Russell v. Werner Enterprises, Inc.

Filing 150

ORDER: Plaintiffs' motion for class certification is deniedwithout prejudice as to both the California and Nebraska Classes 135 in 8:14cv319 and 48 in 8:15cv287. Plaintiffs are granted leave to amend their complaint. Plaintiffs' amendm ents to the third amended complaint shall be limited to only attempting to provide the Court with an adequately defined and clearly ascertainable definition for the California Class. Plaintiffs' amendments to the third amended complaint sha ll not substantively alter the current complaint in any other way; including, but not limited to, adding additional claims, parties, classes, and/or causes of action. Plaintiffs' fourth amended complaint shall be filed by November 9, 2016. De fendants shall have fourteen days after the filing of the fourth amended complaint to file an answer. Defendants' motion for leave to submit additional authority is denied as moot 146 in case 8:14-cv-00319 and 59 in case 8:15-cv-00287-LES-FG3. Ordered by Senior Judge Lyle E. Strom. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EZEQUIEL OLIVARES ABARCA,
)
individually and on behalf of )
all those similarly situated, )
ALFREDO ALESNA JR.,
)
individually and on behalf of )
all those similarly situated, )
DAVID CAGLE, individually and )
on behalf of all those
)
similarly situated, STEPHEN L.)
DAVIS, individually and on
)
behalf of all those similarly )
situated, FRANK EADS,
)
individually and on behalf of )
all those similarly situated, )
and KENNETH J. SURMAN,
)
individually and on behalf of )
all those similarly situated, )
)
Plaintiffs,
)
)
v.
)
)
WERNER ENTERPRISES, INC.,
)
and DOES 1-100, inclusive,
)
)
Defendants.
)
______________________________)
WILLIAM SMITH, on behalf of
)
himself, all others similarly )
situated, and on behalf of
)
the general public,
)
)
Plaintiff,
)
)
v.
)
)
WERNER ENTERPRISES, INC., a
)
corporation, and DOES 1-100, )
inclusive,
)
)
Defendants.
)
______________________________)

8:14CV319

8:15CV287

MEMORANDUM AND ORDER

This matter is before the Court on two motions filed by
the parties.
No. 135).

The plaintiffs move for class certification (Filing

The defendants move for leave to submit new authority

in opposition to plaintiffs’ motion for class certification
(Filing No. 146).

The matters have been fully briefed by the

See Filing Nos. 136, 141, 143, 146, 147.1

parties.

After review

of the motions, the parties’ briefs, and the applicable law, the
Court finds as follows.
BACKGROUND
This case arises out of plaintiffs’ pursuit of a class
action suit.

Plaintiffs allege eight causes of action against

Werner Enterprises, Inc. (“Werner”), Does 1-100, inclusive, and
Drivers Management, LLC (collectively “defendants”).
No. 80.

See Filing

Plaintiffs “assert violations of California law” and

“violations of Nebraska law” causing “some form of injury” due to
defendants’
uniform policy and practice [of]
. . . not paying all wages owed,
not paying for all time worked
. . . making improper deductions
from pay for work performed, not
providing properly itemized pay
statements that accurately reflect
hours worked, applicable hourly
rates . . . and, according to

1

All filing numbers cited within this memorandum and order
are taken from Case No. 8:14CV319.
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[p]laintiff’s information and
belief, not maintaining records
that accurately reflect hours
worked and applicable hourly rates.
(Id. at 6).
On June 4, 2014, Antonia Russell filed a putative class
action against Werner under California wage and hour law in a
California state court.

After the named plaintiffs in the

current action joined and Ms. Russell dismissed her claims
without prejudice, Werner removed the case from the California
state court to the United States District Court for the Northern
District of California.

The case was then transferred to this

Court pursuant to 28 U.S.C. § 1404(a).

See Filing No. 23.

