United States District Court, E.D. California
JIMMY GREER, individually, and on behalf of others similarly situated, Plaintiff,
DICK'S SPORTING GOODS, INC., a Delaware corporation; and DOES 1 through 100,  inclusive, Defendants.
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
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.
29, 2016, the parties filed opposing motions regarding
certification. The parties opposed each other's
motions and replied. 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. Greer also filed
a request for judicial notice, which DSG
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.
Factual Background and Claims
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.
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.
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.
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”).
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
CLASS ACTIONS GENERALLY
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
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.
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
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)).
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.
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).
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.
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).
SECURITY CHECK SUBCLASS
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
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)).
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 ...