United States District Court, D. New Mexico
WILLIAM D. PAYNE; NICOLE PAYNE; LESLIE B. BENSON; KEITH BASTIAN; JACQUELINE FERNANDEZ-QUEZADA; CASON N. HEARD; GREGORY OLDHAM AND SHERRY K. WELCH, on behalf of themselves and all others similarly situated, Plaintiffs,
TRI-STATE CAREFLIGHT, LLC and BLAKE A. STAMPER, Defendants. KRISTY BELL; DEBORAH BEREST; DANIEL BERGMAN; WILLIAM DALLAS BUNDRANT, JR; ROCKY H. BURROWS, II; CHASE CARTER; BRENDA CASAREZ; KARA CERVANTES; THOMAS CISLO; DAVID DANIELS; ADAM DOYLE; DARREN EEN; TOBY EICHER; LON ENOS; WALTER FABIAN; HAROLD JOSEPH FISHER; CHRISTINA FLEEMAN; LUKE FORSLUND; SALUSTIANO FRAGOSO; REHANNON GONZALES; KRISTEN GRADO; COURTNEY GUERRA; DARRIN HAMILTON; ALEXANDER HOWELL; DANIELLE IRVIN; ALLEN JACOBS; ALEX JONES; DONALD LUKE KEENAN; DANIEL KUHLER; SIMON LUCERO; RAPHAEL MAHAIM; NATHAN MAPLESDEN; ORLANDO MARQUEZ; CINDY D. MAXWELL; JENNIFER MAZZANTI; BETHANY MCCANDLESS; WILLIAM J. MCCONNELL; DAN MEEHAN; KEVIN NAPP; JAMES O'CONNOR; KATHY ONSUREZ-WILSON; ERIC PARKER; JASON PERRY; AMANDA PETERSEN; BRENT PLACE; JIMMY RONALD PRIMM, JR; PHILIP QUBAIN; PAUL RATIGAN; JOSEPH ROOT; DARON RUCKMAN; FREDERIC RUEBUSH; JENNIFER SALAVERRY; LAUREN SALAZAR; PAUL SERINO; CHRISTIAN SPEAKMAN; DANIEL ST. PETERS; IAN STEPHENS; USVALDO R. TRUJILLO; PAUL VACULA; GRACIELA VILLALOBOS; ERIC VOGT; GREG WALSH; TYLER WILKINS; VIRGINIA WILLIAMS; SARA YURKOVICH; TERRY ZACHARIAS and MICHAEL ZULASKI, Plaintiffs,
TRI-STATE CAREFLIGHT, LLC and BLAKE A. STAMPER, Defendants.
Christopher M. Moody Repps D. Stanford Alice Kilborn Moody
& Warner, P.C. Attorneys for the Plaintiffs
Charles J. Vigil Jeffrey L. Lowry Melanie B. Stambaugh Rodey,
Dickason, Sloan, Akin & Robb, P.A. Attorneys for the
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Plaintiffs'
Motion for Conditional Certification of Collective Action
Pursuant to New Mexico Minimum Wage Act, filed September 7,
2017 (Doc. 9) (“Motion”) and on the
Plaintiffs' Request for Rule 16 Scheduling Conference,
filed December 21, 2017 (Doc. 19) (“Hearing
Motion”). In the Hearing Motion, the Plaintiffs
requested that the Court set a Rule 16 Scheduling Conference
to establish case management deadlines, and to consider the
Motion. See Hearing Motion at 1. The Court granted
the Hearing Motion, and the Rule 16 Scheduling Conference was
reset for June 26, 2018, before the Honorable Carmen E.
Garza, Chief United States Magistrate Judge for the District
of New Mexico. See Order Resetting Rule 16
Scheduling Conference, filed June 4, 2018 (Doc. 35). The
Court held a hearing on the Motion on June 21, 2018. The
primary issues in the Motion are: (i) whether, under
Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins.
Co., 559 U.S. 393 (2010) (âShady Grove”),
the collective action standard in rule 23 of the Federal
Rules of Civil Procedure or in the New Mexico Minimum Wage
Act, N.M. Stat. Ann. §§ 50-4-1 to -33
(“NMMWA”), contained in § 50-4-26(D), should
be applied to the Plaintiffs' conditional certification
of their state law overtime claims as a collective action;
and (ii) whether, applying the appropriate standard, the
Plaintiffs have met the requirements for conditional
certification of their overtime claims. The Court concludes
that, applying the test set forth in Justice Stevens'
concurring and controlling opinion in Shady Grove,
(i) the correct standard is rule 23, because N.M. Stat. Ann.
§ 50-4-26(D)'s provision is a procedural rule; and
(ii) the Plaintiffs have not demonstrated their compliance
with the requirements for class certification enumerated in
rule 23. Accordingly, the Court will deny the Motion.
Tri-State CareFlight, LLC is a medical transport service
company whose service area includes New Mexico, Colorado, and
Arizona. See First Amended Representative and Class
Action Complaint ¶¶ 3-12, at 2-4, filed June 5,
2018 (Doc. 37) (“Amended Complaint”). Tri-State
CareFlight and Defendant Blake Stamper are or were the
employers of all of the Plaintiffs within the definition of
the NMMWA. See Amended Complaint ¶ 6, at 3.
Tri-State CareFlight employs or employed the following people
-- the proposed class seeking conditional certification -- as
flight paramedics, flight nurses, or pilots: Kristy Bell,
Deborah Prair Berest, Daniel Bergman, William Dallas
Bundrant, Jr., Rocky H. Burrows, II, Chase Carter, Brenda
Casarez, Kara Cervantes, Thomas Cislo, David Daniels, Adam
Doyle, Darren Een, Toby Eicher, Lon Enos, Walter Fabian,
Harold Joseph Fisher, Rehannon Fisher, Christina Fleeman,
Luke Forslund, Salustiano Fragoso, Kristen Grado, Courtney
Guerra, Darrin Hamilton, Alexander Howell, Danielle Irvin,
Allen Jacobs, Alex Jones, Donald Luke Keenan, Daniel Kuhler,
Simon Lucero, Raphael Mahaim, Nathan Maplesden, Orlando
Marquez, Cindy Maxwell, Jennifer Mazzanti, Bethany
McCandless, William McConnell, Dan Meehan, Kevin Napp, James
O'Connor, Kathy Onsurez-Wilson, Eric Parker, Jason Perry,
Amanda Petersen, Brent Place, Jimmy Ronald Primm, Jr., Philip
Qubain, Paul Ratigan, Joseph Root, Daron Ruckman, Frederick
Ruebush, Jennifer Salaverry, Lauren Salazar, Paul Serino,
Christian Speakman, Ian Stephens, Daniel St. Peters, Usvaldo
R. Trujillo, Paul Vacula, Graciella Villalobos, Eric Vogt,
Greg Walsh, Tyler Wilkins, Virginia Williams, Sara Yurkovich,
Terry Zacharias, Michael Zulaski, Benjamin Aguilar, Alison
Lopez, Ted McGill, Satoshi Mori, John Munn, Anita Nelson,
Laurie Pittman, Diane Sarno, Gregory Steiner, and Sherryn
Terblanche. See Amended Complaint ¶¶
13-89, at 4-10 (listing the names and professional titles of
Plaintiffs allege that they were routinely asked to work more
than forty hours per work week, and were not compensated at
the statutorily required one and one-half times their regular
rate for all hours over forty hours per work week.
See Amended Complaint ¶¶ 91-92, at 10.
