Cruz et al v. Dollar Tree Stores, Inc.

Filing 320

ORDER by Judge Samuel Conti decertifying class in case 3:07-cv-02050-SC (sclc2, COURT STAFF) (Filed on 7/8/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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) Case Nos. 07-2050 SC
MIGUEL A. CRUZ, and JOHN D.
HANSEN, individually and on behalf )
07-4012 SC
of all others similarly situated, )
)
Plaintiffs,
) ORDER DECERTIFYING CLASS
)
)
v.
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DOLLAR TREE STORES, INC.,
)
)
)
Defendant.
)
)
ROBERT RUNNINGS, individually, and )
on behalf of all others similarly )
situated,
)
)
Plaintiffs,
)
)
v.
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DOLLAR TREE STORES, INC.,
)
)
Defendant.
)
)
I.

INTRODUCTION
This is a certified class action brought by Plaintiffs Robert

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Runnings ("Runnings"), Miguel Cruz ("Cruz"), and John Hansen

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("Hansen") (collectively, "Plaintiffs"), who allege that they and

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other current and former store managers at Defendant Dollar Tree

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Stores, Inc. ("Defendant" or "Dollar Tree") were misclassified as

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executive-exempt employees and thereby denied overtime pay and meal

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and rest breaks in violation of California law.

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the Court conducted a hearing on the trial plans submitted by

On May 27, 2011,

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Plaintiffs and Defendant.

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Court expressed concern over the continued propriety of class

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treatment in this case and ordered the parties to submit briefs

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addressing whether continued class treatment was appropriate.

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parties have submitted briefs in response to the Court's order.

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ECF Nos. 314 ("Def.'s Br."), 317 ("Pls.' Br.).1

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these briefs, and many other papers submitted by the parties over

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the course of this litigation, the Court finds that continued class

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treatment is inappropriate and DECERTIFIES the class for the

United States District Court

For the Northern District of California

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At the conclusion of the hearing, the

The

After reviewing

following reasons.

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II.

BACKGROUND

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The Court assumes the parties are familiar with the procedural

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and factual background of this case, which the Court set out in its

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May 26, 2009 Order Granting the Amended Motion for Class

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Certification.

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the Court provides a truncated version here.

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ECF No. 107 ("Orig. Cert. Order").

Accordingly,

Plaintiffs are former Dollar Tree employees who held the

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position of store manager.

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filed suit ("the Cruz action") on behalf of themselves and all

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others similarly situated against Dollar Tree, alleging that Dollar

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Tree improperly categorizes its store managers as executive-exempt

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employees under California and federal labor laws.

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("Compl.").

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state court (the "Runnings action"), which was subsequently removed

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On April 11, 2007, Cruz and Hansen

ECF No. 1

In August 2007, Runnings filed a similar action in

Cruz v. Dollar Tree, Case No. 07-2050 ("Cruz action"), and
Runnings v. Dollar Tree, Case No. 07-4012 ("Runnings action"), have
been consolidated. Unless otherwise noted, all docket numbers in
this Order refer to docket entries in the Cruz action.

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and consolidated with the Cruz action.

See ECF No. 45.

On May 26, 2009, the Court certified a class of "all persons

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who were employed by Dollar Tree Stores, Inc. as California retail

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Store Managers at any time on or after December 12, 2004, and on or

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before May 26, 2009," and appointed Plaintiffs as class

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representatives.

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718 store managers ("SMs") who worked in 273 retail locations.

The class consisted of
Id.

On June 18, 2010, in the wake of two Ninth Circuit decisions

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See Orig. Cert. Order.

regarding employment class actions -- In re Wells Fargo Home

United States District Court

For the Northern District of California

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Mortgage Overtime Pay Litigation, 571 F.3d 953 (9th Cir. 2009)

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("Wells Fargo I"), and Vinole v. Countrywide Home Loans, Inc., 571

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F.3d 935 (9th Cir. 2009) -- Dollar Tree moved for decertification,

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arguing that changes in the law made continued class treatment

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inappropriate.