On

March 18, 2015, plaintiffs filed a joint stipulation for leave to
file a second amended complaint (Filing No. 50).2

On March 30,

2015, the Court approved and adopted the stipulation in part
allowing plaintiffs to file a second amended complaint (Filing
No. 51) on or before April 6, 2015, and gave defendants twenty
days after the filing of the amended complaint to respond.

On

September 16, 2015, with no objection from the defendants, the
Court again permitted plaintiffs to amend their complaint (Filing

2

On February 18, 2015, the Court, in accordance with
Federal Rule of Civil Procedure 26(f), issued an order
determining that “[d]iscovery limited to class certification
shall be completed by November 16, 2015.” (Filing No. 49).
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No. 79).

The latest complaint added a nation-wide class (the

“Nebraska Class”), in addition to the California class.
Filing No. 80.

See

Defendants filed an answer to the third amended

complaint on September 30, 2015 (Filing No. 87).
On November 19, 2015, the Court granted Werner’s motion
to consolidate the above-captioned case with Smith v. Werner, et
al., Case No. 8:15CV287 (“Smith”) (Filing No. 119).

Case No.

8:14CV319 was designated the “Lead Case” on January 22, 2016
(Filing No. 131).

On April 1, 2016, the plaintiffs moved for

class certification (Filing No. 135).

On May 31, 2016, after the

matter was fully briefed, defendants moved for leave to submit
new authority in opposition to plaintiffs’ motion for class
certification (Filing No. 146).
LAW
For certification of a class under Federal Rule of
Civil Procedure 23, plaintiffs must show that:
(1) the class is so numerous that
joinder of all members is
impracticable;
(2) there are questions of law or
fact common to the class;
(3) the claims or defenses of the
representative parties are typical
of the claims or defenses of the
class; and

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(4) the representative parties will
fairly and adequately protect the
interests of the class.
Fed. R. Civ. P. 23(a).
In addition, plaintiffs must satisfy one of the three
requirements in Rule 23(b).

In the present case, plaintiffs

claim class action status under Rule 23(b)(3) for which the Court
must find “that the 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.”
Fed. R. Civ. P. 23(b)(3).

Plaintiffs also claim class action

status under 23(b)(2) for which the Court must find that “the
party opposing the class has acted or refused to act on grounds
that apply generally to the class, so that final injunctive
relief or corresponding declaratory relief is appropriate
respecting the class as a whole.”

Fed. R. Civ. P. 23(b)(2).

Plaintiffs lastly “request certification of a hybrid class under
both Rules 23(b)(2) and 23(b)(3).”

(Filing No. 143 at 28)

(emphasis in original).
A class action “may only be certified if the trial
court is satisfied, after a rigorous analysis, that the
prerequisites of Rule 23(a) have been satisfied.”

Gen. Tel. Co.

of Sw. v. Falcon, 457 U.S. 147, 161, 102 S. Ct. 2364, 72 L. Ed.
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2d 740 (1982).

Such analysis cannot be conducted “without

reasonable specificity” to the plaintiffs’ pleadings.

Falcon,

457 U.S. at 161 (quoting Johnson v. Georgia Hwy Express, Inc.,
417 F.2d 1122, 1126 (5th Cir. 1969)).

In addition, a rigorous

analysis “may require the court to resolve disputes going to the
factual setting of the case, and such disputes may overlap the
merits.”
2005).

Blades v. Monsanto Co., 400 F.3d 562, 567 (8th Cir.
“Nonetheless, such disputes may be resolved only insofar

as resolution is necessary to determine the nature of the
evidence that would be sufficient, if the plaintiff's general
allegations were true, to make out a prima facie case for the
class.”

Blades, 400 F.3d at 567.

DISCUSSION
As an initial matter, the Court has read and will
consider the additional authority provided by the defendants in
resolving the motion for class certification.

Therefore, since

defendants already provided the Court with the additional
authority, the defendants’ motion for leave to submit new
authority in opposition to plaintiffs’ motion for class
certification will be denied as moot.
Plaintiffs seek certification of two classes (Filing
No. 135 at 1-2).

