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Payne v. Tri-State Careflight, LLC

United States District Court, D. New Mexico

September 25, 2018

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,
v.
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,
v.
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 Defendants

          MEMORANDUM OPINION AND ORDER

         THIS 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) (“Shady 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.

         FACTUAL BACKGROUND

         Defendant 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 each Plaintiff).

         The 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.

         Pilots 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.

         The 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).[1] See Motion at 5.

         The 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.

         PROCEDURAL BACKGROUND

         The 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.

         The 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.

         Approximately 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).

         1. The Motion.

         The 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.).

         The 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.

         The 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.

         The 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).[2]

         Because 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.

         2. The Response.

         Tri-State 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, J.)).

         Tri-State 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.

         Tri-State 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, [3] 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.

         Next, 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[4] 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).

         3. The Reply.

         The 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.).

         The 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 at 5.

         The 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 at 5.

         The 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.

         Next, 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.

         4. The Hearing.

         On May 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.”).[5] 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).

         The 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 replied:

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).

         The 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.

         The 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 (Moody).

         The 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).

         The 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 (Moody).

         The 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).

         The 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).

         The 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 amended.”).

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).

         The 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).

         The 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 28:18-25 (Lowry).

         The 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).

         The 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 (Court).

         The 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).

         The 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 39:24-40:3 (Moody).

         The 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).

         Finally, 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).[6]

         LAW REGARDING DIVERSITY JURISDICTION AND ERIE

         Under Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) (“Erie”), 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.).[7] “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.).[8] 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”)).[9] 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.).[10] 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.).

         LAW REGARDING ERIE AND THE RULES ENABLING ACT

         “In 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.

         If 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.

         LAW REGARDING CLASS CERTIFICATION UNDER RULE 23

         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[11] 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 [23] 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.[12] 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 suit:

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.).

         1. Rule 23(a).

         All 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).

         Rule 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. at 349.

         “Where 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.”).

         The 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 one stroke.
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 answers.

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 Circuit stated:

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).

         In 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.

         2. Rule 23(b).

         Once 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 categories:

(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 of:
(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 whole; or
(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 ...

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