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granted in part and denied in part Dollar Tree's motion for

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decertification.

ECF No. 188.

On September 9, 2010, the Court

ECF No. 232 ("Part. Decert. Order").

As explained in the Original Certification Order and the

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Partial Decertification Order, Dollar Tree requires its SMs to

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complete weekly payroll certifications indicating whether they

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spent more than fifty percent of their actual work time each week

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performing seventeen listed duties that Dollar Tree believes to be

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"managerial" in nature.

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certification form states that SMs "may not spend more than a total

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of 35% of his/her actual work time each week receiving product,

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distributing and storing product, stocking product and cashiering."

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Id.

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his or her time performing the seventeen duties and "no" if he or

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she did not.

See Part. Decert. Order at 2.

The

Each SM must certify "yes" if he or she spent the majority of

Id.

The payroll certification form further states

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that if the SM responds no, "s/he must immediately provide an

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explanation to both Payroll and Human Resources.

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will be withheld because of non-compliance."

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provides a space for SMs to write an explanation.

Id.

No salary or wage
The form
Id.

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In its Partial Decertification Order, after reviewing the

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Ninth Circuit's decisions in Wells Fargo I and Vinole and examining

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subsequent district court reactions, the Court decided that, with a

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modification of the class definition, this case could proceed as a

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class action.

The Court held that Dollar Tree's payroll

United States District Court

For the Northern District of California

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certifications provided common proof of how SMs were spending their

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time.

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common proof -- which was lacking in other cases2 where classes

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were decertified after Vinole and Wells Fargo I -- would obviate

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the need for much individual testimony from SMs concerning how they

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spent their time.

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include only those SMs who certified "no" on a payroll

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certification form at least once during the class period.

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Court reasoned that, in order to prove liability with regard to the

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SMs who always certified "yes," Plaintiffs would need to show that

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these SMs were not truthful when completing their payroll

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certifications.

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individualized inquiries that would overwhelm the common issues in

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the case.

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this problem.

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Id.

Id.

Id.

The Court reasoned that this

However, the Court narrowed the class to

The

Such credibility determinations would require

By narrowing the class, the Court sought to avoid

The Partial Decertification Order resulted in a class

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Part. Decert. Order at 12-13.

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See, e.g., In re Wells Fargo Home Mortg. Overtime Pay Litig., 268
F.R.D. 604, 611 (N.D. Cal. Jan. 13, 2010) ("Wells Fargo
II")(denying class certification because plaintiffs could not
produce "common proof that would absolve this court from inquiring
into how each [manager] spent their working day").
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consisting of 273 members and defined as "all persons who were

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employed by Dollar Tree Stores, Inc. as California retail store

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managers at any time on or after December 12, 2004, and on or

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before May 26, 2009, and who responded 'no' at least once on Dollar

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Tree's weekly payroll certifications."

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definition has not been altered further.3

Id. at 23.

The class

The Court subsequently reviewed motions from Plaintiffs and

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motion for reconsideration of the Partial Decertification Order

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United States District Court

Defendant addressing trial management issues, reviewed and denied a

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For the Northern District of California

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filed by Plaintiffs, and held a May 27, 2011 hearing to discuss

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trial management issues.

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290 ("Pls.' Trial Plan"), 301 ("Mot. for Recon.").

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developments, along with the Ninth Circuit's decision in Marlo v.

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United Parcel Serv., Inc., No. 09-56196, 2011 U.S. App. LEXIS 8664

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(9th Cir. Apr. 28, 2011) ("Marlo II"), made the Court increasingly

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concerned that individualized issues will predominate over class-

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wide issues if this case proceeds to trial as a class action.

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Court thus decided to entertain further briefing from the parties

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regarding the propriety of continued class treatment.