Plaintiffs call the first putative class the

“Nebraska Class” (Id. at 1).

This is the newly added nation-wide
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class.

See Filing No. 80.

This class would consist “of all

truck drivers who worked or work anywhere for Werner after the
completion of training at any time since four years before the
filing of this . . . action until . . . there is a final
disposition of th[e] lawsuit.”

(Filing No. 135 at 1).

Plaintiffs call the second putative class, or subclass,
the “California Class” (Id. at 2).

The California Class would

consist “of all truck drivers who worked or work in California
for Werner after the completion of training at any time since
four years before the filing of this . . . action until . . .
there is a final disposition of th[e] lawsuit.”

(Id.)

Plaintiffs seek certification under Rules 23(b)(2) and 23(b)(3)
(Id.)

Furthermore plaintiffs “also request that the Court

appoint [p]laintiffs Abarca, Alesna, Cagle, Davis, Eads, Smith,
and Surman as Class Representatives” and “appoint [p]laintiffs’
counsel . . . as Class Counsel.”

(Id.)

I. The California Class
After conducting a thorough and “rigorous analysis,”
the Court concludes that plaintiffs’ motion for class
certification as to the California Class should be denied.

As

discussed in more detail below, the Court finds that the
California Class is not adequately defined and/or clearly
ascertainable.

The plaintiffs’ inability to adequately define a
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clearly ascertainable class highlights the plaintiffs’ failure to
sufficiently satisfy their burden of demonstrating the existence
of the four prerequisites under Rule 23(a).
At the onset of this analysis, the Court notes the
varying ways plaintiffs characterize the California Class
throughout their filings.

For example, in their motion for class

certification the plaintiffs define the California Class as
including “all truck drivers who worked or work in California for
Werner after the completion of training at any time since four
years before the filing of this . . . action until such time as
there is a final disposition . . . .”

(Filing No. 135 at 2).

However, in their reply brief in support of class certification,
plaintiffs seemingly argue the class should consist of “all
drivers who drove some distance in California during the class
period . . . .”

(Filing No. 143 at 3) (emphasis added).

On the

next page plaintiffs next appear to argue that the class ought to
consist of either “drivers who have driven at least one mile in
California . . .” or of individuals who have “traveled through
California as part of [their] duties as [] Werner driver[s].”
(Id. at 4) (emphases added).
Defendants contend the California Class, as defined by
plaintiffs, is not ascertainable (Filing No. 141 at 23-27).
Defendants argue against the certification of the California
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Class claiming that in order to “determine who ‘worked’ in
California, the Court would have to review each driver’s driving
history, each day, to determine where he drove and, if he drove
in California, when, and for how long.”

(Id. at 2).

The United States Court of Appeals for the Eighth
Circuit has recently reaffirmed that “‘[i]t is elementary that in
order to maintain a class action, the class sought to be
represented must be adequately defined and clearly
ascertainable.’”

Sandusky Wellness Center, LLC v. Medtox

Scientific, Inc., 821 F.3d 992, 996 (8th Cir. 2016) (quoting
Ihrke v. N. States Power Co., 459 F.2d 566, 573 n.3 (8th Cir.),
vacated due to mootness, 409 U.S. 815, 93 S. Ct. 66, 34 L. Ed. 2d
72 (1972)) (emphasis added).

The Eighth Circuit held in Sandusky

that ascertainability should not be addressed “as a separate,
preliminary requirement . . . .”

821 F.3d at 996.

Instead, the

Eighth Circuit “adheres to a rigorous analysis of the Rule 23
requirements, which includes that a class ‘must be adequately
defined and clearly ascertainable.’”

Id.

