Ascencio v. Orion International ( 2020 )

06/02/2020
DA 19-0524
Case Number: DA 19-0524
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 144N
NISSA ASCENCIO AND ALL OTHERS
SIMILARLY SITUATED,
Plaintiffs and Appellants,
v.
ORION INTERNATIONAL CORP.,
Defendant and Appellee.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV 15-1000
Honorable Leslie Halligan, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Christopher W. Froines, Froines Law Office, Inc., Missoula, Montana
For Appellee:
Bradley J. Luck, Tessa A. Keller, Garlington, Lohn & Robinson, PLLP,
Missoula, Montana
Submitted on Briefs: April 15, 2020
Decided: June 2, 2020
Filed:
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__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Nissa Ascencio (“Ascencio”) appeals from an order of the Fourth Judicial District
Court, Missoula County, denying with prejudice her second motion to certify class.
Ascencio asserts the District Court abused its discretion in denying certification of a class
action based on her failure to establish the elements of superiority and predominance
pursuant to M. R. Civ. P. 23(b)(3). Alternatively, Ascencio requests remand for further
discovery. We affirm.
¶3 We adopt the factual and procedural history of this case that has been previously
narrated by this Court in Ascencio v. Orion Int’l Corp., 2018 MT 121, ¶¶ 3-9, 391 Mont.
336, 417 P.3d 1094 (Ascencio I). Since our 2018 decision, three events have occurred
that are relevant to Ascencio’s second motion to certify.
¶4 First, Ascencio deposed Kyle Whitney, who testified that he was employed by
Orion and handled “day to day operations” beginning in 2014. He also testified that his
parents were the owners of Orion and his father “was always the manager.” Whitney
testified that Orion ceased doing business in April 2016 and his parents moved out of
Montana to Florida. Second, the District Court denied Orion’s Motion for Partial
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Summary Judgment seeking a ruling that, as a matter of law, its inclusion of obsolete
adverse information in Ascencio’s background report was negligent and not willful. The
District Court concluded that the issue must be resolved by the trier of fact. Third,
discovery closed.
¶5 On May 3, 2019, the District Court postponed a settlement conference to allow
Ascencio to move to re-open discovery. The District Court had given Ascencio specific
instructions in a separate order on April 1, 2019, detailing its requirements in the event of
a motion to re-open discovery. The Order warned Ascencio that she must comply with
express instructions, including “proposals for deadlines for the remaining case
milestones, including the exchange of final witness and exhibit lists, final pretrial
motions, and the final pretrial order,” or risk summary denial. The District Court gave
Ascencio the opportunity to extend discovery, but her subsequent motion did not comply
with the District Court’s express, substantive instructions regarding the request. On July
8, 2019, the District Court denied Ascencio’s motion for additional discovery.
¶6 The District Court again denied Ascencio’s motion to certify class on the grounds
that she failed to establish the necessary criteria of predominance and superiority
pursuant to Rule 23(b)(3). The predominance element requires that “the questions of law
or fact common to the class members predominate over any questions affecting only
individual members.” M. R. Civ. P. 23(b)(3). The District Court held that there are
individualized factual disputes not common to all potential class members and that the
following two questions were dispositive: (1) the existence of a factual dispute over
whether Orion willfully or negligently included obsolete information in her background
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report; and (2) a factual dispute over how Ascencio was damaged by the inclusion of that
information. The District Court held that the first question would determine whether the
person is entitled to pursue exemplary damages, and that, even if this question could be
resolved in a single ruling applicable to every potential plaintiff, the second question of
individual damages would overwhelmingly dominate the proceedings.
¶7 The District Court also found that Ascencio failed to satisfy the superiority
requirement of Rule 23(b)(3). Ascencio was required to demonstrate that “a class action
is superior to other available methods for fairly and efficiently adjudicating the
controversy.” M. R. Civ. P. 23(b)(3). While Ascencio argued that the evidence that
Orion had closed shop and its principals had moved out of state substantially changes our
previous analysis on this issue, see Ascencio I, ¶ 21, the District Court disagreed finding
that the calculations of each of the potential plaintiffs’ damages would be particularly
difficult in a class action case.
¶8 We review a district court’s decision on a motion for class certification for an
abuse of discretion. Sangwin v. State, 2013 MT 373, ¶ 10, 373 Mont. 131, 315 P.3d 279.
In our review, we afford the trial court the broadest discretion because it “is in the best
position to consider the most fair and efficient procedure for conducting any given
litigation.” Sangwin, ¶ 10.
¶9 A party seeking class certification must satisfy the four prerequisites of
Rule 23(a)—numerosity, commonality, typicality, and adequate representation and the
two criteria of predominance and superiority under Rule 23(b)(3). Where a party fails to
make a sufficient showing regarding one prong of the test, there is no need to address the
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other prong. Ascencio I, ¶ 15. Ascencio has not satisfied the superiority criteria in this
case.
¶10 Regarding the superiority criteria, a class action will generally meet this element
in instances where each putative member is limited to “small recoveries,” since such
recoveries “do not provide the incentive for any individual to bring a solo action
prosecuting his or her rights.” Amchem Prods. v. Windsor, 521 U.S. 591, 617, 117 S. Ct.
2231, 2246 (1997) (citation omitted); see also Worledge v. Riverstone Residential Grp.,
LLC, 2015 MT 142, ¶¶ 43, 48, 379 Mont. 265, 350 P.3d 39.
¶11 Ascencio fails to argue any new substantive facts related to the superiority element
that would change our previous holding. She again argues that a class action is superior
because “other litigation methods are unavailable to the class members” since their
claims would result in only small recoveries and “pooling their resources is the only
practical way to pursue these claims.” Ascencio fails to explain with record evidence
why a class action would be superior to other methods since, based on her own claim
seeking significant monetary damages, it is unlikely that other putative class members
would be limited to small recoveries. See Ascencio I, ¶¶ 18-20. Ascencio has failed to
support her allegations with evidence and demonstrate why prosecuting this case as a
class action is superior to individual actions.
¶12 Finally, Ascencio’s request for remand for further discovery fails. A trial court is
allowed broad discretion in enforcing its own rules. State v. Schwictenberg, 237 Mont.
213, 218, 772 P.2d 853, 857 (1989). Discovery had already closed in this case at the time
Ascencio motioned to re-open discovery. The District Court’s April 1, 2019 order
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specifically warned Ascencio that she must comply with its express instructions
regarding a motion to re-open discovery. Ascencio failed to comply with the District
Court’s instructions. Accordingly, we decline to disturb the District Court’s
interpretation of its own requirements for motions to re-open discovery after it had
closed.
¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. This appeal
presents no constitutional issues, no issues of first impression, and does not establish new
precedent or modify existing precedent.
¶14 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR
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