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Court's recent decision in Wal-Mart Stores, Inc. v. Dukes, No. 10-

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277, 2011 U.S. LEXIS 4567 (June 20, 2011), has since heightened the

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Court's concerns.

See ECF Nos. 277 ("Def.'s Trial Plan"),
These

The

The Supreme

Having considered the parties' briefings, recent

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On March 8, 2011, the Court granted in part Dollar Tree's Motion
to Dismiss Claims of Class Members Who Failed to Respond to
Discovery Requests. ECF No. 282 ("Mar. 8, 2011 Order"). The Court
dismissed the claims of eighty-nine class members who failed to
respond to limited discovery authorized by the Court despite
multiple warnings that failure to respond might result in
dismissal. Id. The Court declined to dismiss twenty class members
who did not receive the final warning letter sent by Plaintiffs'
counsel. The March 8, 2011 Order reduced the class to its current
size of 184 members.
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developments in the case, and recent developments in the law of

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class actions, the Court finds that decertification of the class is

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warranted.

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III. LEGAL STANDARD
The district court has the discretion to certify a class under

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Federal Rule of Civil Procedure 23.

See Molski v. Gleich, 318 F.3d

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937, 946 (9th Cir. 2003).

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demonstrate (1) numerosity, (2) commonality, (3) typicality, and

Rule 23(a) requires that the plaintiff

United States District Court

For the Northern District of California

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(4) fair and adequate representation of the class interest.

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R. Civ. P. 23(a).

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plaintiff must also show that the lawsuit qualifies for class

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action status under one of the three criteria found in Rule 23(b).

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Dukes, 2011 U.S. LEXIS 4567, at *12.

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Fed.

In addition to meeting these requirements, the

A district court's order to grant class certification is

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subject to later modification, including class decertification.

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See Fed. R. Civ. P. 23(c)(1)(C) ("An order that grants or denies

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class certification may be altered or amended before final

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judgment.").

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certification disproves plaintiffs' contentions that common issues

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predominate, the district court has the authority to modify or even

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decertify the class."

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571, 579 (9th Cir. 2010), rev'd on other grounds, No. 10-277, 2011

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U.S. LEXIS 4567 (June 20, 2011).

"If evidence not available at the time of

Dukes v. Wal-Mart Stores, Inc., 603 F.3d

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In considering the appropriateness of decertification, the

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standard of review is the same as a motion for class certification:

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whether the Rule 23 requirements are met.

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Am., Inc., 197 F.R.D. 404, 410 (C.D. Cal. 2000).

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O'Connor v. Boeing N.
"Although

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certification decisions are not to focus on the merits of a

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plaintiff's claim, a district court reevaluating the basis for

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certification may consider its previous substantive rulings in the

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context of the history of the case, and may consider the nature and

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range of proof necessary to establish the class-wide allegations."

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Marlo v. United Parcel Serv., Inc., 251 F.R.D. 476, 479 (N.D. Cal.

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2008) ("Marlo I") (internal citations omitted).

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IV.

The central issue in this case is whether Dollar Tree

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United States District Court

For the Northern District of California

DISCUSSION

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misclassified its SMs as exempt.

Here, the Court previously ruled

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that Plaintiff had satisfied Rule 23(a) and certified the class

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under Rule 23(b)(3).

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that continued certification under Rule 23(b)(3) is improper

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because Plaintiffs have failed to provide common proof of

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misclassification, and that therefore individual inquiries will

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predominate at trial.4

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there have been no new developments in the facts of this case or in

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the law that compel decertification.

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agrees with Dollar Tree.

See Orig. Cert. Order.

Def.'s Br. at 1.

Dollar Tree argues

Plaintiffs argue that

Pls.' Br. at 4.

The Court

Rule 23(b)(3) requires that "questions of law or fact common

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to the members of the class predominate over any questions

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affecting only individual members, and that a class action is

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superior to other available methods for the fair and efficient

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adjudication of the controversy."

