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Greer v. Dick's Sporting Goods, Inc.

United States District Court, E.D. California

April 12, 2017

JIMMY GREER, individually, and on behalf of others similarly situated, Plaintiff,
v.
DICK'S SPORTING GOODS, INC., a Delaware corporation; and DOES 1 through 100, [1] inclusive, Defendants.

          ORDER

         Plaintiff Jimmy Greer seeks to represent a class of current and former Dick's Sporting Goods (“DSG”) employees in California for violations related to two alleged practices: (1) requiring employees to wait, while already off the clock, for an inspection of their personal belongings before exiting the store; and (2) requiring employees to purchase apparel appropriate to their department without reimbursing employees for clothing-related expenses. See generally First Am. Compl. (FAC), ECF No. 14. The parties filed cross-motions regarding certification of the putative class. See Pl.'s Mot. Certify (Pl.'s Mot.), ECF No. 23; Def.'s Mot. Deny Certification (Def.'s Mot.), ECF No. 24. For the reasons discussed below, the court finds class certification is appropriate and therefore GRANTS plaintiff's motion to certify the class and DENIES defendant's motion.

         I. BACKGROUND

         A. Procedural Background

         Greer filed this action on March 18, 2015, in the Superior Court for the County of Sacramento. Compl., ECF No. 1-1. On May 15, 2015, DSG removed the action to this court. ECF No. 1. On October 10, 2015, Greer filed the operative complaint. See FAC.

         On July 29, 2016, the parties filed opposing motions regarding certification.[2] The parties opposed each other's motions and replied.[3] While litigating the certification issue, the parties filed motions to strike each other's declarations offered in support of the certification motions, and both sides opposed and then replied.[4] Greer also filed a request for judicial notice, which DSG opposed.[5]

         The court held a hearing on all the motions on December 16, 2016. ECF No. 41. Melissa Grant and Robert Drexler appeared for Greer, and Paul Cowie and Caryn Horner appeared for DSG. Id.

         B. Factual Background and Claims

         DSG is a national full-line sporting goods retailer that sells sports equipment, apparel, and footwear. Craig Decl. ¶ 3, ECF No. 24-2. From March 19, 2011 through the present, DSG has employed approximately 8, 438 employees across 38 stores in California. Id. ¶ 4.

         Greer worked as a non-exempt, hourly-paid employee from approximately May 2011 to October 2012 at DSG's Fresno store location. Greer Decl. ¶ 2, ECF No. 23-4. While employed, Greer worked full-time as a Key Carrier and Sales Leader in DSG's Hunting Department. Id.

         This putative class action arises from two central claims. First, Greer alleges DSG does not compensate employees for time worked off the clock while waiting for an inspection of their personal belongings before exiting the store, which DSG conducts as part of its loss prevention policy. See generally FAC. Second, Greer alleges DSG requires employees to purchase apparel appropriate to their assigned department without reimbursing employees for these clothing-related expenses. Id. Greer asks the court to certify the following eight claims for class treatment: (a) Violation of California Labor Code sections 510 and 1198 (Unpaid Overtime); (b) Violation of California Labor Code sections 1194, 1197 and 1197.1 (Unpaid Minimum Wages); (c) Violation of California Labor Code sections 201 and 202 (Wages Not Timely Paid Upon Termination); (d) Violation of California Labor Code section 204 (Wages Not Timely Paid During Employment); (e) Violation of California Labor Code section 226(a) (Non-Compliant Wage Statements); (f) Violation of California Labor Code section 2802 (Unpaid Business Expenses); and (g) Violation of California Business & Professions Code sections 17200, et seq. Pl.'s Notice of Mot. Certify 2-3, ECF No. 23.[6]

         C. Class Definitions

         Greer seeks certification of two subclasses corresponding to each of his two central claims:

All non-exempt or hourly paid employees who worked for Defendant in its DSG retail stores within California at any time from March 18, 2011 until January 31, 2015 (the “Security Check Class”).
and
All non-exempt or hourly paid employees who worked for Defendant in its DSG retail stores within California at any time from March 18, 2011 until the date of certification (the “Business Reimbursement Class”).

Pl.'s Mot. 10. As Greer explains, the Security Check Class is limited to activity up to January 31, 2015, because DSG contends it ended its practice of off-the-clock security checks that month by installing punch-out clocks by store exits. Id. at 10 n.4. Although the first amended complaint proposes a general class, FAC ¶ 13, Greer here seeks certification only of the two subclasses. Pl.'s Mot. 10.

