Risinger v. SOC LLC et al

Filing 374

ORDERED Plaintiff's motion for reconsideration (ECF No. 370 ) is denied. It is further ordered that Plaintiff's motion to seal (ECF No. 371 ) is granted. Signed by Chief Judge Miranda M. Du on 9/30/2019. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KARL E. RISINGER,

Case No. 2:12-cv-00063-MMD-PAL
Plaintiff,

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ORDER

v.
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SOC LLC, et al.,
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Defendants.
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I.

SUMMARY

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This is a former class action involving a dispute over the terms of employment for

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armed guards hired to work in Iraq. Before the Court is Plaintiff Karl E. Risinger’s motion

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for reconsideration (“Motion”) (ECF No. 370) of the Court’s order decertifying the class

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(ECF No. 362), as well as Plaintiff’s motion to seal exhibits attached to the Motion (ECF

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No. 371). The Court finds it unnecessary to consider additional briefing related to the

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Motion. For the following reasons, the Court denies Plaintiff’s Motion. The Court agrees

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with Plaintiff that compelling reasons exist to seal the exhibits designated as confidential

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under the Protective Order and will grant the motion to seal.

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II.

BACKGROUND

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The Court certified a class in this case consisting “of armed guards who worked for

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SOC in Iraq between 2006 and 2012.” (ECF No. 254 at 7 (citing ECF No. 155 at 19, 27).)

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The Court later clarified that certain guards known as Reclassified Guards were members

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of the class. (See ECF No. 281 at 2-4.) The Court then decertified the class after

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Defendants introduced evidence showing that some class members had no damages, and

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Plaintiff failed to offer any feasible method for identifying and removing those individuals

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from the class. (See generally ECF No. 362.) The Court’s decision was predicated on the

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legal conclusion that damages and liability are intertwined in the context of Plaintiff’s

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claims. (Id. at 6; see also ECF No. 155 at 6, 14 (listing damages as an element of Plaintiff’s

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fraud claim as well as Plaintiff’s breach of contract claim).) Given that legal context, the

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Court found that individualized questions about liability predominated over common

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questions and that the class was unmanageable besides. (See generally ECF No. 362.)

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III.

LEGAL STANDARD

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A motion to reconsider must set forth “some valid reason why the court should

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reconsider its prior decision” and set “forth facts or law of a strongly convincing nature to

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persuade the court to reverse its prior decision.” Frasure v. United States, 256 F. Supp.

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2d 1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this Court “(1) is presented

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with newly discovered evidence, (2) committed clear error or the initial decision was

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manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No.

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1J v. AC&S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). “A motion for reconsideration is not

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an avenue to re-litigate the same issues and arguments upon which the court already has

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ruled.” Brown v. Kinross Gold, U.S.A., 378 F. Supp. 2d 1280, 1288 (D. Nev. 2005).

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IV.

DISCUSSION

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The Court addresses Plaintiff’s arguments related to predominance before

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addressing Plaintiff’s arguments related to manageability and the creation of subclasses.

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A.

Predominance

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The Court found that individualized questions regarding liability predominated over

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common questions based on Defendants’ undisputed evidence that some class members

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never worked more than the 6-day/12-hour work schedule in conjunction with Plaintiff’s

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failure to offer a feasible way to isolate and extract those individuals from the class. (See

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ECF No. 362 at 7.)

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Plaintiff first argues that the Court committed clear error by weighing the evidence.

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(ECF No. 370 at 12.) According to Plaintiff, the Court weighed the testimony of class

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members who did not work more than the 6-day/12-hour work schedule against the

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testimony of Defendants’ 30(b)(6) designees and the declarations of 24 class members

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who did work more than the 6-day/12-hour work schedule. (See id. at 12-13.)

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It was not necessary for the Court to weigh any evidence to conclude that individual

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questions of liability predominate over common questions in this case. It is undisputed that
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some class members never worked more than the 6-day/12-hour work schedule and that

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others did so for a variety of reasons, including personal choice. (See ECF No. 362 at 6-

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12.) Plaintiff’s purportedly common proof that class members worked more than the 6-

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day/12-hour work schedule (a uniform policy of understaffing) turned out not to be common

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at all. Defendants introduced evidence that class members at many sites never worked

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more than the 6-day/12-hour work schedule. (See id. at 6-8.) Plaintiff did not dispute the

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evidence, nor did Plaintiff’s purported common proof rebut it. It was not necessary for the

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Court to evaluate credibility or consider the weight of competing evidence. Rather, it was

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clear and undisputed that some class members never worked more than the 6-day/12-

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hour work schedule. And Plaintiff failed to offer a feasible method for weeding those

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individuals out of the class. Plaintiff suggested that the Court hire a special master to

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conduct more than 1,000 individualized inquiries. The Court found that those

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individualized inquiries would predominate over any common questions. (ECF No. 362 at

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9.)

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Plaintiff next argues that the Court clearly erred by extrapolating to the entire class

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the testimony of four class members who did not work more than the 6-day/12-hour work

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schedule. (ECF No. 370 at 13-14.) The Court did not extrapolate their testimony to the

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entire class. Rather, the presence of some members in the class to whom Defendants

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have no liability—in conjunction with Plaintiff’s failure to offer a way to identify them—

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demonstrates that individualized questions about liability predominate over common

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questions. Moreover, Plaintiff ignores the undisputed (and sweeping) testimony of certain

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class members that guards at entire sites never worked more than the 6-day/12-hour work

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schedule. (See ECF No. 362 at 8 n.6 (citing testimony that guards at Taji and Adder did

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not work more than the 6-day/12-hour work schedule).) The undisputed evidence showed

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that far more class members than the four Plaintiff identifies did not work more than the 6-

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day/12-hour schedule. No statistical extrapolation was necessary to see that.