Fed. R. Civ. P. 23(b)(3).

Among

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Dollar Tree also argues that Plaintiffs fail to satisfy the
commonality requirement of Rule 23(a). Because the Court finds
that the predominance requirement is not met, it does not address
whether Rule 23(a) is satisfied.
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the issues central to the predominance inquiry is whether the case,

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if tried, would present intractable management problems.

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Civ. P. 23(b)(3)(D).

Fed. R.

Developments in this case and in the case law since the Court

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issued its Partial Decertification Order in September 2010 have

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persuaded the Court that individual issues predominate in this case

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and trial as a class action would present unmanageable

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difficulties.

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of the present class in the Court's Partial Decertification Order -

In particular, the basis for continued certification

United States District Court

For the Northern District of California

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- the determination that the payroll certification forms could

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serve as reliable common proof of how SMs were spending their time

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-- is no longer tenable.

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reliability of the certification forms.

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become clear to the Court that "the crux" of Plaintiffs' proof at

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trial will be representative testimony from a handful of class

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members.

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The appropriateness of such a trial plan was a questionable

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proposition under this circuit's case law at the time of the

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Court's Partial Decertification Order.5

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light of the Ninth Circuit's decision in Marlo II and the Supreme

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Court's decision in Dukes.

Both parties have repeatedly attacked the
Additionally, it has

See ECF No. 290 ("Pls.' Mot. for Pre-Trial Order") at 6.

It is now untenable in

The Court begins by briefly reviewing the California labor law

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See, e.g., Wells Fargo II, 268 F.R.D. at 612 ("[T]he court has
been unable to locate any case in which a court permitted a
plaintiff to establish the non-exempt status of class members,
especially with respect to the outside sales exemption, through
statistical evidence or representative testimony."); Beauperthuy v.
24 Hour Fitness USA, Inc., 2011 U.S. Dist. LEXIS 24768, *59-60
(N.D. Cal. 2011) (rejecting the use of representative testimony
where deposition testimony "show[ed] that for every manager who
says one thing about his or her job duties and responsibilities,
another says just the opposite.").
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at issue in this case and then proceeds to explain why continued

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class treatment is no longer appropriate.

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A. California's Executive Exemption in Class Actions

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California law requires that all employees receive overtime

unpaid compensation.

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law recognizes an exemption for "executive" employees who meet six

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criteria.

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manage the enterprise, a customarily recognized department, or

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United States District Court

compensation and authorizes civil actions for the recovery of

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For the Northern District of California

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subdivision thereof; (2) direct the work of two or more other

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employees; (3) have the authority to hire or fire, or have their

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recommendations to hire, fire, or promote given weight; (4)

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exercise discretion and independent judgment; (5) be "primarily

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engaged" in exempt duties; and (6) earn a monthly salary equal to

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twice the state minimum wage for full-time employment.

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Regs. tit. 8, § 11070(1)(A)(1)(a)-(f).

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Cal. Lab. Code §§ 510, 1194.

However, the

To qualify as executive-exempt, an employee must: (1)

Cal. Code

The "primarily engaged" prong of the exemption inquiry

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requires a week-by-week analysis of how each employee spent his or

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her time.

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applicable regulations state that in determining whether an

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employee is "primarily engaged" in exempt work, "[t]he work

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actually performed by the employee during the course of the

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workweek must, first and foremost, be examined and the amount of

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time the employee spends on such work . . . shall be considered."

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Cal. Code Regs. tit. 8, § 11090(1)(A)(1)(e).

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have construed this requirement to mean that "the Court must

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determine whether any given class members (or all the class

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members) spend more than 51% of their time on managerial tasks in

Marlo II, 2011 U.S. App. LEXIS 8664, at *14.

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The

California courts

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any given workweek."

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83, 86 (Ct. App. 2006) (emphasis added).