Flight Paramedics and Flight Nurses were paid the one and
one-half times rate only for hours worked in excess of
ninety-six hours in any two-week pay period. See
Amended Complaint ¶ 98, at 11. Pursuant to a uniform
company policy, they were denied overtime pay for hours over
forty hours worked per week. See Amended Complaint
¶ 99, at 12.
were paid a daily rate for each regularly scheduled twelve
hour shift, but, the Plaintiffs allege, they were sometimes
required to work longer than twelve hours, and were not
additionally compensated for hours past twelve hours in a
given work day. See Amended Complaint ¶ 92, at
10. Most pilots were routinely scheduled to work seven
consecutive twelve-hour shifts, followed by seven days off
work. See Amended Complaint ¶ 100, at 12. Some
were scheduled for fourteen consecutive twelve-hour shifts,
followed by fourteen days off work. See Amended
Complaint ¶ 100, at 12. Pursuant to a uniform company
policy, Pilots were denied overtime pay for hours over forty
hours worked per week. See Amended Complaint ¶
101, at 12.
Plaintiffs allege that Tri-State CareFlight violated N.M.
Stat. Ann. § 50-4-22(D), which states in relevant part:
“An employee shall not be required to work more than
forty hours in any week of seven days, unless the employee is
paid one and one-half times the employee's regular hourly
rate of pay for all hours worked in excess of forty
hours.” N.M. Stat. Ann. §
50-4-22(D). See Motion at 5.
Plaintiffs now move to conditionally certify their overtime
claims as a collective action pursuant to N.M. Stat. Ann.
§ 50-4-26(D), which permits one or more employees to
bring an action to recover liability for an employer's
violation of any provision of N.M. Stat. Ann. § 50-4-22
“on behalf of the employee or employees and for other
employees similarly situated.” Motion at 1. The
Plaintiffs define “similarly situated” as flight
paramedics, flight nurses and pilots “formerly employed
in New Mexico by the Defendants at any time during the
relevant time period who were subjected to the same unlawful
and uniform pay policies to which Plaintiffs were
subjected.” Amended Complaint ¶ 102, at 12. The
relevant time period runs from June 19, 2009, through July
2016, when Tri-State CareFlight ceased applying the pay
policies described above. See Amended Complaint
¶ 102, at 12.
Plaintiffs bring a representative action pursuant to N.M.
Stat. Ann. § 50-4-26(D), on behalf of themselves and all
other similarly situated former Tri-State CareFlight
employees. See Amended Complaint ¶ 95, at 10.
In the alternative, the “Plaintiffs bring this matter
as a class action pursuant to Fed.R.Civ.P. 23.” Amended
Complaint ¶ 96, at 10. The Amended Complaint contains
two counts: (i) violation of N.M. Stat. Ann. §§
50-4-19 et seq.; and (ii) unjust enrichment.
Plaintiffs filed their case in federal court on August 3,
2017. See Representative and Class Action, filed
August 3, 2017 (Doc. 1) (“Complaint”). The
Plaintiffs invoked diversity jurisdiction pursuant to the
Class Action Fairness Act, 28 U.S.C. § 1332(d) (2),
asserting that the present action is a class action lawsuit,
with a matter in controversy exceeding $5, 000, 000.00, and
complete diversity of citizenship between the original
Plaintiffs and the Defendants. See Complaint ¶
8, at 3.
three weeks later, Tri-State CareFlight and Stamper filed an
Answer, asserting that a representative action may be pursued
in federal court only under rule 23, and denying that the
Plaintiffs can meet rule 23's requirements. See
Answer to Representative and Class Action Complaint, filed
August 30, 2017 (Doc. 7) (“Answer”). The
Plaintiffs filed the Amended Complaint. See Amended
Complaint. Tri-State CareFlight and Stamper filed an Answer.
See Answer to First Amended Representative and Class
Action Complaint, filed June 19, 2018 (Doc. 39).
Plaintiffs move the Court, pursuant to the NMMWA, to
conditionally certify their overtime claims as a collective
action. See Motion at 1. The Plaintiffs who were
employed as pilots plan to seek certification of their unjust
enrichment claim but do not do so in the Motion. See
Motion at 4. The Plaintiffs first argue that the NMMWA
standard, articulated in § 50-4-26(D), rather than the
rule 23 standard, should apply to their collective action
certification. See Motion at 1. The Plaintiffs
contend that Justice Stevens' concurrence in Shady
Grove warrants this outcome. See Motion at 7.
According to the Plaintiffs, the test from Justice
Stevens' concurrence, which the Plaintiffs assert is the
controlling test in the United States Court of Appeals for
the Tenth Circuit, as opposed to the test that Justice
Scalia's plurality opinion in Shady Grove
provides, is that, “if a federal rule displaces a state
rule that is ‘procedural' in the ordinary sense of
the term, . . . but sufficiently interwoven with the scope of
a substantive right or remedy” as to define the
substantive right's scope, the federal rule must give way
to the state rule. Shady Grove, 559 U.S. at 429
(Stevens, J., concurring) (quoting S.A. Healy Co. v.
Milwaukee Metro. Sewerage Dist., 60 F.3d 305, 310 (7th
Cir. 1995) (Posner, C.J.).
Plaintiffs first assert that § 50-4-26(D) is in effect
part of the substantive right which the NMMWA grants, because
it is so “intertwined with Plaintiffs' right to sue
for overtime pursuant to that statute.” Motion at 5.
“An action to recover such liability may be maintained
in any court of competent jurisdiction by any one or more
employees for and on behalf of the employee or employees and
for other employees similarly situated . . . .” N.M.
Stat. Ann. § 50-4-26(D). The Plaintiffs contend that the
analysis of what constitutes “similarly situated”
should proceed in two stages, as the Tenth Circuit outlines
in Thiessen v. GE Capital Corp., 267 F.3d 1095, 1102
(10th Cir. 2001), and, at the first stage of analysis, should
“require nothing more than substantial allegations that
the putative class members were together the victims of a
single decision, policy, or plan.” Armijo v.
Wal-Mart Stores, Inc., 2007-NMCA-120, ¶ 48, 168
P.3d 129, 144 (quoting Vaszvalik v. Storage Tech.
Corp., 175 F.R.D. 672, 678 (D. Colo. 1997) (Babcock,
J.)). See Motion at 5. The standard, the Plaintiffs
assure, is a lenient one, and significantly different from
rule 23's rigorous requirements, or those in its analogue
in New Mexico, N.M.R.A. 1-023. See Motion at 5-6.
The Plaintiffs argue that there is a public policy rationale
for the more lenient standard applied to the NMMWA, i.e.,
that the New Mexico Legislature designed the statute to be
remedial in nature. See Motion at 6.
Plaintiffs then argue that the Tenth Circuit has adopted
Justice Stevens' concurring opinion in Shady
Grove as controlling. See Motion at 7 (citing
James River Ins. v. Rapid Funding, LLC, 658 F.3d
1207, 1217 (10th Cir. 2011); Garman v. Campbell Cty. Sch.
Dist. No. 1, 630 F.3d 977, 983 & n.6 (10th Cir.
2010)). Applying the test from Justice Stevens'
concurrence, the Plaintiffs assert, when there is a direct
conflict between a federal procedural rule and a state law
standard in a diversity case, “the state law standard
is applicable if it is in essence substantive even if
nominally procedural.” Motion at 7. The Plaintiffs
suggest that the trend across the nation's district
courts has been that a seemingly procedural state law
provision is substantive in essence when it “is located
in the same statute creating the private right of action sued
on and is applicable only to claims under that same statute,
rather than to cases generally.” Motion at 11. The New
York statute at issue in Shady Grove, the Plaintiffs
argue, was procedural because “it applied not only to
claims based in New York law, but also to claims based on
federal law or the law of another state.” Motion at 7.
