

6

reinforced by the Supreme Court in Amgen Inc. v. Connecticut Retirement Plans and

7

Trust Funds, --- U.S. ---, 133 S.Ct. 1184, 185 L.Ed.2d 308 (2013).” Parsons v. Ryan, 289

8

F.R.D. 513, 516 (D.Ariz. 2013). There, as this court pointed out in Parra, the Supreme

9

Court “cautioned that ‘Rule 23 grants no license to engage in free-ranging merits inquires

10

at the certification stage.’” Parra, 291 F.R.D. at 368 (quoting Amgen, 133 S.Ct. at 1194-

11

95) (other citation omitted); see also Smith v. Microsoft Corp., 2014 WL 323683, at *2

12

(S.D.Cal. Jan. 28, 2014) (quoting Staton v. Boeing Co., 327 F.3d 938, 954 (9th Cir. 2003)

13

(citations and internal quotation marks omitted)) (“‘Although some inquiry into the

14

substance of a case may be necessary[,]’ however, ‘it is improper to advance a decision

15

on the merits to the class certification stage.’”) In part, that is because, as this court also

16
17
18
19
20
21
22
23
24
25
26
27
28

Parra, 291 F.R.D. at 368 (quoting Messner v. Northshore University

previously recognized, “‘Rule 23(b)(3) requires a showing that questions common to the
class predominate, not that those questions will be answered, on the merits, in favor of
the class.’” Id. (quoting Amgen, 133 S.Ct. at 1191) (emphasis in original).

Thus, “it

remains relatively clear that an ultimate adjudication on the merits of plaintiffs’ claims is
inappropriate, and that any inquiry into the merits must be strictly limited to determining
whether plaintiff’s allegations satisfy Rule 23.”

See Herrera v. Service Employees

Intern. Union Local 87, 2013 WL 1320443, at *2 (N.D.Cal. April 1, 2013) (citing Ellis v.
Costco Wholesale Corp., 657 F.3d 970, 983 n. 8 (9th Cir. 2011)). Seemingly, Bashas’ is
overlooking the purpose of a Rule 23(b)(3) certification. It is “‘not to adjudicate the case;
rather, it is to select the metho[d] best suited to adjudication of the controversy fairly and
efficiently.’” Parra, 291 F.R.D. at 390 (quoting Amgen, 133 S.Ct. at 1191) (internal
quotation marks omitted).
Consistent with the foregoing, in Parra this court did not delve into whether the
plaintiffs made a prima facie showing of discrimination, an inquiry Bashas’ strongly
-8-

1

implies this court should have undertaken in Parra. Moreover, despite what the parties

2

seem to believe, nothing in Parra, 291 F.R.D. 360, excuses the plaintiffs from having to

3

establish a prima facie case of discrimination. And, at least with respect to the disparate

4

impact claim,3 the plaintiffs must prove such charge by a preponderance of the evidence.

5

See Paige v. California, 291 F.3d 1141, 1145 n. 4 (9th Cir. 2002) (citations omitted). At

6

this point, however, “‘[n]either the possibility that [the] plaintiff[s] will be unable to

7

prove [their] allegations, nor the possibility that the later course of the suit might

8

unforeseeably prove the original decision to certify the class wrong, is a basis for’”

9

reconsidering the decision “‘to certify a class which apparently satisfies the Rule.’” See

10

Wolin v. Jaguar Land Rover North America, LLC, 617 F.3d 1168, 1173 (9th Cir. 2010)

11

(quoting Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975)).

12

Before concluding, the court must address the pending stipulation (Doc. 316),

13

wherein the parties stipulate to amend the class definition. In light of that stipulation, the

14

class definition is hereby amended and is defined as follows:
All Hispanic workers currently and formerly employed by
defendant Bashas’ in an hourly position at any Food City
retail store between April 4, 1998 and July 1, 2007, who have
been subject to the challenged pay policies and practices. The Class
does not include any member who worked for Food City for less
than eight (8) hours during the Class Period or any person who
was first hired for an hourly position at Food City after January 2, 2005.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Conclusion
To conclude, the court hereby ORDERS that:
(1) Bashas’ Motion for Reconsideration of Order Certifying Class on Plaintiffs’
Pay Claim (Doc. 309) is DENIED;
(2) Pursuant to the parties’ stipulation (Doc. 316), the class definition is
AMENDED and the class is defined as set forth above; and
(3) Within fourteen (14) days from the date of entry of this Order, in conformity
with Fed.R.Civ. P. 23(c)(2)(B), the parties shall submit jointly an agreed upon form of
3

It appears to the court, as it does to Bashas’, that at this juncture, the plaintiffs’ only
remaining theory of discrimination is disparate impact.

-9-

1

notice, incorporating the amended class definition set forth above, a joint proposal for

2

dissemination of the notice, and the time-line for opting out of the action. The plaintiffs

3

must bear the costs of the notice, which shall include mailing by first-class mail.

4

Dated this 31st day of March, 2014.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

- 10 -