McKeen-Chaplin v. Provident Savings Bank, F.S.B.

Filing 46

ORDER decertifying plaintiff's class under Federal Rule of Civil Procedure 23(c)(1)(C) and DENYING defendant's #30 Motion to Stay as moot signed by Judge Garland E. Burrell, Jr. on 10/29/2013. (Marciel, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GINA MCKEEN-CHAPLIN,
individually, on behalf of
others similarly situated,
and on behalf of the general
public,

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Plaintiff,

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v.

2:12-cv-03035-GEB-JFM

ORDER DECERTIFYING PLAINTIFF’S
CLASS UNDER FEDERAL RULE OF
CIVIL PROCEDURE 23(c)(1)(C) AND
DENYING DEFENDANT’S MOTION TO
STAY AS MOOT

PROVIDENT SAVINGS BANK, FSB,
and DOES 1-50, inclusive,
Defendant.

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Defendant moves “for an Order staying the proceedings

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in this case . . . until the Ninth Circuit Court of Appeals

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decides Defendant’s Rule 23(f) Petition for Permission to Appeal

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this Court’s Order Granting Conditional Certification and Class

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Certification.” (Def.’s Notice of Mot. and Mot. for Stay (“Def.’s

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Stay Mot.”) 2:3-111, ECF No. 30.) Defendant further argues that

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“[i]n

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Petition, . . . all proceedings [should be stayed] until the

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Ninth Circuit issues a final decision on the appeal and remands

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the case back to this Court.”

the

event

.

.

.

the

Ninth

Circuit

grants

Defendant’s

(Id. at 2:7-14.)

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After considering Defendant’s stay argument that class

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certification was inappropriate in light of the factual record on

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1

All citations to Def.’s Stay Mot. utilize CM/ECF’s pagination.

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“(1) a common policy or practice with respect to alleged overtime

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work or (2) a damages measurement method that can be applied on a

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classwide basis,” (id. at 7:11-13), the district court decides

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for

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claims.

the

reasons

stated

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below

I.

to

decertify

Plaintiff’s

state

BACKGROUND

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Plaintiff filed a motion on June 17, 2013, to certify

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her state claims under Federal Rule of Civil Procedure (“Rule”)

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23 on behalf of a class of “all persons who have been employed by

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[Defendant] as mortgage underwriters in the State of California

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from December 17, 2008 until the trial of this action.” (Pl.’s

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Notice

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Certification (“Pl.’s Class Mot.”) 2:14-15, ECF 16.) Plaintiff’s

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motion was granted, and a class certification order issued on the

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following

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Cal. Lab. Code §§ 510, 1194, 1198, and the Industrial Welfare

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Commission (“IWC”) Wage Orders; (2) waiting time penalties under

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Cal. Lab. Code §§ 201–203; (3) failure to provide itemized wage

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statements under Cal. Lab. Code § 226; (4) failure to provide

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and/or

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226.7; and (5) unfair business practices under Cal. Bus. & Prof.

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Code §§ 17200 et seq. (Order Granting Conditional Certification

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and Class Certification (“Class Certification Order”), ECF No.

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25.)

of

Mot.

for

Conditional

Certification

and

Class

claims: (1) failure to pay overtime compensation under

authorize

second

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meal

II.

periods

under

Cal.

Lab.

Code

§

LEGAL STANDARD

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“A district court may decertify a class at any time.”

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Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 966 (9th Cir. 2009)

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(citing

Gen.

Tel.

Co.

of

Sw.

v.
2

Falcon,

457

U.S.

147,

160

1

(1982)); see United Steel, Paper & Forestry, Rubber, Mfg. Energy,

2

Allied, 593 F.3d 802, 809 (9th Cir. 2010) (“[A] court retains the

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flexibility to address problems with a certified class as they

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arise.”); Fed. R. Civ. P. 23(c)(1)(C) (“An order that grants or

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denies class certification may be altered or amended before final

6

judgment.”). When deciding whether proof on a class certification

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“question

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formulate some prediction as to how specific issues will play out

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in

is

order

to

common

or

determine

individual,

whether

a

district

common

or

court

individual

must

issues

10

predominate in a given case.” In re Wells Fargo Home Mortg.

11

Overtime

12

(citations and quotation marks omitted).

Pay

Litig.,

268

13

F.R.D.

604,

610

(N.D.

Cal.

