Richards v. Canyon County

Filing 27

MEMORANDUM DECISION AND ORDER re: 14 MOTION to Certify Class. The Court will allow the parties until Friday, 2/21/2014 to complete discovery on the issues identified as needing further development, specifically whether Richards has standing and whe ther the predominance inquiry is satisfied. Each party then may file on a memorandum addressing the standing and predominance issues no later than Friday, 3/7/2014. Each party may file a response no later than Friday, 3/14/2014. After receiving and r eviewing the additional filings, the Court will issue a further written decision with a final decision upon Plaintiffs Motion for Class Certification. (Case Management deadline set for 3/7/2014.). Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

JAMES E. RICHARDS, individually and on behalf
of all others similarly situated,

Case No.: CV 12-00424-S-REB
MEMORANDUM DECISION AND
ORDER

Plaintiff,
vs.
CANYON COUNTY, a governmental entity and
local political subdivision of the State of Idaho,
Defendant.

Now pending before the Court is Plaintiff James E. Richards’s Motion to Certify Class
(Dkt. 14). Having carefully reviewed the record, heard oral argument, and otherwise being fully
advised, the undersigned enters the following Memorandum Decision and Order.
BACKGROUND
Federal law prohibits discrimination based on military status and specifically prohibits an
employer from requiring any person serving in the uniformed services “to use vacation, annual,
or similar leave” during a period of military service. Richards sues under this law, known as the
Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C.
§ 4301 et seq., alleging that former and current employees of Canyon County, Idaho who
performed service in the uniformed services were required by Canyon County’s practice or
policy to use accrued vacation, similar leave or to work compensatory hours during the
employees’ periods of service in the uniformed services. Compl., ¶ 1 (Dkt. 1).

MEMORANDUM DECISION AND ORDER - 1

For his part, Richards alleges that he was required to use 202.80 hours of vacation leave
time1 for his service in the uniformed services2 while he was employed as a deputy sheriff by the
Canyon County Sheriff’s Office. Compl., ¶ 32; see Goodsell Decl., Ex. G (Dkt. 19).
Richards filed the pending class certification motion on July 29, 2013. Defendant
Canyon County (“the County”) challenged Richards’ standing to bring his claim, arguing that (a)
he is no longer employed by Canyon County and therefore cannot seek injunctive relief, and (b)
he has not suffered compensatory damages. The County also contends that at least some claims
of the proposed class are barred by the statute of limitations. These issues are threshold
questions and will be considered first.
STANDING
Richards concedes that he lacks standing to seek injunctive relief, but maintains that he
has standing to bring a claim for money damages. Pl.’s Reply, pp. 3-4 (Dkt. 21). See, e.g.,
Wang v. Chinese Daily News, 2013 WL 4712728, *4 (9th Cir. Sept. 3, 2013) (noting that none of
the named plaintiffs had standing to pursue injunctive relief on behalf of the class, as none was a
current employee of the defendant). The County contends, however, that Richards was paid for
all accrued vacation leave when he ended his employment with Canyon County. Hence,
according to the County, Richards was ultimately fully compensated for all his vacation leave,
either when used in conjunction with military leave or when he was paid for all his accrued
vacation leave at the end of his employment, regardless of whether he was “required” to use his

1

This calculation also includes 12.25 hours of a make up day and .75 hours of
compensatory time. See Compl., ¶ 32.
2

Richards agrees that he was paid for all his accrued vacation leave when he left his
employment with Canyon County. Goodsell Decl., Ex. C, Richards Dep., p. 76 (Dkt. 19).
MEMORANDUM DECISION AND ORDER - 2

vacation leave for his periods of military service. Richards does not dispute having been so paid,
but contends that he has been injured separate and apart from any direct pay compensation for
the vacation time – in other words, he distinguishes the fact of having received his regular
vacation pay from his loss of use of vacation benefits. See Pl.’s Reply, p. 5 (Dkt. 21).
Richards is correct that USERRA defines benefits to includes “vacations” and that an
aggrieved plaintiff may seek remedies that include compensation for “any loss of wages or
benefits suffered.” 38 U.S.C. §§ 4303(2); 20 C.F.R. Part 1002.312. One might think that the
discrete issue at play in this lawsuit has been encountered elsewhere, but the parties, and the
Court’s own research, have only uncovered a single decision considering similar facts. In Miller
v. City of Indianapolis, the plaintiffs were allowed fifteen calendar days of military leave under
state law and when those days were exhausted, their employer charged their vacation leave.
2001 WL 406346, *2 (S.D. Ind. April 13, 2001). The court stated it had “no problem concluding
that vacations benefits are a ‘benefit of employment.’” Id. at *7. That court dismissed the
plaintiffs’ claims, however, because there was no evidence they were “required to use vacation
benefits after exhausting their military leave.”3 Id. (emphasis added).
The task, then, is to determine whether Richards’s argument as to the “vacation benefits”
being something different than “vacation pay” is of any consequence under applicable law.
Significantly, USERRA does not allow recovery for punitive or emotional damages. The statute
does, however, allow recovery of lost wages or benefits (38 U.S.C. § 4323(d)(1)(B)), liquidated
damages equal to the wages or benefits lost if the violation was willful (§ 4323(d)(1)(C)),
equitable remedies, (§4323(e)), and attorney fees (§ 4323(h)).