         II. CLASS ACTIONS GENERALLY

         Litigation by a class is “an exception to the usual rule” that only the individual named parties bring and conduct lawsuits. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011) (citation and internal quotation marks omitted). Only when a class action “promot[es] . . . efficiency and economy of litigation, ” should a motion for certification be granted. Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 349 (1983). A court considers whether class litigation promotes “economies of time, effort and expense, and . . . uniformity of decisions as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” Fed.R.Civ.P. 23(b)(3) advisory committee's note to 1966 amendment.

         To be eligible for certification, the proposed class must be “precise, objective, and presently ascertainable.” Williams v. Oberon Media, Inc., No. 09-8764, 2010 WL 8453723, at *2 (C.D. Cal. Apr. 19, 2010); see also 7A Charles Alan Wright et al., Federal Practice and Procedure § 1760 (3d ed. 2005) (“If the general outlines of the membership of the class are determinable at the outset of the litigation, a class will be deemed to exist.” (citations omitted)). The proposed class definition need not identify every potential class member from the very start. See, e.g., Doe v. Charleston Area Med. Ctr., Inc., 529 F.2d 638, 645 (4th Cir. 1975); O'Connor v. Boeing N. Am., Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1998). The requirement is a practical one. It is meant to ensure the proposed class definition will allow the court to efficiently and objectively ascertain whether a particular person is a class member, see In re TFT-LCD (Flat Panel) Antitrust Litig., 267 F.R.D. 583, 592 (N.D. Cal. 2010), for example, so that each putative class member can receive notice, O'Connor, 184 F.R.D. at 319.

         Class certification is governed by Federal Rule of Civil Procedure 23. The court must first determine whether to certify a putative class, and if it does, it must then define the class claims and issues and appoint class counsel. Fed.R.Civ.P. 23(c)(1), (g). Under Rule 23(c)(5), for purposes of certification, a subclass is treated exactly like a class. To be certified, a putative class must meet the threshold requirements of Rule 23(a) and the requirements of one of the subsections of Rule 23(b), which defines three types of classes. Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2013). Here, Greer seeks certification only under Rule 23(b)(3), which provides for certification of a class where common questions of law and fact predominate and a class action is the superior means of litigation. Pl.'s Mot. 10-11.

         Rule 23(a) imposes four requirements on every class. First, the class must be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). Second, questions of law or fact must be common to the class. Fed.R.Civ.P. 23(a)(2). Third, the named representatives' claims or defenses must be typical of those of the class. Fed.R.Civ.P. 23(a)(3). And fourth, the representatives must “fairly and adequately protect the interests of the class.” Id. Fed. R. Civ. P. 23(a)(4). If the putative class meets these requirements, Rule 23(b)(3) imposes two additional requirements: first, “that the questions of law or fact common to class members predominate over any questions affecting only individual members, ” and second, “that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” The test of Rule 23(b)(3) is “far more demanding, ” than that of Rule 23(a). Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1172 (9th Cir. 2010) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24 (1997)).

         “The party seeking class certification bears the burden of demonstrating that the requirements of Rules 23(a) and (b) are met.” United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int'l Union, AFL-CIO C.L.C. v. ConocoPhillips Co., 593 F.3d 802, 807 (9th Cir. 2010). This burden is real; Rule 23 embodies more than a “mere pleading standard.” Wal-Mart, 564 U.S. at 350. The party must “prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Id. (emphasis in original). The trial court must then conduct a “rigorous analysis” of whether the party has met its burden, id., and “analyze each of the plaintiff's claims separately, ” Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1068 (9th Cir. 2014) (citing Erica P. John Fund, Inc., v. Halliburton Co., 563 U.S. 804, 809 (2011)). The court must verify the putative class's “actual, not presumed, conformance with Rule 23(a) . . . .” Wal-Mart, 565 U.S. at 351 (alterations omitted) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982)). This inquiry often overlaps with consideration of the merits of the plaintiffs' substantive claims. Wal-Mart, 564 U.S. at 351-52. Indeed, “a district court must consider the merits if they overlap with the Rule 23(a) requirements.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (emphasis in original) (citing Wal-Mart, 564 U.S. at 351-52); see also Comcast Corp. v. Behrend, __U.S.__, 133 S.Ct. 1426, 1433 (2013) (“[O]ur cases requir[e] a determination that Rule 23 is satisfied, even when that requires inquiry into the merits of the claim.”). These same “analytical principles” also apply to the court's analysis of whether the plaintiff meets its burden under Rule 23(b). Comcast, 133 S.Ct. at 1432.

