Garvey v. Kmart Corporation

Filing 394

ORDER DENYING MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION by Hon. William Alsup denying #377 Motion for Leave to File.(whalc1, COURT STAFF) (Filed on 7/10/2013)

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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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COLLETTE DELBRIDGE, individually
and on behalf of others similarly situated,
Plaintiff,

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No. C 11-02575 WHA

ORDER DENYING MOTION
FOR LEAVE TO FILE MOTION
FOR RECONSIDERATION

v.
KMART CORPORATION,
Defendant.
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A June 11 order on plaintiff’s motion for class certification certified a class limited to a

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single store in Redlands, California (Dkt. No. 363). Plaintiff moves for leave to file a motion for

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reconsideration. For the reasons explained below, the motion is DENIED.

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Civil Local Rule 7-9(b) provides that a party seeking reconsideration must show:
(1)

That at the time of the motion for leave, a material
difference in fact or law exists from that which was
presented to the Court before entry of the interlocutory
order for which reconsideration is sought. The party also
must show that in the exercise of reasonable diligence the
party applying for reconsideration did not know such fact
or law at the time of the interlocutory order; or

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(2)

The emergence of new material facts or a change of law
occurring after the time of such order; or

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(3)

A manifest failure by the Court to consider material facts or
dispositive legal arguments which were presented to the
Court before such interlocutory order.

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The June 11 order refused to certify a statewide class because plaintiff failed to satisfy
her burden under Rule 23 to show commonality and typicality of cashier experiences across

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Kmart stores statewide. This decision was based — in part — on the fact that there are multiple

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checkout stand configurations used in Kmart’s stores in California, and that these configurations

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play a key role in determining the nature of a cashier’s work. Plaintiff argues (presumably under

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Local Rule 7-9(b)(3)) that the June 11 order failed to consider that the one-size-fits-all checkout

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stand design advocated by plaintiff’s expert would render existing checkout stand variations

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“irrelevant.” Plaintiff’s reasoning is faulty: it assumes that the only factor that determines the

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nature of the work is the checkout stand configuration. This has not been proven. Nor was the

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unitary nature plaintiff’s proposed solution missed by the Court: the June 11 order found that

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even if a single type of register is used, the number and arrangement of registers affects the
calculus (Dkt. No. 363 at 10). Thus, the June 11 order did not manifestly fail to consider

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For the Northern District of California

United States District Court

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“material facts or dispositive legal arguments,” and a motion for reconsideration on this basis

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would be inappropriate.

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Plaintiff also argues that the July 11 order did not “thoughtfully consider” the fact that

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Kmart only recently disclosed the existence of alternative checkout stand configurations to

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plaintiff. Therefore, plaintiff argues, there was insufficient time to identify additional class

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representatives and collect evidence in support of plaintiff’s motion for class certification. This

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contention is rejected. At the time plaintiff moved for class certification, the evidence in favor of

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certifying a statewide class was inadequate; it remains so. If plaintiff believed that additional

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pre-certification discovery was necessary, it was incumbent on plaintiff to make a formal motion

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seeking such relief prior to filing the class certification motion. At that point, plaintiff had been

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aware of the issue of alternate configurations for at least several months. Plaintiff did not

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request discovery relief until after filing the class certification motion (Dkt. No. 333). And, the

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only relief requested by plaintiff was an extension of the post-certification discovery time period

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(which proved to be unnecessary given that the class was limited to a single store).

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In the alternative, plaintiff requests that some portion of the class certification order be

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reopened and held in abeyance pending the upcoming evidentiary hearing on Ms. Garvey’s Rule

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60(b) motion. Again, this is too little, too late. The time to request a delay of class certification

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to allow further development of the record has passed.
Plaintiff’s motion for leave to file a motion for reconsideration is DENIED.

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IT IS SO ORDERED.

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Dated: July 9, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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