3

One of the distinctions between Miller and this case is that Richards alleges that he,
and other members of the proposed class, were required to use vacation leave.
MEMORANDUM DECISION AND ORDER - 3

The County contends that where Richards has been compensated with pay for all his
vacation time, either when used in conjunction with military leave or when his employment
ended, there can be no other benefits for which he is entitled to be compensated. The Court has
pondered this issue at some length and has concluded that the issue needs more development
from the parties than the rather cryptic and somewhat attenuated attention it has received
previously.4 Further, the issue needs to be answered sooner than later, as issues of standing are
best resolved before determining whether to certify a class, and the Court would prefer to have a
complete record and full argument on the standing issue before making its ruling.
STATUTE OF LIMITATIONS
The complaint in this case was filed on August 16, 2012. Therefore, the County contends
that the four year statute of limitations found at 28 U.S.C. § 1658(a)5 bars any claims arising
from conduct that occurred before August 16, 2008.
On October 10, 2008, Congress enacted 38 U.S.C. § 4327(b) of USERRA which
prohibits the application of any statute of limitations to USERRA claims. Previously, the fouryear “catch-all” statute of limitations found at 28 U.S.C. § 1658(a) was applied to USERRA

4

Richards’s argument appears to draw, in part, upon the theory that Richards would
have chosen to do something else with his “vacation” time (than spend it on his required military
training) had he been permitted to do so even if he were not being paid for such time, because his
vacation pay was applied to the military training days. The Court can certainly envision that
some people might rather go fishing in the mountains, or ride a jet ski on a lake, than operate a
tank in summer training exercises in the desert. However, it is inescapable that such
considerations are very much a subjective assessment, and other people might well prefer the
tank to the fly rod. How then, does one determine from the statute what is meant by vacation
“benefits” if Richards’s argument is that the term includes something other than paid days off?
5

28 U.S.C. § 1658(a) provides: “Except as otherwise provided by law, a civil action
arising under an Act of Congress enacted after the date of the enactment of this section may not
be commenced later than 4 years after the cause of action accrues.”
MEMORANDUM DECISION AND ORDER - 4

claims. See Jones v. R.R. Donnelly & Sons Co., 541 U.S. 369 (2004). Even so, most courts have
held § 4327(b) cannot be applied retroactively to revive claims that otherwise would have been
barred at the time of the statute’s enactment. See Middleton v. City of Chicago, 578 F.3d 655
(7th Cir. 2009); Baldwin v. City of Greensboro, 714 F.3d 828 (4th Cir. 2013). Accordingly, a
claim arising in this case from conduct which occurred after August 16, 2008 is not barred.
Further, some courts have held that claims arising from conduct that occurred four years
prior to the effective date of § 4327(b) are also timely. See, e.g. Andritzky v. Concordia Univ.
Chicago, 2010 WL 1474582, *4-5 (N.D. Ill. April 8, 2010) (dismissing claims of USERRA
violations that arise from events occurring more than four years prior to § 4327(b)’s effective
date as defendants “had no protected interest after that date”). This Court agrees that the
enactment of § 4327(b) was to preserve a four-year window prior to the date of the enactment for
future claims, whenever filed; therefore, any claim arising after October 10, 2004 (the effective
date of the statute was October 10, 2008) is timely.
This holding does not affect Richard as his claims stem from conduct that first occurred
in October 2008. The record, however, does suggest that at least seven members of the proposed
class of 54 have claims that may be barred as arising from conduct that occurred prior to October
10, 2004.6
MOTION TO CERTIFY CLASS STANDARD
A court’s decision to certify a class is discretionary, with FRCP 23 guiding the court’s
exercise of that discretion. See Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 944 (9th

6

At least seven members of the proposed class ended their employment prior to October
10, 2004 and therefore could not bring claims. See Eiband Aff., Ex. C (Dkt. 20).
MEMORANDUM DECISION AND ORDER - 5