2010)

reveals

that

III. DISCUSSION

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Reconsideration

the

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predominance requirement of Rule 23(b)(3). The pertinent part of

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this rule prescribes: “questions of law or fact common to class

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members

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individual

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predominance inquiry focuses on ‘the relationship between the

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common and individual issues’ and ‘tests whether proposed classes

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are

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representation.’” Vinole v. Countrywide Home Loans, Inc., 571

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F.3d 935, 944 (9th Cir. 2009) (citing Hanlon v. Chrysler Corp.,

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150 F.3d 1011, 1022 (9th Cir. 1998)).

predominate

members.”

sufficiently

“Where

over

Fed.

cohesive

the

motion

record

Plaintiff’s

[must]

certification

factual

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class

of

issues

any

R.

of

a

to

questions

Civ.

to

failed

Pro.

warrant

case

satisfy

affecting
23(b)(3).

adjudication

‘require

the

the

only
“The

by

separate

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adjudication of each class member’s individual claim or defense,

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a Rule 23(b)(3) action would be inappropriate.’” Casida v. Sears
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Holdings Corp., No. 1:11-cv-01052 AWI JLT, 2012 WL 3260423, at *7

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(E.D. Cal. Aug. 8, 2012) (quoting Zinser v. Accufix Research

3

Inst.,

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“Consider[ation of] whether ‘questions of law or fact common to

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class members predominate’ begins . . . with the elements of the

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underlying

7

Halliburton Co., 131 S. Ct. 2179, 2184 (2011), and “may ‘entail

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some

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claim.’” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct.

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1184, 1194 (2013) (citing Wal–Mart Stores, Inc. v. Dukes, 131

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S.Ct. 2541, 2551 (2011)).

Inc.,

cause

overlap

12

253

of

with

The

F.3d

1180,

action,”

the

Class

1189

Erica

merits

of

P.

the

Certification

(9th

John

Cir.

Fund,

plaintiff’s

Order

found

2001)).

Inc.

v.

underlying

that

common

13

issues would predominate the litigation, stating, “Underwriters’

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overtime

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representative testimony.” (Class Certification Order 5:25-26.)

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Defendant argues this ruling raises “serious legal questions”

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justifying a stay of the proceedings because “Plaintiff did not

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describe the testimony on which she would rely or the means of

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extrapolating the amounts of overtime worked by 58 class members

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dispersed among 13 different locations by anecdotal evidence from

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three individuals working in only 3 locations.” (Def.’s Stay Mot.

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6:9-12.) Plaintiff rejoins that the Court will not have to engage

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in

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worked

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representative testimony, such as the declaration and deposition

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testimony she submitted in her class certification motion. (Pl.’s

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Reply in Supp. of Class Mot. 6:1-7:21, ECF No. 20.)

hours

may

individualized
overtime,

also

be

inquiries
since

she

proven

to

determine

can

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4

with

common

whether

establish

proof

and

Underwriters

liability

through

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However,

closer

examination

of

Plaintiff’s

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representative evidence evinces Plaintiff has not sustained her

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burden of showing it would be reasonable to infer that each class

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member

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representative evidence with evidence from which inferences could

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be drawn that individual issues predominate, “the resolution of

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which depends upon how employees spend their time at work.” In re

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Wells Fargo Home Mortg. Overtime Pay Litig., 268 F.R.D. at 611;

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Keller v. Tuesday Morning, Inc., 179 Cal. App. 4th 1389, 1396

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(2009) (affirming decertification for lack of predominance where

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“the

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class-wide

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performing these acts and his or her exercise of discretion are

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matters of individual inquiry”); cf. Espenscheid v. DirectSat

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USA, LLC, 705 F.3d 770, 774 (7th Cir. 2013) (“To extrapolate . .

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. would require that all [employees] . . . have done roughly the

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same amount of work, including the same amount of overtime work,

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and had been paid the same wage.”).

worked

question

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overtime.

of

mandated

proof,

Here,

yet

the

Plaintiff

Defendant

management
amount

has

of

not

counters

policies
time

shown

a

Plaintiff’s

was

subject

manager

that

to

spent

Defendant’s

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Underwriters worked the same approximate hours. Plaintiff gave

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deposition testimony that she did not keep records of the hours

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she worked, that she occasionally worked more than ten hours a

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day, regularly worked evenings and weekends, and never received

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second meal periods. (Dep. of Gina McKeen-Chaplin 13:6-9, ECF No.

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19-3

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79:3-6,

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2

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(“McKeen-Chaplin
80:10-24,

ECF

Dep.
No.

#1”);
17–11

Dep.

of

Gina

(“McKeen-Chaplin

McKeen–Chaplin
Dep.

#2”).2)

Plaintiff’s deposition has not been filed on the docket by either party
in its entirety. The cited portions of Plaintiff’s deposition are contained in
two different filings made by the parties in connection with Plaintiff’s class

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1

Underwriter

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regularly worked ten or more hours a day and worked without a

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single meal period. (Dep. of Karen Honour 237:3 - 238:21, ECF No.

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20–2; Decl. of Matthew C. Helland in Supp. of Pl.’s Class Mot.

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(“Helland

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Suarez declares that she also worked between ten and twelve hours

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a day without receiving two meal periods. (Suarez Decl. ¶ 4, ECF

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16-3.)

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referenced hours worked are similar to the hours Underwriters

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Karen

Honour

Decl.”),

However,

Ex.

testified

5,

ECF

Plaintiff

in

No.

has

deposition

17-5.)

not

that

Underwriter

demonstrated

she

Kristi

that

the

worked at Defendant’s other offices.

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According to Defendant’s Vice President of Operations,

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Debra Baker, Defendant currently employs thirty to thirty-two

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Underwriters in approximately thirteen different offices. (Dep.