Section 50-4-26(D), the Plaintiffs assert, “is in the
very same section of the statute that creates the right sued
on here in the overtime claim, in fact in the very same
sentence.” Motion at 12 (citing N.M. Stat. Ann. §
50-4-26). The Plaintiffs argue that the New Mexico
Legislature included § 50-4-26(D) in the NMMWA to
replace the generally applicable New Mexico state rule
governing class actions, in N.M.R.A. 1-023. See
Motion at 13 (“Had the legislature not intended to make
it easier to pursue such claims, it need not have included
any language regarding representative actions in the statute
at all, in which case the more stringent standards set forth
in [N.M.R.A. 1-023] would apply to overtime claims brought in
state court.”). Section 50-4-26(D) is applicable only
to claims under the NMMWA. See Motion at 12. The
Plaintiffs argue that the Court “must therefore apply
the NMMWA's “similarly situated” standard,
rather than Fed.R.Civ.P. 23, to class certification in this
case.” Motion at 13.
Plaintiffs next aver that, by applying the two-step procedure
adopted by the Court of Appeals of New Mexico in Armijo
v. Wal-Mart Stores, Inc., all of the Plaintiffs in this
action are similarly situated, so conditional certification
of the class is appropriate. See Motion at 13. Under
the two-step approach from Armijo v. Wal-Mart Stores,
Inc., the initial stage of analysis requires only
“substantial allegations that the putative class
members were together the victims of a single decision,
policy, or plan.” Armijo v. Wal-Mart Stores,
Inc., 2007-NMCA-120, ¶ 48, 168 P.3d at 144 (quoting
Vaszvalik v. Storage Tech Corp., 175 F.R.D. 672, 678
(D. Colo. 1997) (Babcock, J.)). Only after merits discovery
and/or a motion to decertify, the court applies a stricter
standard and considers “(1) whether the class members
have disparate factual and employment settings, (2) whether
the available defenses to the claims are individual to each
class member, and (3) whether there are any fairness or
procedural considerations relevant to the action.”
Hasken v. City of Louisville, 213 F.R.D. 280, 282
(W.D. Ky. Feb. 11, 2003) (Simpson, J.). The Plaintiffs argue
that class members are “generally found to be similarly
situated when they have the same employer and are subject to
the same employer practices with regard to overtime
practices.” Motion at 14 (citing Hasken v. City of
Louisville, 213 F.R.D. at 282).
merits discovery has not yet occurred in this case,
Plaintiffs contend that the Court should apply only the
initial stage analysis. See Motion at 14. The
Plaintiffs assert that there is “substantial evidence
of a single unlawful policy” by the Defendants, of
which the Plaintiffs were together the victims. See
Motion at 14. The Plaintiffs point to Tri-State
CareFlight's pay practices, which, they assert, while
different in some details between flight paramedics and
nurses on the one hand and pilots on the other, are the same
in their “failure to pay overtime compensation for all
hours worked over forty (40) in a workweek.” Motion at
15. The Plaintiffs list other factors that they argue bolster
their position that all of the Plaintiffs in the proposed
class are similarly situated. Motion at 19. The Plaintiffs
note that all proposed class members worked for the same
employer, in close proximity, and in the same locations,
providing services as a team. See Motion at 19.
Although the Plaintiffs concede that flight paramedics,
flight nurses, and pilots “have different training,
different certification and different duties, ” the
Plaintiffs argue that these distinctions are too small to
undermine class certification under § 50-4-26(D).
See Motion at 19.
CareFlight and Stamper filed a response to the Motion.
See Defendants' Response to Plaintiffs'
Motion for Conditional Certification of Collective Action
Pursuant to New Mexico Minimum Wage Act, filed September 29,
2017 (Doc. 12) (“Response”). Tri-State CareFlight
first asserts that rule 23 governs NMMWA claims in federal
court, citing decisions by at least two other District of New
Mexico Judges who relied on Justice Scalia's plurality
opinion in Shady Grove, rather than on Justice
Stevens' concurrence. See Response at 1-2
(citing Medrano v. Flowers Food, Inc., Civ. No.
16-350 JCH/KK, 2017 WL 3052493 (D.N.M. July 21, 2017)
(Herrera, J.); Abrams v. City of Albuquerque, Civ.
No. 10-0872 MV/RHS, 2014 WL 11497810, at *12 & n.7
(D.N.M. June 26, 2014) (Vázquez, J.); and Casias
v. Distrib. Mgmt. Corp., Civ. No. 11-00874 MV/RHS, 2014
WL 12710236, at *2 (D.N.M. March 31, 2014) (Vázquez,
CareFlight next asserts that, in Shady Grove, even
in Justice Stevens' concurring opinion, the Supreme Court
of the United States acknowledges that applying rule 23 to
class claims will not impair “an alleged
‘substantive' right” because rule 23 by its
very purpose permits class claims. Response at 3 (quoting
Shady Grove, 559 U.S. at 436 (Stevens, J.,
concurring)). Tri-State CareFlight argues that the issue
“is not whether class actions are allowed but only what
process must be followed and what procedural criteria must be
met for the plaintiffs to pursue such class claims.”
Response at 3. Tri-State CareFlight therefore concludes that
the matter before the Court is purely procedural.
See Response at 3. Tri-State CareFlight argues that
the Plaintiffs do not satisfy the necessary rule 23 criteria.
See Response at 5.
CareFlight asserts that the cases upon which the Plaintiffs
rely in their Motion do not address whether the two-step
process that the Tenth Circuit approved in Thiessen v. GE
Capital Corp. and that the Court of Appeals of New
Mexico applied in Armijo v. Wal-Mart Stores, Inc.,
or the rule 23 standard, applies. See Response at 4.
By contrast, Tri-State CareFlight argues that the Medrano
v. Flowers Food, Inc. court addressed that question,
stating that “the Court is bound by Shady
Grove, the Rules Enabling Act,  and Rule 23 of the
Federal Rules of Civil Procedure. Thus, if the Plaintiffs
wish to pursue their NMMWA claim as a collective action, they
must seek class certification under Rule 23.” Response
at 5 (quoting Medrano v. Flowers Food, Inc., 2017 WL
3052493, at *6). For instance, Tri-State CareFlight argues
that, because § 50-4-26(D) contains the same “opt
out” process as rule 23, the opt-in cases to which the
Plaintiffs cite are not relevant. Response at 5.
Tri-State CareFlight asks the Court to defer ruling on the
Motion until a pending Motion to Transfer Related Case, filed
September 26, 2017 (Doc. 11), is decided because of pending
motions in Payne v. Tri-State CareFlight,
LLC, No. CIV 14-1044 JB/KBM (D.N.M. filed November 17,
2014) (Browning, J.). This request is moot, because the Court
decided and granted the motions in a Memorandum Opinion and
Order. See Payne v. Tri-State Careflight, LLC, 322
F.R.D. 647 (D.N.M. September 30, 2017) (Browning, J.)
(granting the Opposed Fed.R.Civ.P. 24(B) Motion and
Supporting Memorandum to Intervene as Parties Plaintiff and
Class Representatives, filed November 29, 2016 (Doc. 151) in
CIV 14-1044 JB/KBM, and the Opposed Fed.R.Civ.P. 24(B)
Supplemental Motion and Supporting Memorandum to Intervene as
Parties Plaintiffs and Class Representatives, filed June 27,
2017 (Doc. 166) in CIV 14-1044 JB/KBM).
Plaintiffs replied. See Plaintiffs' Reply in
Support of Motion for Conditional Certification of Collective
Action Pursuant to New Mexico Minimum Wage Act, filed October
13, 2017 (Doc. 17) (“Reply”). The Plaintiffs
begin by arguing that the cases which other district judges
in this district have decided are of no precedential value
because they apply the wrong test from Shady Grove.
See Reply at 2. The Plaintiffs assert that the Tenth
Circuit has reiterated in a decision post-dating the Motion
that Justice Stevens' concurring opinion, rather than
Justice Scalia's plurality opinion, is controlling.