Cir. 2009). The burden is upon plaintiff to demonstrate each of the four requirements of FRCP
23(a) and at least one of the three requirements of FRCP 23(b). See Lozano v. AT&T Wireless
Servs., Inc., 504 F.3d 718, 724 (9th Cir. 2007).
The four elements of FRCP 23(a) are (1) that the proposed class is sufficiently numerous;
(2) that it presents common issues of fact or law; (3) that it will be led by one or more class
representatives with claims typical of the class; and (4) that the class representatives will
adequately represent the class. See Gen. Tel. Co. of the S.W. v. Falcon, 457 U.S. 147, 161
(1982); see also Fed. R. Civ. P. 23(a)(1)-(4). Assuming such FRCP 23(a) requirements are met,
the plaintiff must also show that the proposed class action meets one of the three requirements of
FRCP 23(b).7 Here, Richards invokes only FRCP 23(b)(3), which requires him to show that
“questions of law or fact common to class members predominate over any questions affecting
only individual members, and that a class action is superior to other available methods for fairly
and efficiently adjudicating the controversy.”
Rule 23 is not a “mere pleading standard.” Instead, it places an evidentiary burden on a
plaintiff who hopes to represent a class. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,

7

The three alternative requirements of Rule 23(b) are:
(1) the prosecution of separate actions would create a risk of: (a)
inconsistent or varying adjudications or (b) individual
adjudications dispositive of the interests of other members not a
party to those adjudications; (2) the party opposing the class has
acted or refused to act on grounds generally applicable to the class;
or (3) the questions of law or fact common to the members of the
class predominate over any questions affecting only individual
members, and a class action is superior to other available methods
for the fair and efficient adjudication of the controversy.

Wal-Mart, Inc. v Dukes, 509 F.3d 1168, 1176 (9th Cir. 2007) (quoting Rule 23(b)). See also,
Zinser v. Accufix Research, 253 F.3d 1180, 1186 (9th Cir. 2001).
MEMORANDUM DECISION AND ORDER - 6

2551 (2011) (“A party seeking class certification must affirmatively demonstrate his compliance
with the Rule – that is, he must be prepared to prove that there are in fact sufficiently numerous
parties, common questions of law or fact, etc.”). To determine if that burden is satisfied, the
court must conduct a “rigorous analysis” which, in some instances, may consider the merits of
plaintiff’s underlying claims. See id. at 2551-52 (“Frequently, that ‘rigorous analysis’ will entail
some overlap with the merits of plaintiff’s underlying claim. That cannot be helped. ‘[T]he
class determination generally involves considerations that are enmeshed in the factual and legal
issues comprising the plaintiff’s cause of action.’”) (quoting Falcon, 457 U.S. at 160). Even so,
any overlap of analysis into the merits should be no more extensive than necessary to ensure that
the plaintiff has satisfied the rule. See Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct.
1184, 1195 (2013) (“Merits questions may be considered to the extent – but only to the extent –
that they are relevant to determining whether the [FRCP 23] prerequisites for class certification
are satisfied.”).
A.

Numerosity
Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is

impracticable.” Fed. R. Civ. P. 23(a)(1). As a general guideline, a class that encompasses fewer
than 20 members will likely not be certified absent other indications of impracticability of
joinder, while a class of 40 or more members raises a presumption of impracticability of joinder
based on numbers alone. 1 Newberg on Class Actions § 3:12 (5th ed.). A court may draw
reasonable inferences of class size from facts before it. Sherman v. Griepentrog, 775 F. Supp.
1383, 1389 (D. Nev. 1991).

MEMORANDUM DECISION AND ORDER - 7

The Court finds the numerosity requirement is satisfied. Even if some of the members’
claims are barred by the statute of limitations as discussed above, the proposed class of
approximately 47 members is still sufficiently numerous that individual joinder is impracticable.
B.

