Karl Risinger v. Soc LLC

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 1 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KARL E. RISINGER, No. 16-15120
Plaintiff-Appellee, D.C. No.
2:12-cv-00063-MMD-PAL
v.
SOC LLC; et al., MEMORANDUM*
Defendants-Appellants.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Argued and Submitted June 9, 2017
Pasadena, California
Before: GRABER and MURGUIA, Circuit Judges, and DAVILA, ** District
Judge.
SOC LLC, SOC-SMG, Inc., and Day & Zimmerman, Inc. (collectively,
“SOC”), appeal the district court’s order certifying a class of armed guards
represented by Plaintiff Karl E. Risinger, who worked for SOC in Iraq between
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward J. Davila, United States District Judge for the
Northern District of California, sitting by designation.
2006 and 2012. Risinger alleges that SOC misrepresented guards’ anticipated
work schedule and breached a provision of its employment agreement requiring the
performance of “customary” duties. We have jurisdiction pursuant to 28 U.S.C.
§ 1292(e). We review an order certifying a class for abuse of discretion, and any
factual findings relied upon by the district court for clear error. Parsons v. Ryan,
754 F.3d 657, 673 (9th Cir. 2014). We affirm.
SOC challenges the district court’s predominance determination under
Federal Rule of Civil Procedure 23(b)(3). “The Rule 23(b)(3) predominance
inquiry tests whether proposed classes are sufficiently cohesive to warrant
adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591,
623 (1997). It requires that “questions of law or fact common to class members
predominate over any questions affecting only individual members.” Fed. R. Civ.
P. 23(b)(3). A question is “individual” if members of the proposed class will need
to present varying evidence, whereas a question is “common” if the same evidence
can be used for each member to make a prima facie showing, or if the issue can be
proved by generalized, class-wide proof. Torres v. Mercer Canyons Inc., 835 F.3d
1125, 1134 (9th Cir. 2016).
The district court permissibly found that SOC recruiters made nearly
identical representations concerning guards’ anticipated work schedule. See
United States v. Working, 224 F.3d 1093, 1102 (9th Cir. 2000) (en banc). SOC’s
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contract with the Department of Defense limited guards to a 6-day, 72-hour
workweek, which was reflected in scripts used by recruiters. Additionally, SOC
employees and several recruits described a similar understanding. Because the
district court’s finding renders the misrepresentation element of Risinger’s fraud
claims amenable to class-wide proof, the district court did not abuse its discretion
by concluding that common issues would predominate. See Henry v. Lehman
Commercial Paper, Inc. (In re First All. Mortg. Co.), 471 F.3d 977, 990-91 (9th
Cir. 2006).
Similarly, the district court did not abuse its discretion by deciding that a
common question of contract interpretation predominates for Risinger’s breach of
contract claim. SOC’s standardized employment agreement provided that guards
“shall perform duties and responsibilities that are customary for [the] employee’s
position.” On summary judgment, the district court determined “customary” to be
ambiguous, and found “genuine issues of material fact exist as to whether the
Employment Agreement provided for a 72-hour workweek as ‘customary.’”
Because the evidence needed to resolve the ambiguity is common to the class,
individual issues will not predominate.
Furthermore, we predict the Supreme Court of Nevada would adopt, in a
fraud action, a presumption of reliance on a material misrepresentation. See
Johnson v. Travelers Ins. Co., 515 P.2d 68, 72 & n.4 (Nev. 1973) (citing with
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approval a California case that recognizes a presumption of reliance). The district
court, therefore, did not abuse its discretion by determining that common issues
would predominate with respect to other aspects of the fraud claim: materiality and
reliance. As just noted, the court permissibly found that all class members were
exposed to the same recruitment script and that SOC made the same representation
to all class members. The district court also permissibly concluded, on this record,
that the 72-hour workweek representation was material to all class members.
Finally, we reject as unpersuasive SOC’s arguments that the certification
order violates the Rules Enabling Act, due process, or Article III principles. See
Vaquero v. Ashley Furniture Indus., Inc., 824 F.3d 1150, 1156 (9th Cir. 2016)
(holding that the Rules Enabling Act is not violated where a defendant may still
challenge the sufficiency of evidence after class certification); see also Torres, 835
F.3d at 1137 (explaining that “fortuitous non-injury to a subset of class members
does not necessarily defeat certification of the entire class, particularly as the
District Court is well-situated to winnow out those non-injured members at the
damages phase of the litigation, or to refine the class definition”).
AFFIRMED.
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