See Reply at 2 (citing Racher v. Westlake
Nursing Home Ltd. P'ship, 871 F.3d 1152, 1164 (10th
Cir. 2017). The Plaintiffs also point to one of the
Court's decisions, recognizing Justice Stevens'
concurrence as controlling. See Upky v. Lindsey, No.
CIV 13-0552 JB/GBW, 2015 U.S. Dist. LEXIS 55167, at *59-60
(D.N.M. April 7, 2015) (Browning, J.).
Plaintiffs argue that the other cases relied upon by
Tri-State CareFlight also apply the incorrect test from
Justice Scalia's plurality opinion rather than the
correct test from Justice Stevens' concurrence.
See Reply at 3. The Plaintiffs assert that these
cases cannot be correct, because, otherwise, the many cases
where courts have declined to apply rule 23 to state law
claims “would be incorrectly decided.” Reply at
4-5. The Plaintiffs next contend that this result would be
inconsistent with Garman v. Campbell County School
District Number 1, which rigorously applies Justice
Stevens' concurrence to find that a state provision
prevailed over a federal procedural rule. See Reply
Plaintiffs conclude that Justice Stevens' concurrence
recognizes that there are situations in which applying a
federal rule to a state law claim in federal court would
“run afoul of the Rules Enabling Act's prohibition
applying [sic] a federal rule to ‘abridge, enlarge, or
modify any substantive right.'” Reply at 5 (quoting
28 U.S.C. § 2072(b)). Accordingly, the Plaintiffs ask
that the Court decline to follow the incorrect test followed
by the Honorable Judith C. Herrera, United States District
Judge for the District of New Mexico, in Medrano v.
Flower Foods, Inc. and in Abrams v. City of
Albuquerque, and the Honorable Martha Vázquez,
United States District Judge for the District of New Mexico,
in Casias v. Distribution Management Corp. See Reply
Plaintiffs next argue that the cases upon which they relied
in the Motion are relevant, because they address conflicts in
federal court between rule 23 and various state law claims in
federal court. See Reply at 5-6. The Plaintiffs
assert that the opt-in cases cited in the motion are still
relevant, because although the “opt out” detail
may not be in conflict between rule 23 and § 50-4-26(D),
“numerous other ones are.” Reply at 8.
Specifically, the Plaintiffs point to the fact that §
50-4-26(D) does not contain a numerosity requirement, a
restriction on who can serve as a representative, a
predominance requirement, or a superiority requirement,
whereas rule 23 contains all four. See Reply at 8.
the Plaintiffs aver that applying rule 23 to the overtime
claim here would abridge or modify a substantive right in
violation of the Rules Enabling Act, and the Plaintiffs
present various hypotheticals to illustrate the argument.
See Reply at 9-10. The Plaintiffs note that §
50-4-26(D) is in the same section of the NMMWA that creates
the substantive right to sue for unpaid overtime compensation
and applies only to NMMWA claims. See Reply at 10.
Finally, the Plaintiffs assert that the Defendants'
request that the Court defer the ruling is moot, because the
present case, Bell v. Tri-State CareFlight, LLC, CIV
17-0796 JB/CG (D.N.M., filed August 3, 2017) (Browning, J.),
has already been consolidated with Payne v. Tri-State
CareFlight, LLC, No. CIV 14-1044 JB/KBM (D.N.M., filed
November 17, 2014) (Browning, J.). See Reply at 11.
29, 2018 the Court issued a Notice of Hearing on the Hearing
Motion and granted the Hearing Motion, setting a hearing for
June 21, 2018. See Notice of Hearing, entered May
29, 2018. The Court held the hearing on June 21, 2018.
See Draft Transcript of Motion Hearing (taken June
21, 2018) (“Tr.”). The Court began by
confirming that both parties agree that, if the collective
action question is addressed according to § 50-4-26(D),
neither side opposes conditional certification. See
Tr. at 2:10-17 (Court). The Court identified the main issue
as whether, under Shady Grove, the conditional
certification question should be analyzed according to rule
23 or according to § 50-4-26(D). See Tr. at
2:17-21 (Court). The Court stated that it seems the Tenth
Circuit has indicated that Justice Stevens' concurring
opinion in Shady Grove controls for purposes of
these issues. See Tr. at 2:17-3:5 (Court).
Court then asked the Plaintiffs whether Judge Herrera was the
only district judge in this district to issue an opinion
based on Justice Scalia's plurality opinion in Shady
Grove. See Tr. at 3:24-25 (Court). The
Plaintiffs replied that Judge Herrera and Judge
Vázquez both issued opinions based on Justice
Scalia's plurality opinion. See Tr. at 4:2-3;
4:15-22 (Moody). The Court asked the Plaintiffs how Judge
Herrera and Judge Vázquez decided to use the plurality
opinion. See Tr. at 6:12-16 (Court). The Plaintiffs
I have to confess I don't one hundred percent remember. I
don't think they relied on each other. I think that it
was more or less, as you, say grabbing Justice Scalia's
plurality opinion. So what they're doing is they're
saying: Okay, we have to first look if there is a conflict
between the state law and the federal rules. If there is, we
apply the federal rule, so long as it is validly enacted
under the Rules Enabling Act. And of course, there are court
decisions upholding all of the Federal Rules of Civil
Procedure in the Rules Enabling Act. So if you apply that
test, then it becomes a very simple problem, because in every
case you're going to apply the federal rule.
Tr. at 6:17-7:6 (Moody).
Plaintiffs then acknowledged that Judge Herrera recently
issued an opinion addressing Justice Stevens' concurrence
and arrived at the conclusion that rule 23 should apply
rather than the state rule. See Tr. at 7:19-24
(Moody). According to the Plaintiffs, however, Judge Herrera
looked to the FLSA for guidance in interpreting the NMMWA and
concluded that the NMMWA has an opt-in provision.
See Tr. at 8:12-15 (Court, Moody). The Plaintiffs
argued that this comparison is a mistake, because the NMMWA
provision is opt-out, exactly like rule 23. See Tr.
at 7:25-8:25 (Moody). The NMMWA provision contains no opt-in
language. See Tr. at 7:25-8:25 (Moody). The
Plaintiffs argued that, “if you can designate an agent
to bring the case, there is really no basis for concluding
that it could be an opt-in, in that situation, because
you're allowing right in the statute for a representative
action.” Tr. at 9:3-7 (Moody). In other words, a
designated agent could bring an action on behalf of a class,
without requiring the class members to actively consent to
their inclusion in the class.
Court asked the Plaintiffs whether Judge Herrera's and
Judge Vázquez' opinions were the only opinions
from this district on this issue. See Tr. at 9:21-23
(Court). The Plaintiffs replied that they were aware of no
other opinions. See Tr. at 9:24-25 (Moody). The
Plaintiffs next averred that the trend across federal
district courts is to follow Justice Stevens' concurrence
and determine whether a state procedural rule is so
intertwined with the substantive law that a federal court
sitting in diversity must apply it instead of rule 23.
See Tr. at 10:5-20 (Moody). The Plaintiffs argued
that the judicial approach has been to view statutes of
general applicability regarding class actions as procedural,
as in Shady Grove, whereas statutory provisions
regarding class actions that are situated in the statute
creating the right on which the suit is built are generally
regarded as substantive. See Tr. at 11:9-13:19
Plaintiffs argued that the “clear intent of the
legislature was to affect the behavior of employers and
employees in New Mexico with regard to vindicating rights to
minimum wages and overtime, ” and in those
circumstances the provision is “substantive within the
meaning of Justice Stevens' concurrence.” Tr. at
14:20-15:5 (Moody). Applying the federal rule instead, the
Plaintiffs argued, would “allow, in some cases at
least, employers to avoid obligations under the state
overtime provisions of the act, and it would significantly
burden employees.” Tr. at 15:13-15 (Moody).