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of Debra B. Baker (“Baker Dep.”) 16:15-17, 21:14, ECF No. 19–2.)

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Plaintiff’s class consists of at least an additional twenty-four

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former Underwriters. (Pl.’s Class Mot. 19:3–10.) Underwriters’

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workloads and production standards vary by office, depending on

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the amount of business per location and size of the staff. (Baker

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Dep. 74:5-75:13.) The record also indicates that Underwriters

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have considerable autonomy in scheduling their work. Defendant’s

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Human

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Underwriters took meal and rest periods as they saw fit. (Dep. of

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Deborah L. Hill (“Hill Dep.”) 35:14-15, ECF No. 19–1.) Plaintiff

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McKeen-Chaplin

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supervision, (McKeen-Chaplin Dep. #2 74:23), was never instructed

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as to an arrival time (id. at 73:24-74:2), and regularly worked

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from

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certification motion.

Resources

home

(id.

Director,

averred

at

that

80:14-18).

Deborah

she

did

Since

6

Hill,

not

Defendant

testified

have

that

day-to-day

classifies

all

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Underwriters as exempt, it does not record Underwriters’ hours or

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track their meal periods. (Hill Dep. at 31:24 – 34:1; Helland

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Decl., Ex. 3, ECF No. 17-3.)

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Apart from representative testimony, Plaintiff has not

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suggested how the district court could determine liability for

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overtime on a class-wide basis. (Pl.’s Reply in Supp. of Class

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Mot. 7:15-21). Plaintiff has shown a common question concerning

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whether

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Certification Order 5:16-17.) Nonetheless, reconsideration of the

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class certification decision reveals that, based on the present

11

record,

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overtime will require an individualized inquiry into the work

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schedules of each class member. Without a showing that Plaintiff

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can prove class-wide liability via representative testimony or

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otherwise, individualized issues will predominate the litigation.

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See Purnell v. Sunrise Senior Living Mgmt., Inc., SA CV10-00897

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JAK, 2012 WL 1951487, at *8 (C.D. Cal. Feb. 27, 2012) (“Because

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class members have had such different experiences regarding how

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they kept track of and took their meal breaks . . . questions of

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law or fact common to class members do not predominate.”).

Defendant

determining

misclassified

whether

all

Underwriters.

Underwriters

(See

actually

Class

worked

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Plaintiff’s class fails predominance not only on the

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unpaid overtime claim alleged under Cal. Lab. Code §§ 510, 1194,

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1198, and the IWC Wage Orders, but also on the claims for failure

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to provide and/or authorize second meal periods under Cal. Lab.

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Code § 226.7, waiting time penalties under Cal. Lab. Code §§ 201–

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203, and unfair business practices under Cal. Bus. & Prof. Code

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§§ 17200 et seq. Plaintiff has not shown that employees in all of

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Defendant’s

offices

worked

a

sufficient
7

number

of

hours

to

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entitle them to second meal periods. Nor has Plaintiff shown that

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common questions predominate the waiting time penalties claim,

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since this claim is derivative of Plaintiff’s overtime claim. For

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the same reason, Plaintiff has not established predominance on

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the unfair competition claim.

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Since four of Plaintiff’s five state claims have not

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been

shown

suitable

8

decertifies

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predominate Plaintiff’s wage statement claim alleged under Cal.

10

Lab. Code § 226, Plaintiff has not shown that the claims, as a

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whole, satisfy predominance, and Plaintiff premised her class

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motion on certifying all state claims, (Pl.’s Class Mot. 2:12-

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18). See Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1238 (9th

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Cir. 2001) (quoting U.S. Parole Comm’n v. Geraghty, 445 U.S. 388,

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408 (1980)) (“The district court is not ‘to bear the burden of

16

constructing

17

Plaintiffs

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“Plaintiff[] ha[s] not met [her] burden of showing that common

19

questions

20

under

21

“requirements of Rule 23(a) or the Rule 23(b)(3) requirement of

22

superiority.”

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ADM/JSM, 2010 WL 935758, at *2 (D. Minn. Mar. 12, 2010) (citing

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Steering Comm. v. Exxon Mobile Corp., 461 F.3d 598, 601, 604 (5th

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Cir. 2006)); see also Edwards v. Ford Motor Corp., No. 11-CV-

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1058-MMA(BLM), 2012 WL 2866424, at *2, 4-11 (S.D. Cal. June 12,

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2012)

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certification when predominance under Rule 23(b)(3) not met).

all

for

class

submit

predominate,

Rule

23(b)(3),”

Moua

(declining

to

v.

resolution,

claims.

subclasses’
to

class

.

.

Although

.

;

the

is

address

to

fatal

Court

Jani-King

of

other

8

common

rather,

proposals

which

the

the

the

district

questions

burden

class

need

not

elements

is

court.”).

to

Minn.,

court

Inc.,

may

on

Since

certification
address

No.

relevant

the

08-4942

to

class

1

IV.

CONCLUSION

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For the stated reasons, Plaintiff’s state claims are

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decertified and Defendant’s stay motion is denied since it is

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mooted by this ruling.

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Dated:

October 29, 2013

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