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Thomas Rix, An Individual, On Behalf of v. Lockheed Martin Corporation

March 14, 2011


The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge



Currently before the Court in the above-captioned matter are Plaintiff Thomas Rix's motion seeking certification of this case as a class action (Doc. No. 42); and Defendant Lockheed Martin Corporation's motion to strike the expert report of Miles E. Locker submitted in support of the motion for class certification (Doc. No. 43). Both matters were fully briefed, and the Court heard oral argument on February 7, 2011. For the reasons set forth below, the Court DENIES Plaintiff's motion for class certification, and DENIES AS MOOT Defendant's motion to strike Locker's report.


Plaintiff Thomas Rix ("Plaintiff") was employed by Defendant Lockheed Martin Corporation ("Defendant" or "Lockheed") in California as an Industrial Security Representative from June 2004 to August 2009. Defendant is the largest defense contractor in the United States. Defendant is a "global security and technology company that . . . is principally engaged in the research, design, development, manufacture, integration and sustainment of advanced technology systems products and services." (Doc. No. 21 at 2.)

Plaintiff alleges Defendant represented that two of its employment positions, the Industry Security Representative, and Industry Security Representative, Senior (collectively, "ISR") are exempt and full-time positions. Plaintiff brings this putative class action, claiming Defendant "unlawfully, unfairly and/or deceptively classified every ISR as exempt based on job title alone, failed to pay the required overtime compensation and otherwise failed to comply with all applicable labor laws with respect to these [ISRs]." (Id. at 4.)

On February 3, 2010, Plaintiff filed the operative First Amended Complaint. (Doc. No. 21.) Plaintiff alleges six causes of action: (1) Unfair business practices in violation of Cal. Bus. & Prof. Code § 17200 et seq.; (2) Failure to pay overtime compensation under Cal. Lab. Code §§ 510, 515.5, 551, 552, 1194 and 1198; (3) Failure to provide meal and rest periods under Cal. Lab. Code §§ 226.7 and 512; (4) Failure to provide accurate itemized statements under Cal. Lab. Code § 226; (5) Violation of Fair Labor Standards Act ("FLSA") 29 U.S.C. § 201, et seq.; and (6) Labor Code Private Attorney General Act § 2698. Plaintiff brings claims one through four on behalf of himself and the California Class (similarly situated individuals who are, or previously were, employed by Defendant as an ISR in California during four years prior to filing the complaint); claim five on behalf of himself and the Collective Class (those in the California class who were employed during three years prior to filing complaint); and claim six on behalf of himself only.

On November 15, 2010, Plaintiff filed the instant Motion for Class Certification of claims one through four (Doc. No. 42), and seeks to define the class as:

Those individuals employed by Defendant Lockheed Martin Corporation ("Lockheed") who were classified as exempt and worked in a position with the title 'Industrial Security Representative' or 'Industrial Security Representative, Senior' during the period September 21, 2005 to the present (the 'Class Period').

Defendant vigorously opposes the motion, arguing that the purported class does not meet the requirements of Federal Rule of Civil Procedure 23. Defendant also objected to evidence Plaintiff offered in support of his motion (Doc. Nos. 44, 45), and moved to strike the Expert Report of Miles E. Locker submitted in support of Plaintiff's motion to certify (Doc. No. 43).


A. Expert Report of Miles E. Locker

Defendant moves under Federal Rule of Evidence 702 to strike the expert report of Miles Locker, an attorney who formerly served as chief counsel for the Department of Labor Standards Enforcement. Defendant argues the report consists of legal argument akin to a supplemental brief, it is not sufficiently probative to be useful in evaluating whether class certification requirements have been met, and it lacks foundation and requisite expert qualifications.

Plaintiff responds that Locker's report is useful because his opinions establish how Plaintiff's theory and exemption analysis can be proven on a class-wide basis. Plaintiff further argues that Defendant's attack on Locker's report goes to the weight, and not the admissibility, of his opinions. Plaintiff contends Locker's opinions on labor and employment compliance are analogous to building code compliance expert testimony in construction cases, and courts routinely accept expert opinions concerning building code violations.

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert . . . may testify thereto in the form of an opinion or otherwise . . . ." FED. R. EVID. 702. "Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier. . . ." Advisory Committee's Note, FED. R. EVID. 702. The Ninth Circuit has not expressly addressed the evidentiary standard at the class certification stage where a party challenges expert testimony under Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, but has stated, "We are not convinced . . . that Daubert has exactly the same application at the class certification stage as it does to expert testimony relevant at trial. . . . As a general rule, [d]istrict courts are not required to hold a Daubert hearing before ruling on the admissibility of scientific evidence." Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 602 n.22 (9th Cir. 2010).

Locker's report did not assist the Court with its analysis in determining whether the proposed class should be certified. Nonetheless, the Court defers ruling on Locker's report under Federal Rule of Evidence 702 for purposes beyond class certification. The Court finds it premature to issue a final ruling as to Locker's testimony, as it remains to be seen what use Plaintiff will make of this evidence going forward.

Accordingly, the Court DENIES AS MOOT Defendant's motion to strike the expert report of Miles Locker.

B. Defendant's Objections to Evidence

Defendant submitted evidentiary objections to Plaintiff's putative class member declarations that were offered as evidence in support of his motion for class certification. (Doc. No. 44-1.) The Court stated its evidentiary rulings on the record at the motion hearing, and AFFIRMS its rulings as follows: Defendant's objections Numbers One through Five are overruled. Objection Number Six is sustained on grounds that "NISPON is the bible, it governs everything" is argumentative. (Doc. No. 44-1, citing Weston Decl. ΒΆ 5.) "A declaration should not be argument." McCoy v. Southwest Airlines Co., Inc., 208 F.R.D. 617, 618 n.1 (C.D. Cal. 2002). The Court declines to address Defendant's second set ...

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