Plaintiffs next asserted that there is a direct conflict
between rule 23 and § 50-4-26(D). See Tr. at
15:19-21 (Moody). The Plaintiffs highlighted numerosity,
adequacy, predominance, superiority, and eligibility as a
representative, all as rule 23 characteristics that §
50-4-26(D) does not share. See Tr. at 15:19-17:6
Court asked whether it was at all a concern that there would
be an action in federal court very similar to rule 23 as an
opt-out class action, but run “through the filter of a
state provision rather than rule 23, given all the case law
that we have in federal court, particularly as of recent
years on class actions.” Tr. at 17:24-18:7 (Court). The
Plaintiffs replied that this outcome would not be of concern,
because the Plaintiffs would “still have to show people
are similarly situated, ” so there would still be a
standard to meet before class certification, albeit a more
lax standard than rule 23. See Tr. at 18:8-18
(Moody). The Plaintiffs asserted that there are checks on the
state standard, and the Plaintiffs would still need to show
there was a common policy and “enough to [sic]
cohesion.” Tr. at 19:10-13 (Moody). The Plaintiffs
summarized that the Court would have the tools to address any
concerns which arise as a result of the case proceeding under
§ 50-4-26(D). See Tr. at 20:10-12 (Moody).
Court next asked whether the Plaintiffs read Tri-State
CareFlight's response as saying they do not have any
opposition to the Motion if the Court determines that §
50-4-26(D) can be used. See Tr. at 20:13-18 (Court).
The Plaintiffs agreed with that reading. See Tr. at
20:23-24 (Moody). The Court asked whether, if the Court were
to conclude that rule 23 is the appropriate standard, the
Plaintiffs would then proceed through the rule 23 lens.
See Tr. at 21:16-21 (Court). The Plaintiffs
confirmed that they would then brief the issue under rule 23.
See Tr. at 21:22-23 (Moody).
Defendants then responded and presented the Court with a copy
of the Court's opinion in Bustillos v. Board of
County Commissioners of Hidalgo County, 310 F.R.D. 631
(D.N.M. 2015) (Browning, J.), referencing a footnote in the
Court's opinion applying rule 23 to a wage-and-hour state
claim under the NMMWA. See Tr. at 24:6-10 (Lowry).
That footnote states:
The Plaintiffs may pursue both a rule 23 class action for
their state law claims and a § 216(b) action for their
FLSA claims. See Shahriar v. Smith & Wollensky Rest.
Grp., Inc., 659 F.3d 234, 245-50 (2d Cir. 2011) (Miner,
J.) (allowing the plaintiffs to pursue damages under the
state minimum wage law through rule 23, as well as damages
under the FLSA through FLSA § 2169(b)). See
also Advisory Committee's Notes to Federal Rule
23(b) (3) (“The present provisions of 29 U.S.C. §
216(b) are not intended to be affected by Rule 23, as
Bustillos v. Bd. of Cty. Com'rs of Hidalgo Cty.,
310 F.R.D. at 673 n.10. The Defendants also handed the Court
a copy of Jones v. United Parcel Service, Inc., a
published opinion applying Shady Grove in a manner
in accordance with the opinions of Judge Vázquez and
Judge Herrera. See Tr. at 24:1-25:18 (Lowry).
See Jones v. United Parcel Service, Inc., 674 F.3d
1187, 1203 (10th Cir. 2012). The Defendants argued that,
because Jones v. United Parcel Service, Inc.
postdates James River Insurance v. Rapid Funding,
LLC, the proper way to read the law around Shady
Grove “until the Tenth Circuit resolves it”
is to apply either the plurality opinion or the concurrence
from Shady Grove. Tr. at 25:19-25 (Lowry). The
Defendants disagreed that Judge Vázquez and Judge
Herrera had applied the wrong test, arguing instead that the
district court rulings were consistent with the Tenth Circuit
precedent in Jones v. United Parcel Service, Inc.,
applying the test from Justice Scalia's plurality opinion
and looking only to the federal rule to determine whether it
is procedural. See Tr. at 26:8-27:8 (Lowry).
Defendants next argued that, even under Justice Stevens'
concurring opinion, the result would be the same, and rule 23
should still apply to the Motion, because “nothing
about Rule 23 . . . will abridge the rights or remedies under
the New Mexico Minimum Wage Act.” Tr. at 27:9-27:17
(Lowry). The Defendants asserted that Justice Stevens'
concurrence states that “the bar for finding an
enabling act problem is a high one, and that there must be
little doubt that the rule alters a state-created substantive
right.” Tr. at 27:20-24 (Lowry).
Court asked the Defendants whether they disagreed that
Justice Stevens' concurrence controlled in the Tenth
Circuit, and the Defendants replied that they did agree that
Justice Stevens' concurrence controlled. See Tr.
at 28:8-15 (Lowry). The conflict that the alternate approach
followed in the Jones v. United Postal Service, Inc.
case causes, Defendants argue, can be resolved by allowing
both Justice Scalia's and Justice Stevens' analyses
to apply, and then ensuring that there is no Rules Enabling
Act violation under either analysis. See Tr. at
Court asked whether that approach still resulted in Justice
Stevens' concurrence operating as the controlling opinion
or if it rendered Justice Stevens' concurrence approach
simply an additional test. See Tr. at 29:4-7
(Court). By way of answer, the Defendants noted that
Jones v. United Postal Service, Inc. is a later case
than James River Insurance v. Rapid Funding, LLC,
and should control if there is a conflict in the Tenth
Circuit regarding which Shady Grove analysis should
apply. See Tr. at 29:8-11 (Lowry).
Defendants argued that the difference between Justice
Scalia's approach and Justice Stevens' approach is
that Justice Scalia's approach focuses the analysis on
the federal rule and whether it is procedural, whereas
Justice Stevens' approach focuses the analysis on whether
the purpose of the state law is substantive. See Tr.
at 29:14-30:1 (Lowry). The Court noted that, if the
Defendants' proposed cumulative test approach were
applied, Justice Scalia's opinion would become the
controlling opinion, because, under its analysis, the federal
rule would always prevail. See Tr. at 35:13-17
Plaintiffs argued that, based on principles of construction,
the Court should apply the narrowest basis for the result to
which the Supreme Court arrived in its plurality opinion, and
accordingly should apply Justice Stevens' concurrence, as
the Tenth Circuit and this Court have said. See Tr.
at 35:18-36:9 (Moody).
Plaintiffs argued that the central point of Justice
Stevens' concurrence is that “you shouldn't get
a radically different result in federal court than you would
in the state court just because of a procedural rule.”
Tr. at 39:7-13 (Moody). The Plaintiffs asserted that the
difference would be that, if certification is granted,
several times as many people as are currently in the lawsuit
would be in the plaintiffs' class. See Tr. at
Court established that the end date for the Plaintiffs'
action would be when Air Methods Corporation acquired
Tri-State CareFlight and stopped operating under its own
name. See Tr. at 42:1-2 (Court).
the Plaintiffs corrected a mistake that they made in their
Motion and asked that, if there is a conditional
certification, it be for “all people employed by
Tri-State New Mexico from June 19th of 2009” as pilots,
flight nurses, and paramedics. Tr. at 42:13-43:1 (Moody). The
Court did not make an oral ruling at the hearing whether the
Plaintiffs' Motion should be evaluated under rule 23 or
under § 50-4-26(D). See Tr. at 47:22-23
(Court). The Court noted, however, that “the Tenth
Circuit was rather clear that Justice Stevens' opinion
was controlling.” Tr. at 28:8-12 (Court). The
Plaintiffs informed the Court that they had a Rule 16
Scheduling Conference before Judge Garza the week following
the Motion Hearing. See Tr. at 43:11-12 (Moody). The
Court offered to provide the parties with an oral ruling in
advance of the Rule 16 conference, to help guide the
parties' discussion with Judge Garza. See Tr. at
44:15-20 (Court). At 1:00 P.M. on June 26, 2018, before the
parties' 2:00 PM conference with Judge Garza, the Court
held a hearing and delivered an oral ruling on the Motion.