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Plaintiff further argues that the Court clearly erred in finding that the need for

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individualized damages calculations destroyed predominance. (ECF No. 370 at 16.) But
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this argument mischaracterizes the Court’s decision. The Court found that individualized

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questions about liability (not the amount of damages) predominated over common

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questions because some class members had no damages (an element of their breach of

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contract claims), and Plaintiff failed to offer a feasible way to identify those class members.

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The cases Plaintiff relies on only show that individualized determinations about the

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amount—not the existence—of damages are capable of class wide resolution. See

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Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1167 (9th Cir. 2014); In re Deepwater Horizon,

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739 F.3d 790, 815 (5th Cir. 2014) (“‘[e]ven wide disparity among class members as to the

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amount of damages’ does not preclude class certification”) (alteration in original)

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(emphasis added) (quoting Bell Atlantic Corp. v. AT&T Corp., 339 F.3d 294, 306 (5th Cir.

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2003)).

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B.

Manageability

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The Court found that the class was unmanageable because Plaintiff failed to offer

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any feasible way to determine liability or damages on a class-wide basis. (ECF No. 362 at

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13-14.)

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Plaintiff argues that the Court clearly erred in finding that Plaintiff failed to offer a

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way to determine liability on a class wide basis. (ECF No. 370 at 17-18.) Plaintiff relies on

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the following purported common proof: representative testimony from class members,

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bidding documents showing that Defendants bid to the man (resulting in insufficient

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rotational staff), uniform call scripts, standardized contracts, and destruction of records

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showing the daily manning reports (which allegedly would establish who did and did not

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work on a particular day). (Id. at 18.) Plaintiff also notes that “even a well-defined class

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may inevitably contain some individuals who have suffered no harm as a result of a

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defendant’s unlawful conduct.” (Id. (quoting Torres v. Mercer Canyons Inc., 835 F.3d 1125,

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1136 (9th Cir. 2016)).)

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While the presence of some unharmed individuals in the class does not preclude

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certification, it is Plaintiff’s failure to offer a feasible way to identify these individuals that

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makes the class unmanageable. The only solution Plaintiff offers is a series of over 1,000
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mini-trials overseen by a special master. This “nightmare” scenario is not manageable. In

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re: Autozone, Inc., No. 3:10-MD-02159-CRB, 2016 WL 4208200, at *19 (N.D. Cal. Aug.

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10, 2016).

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Plaintiff also argues that the Court clearly erred in finding that Plaintiff failed to offer

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a class wide method for calculating damages. (ECF No. 370 at 18-19.) Plaintiff contends

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that he did offer such a method: a formula that multiplies rate of pay by the number of

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hours worked above 72. (Id. at 19.) But the Court made clear in its order that it was not

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concerned about individualized findings regarding the amount of damages. Rather, the

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Court was concerned about mini-trials to determine whether some class members were

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owed any damages at all. And while Plaintiff contends that there would be one liability trial

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and 1,000 damages trials, the reality is that liability and damages go hand-in-hand in this

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case. Because some individuals have no damages and Defendants are not liable to those

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individuals, there can be no “single trial on liability.” (ECF No. 370 at 20.)

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C.

Subclasses

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Plaintiff argues for the first time that the Court should have created subclasses for

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the VBC bases. (ECF No. 370 at 21.) But the Court already noted that Plaintiff failed to

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request the certification of a smaller class or subclasses in his opposition to the motion to

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decertify. (ECF No. 361 at 41.) A district court may decline to consider claims and issues

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that were not raised until a motion for reconsideration. See Hopkins v. Andaya, 958 F.2d

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881, 887 n. 5 (9th Cir. 1992), impliedly overruled on other grounds in Federman v. County

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of Kern, 61 F. App’x 438, 440 (9th Cir. 2003). It is not an abuse of discretion to refuse to

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consider new arguments in a reconsideration motion even though “dire consequences”

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might result. See Schanen v. United States Dept. of Justice, 762 F.2d 805, 807-08 (9th

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Cir. 1985) (subsequent history omitted). The Court declines to consider Plaintiff’s request

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when the issue of subclasses could have and should have been raised in connection with

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Defendants’ motion to decertify, particularly given the extent of the issues litigated in this

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case as well as the resources expended by the parties and the Court in addressing issues

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relating to certification and decertification and the need for this case to be timely resolved
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on the merits. Under the circumstances here, it would be unfair to allow Plaintiff a do-over

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via reconsideration.
Accordingly, the Court will deny Plaintiff’s motion for reconsideration.

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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several cases

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not discussed above. The Court has reviewed these arguments and cases and determines

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that they do not warrant discussion as they do not affect the outcome of the motion before

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the Court.

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It is therefore ordered that Plaintiff’s motion for reconsideration (ECF No. 370) is
denied.

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It is further ordered that Plaintiff’s motion to seal (ECF No. 371) is granted.

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DATED THIS 30th day of September 2019.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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