Shaun Nguyen v. Starbucks Corporation ( 2010 )

FILED
NOT FOR PUBLICATION MAY 05 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROYA KOIKE and ADAM ODNERT, on No. 09-15541
behalf of themselves and all others
generally situated, and on behalf of the D.C. No. 3:06-cv-03215-VRW
general public,
Plaintiffs, MEMORANDUM*
and
SHAUN NGUYEN,
Petitioner-intervenor -
Appellant,
v.
STARBUCKS CORPORATION,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, Chief District Judge, Presiding
Argued and Submitted April 13, 2010
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: KLEINFELD, TASHIMA and THOMAS, Circuit Judges.
Shaun Nguyen, an intervenor, appeals the district court’s denial of a motion
for class certification in a diversity action brought by former Starbucks employees
Roya Koike and Adam Obnert. We have jurisdiction pursuant to 18 U.S.C. §
1291, and we affirm.
I
We have appellate jurisdiction to entertain this appeal. Starbucks argues that
we lack jurisdiction to hear this appeal because no final judgment has been entered
as to Nguyen, who intervened only after judgment was entered against plaintiffs
Koike and Obnert. However, both this court and the Supreme Court have held that
a putative class member can intervene for the limited purpose of appealing a
district court’s denial of class certification subsequent to the entry of final
judgment as to the named plaintiff’s claim, thus implicitly concluding that circuit
courts have jurisdiction to hear such appeals. See United Airlines, Inc. v.
McDonald, 432 U.S. 385, 393-96 (1977); see also Alaska v. Suburban Propane
Gas Corp., 123 F.3d 1317, 1320-21 (9th Cir. 1997).
II
The district court’s denial of the motion for class certification was proper.
Even giving full credence to the evidence presented by Koike, this evidence tends
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to show only that business pressures exist which might lead assistant managers to
work off-the-clock. The district court did not abuse its discretion in finding that
individualized factual determinations are required to determine whether class
members did in fact engage in off-the-clock work and whether Starbucks had
actual or constructive knowledge of off-the-clock work performed.
Nguyen argues that the district court abused its discretion by improperly
assessing the merits of Koike’s claims. However, a “district court may consider
the merits of the claims to the extent that it is related to the Rule 23 analysis.”
Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 947 n. 15 (9th Cir. 2009).
The district court’s analysis clearly related to the issue of predominance under Rule
23(b)(3), and was not an improper assessment of the merits.
Nguyen argues that the evidence presented by Starbucks does not undermine
Koike’s ability to prove her claims with common evidence. First, Nguyen argues
that the testimony of Starbucks’ statistical expert is consistent with Koike’s
assertion that class members regularly needed to work more than forty hours per
week to complete assigned tasks. This contention ignores the fact that the district
court assumed as true that assistant managers’ job tasks require work in excess of
forty hours per week, yet nonetheless properly determined that individual issues
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predominate. Thus, the fact that the expert’s testimony can be reconciled with
Koike’s assertion does not undermine the district court’s conclusion.
Nguyen also argues that the expert’s testimony regarding variations in the
amount of overtime worked from pay period to pay period is irrelevant to the issue
of class certification because variation in damages among class members should
not preclude certification. However, the district court did not rest its denial of class
certification on a variation in damages. It considered the expert’s testimony
regarding variation in overtime worked only in determining that a number of
Starbucks stores had excess non-overtime capacity, thus allowing those assistant
managers with more than forty hours of work per week to delegate work to others.
This conclusion speaks to variations in Starbucks’ liability as opposed to merely at
the damages stage.
Nguyen argues that the declarations of current assistant managers submitted
by Starbucks have no evidentiary value because the declarants are not class
members and because courts are reluctant to give significant weight to declarations
that constitute a “litigation-driven” selective sampling of employees. However, the
district court relied on these declarations only as evidence that (1) Starbucks
trained its assistant managers regarding its policy against off-the-clock work, and
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(2) assistant managers were paid for some overtime work during the class period.
Neither proposition is in dispute.
Finally, Nguyen argues that the district court abused its discretion in
declining to assign an adverse inference to Starbucks’ failure to submit the results
of its class member survey. We disagree. The adverse inference which Koike
sought would not have undermined the district court’s decision. Thus, the district
court did not abuse its discretion in declining to apply any adverse inference.
AFFIRMED.
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