See Draft Transcript (taken June 26, 2018)
(“Ruling Tr.”) (Court). On June 26, 2018, the
Court provided an oral ruling. The Court stated that,
“in the Tenth Circuit, Justice Stevens' concurring
opinion in Shady Grove controls.” Ruling Tr.
at 6:4-6. The Court concluded that § 50-4-26(D) is
“a procedural rule, and therefore . . . rule 23 is
going to govern this, and so the Court is going to not
conditionally certify the proposed class.” Ruling Tr.
at 18:20-23 (Court). The Court promised to deliver a written
opinion to the parties as soon as possible. See
Ruling Tr. at 19:1-2 (Court).
REGARDING DIVERSITY JURISDICTION AND ERIE
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)
(âErie”), a federal district court sitting in
diversity jurisdiction applies “state law with the
objective of obtaining the result that would be reached in
state court.” Butt v. Bank of Am., N.A., 477
F.3d 1171, 1179 (10th Cir. 2007). Accord Mem. Hosp. v.
Healthcare Realty Tr. Inc., 509 F.3d 1225, 1229 (10th
Cir. 2007). The Court has held that if a district court
exercising diversity jurisdiction cannot find a Supreme Court
of New Mexico “opinion that [governs] a particular area
of substantive law . . . [the district court] must . . .
predict how the Supreme Court of New Mexico would
[rule].” Guidance Endodontics, LLC v. Dentsply
Int'l., Inc., 708 F.Supp.2d 1209, 1224-25 (D.N.M.
2010) (Browning, J.). “Just as a court engaging in
statutory interpretation must always begin with the
statute's text, a court formulating an Erie
prediction should look first to the words of the state
supreme court.” Peña v. Greffet, 110
F.Supp.3d 1103, 1132 (D.N.M. 2015) (Browning,
J.). If the Court finds only an opinion
from the Court of Appeals of New Mexico, while
“certainly [the Court] may and will consider the Court
of Appeal[s'] decision in making its determination, the
Court is not bound by the Court of Appeal[s'] decision in
the same way that it would be bound by a Supreme Court
decision.” Mosley v. Titus, 762 F.Supp.2d
1298, 1332 (D.N.M. 2010) (Browning, J.) (noting that, where
the only opinion on point is “from the Court of
Appeals, . . . the Court's task, as a federal district
court sitting in this district, is to predict what the
Supreme Court of New Mexico would do if the case were
presented to it”) (citing Wade v. EMCASCO
Ins., 483 F.3d 657, 666 (10th Cir. 2007) (explaining
that, “[w]here no controlling state decision exists,
the federal court must attempt to predict what the
state's highest court would do” and that,
“[i]n doing so, it may seek guidance from decisions
rendered by lower courts in the relevant
state”)). The Court may also rely on Tenth
Circuit decisions interpreting New Mexico law. See
Anderson Living Trust v. WPX Energy Production, LLC, No.
CIV 12-0040 JB/KBM, 27 F.Supp.3d, 1188, 1243 & n.30
(D.N.M. May 16, 2014) (Browning, J.). Ultimately,
“the Court's task is to predict what the state
supreme court would do.” Wade v. EMCASCO Ins.
Co., 483 F.3d at 666. Accord Mosley v. Titus,
762 F.Supp.2d at 1332 (citation omitted); Rimbert v. Eli
Lilly & Co., 577 F.Supp.2d 1174, 1188-89 (D.N.M.
2008) (Browning, J.) (quoting Wade v. EMCASCO Ins.,
483 F.3d at 665-66). See In re Santa Fe Nat. Tobacco Co.
Mktg. & Sales Practices & Prods. Liab. Litig.,
288 F.Supp.3d 1087, 1161-67 (D.N.M. 2017) (Browning, J.).
REGARDING ERIE AND THE RULES ENABLING ACT
diversity cases, the Erie doctrine instructs the
federal courts must apply state substantive law and federal
procedural law.” Racher v. Westlake Nursing Home
Ltd. P'ship, 871 F.3d at 1162. “If a federal
rule of civil procedure answers the question in dispute, that
rule governs our decision so long as it does not
‘exceed statutory authorization or Congress's
rulemaking power.'” Racher v. Westlake Nursing
Home Ltd. P'ship, 871 F.3d at 1162 (quoting
Shady Grove, 559 U.S. at 398). “When faced
with a choice between a state law and an allegedly
conflicting federal rule, ” the Tenth Circuit
“follow[s] the framework described by the Supreme Court
in [Shady Grove], as laid out by Justice Stevens in
his concurring opinion.” Racher v. Westlake Nursing
Home Ltd. P'ship, 871 F.3d at 1162. “First,
the court must decide whether the scope of the federal rule
is sufficiently broad to control the issue before the court,
thereby leaving no room for the operation of seemingly
conflicting state law.” Racher v. Westlake Nursing
Home Ltd. P'ship, 871 F.3d at 1162 (citations and
quotations omitted). There is a conflict between federal and
state law if there is a “direct collision” that
is “unavoidable, ” but there is no collision if
the state and federal rules “can exist side by side . .
. each controlling its own sphere of coverage.”
Racher v. Westlake Nursing Home Ltd. P'ship, 871
F.3d at 1163 (citations omitted). If there is no direct
collision, “there is no need to consider whether the
federal rule is valid, and instead, the analysis must proceed
under Erie.” Racher v. Westlake
Nursing Home Ltd. P'ship, 871 F.3d at 1163.
there is a direct collision, a court must follow the federal
rule if it is a valid exercise of the Supreme Court's
rulemaking authority under the Rules Enabling Act,
i.e., it must “not abridge, enlarge or modify
a substantive right.” 28 U.S.C. § 2072(b). See
Racher v. Westlake Nursing Home Ltd.
P'ship, 871 F.3d at 1163-64.
Justice Stevens, in his controlling concurrence in Shady
Grove, addressed how, in a diversity case where state
substantive law applies, to analyze whether a federal rule of
procedure abridges, enlarges or modifies a substantive right.
[Shady Grove, 559 U.S. at 418-21 (Stevens, J.,
concurring)]; see Gasperini 518 U.S. at 427. Justice
Stevens advised courts not to rely on “whether the
state law at issue takes the form of what is traditionally
described as substantive or procedural.” Shady
Grove, 559 U.S. at 419 (Stevens, J., concurring).
Rather, a more nuanced approach is required. [Shady
Grove, 559 U.S. at 419-20]. Justice Stevens observed
that “[a] state procedural rule, though undeniably
‘procedural' in the ordinary sense of the term, may
exist to influence substantive outcomes, and may in some
instances become so bound up with the state-created right or
remedy that it defines the scope of that substantive right or
remedy.” [Shady Grove, 559 U.S. at
419-20](citation and internal quotation marks omitted). One
example of such a law is a procedural rule that “may .
. . define the amount of recovery.” [Shady
Grove, 559 U.S. at 420]. Ultimately, a court must
consider whether the federal procedural rule has displaced
“a State's definition of its own rights or
remedies.” [Shady Grove, 559 U.S. at 418]. If
so, the federal rule may be invalid under the Rules Enabling
Act because the federal rule abridges, enlarges or modifies a
state substantive right.
Racher v. Westlake Nursing Home Ltd. P'ship, 871
F.3d at 1164 (citations omitted) (alteration in the original)
(quoting Shady Grove, 559 U.S. at 418-20 (Stevens,
J., concurring)). “[W]hen state law creates a cause of
action, it also defines the scope of that cause of action,
” which includes “the applicable burdens,
defenses, and limitations.” Racher v. Westlake
Nursing Home Ltd. P'ship, 871 F.3d at 1164-65.