Commonality
A class has sufficient commonality if “there are questions of law or fact common to the

class.” Fed. R. Civ. P. 23(a)(2). Although the commonality requirement is “less rigorous” than
the companion typicality requirements of FRCP 23(b)(3) (see Hanlon v. Chrysler Corp., 150
F.3d 1011, 1019 (9th Cir. 1998)), it requires more than any question underlying all class
members’ claims. See Wal-Mart, 131 S. Ct. at 2551 (“Any competently crafted class complaint
literally raises common ‘questions.’”) (quoting Nagareda, Class Certification in the Age of
Aggregate Proof, 84 N.Y.U.L.Rev. 97, 131-32 (2009)). Instead, “‘[w]hat matters to class
certification . . . is not the raising of common ‘questions’ – even in droves – but, rather the
capacity of a classwide proceeding to generate common answers apt to drive the resolution of
the litigation.’” Id. (quoting Nagareda, supra, at 132) (emphasis in original). “The test or
standard for meeting the [FRCP] 23(a)(2) prerequisite [of commonality] is qualitative rather than
quantitative; that is, there need be only a single issue common to all members of the class.”
Lewis v. First Am. Title Ins. Co., 265 F.R.D. 536, 555 (D. Idaho 2010) (quoting Newberg on
Class Actions § 3:10). Thus, commonality requires that all class members’ claims “depend upon
a common contention,” and that the common contention be “capable of classwide resolution –
which means that determination of its truth or falsity will resolve an issue that is central to the
validity of each one of the claims in one stroke.” Wal-Mart, 131 S. Ct. at 2551.
On this record, the commonality requirement is satisfied. Richards’s complaint alleges
that Canyon County had a policy of requiring uniformed service members to use vacation leave,
MEMORANDUM DECISION AND ORDER - 8

or other similar leave or compensatory hours, for time spent during the employees’ periods of
service in the uniformed services. Compl., ¶ 12. In other words, whether uniformed services
members employed by Canyon County were required to use vacation time when they were
serving in the uniformed services is a common question whose answer is “apt to drive” a
classwide resolution of Richards’s claims. Whatever factual dissimilarities may exist between
the class members do not foreclose the existence of a remaining common question, the answer to
which would resolve Richards’s claims of USERRA violations. See Meyer v. Portfolio Recovery
Assocs., LLC, 707 F.3d 1036, 1041 (9th Cir. 2012) (“The existence of shared legal issues with
divergent factual predicates is sufficient, as is a common core of salient facts coupled with
disparate legal remedies within the class.”) (citing Hanlon, 150 F.3d at 1019); Ginsburg v.
Comcast Cable Commc’ns Mgmt. LLC, 2013 WL 1661483, *5 (W.D. Wash. 2013) (“Where a
plaintiff identifies at least one common question, differences between class members’ claims are
not relevant to the commonality inquiry.”).
C.

Typicality
Typicality exists where “the claims or defenses of the representative parties are typical of

the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). As the United States Supreme
Court explained:
The commonality and typicality requirements of [FRCP] 23(a) tend to merge. Both
serve as guideposts for determining whether under the particular circumstances
maintenance of a class action is economical and whether the named plaintiff’s claim
and the class claims are so interrelated that the interests of the class members will be
fairly and adequately protected.
Falcon, 457 U.S. at 157, n.13. “‘Typicality refers to the nature of the claim or defense of the
class representative[s], and not to the specific facts from which it arose or the relief sought.’”

MEMORANDUM DECISION AND ORDER - 9

Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (quoting Weinberger v.
Thornton, 114 F.R.D. 599, 603 (S.D. Cal. 1986). “The test of typicality ‘is whether other
members have the same or similar injury, whether the action is based on conduct which is not
unique to the named plaintiffs, and whether other class members have been injured by the same
course of conduct.’” Id. (quoting Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D. Cal. 1985)). In
short, although they need not be substantially identical, representative claims are typical if they
are “reasonably co-extensive with those of absent class members.” Hanlon, 150 F.3d at 1020.
Richards seeks benefits that he claims were not provided to him as required by USERRA.
The claims of the proposed class are also tied to alleged violations of USERRA. Other
members in the proposed close have similar injuries, the alleged wrongful conduct is not unique
to Richards (even if the conduct did not occur county-wide, the allegations are typical as to the
Sheriff’s department), and other class members would have been injured by same conduct. The
typicality requirement is satisfied.
D.

Adequacy of Representation
To satisfy constitutional due process concerns, absent class members must be afforded

adequate representation before entry of a judgment which binds them. See Lewis, 265 F.R.D. at
557 (citing Hanlon, 150 F.3d at 1020). “Requiring the claims of the class representatives to be
adequately representative of the class as a whole ensures that the interest of absent class
members are adequately protected.” Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir. 1998).
Under FRCP 23(a)(4), Plaintiff must “fairly and adequately protect the interests of the class.”
Fed. R. Civ. P. 23(a)(4). Whether he can adequately do so depends upon two questions: (1) do
the named plaintiff and his counsel have any conflicts of interest with other class members, and

MEMORANDUM DECISION AND ORDER - 10

(2) will the named plaintiff and his counsel prosecute the action vigorously on behalf of the
class? See id. (citing Hanlon, 150 F.3d at 1020).
There is no facial conflict of interest between named Richards and other class members.
The County argues there is a conflict because Richards is not entitled to any compensatory
damages and this creates a conflict with potential members who may have such damages. The
Court will presume (without deciding) for this factor that Richards alleges a cognizable claim for
damages – whether he will be awarded any damages and of what nature is for another day. As to
the second question, the Court is satisfied that Richards and his counsel will vigorously
prosecute the lawsuit.
E.