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Dunbar v. Albertson's, Inc., 47 Cal. Rptr. 3d

In order to satisfy Rule 23(b)(3), Plaintiffs must provide

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common proof that "misclassification was the rule rather than the

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exception."

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Plaintiffs must provide common proof that, among other things,

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class members were spending more than fifty-one percent of their

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time on managerial tasks in any given workweek.

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Decertification Order, the Court held that the payroll

Marlo II, 2011 U.S. App. LEXIS 8664, at *12.

Thus,

In its Partial

United States District Court

For the Northern District of California

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certification forms could provide this proof.

Subsequent

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developments have demonstrated that the certification forms cannot

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serve as reliable common proof and that Plaintiffs instead intend

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to rely on individual testimony by exemplar class members at trial.

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B. Changes in the Legal Landscape Favor Decertification

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Two developments in the law of employment class actions since

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the Court issued its Partial Decertification Order bear heavily on

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the Court's decision that class treatment in this case is no longer

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proper.

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First, the Ninth Circuit's recent decision in Marlo II affirms

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the impropriety of relying on representative testimony where

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plaintiffs have provided no reliable means of extrapolating that

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testimony to the class as a whole.

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affirmed the decision of this district court decertifying a class

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of employees who alleged they were misclassified as executive-

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exempt.

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found that the plaintiffs had failed to satisfy Rule 23(b)(3)'s

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predominance requirement because they had failed to provide common

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evidence of misclassification that would obviate the need for

In Marlo II, the Ninth Circuit

2011 U.S. App. LEXIS 8664, at *17.

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The district court

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individualized inquiries.

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explained that the plaintiffs' primary evidence at trial would be

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the testimony of individual class members.

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concluded:

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Marlo I, 251 F.R.D. at 485.

Id. at 486.

The court

The court

Without more than this individual testimony, the Court
cannot conceive how the overtime exemption will be
presented to the jury as a common issue for class-wide
adjudication, as opposed to a number of individualized
inquiries. There is a significant risk that the trial
would become an unmanageable set of mini-trials on the
particular individuals presented as witnesses.

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United States District Court

For the Northern District of California

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Id.

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held that the plaintiffs' evidence did not support predominance,

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and that the district court did not abuse its discretion by holding

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that representative testimony did not support a class-wide

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determination.

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explained below, given that the payroll certification forms in the

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instant case can no longer be considered reliable proof,

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Plaintiffs' evidence in this case closely parallels that in Marlo

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II and fails to establish predominance for the same reasons.

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In affirming the district court's decision, the Ninth Circuit

Marlo II, 2011 U.S. App. LEXIS 8664, at *15-17.

As

Second, the United States Supreme Court's recent decision in

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Dukes provides a forceful affirmation of a class action plaintiff's

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obligation to produce common proof of class-wide liability in order

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to justify class certification.

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certification of a class of current and former female Wal-Mart

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employees who alleged that Wal-Mart discriminated against them on

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the basis of their sex by denying them equal pay and promotions in

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violation of Title VII of the Civil Rights Act of 1964.

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LEXIS 4567, at *37-38.

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failed to satisfy the commonality requirement of Rule 23(a).

In Dukes, the Court reversed

2011 U.S.

The Court found that the plaintiffs had

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Id.

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The Court emphasized that it was not enough to pose common

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questions; rather, those questions must be subject to common

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resolution.

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plaintiffs offered -- consisting of statistical evidence of pay and

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promotion disparities, anecdotes from class members, and the

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testimony of a sociologist who opined that Wal-Mart had a culture

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of sex discrimination -- failed to provide the "glue" necessary to

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render all class members' claims subject to common resolution.

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at *27-34.

Id. at *19.

The evidence of commonality the

Id.

Similarly here, as explained below, Plaintiffs have

United States District Court

For the Northern District of California

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failed to provide common proof to serve as the "glue" that would

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allow a class-wide determination of how class members spent their

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time on a weekly basis.