Consequently, even though burdens of proof, affirmative
defenses, and liability limitations are all legal concepts
that savor of procedure, “[f]ailing to enforce such
attendant attributes of a state law would lead to different
measures of the substantive rights enforced in state and
federal courts, ” i.e., would modify
substantive rights. Racher v. Westlake Nursing Home Ltd.
P'ship, 871 F.3d at 1165.
REGARDING CLASS CERTIFICATION UNDER RULE 23
sets forth the requirements for certifying a class action
under the Federal Rules of Civil Procedure. See
Fed.R.Civ.P. 23. All classes must satisfy: (i) all the
requirements of rule 23(a); and (ii) one of the three sets of
requirements under rule 23(b), where the three sets of
requirements correspond to the three categories of classes
that a court may certify. See Fed.R.Civ.P.
23(a)-(b). The plaintiff bears the burden of showing that
the requirements are met, see Rex v. Owens ex
rel. Okla., 585 F.2d 432, 435 (10th Cir. 1978);
Pueblo of Zuni v. United States, 243 F.R.D. 436, 444
(D.N.M. 2007) (Johnson, J.), but, in doubtful cases, class
certification is favored, see Esplin v. Hirschi, 402
F.2d 94, 101 (10th Cir. 1968) (“[T]he interests of
justice require that in a doubtful case, . . . any error, if
there is to be one, should be committed in favor of allowing
the class action.”); Eisen v. Carlisle &
Jacquelin, 391 F.2d 555, 563 (2d Cir. 1968) (“[W]e
hold that . . . rule  should be given a liberal rather
than a restrictive interpretation, and that [denying
certification] is justified only by a clear showing to that
[end]. . . .”). In ruling on a class certification
motion, the Court need not accept either party's
representations, but must independently find the relevant
facts by a preponderance of the evidence. See
Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228,
1234 (11th Cir. 2000) (“Going beyond the pleadings is
necessary, as a court must understand the claims, defenses,
relevant facts, and applicable substantive law in order to
make a meaningful determination of the certification
issues.”). “In determining the propriety of a
class action, the question is not whether the plaintiff or
plaintiffs have stated a cause of action or will prevail on
the merits, but rather whether the requirements of Rule 23
are met.” Anderson v. City of Albuquerque, 690
F.2d 796, 799 (10th Cir. 1982). See Vallario v.
Vandehey, 554 F.3d 1259, 1267 (10th Cir. 2009)
(“We, of course, adhere to the principle that class
certification does not depend on the merits of a
suit.”). Still, the Court must conduct a rigorous
analysis of the rule 23 requirements, even if the facts that
the Court finds in its analysis bear on the merits of the
Rule 23 does not set forth a mere pleading standard. A party
seeking class certification must affirmatively demonstrate
his compliance with the Rule -- that is, he must be prepared
to prove that there are in fact sufficiently numerous
parties, common questions of law or fact, etc. We recognized
in [General Telephone Co. of the Southwest v.]
Falcon that “sometimes it may be necessary for the
court to probe behind the pleadings before coming to rest on
the certification question, ” and that certification is
proper only if “the trial court is satisfied, after a
rigorous analysis, that the prerequisites of Rule 23(a) have
been satisfied. Actual, not presumed, conformance with Rule
23(a) remains indispensable.” Frequently that
“rigorous analysis” will entail some overlap with
the merits of the plaintiff's underlying claim. That
cannot be helped. The class determination generally involves
considerations that are enmeshed in the factual and legal
issues comprising the plaintiff's cause of action. Nor is
there anything unusual about that consequence: The necessity
of touching aspects of the merits in order to resolve
preliminary matters, e.g., jurisdiction and venue,
is a familiar feature of litigation.
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,
350-352 (2011) “Wal-Mart.”) In a
subsequent, seemingly contradictory admonition, however, the
Supreme Court cautioned district courts not to decide the
case's merits at the class certification stage:
Although we have cautioned that a court's
class-certification analysis must be “rigorous”
and may “entail some overlap with the merits of the
plaintiff's underlying claim, ” Rule 23 grants
courts no license to engage in free-ranging merits inquiries
at the certification stage. Merits questions may be
considered to the extent -- but only to the extent -- that
they are relevant to determining whether the Rule 23
prerequisites for class certification are satisfied.
Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568
U.S. 455, 465-66 (2013) (Ginsburg, J.). To reconcile these
two directives, the Court will find facts for the purposes of
class certification by the preponderance of the evidence, but
will allow the parties to challenge these findings during the
subsequent merits stage of this case. This approach is
analogous to preliminary injunction practice, and many
circuits have endorsed it. See Abbott v. Lockheed Martin
Corp., 725 F.3d 803, 810 (7th Cir. 2013); In re
Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 313
(3d Cir. 2008); Gariety v. Grant Thornton, LLP, 368
F.3d 356, 366 (4th Cir. 2004). Because of the res judicata
effect a class judgment has on absent parties, a court may
not simply accept the named parties' stipulation that
class certification is appropriate, but must conduct its own
independent rule 23 analysis. See Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 620-22 (1997). In taking evidence
on the question of class certification, the Federal Rules of
Evidence apply, albeit in a relaxed fashion. See Anderson
Living Trust v. WPX Energy Production LLC, No. CIV
12-0040 JB/LFG, 306 F.R.D. 312, 378 n.39 (D.N.M. March 19.
2015) (Browning, J.).
classes must satisfy the prerequisites of rule 23(a):
(a) Prerequisites. One or more members of a
class may sue or be sued as representative parties on behalf
of all members only if:
(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
(4) the representative parties will fairly
and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). “A party seeking to certify a
class is required to show . . . that all the requirements of
[rule 23(a)] are clearly met.” Reed v. Bowen,
849 F.2d 1307, 1309 (10th Cir. 1988). “Although the
party seeking to certify a class bears the burden of proving
that all the requirements of Rule 23 are met, the district
court must engage in its own ‘rigorous analysis' of
whether ‘the prerequisites of Rule 23(a) have been
satisfied.'” Shook v. El Paso Cty., 386
F.3d 963, 968 (10th Cir. 2004) (quoting Gen. Tel. Co. of
the S.W. v. Falcon, 457 U.S. 147, 161 (1982)) (citing
Reed v. Bowen, 849 F.2d at 1309). These four
requirements are often referenced as numerosity, commonality,
typicality, and adequacy, respectively. See
Fed.R.Civ.P. 23(a). The commonality requirement is
particularly relevant to this case, because the
plaintiffs' proposed class includes flight paramedics,
flight nurses, and pilots. See Motion at 2. The
Plaintiffs concede that “the details of Tri-State's
policy vary between Flight Paramedics and Flight nurses [sic]
on the one hand and Pilots on the other, ” but allege
that the end result is the same, because both groups receive
no overtime compensation. Motion at 15. The Plaintiffs
request that if the Court determines that pilots are not
“sufficiently similarly situated” (the standard
in § 50-4-26(D)), the Court conditionally certify the
groups as two separate classes. See Motion at 20.
Throughout the Motion, the Plaintiffs describe flight
paramedics/flight nurses and pilots separately. See
Motion at 2, 15-17. The Plaintiffs concede that flight
paramedics/flight nurses and pilots have different job
duties, and different work schedules. See Motion at
20. The Pilot Plaintiffs do not currently seek certification
for their unjust enrichment claim. See Motion at 4.
Under the rule 23 standard, therefore, there may be some
question whether there are “questions of law or fact
common to the class” of flight paramedics, flight
nurses and pilots. Fed.R.Civ.P. 23(a) (2).
23(a) (2) requires that “there are questions of law
or fact common to the class.” Fed.R.Civ.P.
