Some courts have held that where nothing in company databases shows or could show whether individuals should be included in the proposed class, the class definition fails. See Clavell v. Midland Funding LLC, No. 10–3593, 2011 WL 2462046, at *4 (E.D.Pa. June 21, 2011); Sadler v. Midland Credit Mgmt., Inc., No. 06–C–5045, 2008 WL 2692274, at *5 (N.D.Ill. July 3, 2008); In re Wal–Mart Stores, Inc. Wage & Hour Litig., No. C 06–2069 SBA, 2008 WL 413749, at *8 (N.D.Cal. Feb. 13, 2008); Deitz v. Comcast Corp., No. C 06–06352 WHA, 2007 WL 2015440, at *8 (N.D.Cal. July 11, 2007). The ascertainability requirement serves several important objectives.
Marcus v. BMW of N. Am., LLC, 687 F.3d at 593 (citing Clavell v. Midland Funding LLC, No. 10-3593, 2011 WL 2462046, at *4 (E.D. Pa. June 21, 2011)(Dalzell, J.); Sadler v. Midland Credit Mgmt., Inc., No. 06-C-5045, 2008 WL 2692274, at *5 (N.D. Ill. July 3, 2008)(Pallmeyer, J.); In re Wal-Mart Stores, Inc. Wage & Hour Litig., No. C 06-2069 SBA, 2008 WL 413749, at *8 (N.D. Cal. February 13, 2008)(Armstrong, J.); Deitz v. Comcast Corp., No. C 06-06352 WHA, 2007 WL 2015440, at *8 (N.D. Cal. July 11, 2007)(Alsup, J.)). In Meyer v. BMW of North America, LLC, the Third Circuit concluded that a class definition of BMW owners whose tires had gone flat and been replaced was not administratively feasible, given that BMW did not have records of all BMW owners whose tires fit that definition, because not all BMW owners went to the dealership to replace their tires.
Marcus v. BMW of N. Am., LLC, 687 F.3d at 593 (citing Clavell v. Midland Funding LLC, No. 10-3593, 2011 WL 2462046, at *4 (E.D. Pa. June 21, 2011)(Dalzell, J.); Sadler v. Midland Credit Mgmt., Inc., No. 06-C-5045, 2008 WL 2692274, at *5 (N.D. Ill. July 3, 2008)(Pallmeyer, J.); In re Wal-Mart Stores, Inc. Wage & Hour Litig., No. C 06-2069 SBA, 2008 WL 413749, at *8 (N.D. Cal. February 13, 2008)(Armstrong, J.); Deitz v. Comcast Corp., No. C 06-06352 WHA, 2007 WL 2015440, at *8 (N.D. Cal. July 11, 2007)(Alsup, J.)). In Meyer v. BMW of North America, LLC, the Third Circuit concluded that a class definition of BMW owners whose tires had gone flat and been replaced was not administratively feasible, given that BMW did not have records of all BMW owners whose tires fit that definition, because not all BMW owners went to the dealership to replace their tires.
In addition, several courts have held that where nothing in company databases shows or could show whether individuals should be included in the proposed class, the class definition fails. Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 593 (3d Cir. 2012) (citing Clavell v. Midland Funding LLC, No. 10-3593, 2011 WL 2462046, at *4 (E.D. Pa. June 21, 2011); Sadler v. Midland Credit Mgmt., Inc., No. 06-C-5045, 2008 WL 2692274, at *5 (N.D. Ill. July 3, 2008); In re Wal-Mart Stores, Inc. Wage & Hour Litig., No. C 06-2069 SBA, 2008 WL 413749, at *8 (N.D. Cal. Feb. 13, 2008); Deitz v. Comcast Corp., No. C 06-06352 WHA, 2007 WL 2015440, at *8 (N.D. Cal. July 11, 2007)). In this case, Defendants' records may indicate every nurse and psyh tech that worked for them during the relevant time period but that is not the actual class Plaintiffs seek.
Defendant cites two cases, the first rejecting a class based on the complexity of determining residency, and therefore choice of law, of class members during the relevant time period, and the second denying class certification where identification of class members required a detailed review of each potential class member's personnel file. Id. (citing Sullivan v. Chase, 79 F.R.D. 246, 269 (N.D. Cal. 1978) and In re Wal-Mart Stores, Inc. Wage & Hour Litig., 2008 WL 413749, at *8 (N.D. Cal. Feb. 13, 2008)). These cases both predate the Ninth Circuit's decision in Briseno, which held that self-selection via affidavit is a viable means to ascertain class members, and the defendant's interest in challenging individual claims can be protected through the claims administration process.
See Clavell v. Midland Funding LLC, 2011 WL 2462046, at *4 (E.D. Pa. June 21, 2011)(Dalzell, J.); Sadler v. Midland Credit Mgmt., Inc., 2008 WL 2692274, at *5 (N.D.Ill. July 3, 2008)(Pallmeyer, J.); In re Wal-Mart Stores, Inc. Wage & Hour Litig., 2008 WL 413749, at *8 (N.D. Cal. Feb. 13, 2008)(Armstrong, J.); Deitz v. Comcast Corp., 2007 WL 2015440, at *8 (N.D. Cal. July 11, 2007)(Alsup, J.). 62.
O'Connor v. Boeing N. Am., Inc., 184 F.R.D. 311, 319 (C.D.Cal.1998). In re Wal Mart Stores, Inc. Wage & Hour Litig., 2008 WL 413749, *5 (N.D. Cal. Feb. 13,2008); Herrera v. LCS Fin. Servs. Corp., 274 F.R.D. 666, 675 (N.D. Cal. 2011) (finding class ascertainable because determining whether someone was a member of the class required a single question of proposed members). Ratnayake's proposed subclasses include Farmers customers that received insufficient anti-stacking discounts under Nevada law.
Under this framing of the waiting-time issue, the Court finds that common questions predominate and individualized inquiries into each driver's underpayment are not required. See In re Wal-Mart Stores, Inc. Wage and Hour Litigation, No. 06-2069, 2008 WL 413749, at *11 (N.D. Cal. Feb. 13, 2008) (reasoning that under the plaintiffs' theory that defendant engaged "in a systemic, corporate-level scheme to intentionally underpay its employees," did not appear to require individual inquiries into the circumstances surrounding each employee's final pay for a subclass of employees who were not paid all wages they earned while employed by defendant). B. Superiority
A quitting employee who does not appear to receive a final check must either return to the place of employment to retrieve payment, or give seventy-two hours' notice. See DLSE Op. Ltr. 1986.09.15; see also In re Wal-Mart Stores, Inc. Wage & Hour Litig., 2008 U.S. Dist. LEXIS 14756, 24-25 (N.D. Cal. Feb. 12, 2008). PetSmart argues that it is impossible to know from the data whether employees provided notice, appeared for tender, provided a mailing address, and so forth.
In re Wal-Mart Stores, Inc. Wage & Hour Litigation, cited by Microsoft in support of its position, is distinguishable. There, the court found the plaintiffs' third proposed subclass unascertainable because Wal-Mart's databases were incomplete, making it impossible to determine when individual employees quit and when they made themselves available for tender of final pay. No. C 06-2069 SBA, 2008 WL 413749, *8-9 (N.D. Cal. Feb. 13, 2008). Here, however, the m-Qube List is not dependent on one entity's records.