The Court finds that plaintiffs have not adequately
defined the California Class in a clearly ascertainable manner.
Based on the Eighth Circuit’s holding in Sandusky, the Court will
address the ascertainability requirement within its rigorous
analysis of Rule 23's requirements.
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As discussed further below,

the plaintiffs’ failure to adequately define the California Class
in a way that is clearly ascertainable leads the Court to
conclude that Rule 23(a)’s requirements of numerosity,
commonality, and typicality, and adequacy are lacking.
A. Prerequisites to Class Certification under Rule 23(a)
1. Numerosity
Under Federal Rule of Civil Procedure 23(a)(1), a class
must be “so numerous that joinder of all members is
impracticable.”

Fed. R. Civ. P. 23(a)(1).

The Eighth Circuit

has noted that “[a] number of factors are relevant to this
inquiry, the most obvious of which is, of course, the number of
persons in the proposed class.”

Paxton v. Union Nat’l Bank, 688

F.2d 552, 559 (8th Cir. 1982).
Plaintiffs contend the numerosity requirement is
satisfied as to the California Class due to a stipulation between
the parties.

See Filing No. 136 at 14 (“In response to discovery

directed to confirm numerosity of the California Class with
respect to the deduction claims, Werner stipulated that
numerosity existed.” (citing Filing No. 85 at ¶ 4)).

However,

the Court is under an independent duty to engage in its own
rigorous analysis “to determine whether all the prerequisites of
Rule 23(a) are satisfied.”

Sanft v. Winnebago Industries, Inc.,

214 F.R.D. 514, 519 (N.D. Iowa 2003).
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See also Falcon, 457 U.S.

at 161 (determining class actions “may only be certified if the
trial court is satisfied, after a rigorous analysis, that the
prerequisites of Rule 23(a) have been satisfied.”) (emphasis
added).
The Court finds that the numerosity requirement of Rule
23(a)(1) is not satisfied as to the California Class as currently
defined by the plaintiffs.

The California Class does not present

to the Court a “precise, objective and presently ascertainable”
manner for determining who should be included in the California
Class.

In re Copper Antitrust Litig., 196 F.R.D. 348, 353 (W.D.

Wis. 2000).

Being left to guess as to what it means for a driver

to have “worked or work in California,” especially given
plaintiffs’ varying suggestions, provides an insurmountable
barrier for the Court to overcome in determining the members and
number of members to be included in the California Class.

Thus,

plaintiffs have failed to establish the numerosity requirement
because “the putative class members can neither be identified nor
its total size estimated.”

In re Paxil Litig., 212 F.R.D. 539,

545 (C.D. Cal. 2003).
2. Commonality
Rule 23(a)(2) requires that “there [be] questions of
law or fact common to the class.”

Fed. R. Civ. P. 23(a)(2).

This requirement however, “does not require that every question
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of law or fact be common to every member of the class.”

Paxton,

688 F.2d at 561 (internal citations omitted).
Plaintiffs’ brief in support of class certification
provides a list of “common questions” that plaintiffs claim “are
capable of resolution on a classwide basis, because all inquire
into the lawfulness of Werner’s company-wide policies and
practices or present pure questions of law or contractual
interpretation.”

(Filing No. 136 at 15).

Defendants again

assert that “[p]laintiffs have not proposed a feasible method to
determine the members of the putative class[].”

(Filing No. 141

at 23).
Because the California Class is not adequately defined
and clearly ascertainable, the Court is unable to identify the
drivers that should be included as part of the class.

Therefore,

the Court is also unable to determine whether the drivers that
should be included in the proposed class share common questions
of law or fact.

Without being able to adequately determine which

drivers should be considered to have “worked in California,” the
Court finds that plaintiffs have failed to adequately satisfy the
commonality requirement of Rule 23(a)(2).
3. Typicality
Rule 23(a)(3) provides that in order to maintain a
class action the Court must be satisfied that “the claims or
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defenses of the representative parties are typical of the claims
or defenses of the class . . . .”