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commonality threshold, let alone the predominance inquiry of Rule

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23(b)(3), has not been met.

In the absence of such proof, the

Also of importance to this case, Dukes rejected a "Trial by

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Formula" approach to damages akin to that which Plaintiffs have

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proposed here.

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determine each class member's damages using a formulaic model

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approved by the Ninth Circuit in Hilao v. Estate of Marcos, 103

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F.3d 767, 782-87 (9th Cir. 1996).

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damages for 9,541 class members were calculated by selecting 137

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claims at random, referring those claims to a special master for

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valuation, and then extrapolating the validity and value of the

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untested claims from the sample set.

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26.

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could be used by allowing Wal-Mart "to present individual defenses

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in the randomly selected sample cases, thus revealing the

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approximate percentage of class members whose unequal pay or

Id. at *48-51.

The Dukes plaintiffs intended to

Id.

In Hilao, compensatory

See Dukes, 603 F.3d at 625-

The Ninth Circuit in Dukes concluded that a similar procedure

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discrimination."

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"novel project" as a "Trial by Formula" that would deprive Wal-Mart

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of its right to assert statutory defenses to the individual claims

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of all class members.

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Here, Plaintiffs rely on Hilao to propose determining

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individualized damages "in a formulaic manner."

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Pre-Trial Order at 4 n.10.

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rejection of this approach, it is not clear to the Court how, even

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United States District Court

nonpromotion was due to something other than gender

2

For the Northern District of California

1

if class-wide liability were established, a week-by-week analysis

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of every class member's damages could be feasibly conducted.

Id. at 627 n.5.

The Supreme Court rejected this

Dukes, 2011 U.S. LEXIS 4567, at *48-51.

Pls.' Mot. for

In light of the Supreme Court's

12

C. Recent Developments in this Case Compel Decertification

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Since issuing its Partial Decertification Order, the Court has

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learned that the payroll certification forms cannot serve as

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reliable common proof of misclassification, and that Plaintiffs

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intend to rely primarily on individual testimony by exemplar class

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members to prove their case.

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conclude that individual issues will predominate at trial.
1. The Payroll Certification Forms Can No Longer Be

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Considered Reliable Common Proof

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These developments lead the Court to

In its Partial Decertification Order, the Court found that the

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payroll certifications appeared reliable based on the analysis of

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Dollar Tree's expert Robert Crandall.

24

17-20.

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noted that "[t]he Court is not bound by these determinations as the

26

litigation progresses.

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Court can revise its determination concerning the overall

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reliability of the certifications."

See Part. Decert. Order at

In making this determination, however, the Court expressly

If persuaded by the parties to do so, the

13

Id. at 20.

The Court has

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since learned that approximately sixty percent of class members

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stated under oath that either (1) they were not truthful when

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submitting their weekly payroll certifications, or (2) their "yes"

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responses did not in fact indicate that they spent more than fifty

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percent of their actual work time performing the tasks listed on

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the form.

7

Decl.") at ¶ 4.6

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could not recall whether they were truthful when submitting their

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weekly certifications or provided no response at all.

United States District Court

An additional twenty-five percent of the class

Id.

In addition, Plaintiffs themselves have argued on numerous

10
For the Northern District of California

ECF No. 298-1 ("Vandall Decl. ISO Objections to Ngo

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occasions since the Court's Partial Decertification Order that the

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payroll certifications are not an accurate indication of how class

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members spent their time.

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Court's repeated admonition that "if Plaintiffs intend to argue

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that the certifications do not provide a reliable measure of weeks

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when SMs were not spending most of their time performing managerial

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tasks, then it is not clear to the Court how this case can proceed

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as a class action."

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294 ("Order Granting Leave to File Mot. for Recons.") at 2 (same).

20

Indeed, in opposition to Defendant's motion for summary

21

adjudication, Plaintiffs argued that "the certification responses

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are clearly unreliable."