23(a) (2) (emphasis added). Even “factual differences
in the claims of the individual putative class members should
not result in a denial of class certification where common
questions of law exist.” In re Intelcom Grp. Sec.
Litig., 169 F.R.D. 142, 148 (D. Colo. 1996) (Daniel,
J.). See Adamson v. Bowen, 855 F.2d 668, 676 (10th
Cir. 1988) (“That the claims of individual putative
class members may differ factually should not preclude
certification under Rule 23(b) (2) of a claim seeking the
application of a common policy.”); Lopez v. City of
Santa Fe, 206 F.R.D. 285, 289 (D.N.M. 2002)
(Vázquez, J.) (“Commonality requires only a
single issue common to the class, and the fact that
‘the claims of individual putative class members may
differ factually should not preclude certification under Rule
23(b) (2) of a claim seeking the application of a common
policy.'” (citations omitted)). A single common
question will suffice to satisfy rule 23(a) (2), but the
question must be one “that is central to the validity
of each one of the claims.” Wal-Mart, 564 U.S.
the facts as alleged show that Defendants' course of
conduct concealed material information from an entire
putative class, the commonality requirement is met.”
In re Oxford Health Plans, Inc. Sec. Litig., 191
F.R.D. 369, 374 (S.D.N.Y. 2000) (Brieant, J.). Accord
Initial Pub. Offering, 227 F.R.D. at 87 (“In
general, where putative class members have been injured by
similar material misrepresentations and omissions, the
commonality requirement is satisfied.”).
commonality requirement was widely perceived to lack teeth
before the Supreme Court's decision in Wal-Mart,
which grafted the following requirements onto rule 23(a) (2):
(i) that the common question is central to the validity of
each claim that the proposed class brings; and (ii) that the
common question is capable of a common answer. See
Wal-Mart, 564 U.S. at 348-52. In that case, a proposed
class of about 1.5 million current and former Wal-Mart
employees sought damages under Title VII for Wal-Mart's
alleged gender-based discrimination. See 564 U.S. at
342. Wal-Mart, however, had no centralized company-wide
hiring or promotion policy, instead opting to leave personnel
matters to the individual store managers' discretion.
See 564 U.S. at 343-45. The plaintiffs argued that,
although no discriminatory formal policy applied to all
proposed class members, “a strong and uniform
‘corporate culture' permits bias against women to
infect, perhaps subconsciously, the discretionary
decisionmaking of each one of Wal-Mart's thousands of
managers -- thereby making every [proposed class member] the
victim of one common discriminatory practice.” 564 U.S.
at 345. The Supreme Court disagreed that such a theory
constitutes a common question under rule 23(a) (2).
The crux of this case is commonality -- the rule requiring a
plaintiff to show that “there are questions of law or
fact common to the class.” Rule 23(a) (2). That
language is easy to misread, since “[a]ny competently
crafted class complaint literally raises common
‘questions.'” Nagareda, Class
Certification in the Age of Aggregate Proof, 84 N.Y.U.
L. Rev. 97, 131-132 (2009). For example: Do all of us
plaintiffs indeed work for Wal-Mart? Do our managers have
discretion over pay? Is that an unlawful employment practice?
What remedies should we get? Reciting these questions is not
sufficient to obtain class certification. Commonality
requires the plaintiff to demonstrate that the class members
“have suffered the same injury, ”
Falcon, 102 S.Ct. at 2364. This does not mean merely
that they have all suffered a violation of the same provision
of law. Title VII, for example, can be violated in many ways
-- by intentional discrimination, or by hiring and promotion
criteria that result in disparate impact, and by the use of
these practices on the part of many different superiors in a
single company. Quite obviously, the mere claim by employees
of the same company that they have suffered a Title VII
injury, or even a disparate-impact Title VII injury, gives no
cause to believe that all their claims can productively be
litigated at once. Their claims must depend upon a common
contention -- for example, the assertion of discriminatory
bias on the part of the same supervisor. That common
contention, moreover, must be of such a nature that it is
capable of classwide resolution -- which means that
determination of its truth or falsity will resolve an issue
that is central to the validity of each one of the claims in
What matters to class certification . . . is not the raising
of common “questions” -- even in droves -- but,
rather the capacity of a classwide proceeding to generate
common answers apt to drive the resolution of the
litigation. Dissimilarities within the proposed class are
what have the potential to impede the generation of common
Wal-Mart, 564 U.S. at 349-50 (emphasis in original)
(quoting Nagareda, supra, at 132). In EQT
Production Co. v. Adair, 764 F.3d 347 (4th Cir.
2011), the United States Court of Appeals for the Fourth
We first review the aspects of the district court's
analysis that apply to all five royalty underpayment classes.
At bottom, the district court believed that both the
commonality and predominance requirements of Rule 23 were
satisfied by the same basic fact: the defendants employed
numerous uniform practices related to the calculation and
payment of CBM [coalbed methane gas] royalties. These common
practices are not irrelevant to Rule 23(b)'s predominance
requirement. But we hold that the district court abused its
discretion by failing to consider the significance of this
common conduct to the broader litigation.
The district court identified numerous common royalty payment
practices. For example, it noted that EQT sells all of the
CBM it produces in Virginia to an affiliate, EQT Energy, and
that “all royalty owners within the same field have
been paid royalties based on the same sales price for the
CBM.” With respect to CNX, it noted that CNX “has
uniform policies and procedures which governed its
calculation of CBM revenues, ” and that “it has
deducted severance and license taxes when calculating
royalties since January 1, 2004.”
That the defendants engaged in numerous common practices may
be sufficient for commonality purposes. As noted above, the
plaintiffs need only demonstrate one common question of
sufficient importance to satisfy Rule 23(a) (2).
764 F.3d at 366 (citations omitted).
Wal-Mart, Justice Scalia stated: “Wal-Mart is
entitled to individualized determinations of each
employee's eligibility for backpay.” 564 U.S. at
366. From this observation, he then concluded:
Because the Rules Enabling Act forbids interpreting Rule 23
to “abridge, enlarge or modify any substantive right,
” 28 U.S.C. § 2072(b), a class cannot be certified
on the premise that Wal-Mart will not be entitled to litigate
its statutory defenses to individual claims. And because the
necessity of that litigation will prevent backpay from being
“incidental” to the classwide injunction,
respondents' class could not be certified even assuming,
arguendo, that “incidental” monetary relief can
be awarded to a 23(b) (2) class.
Wal-Mart, 131 U.S. at 367. Thus, the common question
or questions cannot be “incidental, ” nor can the
plaintiff submit a long list of “incidental”
questions or issues, and say that they predominate over the
real issues to be used.
the court concludes that the threshold requirements have been
met, “it must then examine whether the class falls
within at least one of three categories of suits set forth in
Rule 23(b).” Adamson v. Bowen, 855 F.2d at
675. See DG ex rel. Stricken v. Devaughn, 594 F.3d
1188, 1199 (10th Cir. 2010) (“In addition to satisfying
Rule 23(a)'s requirements, the class must also meet the
requirements of one of the types of classes described in
subsection (b) of Rule 23.”). Rule 23(b) provides that
a class action is appropriate if the threshold requirements
are satisfied, and the case falls into one or more of three
(b) Types of Class Actions. A class action
may be maintained if Rule 23(a) is satisfied and if:
(1) prosecuting separate actions by or
against individual putative class members would create a risk
(A) inconsistent or varying adjudications
with respect to individual putative class members that would
establish incompatible standards of conduct for the party
opposing the class; or
(B) adjudications with respect to individual
putative class members that, as a practical matter, would be
dispositive of the interests of the other members not parties
to the individual adjudications or would substantially impair
or impede their ability to protect their interests;
(2) 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
(3) the court finds that the questions of
law or fact common to putative 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 ...