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

“The typicality requirement is said to limit the class claims to
those fairly encompassed by the named plaintiff’s claims.”

Gen.

Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 330, 100
S. Ct. 1698, 64 L. Ed. 2d 319 (1980).

Being unable to determine

the drivers that should be included within the California Class,
the Court is unable to determine whether the named plaintiffs’
claims are typical of the unnamed and unknown plaintiffs’ claims.
Accordingly, the Court finds that plaintiffs have failed to
satisfy their burden of showing the typicality requirement under
Rule 23(a)(3).
4. Adequacy
Under Rule 23(a)(4), the trial court must be satisfied
that “the representative parties will fairly and adequately
protect the interests of the class.”

Fed. R. Civ. P. 23(a)(4).

“The adequacy inquiry . . . serves to uncover conflicts of
interest between named parties and the class they seek to
represent.”

Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625,

117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997).

The Court does not,

at present, see any conflicts of interest between the suggested
named plaintiffs and other unnamed class members.

However, the

Court is unable to sufficiently determine whether the adequacy
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requirement of Rule 23(a)(4) is satisfied due to plaintiffs’
inability to adequately define the California Class in a clearly
ascertainable manner as discussed above.

Accordingly, the Court

finds plaintiffs have failed to establish the adequacy
requirement under Rule 23(a)(4).
B. Class Certification under Rule 23(b)
Because the Court finds that plaintiffs have failed to
sufficiently establish each of the prerequisites under Rule
23(a), the Court will forego further analysis in addressing
whether the California Class satisfies the law’s requirements
under Rule 23(b).

Fed. R. Civ. P. 23(b) (“a class action may be

maintained if Rule 23(a) is satisfied and if . . . .”) (emphasis
added); see also Greeley v. KLM Royal Dutch Airlines, 85 F.R.D.
697, 701 (S.D.N.Y. 1980) (“having failed to meet the
prerequisites of Rule 23(a), plaintiff’s motion for class
certification is denied.”).

Plaintiffs’ motion to certify the

California Class will therefore be denied without prejudice.
II. Leave to Amend
In accordance with the text and spirit of Federal Rule
of Civil Procedure 15, the Court finds that justice requires
providing plaintiffs leave to amend their complaint.
Civ. P. 15.

Fed. R.

However, plaintiffs will be restricted to amending

their complaint in accordance with this memorandum opinion.
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The

fourth amended complaint shall only attempt to provide the Court
with an adequately defined and clearly ascertainable definition
for the California Class.

By so doing, the Court will be enabled

to rule on plaintiffs’ motion for class certification by being
better enabled to address each of the requirements found in Rule
23.

Nothing within this memorandum opinion shall be interpreted

by plaintiffs as leave to substantively alter the third amended
complaint by adding additional claims, classes, or causes of
action.

III. The Nation-Wide Class
Given that the Court will provide plaintiffs leave to
amend their complaint, the Court will, at this time, abstain from
addressing plaintiffs’ motion to certify the “Nebraska Class.”
Therefore, plaintiffs’ motion to certify the Nebraska Class will
also be denied without prejudice.

Accordingly,

IT IS ORDERED:
1) Plaintiffs’ motion for class certification is denied
without prejudice as to both the California and Nebraska Classes.
2) Plaintiffs are granted leave to amend their
complaint.
3) Plaintiffs’ amendments to the third amended
complaint shall be limited to only attempting to provide the
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Court with an adequately defined and clearly ascertainable
definition for the California Class.
4) Plaintiffs’ amendments to the third amended
complaint shall not substantively alter the current complaint in
any other way; including, but not limited to, adding additional
claims, parties, classes, and/or causes of action.
5) Plaintiffs’ fourth amended complaint shall be filed
by November 9, 2016.
6) Defendants shall have fourteen days after the filing
of the fourth amended complaint to file an answer.
7) Defendants’ motion for leave to submit additional
authority is denied as moot.
DATED this 28th day of October, 2016.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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