23

To MSA") at 10.

24

about how to complete the forms, that the analysis of Defendant's

They have made this argument despite the

Part. Decert. Order at 17; see also ECF No.

Runnings action, ECF No. 337 ("Pls.' Opp.

Plaintiffs argued that class members were confused

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26
27
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6

When it issued the Partial Decertification Order, the Court was
only presented with evidence that ten class members indicated they
were not truthful when submitting their payroll certifications.
See Part. Decert. Order at 17. Dollar Tree has subsequently
provided evidence that 111 class members indicated the same.
Vandall Decl. ISO Objections to Ngo Decl. at ¶ 4.
14

1

expert Crandall was based on old data compiled prior to the

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narrowing of the class, and that there are a large number of weeks

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for which class members did not fill out certification forms.

4

Similarly, in Plaintiffs' motion for reconsideration filed on April

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22, 2011, Plaintiffs argued that "[r]ecent events . . . have

6

revealed that Dollar Tree's [payroll certification] records are

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wrought with problems and have therefore provided an unreliable

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basis by which to establish eligibility for class membership."

9

No. 301 at 1.

United States District Court

ECF

Plaintiffs now argue that the certification forms are indeed

10
For the Northern District of California

Id.

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reliable common proof of how class members were spending their

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time.

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nothing more than pointing to the Court's determination in the

14

Partial Decertification Order and noting that Dollar Tree has used

15

the process for years.

16

that a majority of class members have stated under oath that their

17

certifications were not truthful or did not accurately reflect the

18

time they actually spent performing the tasks listed on the form.

Pls.' Br. at 8-10.

Their argument, however, amounts to

Id.

This does nothing to overcome the fact

19

In sum, the Court's certification of the current class was

20

premised on the reliability of the payroll certifications as common

21

proof of misclassification.

22

has made this premise no longer sustainable.

23

longer possible to view the negative responses as, in the words of

24

the Supreme Court, the "glue" that holds all of the individualized

25

experiences of the class members together.

26

LEXIS 4567, at *24.

27

///

28

///

Subsequent briefing by both parties

15

As a result, it is no

See Dukes, 2011 U.S.

1

2. Representative Testimony Cannot Properly Serve as

2

Common Proof of Class-wide Liability in This Case
Plaintiffs indicated in their trial plan that they intend to

3
4

make representative testimony "the crux" of their case.

Pls.' Mot.

5

for Pretrial Order at 6 ("exemplar plaintiffs' testimony will be

6

the crux of the Plaintiffs' case"); id. at 8 ("the liability issues

7

in this case should be driven by the actual work performed by the

8

class members as evidenced by the exemplar plaintiffs'

9

testimony.").

They now contend that this Court already decided

United States District Court

For the Northern District of California

10

that representative testimony of exemplar plaintiffs would be

11

binding on the rest of the class when it chose to certify this case

12

as a class action.

13

"this Court should simply order that the testimony of five exemplar

14

plaintiffs will be extrapolated to the class as a whole."

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Court declines to do so.

16

Court noted that "representative testimony seems appropriate as

17

part of Plaintiffs' case-in-chief."

18

However, as the order makes clear, this statement was premised on

19

the determination that the payroll certifications provided the glue

20

necessary to justify extrapolation from a subset of class members

21

to the class as a whole.

22

longer tenable.

Pls.' Br. at 19.

According to Plaintiffs,

Id.

The

In its Partial Decertification Order, the

Part. Decert. Order at 21 n.5.

As explained above, this conclusion is no

23

Courts in this district have repeatedly decertified classes in

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overtime exemption cases where Plaintiffs have provided no reliable

25

means of extrapolating from the testimony of a few exemplar class

26

members to the class as a whole.