         III. EVIDENTIARY ISSUES

         As noted above, the parties move to strike each other's declarations offered in support of their motions regarding certification. Pl.'s Mot. Strike; Def.'s Mot. Strike. Both parties rely on Federal Rule of Civil Procedure 37, which prohibits a party from using information improperly disclosed under Rule 26, which in turn requires supplemental disclosure “in a timely manner” if a party learns that an initial disclosure is incomplete. Fed.R.Civ.P. 37(c)(1); Fed.R.Civ.P. 26(e). Failure to make a timely disclosure results in exclusion unless the failure was “substantially justified” or “harmless.” Fed.R.Civ.P. 37(c)(1); Hoffman v. Constr. Protective Serv., Inc., 541 F.3d 1175, 1179 (9th Cir. 2008). “In determining whether to preclude introduction of evidence under FRCP 37, courts consider ‘(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence, and (5) the nondisclosing party's explanation for its failure to disclose the evidence.'” S.F. Baykeeper v. W. Bay Sanitary Dist., 791 F.Supp.2d 719, 733 (N.D. Cal. 2011) (citing Dey, L.P. v. Ivax Pharm., Inc., 233 F.R.D. 567, 571 (C.D. Cal. 2005)); see also Naff v. State Farm Gen. Ins. Co., No. 1:15-CV-00515-JLT, 2016 WL 4095948, at *9 (E.D. Cal. Aug. 2, 2016).

         Here, each party's request is similar. Class certification-related fact discovery closed on March 29, 2016, Order, ECF No. 13, and both parties only generally disclosed “all putative class members” or “the putative class” as potential witnesses before that date, Def.'s Mot. Strike 6; Pl.'s Mot. Strike 6. Each party submitted supplemental Rule 26 disclosures identifying the prospective declarants only after the cut-off date. See Pl.'s Mot. Strike 4; Def.'s Mot. Strike 4. Although submitted after the discovery cut-off, the supplemental disclosures were made before the parties' certification motions here were filed. See Pike Decl. ¶¶ 4-10, ECF No. 29-1; Drexler Decl. ¶¶ 8-20, ECF No. 37-1. In these circumstances, the declarations should surprise no one. Accordingly, the court DENIES both motions to strike.

         The court also DENIES DSG's objections to the class member declarations. See Def.'s Objs. “Numerous courts in this circuit have made clear that ‘[f]or purposes of the class certification inquiry, the evidence need not be presented in a form that would be admissible at trial.'” Brown v. Abercrombie & Fitch Co., CV141242JGBVBKX, 2015 WL 9690357, at *5 (C.D. Cal. July 16, 2015) (citing Stitt v. S.F. Mun. Transp. Agency, No. 12-CV-3704 YGR, 2014 WL 1760623, at *1 n. 1 (N.D. Cal. May 2, 2014)). “The court need not address the ultimate admissibility of the parties' proffered exhibits, documents and testimony at this stage, and may consider them where necessary for resolution of the [motion for class certification].” Alonzo v. Maximus, Inc., 275 F.R.D. 513, 519 (C.D. Cal. 2011).

         IV. SECURITY CHECK SUBCLASS

         For each proposed subclass, the court first describes California law applicable to Greer's claims, then summarizes Greer's evidence to support certification, and lastly evaluates whether Greer has met his burden to warrant certification here. Greer's proposed security check subclass relies on his claims tied to off-the-clock work that DSG's policy allegedly required. See Pl.'s Mot.

         A. Applicable Law

         In California, wage and hour claims are governed by two sources of law: the California Labor Code and eighteen wage orders adopted by the Industrial Welfare Commission (“IWC”). Brinker Rest. Corp. v. Superior Court, 53 Cal.4th 1004, 1026 (2012). “Wage Orders are entitled to ‘extraordinary deference.'” Id. at 1027. Indeed, the California Supreme Court treats these two sources of law with equal dignity. Id. at 1026. They are to be interpreted “in light of the remedial nature of the legislative enactments” and “liberally construed with an eye to promoting . . . [the] protection [of employees].” Id. at 1026-27 (quoting Indus. Welfare Com. v. Superior Court, 27 Cal.3d 690, 702 (1980)).

         Greer relies on a principal Wage Order as a basis for his underlying claim of off-the-clock work. Under Wage Order No. 7, “[e]very employer shall pay to each employee, on the established payday for the period involved, not less than the applicable minimum wage for all hours worked in the payroll period, whether the remuneration is measured by time, piece, commission, or otherwise.” 8 Cal. Code Regs. § 11070, subd. 4(B). “Hours worked” means “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” Id. at 2(G); see Morillion v. Royal Packing Co., 22 Cal.4th 575 (2000) (“All 15 wage orders contain the same definition of ‘hours worked' as does Wage Order No. 14-80, except for IWC wage order Nos. 4-89 and 5-89, which include additional language.”). The California Supreme Court has made clear that an employee who is “subject to the control” of his or her employer may be ...


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