Predominance
FRCP 23(b)(3)’s predominance requirement “tests whether proposed classes are

sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v.
Windsor, 521 U.S. 591, 623 (1997). Though akin to the commonality requirement of FRCP
23(a)(2) (indeed, FRCP 23’s commonality and predominance requirements were frequently
discussed in tandem within the parties’ briefing and during oral argument), FRCP 23(b)(3)’s
predominance inquiry already presumes the existence of common issues of fact or law.
Therefore, “the presence of commonality alone is not sufficient” to satisfy FRCP 23(b)(3).
Hanlon, 150 F.3d at 1022; see also Amchem, 521 U.S. at 624 (stating that predominance analysis
under FRCP 23(b)(3) is “far more demanding” than commonality requirement); see also
Ginsburg, 2013 WL 1661483 at *5 (unlike FRCP 23(a)(2)’s commonality requirement, “[i]n
determining whether common issues predominate in accordance with [FRCP] 23(b)(3), . . .
differences among class members’ claims are crucial.”). In contrast to FRCP 23(a)(2), FRCP

MEMORANDUM DECISION AND ORDER - 11

23(b)(3) does require a qualitative focus on the relationship between the common and individual
issues, requiring a finding that “the questions common to the class predominate over the
questions affecting individual members.” Fed. R. Civ. P. 23, Adv. Comm. Notes (1966
Amendments); see also Newberg on Class Actions § 4:49 (“Predominance therefore asks
whether the common, aggregation-enabling, issues in the case are more prevalent or important
than the non-common, aggregation-defeating, individual cases.”).
The predominance requirement is the most nettlesome of the issues raised by Richards’s
motion to certify. After having carefully considered the question, the Court concludes that the
record is too sparse to draw conclusions upon whether the alleged “policy” of requiring the use
of vacation time for military leave on weekend duty was applied to all Canyon County
employees, or only to the Canyon County Sheriff’s Department, or only to jail employees within
the Sheriff’s Department. It is unclear whether this “policy” was the product of some ad hoc
practice, such as by informal direction of supervisors within the jail, or the product of adherence
to a general, formalized, procedure. If the case hinges on what each member of the class was
told by each of his or her supervisors, with their military leave sometimes treated one way and
sometimes in another, then the predominance requirement may not be satisfied. If, on the other
hand, either the County employees, or all Sheriff’s Department employees, were required to use
their vacation leave when they had military duty on the weekends as a matter of defined, express,
procedure, then most likely the common issues would predominate over the individual.
However, the record needs more definition for the Court to make that determination, and the
Court will require additional briefing on this issue as well.8

8

No doubt, the County would view this setting as one in which Richards has failed to
meet his burden and that, accordingly, the motion ought to be denied. However, in the context of
such cases, with the preference under the federal rules and Ninth Circuit case law that cases be
MEMORANDUM DECISION AND ORDER - 12

CONCLUSION
Consistent with the foregoing, the Court will allow the parties until Friday, February
21, 2014 to complete discovery on the issues identified above as needing further development,
specifically whether Richards has standing and whether the predominance inquiry is satisfied.
Each party then may file on a memorandum addressing the standing and predominance issues.
The memorandum shall not exceed 15 pages and shall be filed no later than Friday, March 7,
2014. Each party may file a response no longer than ten pages in length no later than Friday,
March 14, 2014. After receiving and reviewing the additional filings, the Court will issue a
further written decision with a final decision upon Plaintiff’s Motion for Class Certification.
ORDER
Based on the foregoing, it is HEREBY ORDERED that:
1.

Decision upon Plaintiff’s Motion to Certify Class (Dkt. 14) is STAYED,

PENDING FURTHER BRIEFING OF THE PARTIES.
DATED: January 7, 2014

Honorable Ronald E. Bush
U. S. Magistrate Judge

determined on their merits, the Court decides in the exercise of its discretion that the interests of
justice should allow for a further development of the record. The County is not prejudiced by
such a course; indeed, if the further discovery buttresses its position on the issue, its argument is
enhanced.
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