27

that:

28

Plaintiff's

evidence

at

In Marlo I, the Court explained

trial

16

primarily

would

be

1

individual [class members'] testimony . . . .
The
exempt/non-exempt inquiry focuses on what an employee
actually does.
The declarations and deposition
testimony of [class members] submitted by the parties
suggest variations in job duties . . . . Without more
than this individual testimony, the Court cannot
conceive how the overtime exemption will be presented
to the jury as a common issue for class-wide
adjudication, as opposed to a number of individualized
inquiries.

2
3
4
5
6
7
8

251 F.R.D. at 486.

The court decertified the class because the

9

plaintiff failed "to provide common evidence to support

United States District Court

For the Northern District of California

10

extrapolation from individual experiences to a class-wide judgment

11

that is not merely speculative."

12

as explained supra.

13

(denying class certification in overtime exemption case because

14

differences among class members rendered representative testimony

15

insufficient common proof of misclassification); Whiteway v. FedEx

16

Kinkos Office and Print Servs., Inc., No. 05-CV-02320 (N.D. Cal.

17

Oct. 2, 2009) (decertifying class in overtime exemption case

18

because plaintiff could not show how testimony of 10-20 class

19

members could be extrapolated to the class).

Id.

The Ninth Circuit affirmed,

See also Wells Fargo II, 268 F.R.D. at 612

Because it is no longer viable to consider the payroll

20
21

certifications reliable common proof of how class members were

22

spending their time, there is no basis for distinguishing this case

23

from those in which this district has found certification improper.

24

As in those cases, the failure of Plaintiffs here to offer a basis

25

for extrapolation of representative testimony to the class as a

26

whole is fatal to continued certification.

27

///

28

///

17

3. Plaintiffs' Other Evidence Does Not Provide Common

1
2

Proof of How Class Members Spent Their Time

3

Plaintiffs contend that, even if the payroll certification

4

forms are not reliable, class-wide liability may be tried by a

5

plethora of other common evidence.

6

have presented evidence of Dollar Tree's centralized operational

7

and human resources hierarchy.

8

("Pls.' Am. Mot. for Class Cert.").

9

evidence that all store managers are given uniform training and

Pls.' Br. at 10.

Plaintiffs

See Runnings action, ECF No. 124
They have likewise presented

United States District Court

For the Northern District of California

10

training-related materials, use the same on-the-job tools, receive

11

"daily planners" that require them to perform certain tasks, and

12

are subject to other Dollar Tree policies intended to standardize

13

the experiences of all store managers.

Id.

While this evidence does provide some proof that class members

14
15

shared a number of common employment experiences, it does not

16

provide common proof of whether they were spending more than fifty

17

percent of their time performing exempt tasks.

18

Circuit explained in Marlo II, the existence of "documents

19

explaining the activities that [managers] are expected to perform,

20

and procedures that [managers] should follow . . . does not

21

establish whether [the managers] actually are 'primarily engaged'

22

in exempt activities during the course of the workweek."

23

App. LEXIS 8664, at *13.

24

to establish that common issues will predominate over

25

individualized ones at trial.

26

///

27

///

28

///

As the Ninth

2011 U.S.

This evidence is therefore insufficient

18

1

V.

CONCLUSION

2

For the foregoing reasons, the Court finds that continued

3

class treatment is not appropriate in this case and DECERTIFIES the

4

class.

5

equitably toll the statute of limitations on the misclassification

6

claims of former class members to preserve their right to pursue

7

individual claims against Dollar Tree.

8

parties to resolve this issue by stipulation.

9

The Court invites Class Counsel to file a motion to

The Court encourages the

The parties shall appear for a Case Management Conference on

United States District Court

For the Northern District of California

10

September 9, 2011 at 10:00 a.m. in Courtroom 1, on the 17th floor,

11

U.S. Courthouse, 450 Golden Gate Avenue, San Francisco, CA 94102.

12
13
14

IT IS SO ORDERED.

15
16
17

Dated:

July 7, 2011
UNITED STATES DISTRICT JUDGE

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