Case 1:17-cv-00188 Document 1 Filed 02/07/17 Page 1 of 26

UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO

LISA A. KENNICOTT, LISA A. GARCIA, and SUE C. PHELPS, on behalf of themselves and a class of those similarly situated,
Plaintiffs,
v.
SANDIA CORPORATION d/b/a SANDIA NATIONAL LABORATORIES,
Defendants.

CIVIL ACTION NO. CLASS ACTION COMPLAINT (Trial by Jury Demanded)

Plaintiffs Lisa A. Kennicott, Lisa A. Garcia, and Sue C. Phelps (“Plaintiffs”), on behalf of themselves and all others similarly situated, allege as follows:
SUMMARY OF CLAIMS 1. Plaintiffs bring this action alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the New Mexico Human Rights Act, N.M. Stat. Ann. 1978, § 28-1-1 et seq., and the New Mexico Fair Pay for Women Act, N.M. Stat. Ann. 1978 § 28-23 et seq., based on Sandia National Laboratories’ (“Sandia”) continuing policy, pattern, and practice of sex discrimination against female employees, with respect to performance evaluations, pay, promotions, and other terms and conditions of employment. Sandia has implemented these policies and practices despite knowing that they have a longstanding disparate impact on female employees. Sandia also retaliates against female employees who complain about this discrimination. 2. Sandia National Laboratories (“Sandia”) is a federally-funded research and development contractor operating under contract for the Department of Energy and managed by Sandia Corporation. While the historic focus of Sandia’s work has been on the development of

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the United States’ nuclear weapons systems, Sandia also performs research in several other fields, including computer science, engineering, biology, and mathematics—with a focus on national security. Sandia’s operating budget in 2015 was $2.8 billion. Sandia is a major employer, with approximately 11,700 employees in 2015. It has two main locations: Albuquerque, New Mexico, and Livermore, California. Upon information and belief, over 99% of Sandia employees work at these two locations.
3. As a result of Sandia’s policies, patterns, and practices, female employees receive less compensation and are promoted less frequently than their male counterparts. Sandia’s company-wide policies and practices systematically violate female employees’ rights and operate in a corporate culture infected with gender bias. The disadvantage to female employees in performance evaluations, pay, and promotion is not isolated or exceptional, but rather is the regular and predictable result of Sandia’s policies and practices and lack of proper accountability measures to ensure fairness.
4. In addition to bringing this action on behalf of themselves, Plaintiffs also bring this action on behalf of a class of similarly situated current and former female employees employed by Sandia in the United States (the “Class”), in order to end Sandia’s discriminatory policies and practices and to make the Class whole.

Plaintiff Lisa A. Kennicott

THE PARTIES

5. Plaintiff Lisa A. Kennicott is a woman who has been employed by Sandia from 1999 to the present in Albuquerque, New Mexico. Plaintiff Kennicott was also employed by Sandia from January 1995 to February 1998. Plaintiff Lisa A. Garcia

6. Plaintiff Lisa A. Garcia is a woman who has been employed by Sandia from July 1988 to the present in Albuquerque, New Mexico.

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Plaintiff Sue C. Phelps 7. Plaintiff Sue C. Phelps is a woman who was employed at Sandia from May 1989
until her retirement in April 2016 in Albuquerque, New Mexico. Defendant
8. Defendant Sandia Corporation (“Sandia”), a wholly-owned subsidiary of Lockheed Martin Corporation, is a corporation formed under the laws of the State of Delaware with its corporate headquarters at Kirtland Air Force Base, Albuquerque, New Mexico 871851382. Sandia Corporation does business as Sandia National Laboratories.
9. Upon information and belief, Sandia’s headquarters is in the State of New Mexico, where it maintains control, oversight, and direction over the operation of its facilities, including its employment practices.
10. During all relevant times, Sandia was Plaintiffs’ employer within the meaning of all applicable statutes.
11. At all times pertinent hereto, Sandia has employed more than five hundred people. JURISDICTION AND VENUE
12. This Court has original subject matter jurisdiction over Title VII claims pursuant to 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. § 2000e-5(f)(3), because they arise under the laws of the United States and are brought to recover damages for deprivation of equal rights.
13. This Court has jurisdiction over the New Mexico Human Rights Act and New Mexico Fair Pay for Women Act claims under the Class Action Fairness Act, 28 U.S.C. § 1332(d), because this is a class action in which: (a) there are 100 or more members in the proposed class; (b) at least some members of the proposed class have a different citizenship from Defendant; and (c) the claims of the proposed class members exceed $5,000,000 in the aggregate.
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14. In addition, this Court has supplemental jurisdiction over the New Mexico Human Rights Act and New Mexico Fair Pay for Women Act claims because they arise from a common nucleus of operative facts with the federal claims and are so related to the federal claims as to form part of the same case or controversy under Article III of the United States Constitution.
15. Venue is proper in this judicial district under 28 U.S.C. § 1391(b)-(c) and 42 U.S.C. § 2000e-5(f)(3), because Sandia maintains offices in this district, conducts business in this district, and a substantial part of the events and omissions giving rise to the claims alleged herein occurred in this district, and because the alleged unlawful employment practices were committed here, and employment records relevant to those practices are maintained and administered here.
16. The District of New Mexico has personal jurisdiction over Sandia because it maintains offices in this district, does business in New Mexico and in this district, and because many of the acts complained of and giving rise to the claims alleged herein occurred in New Mexico and thus this district.
17. Plaintiffs have exhausted their administrative remedies and complied with all statutory prerequisites to their Title VII and New Mexico Human Rights Act claims. Plaintiff Lisa A. Kennicott filed a charge of gender discrimination with the EEOC and New Mexico Human Rights Bureau on December 17, 2014 and an amended charge of gender discrimination on April 13, 2016, alleging gender discrimination and retaliation individually and on behalf of all similarly situated female employees employed by Sandia. The original and amended charges are attached as Exhibits A and B (and incorporated herein). On February 2, 2017, Plaintiff Kennicott requested a right to sue from the EEOC. The original complaint in this action has thus been filed within ninety days of the Notice of Right to Sue.
18. Plaintiff Lisa A. Garcia filed a charge of gender discrimination individually and on behalf of all similarly situated female employees employed by Sandia on April 29, 2016 with
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the EEOC and New Mexico Human Rights Bureau. Her original and amended charges of gender discrimination are attached as Exhibits C, D, and E (and incorporated herein). On February 2, 2017, Plaintiff Garcia requested a right to sue from the EEOC. The original complaint in this action has thus been filed within ninety days of the Notice of Right to Sue.
19. Plaintiff Sue C. Phelps filed a charge of gender discrimination individually and on behalf of all similarly situated female employees employed by Sandia on April 25, 2016 with the EEOC and New Mexico Human Rights Bureau. Her charge of gender discrimination is attached as Exhibit F (and incorporated herein). By notice dated November 8, 2016 and postmarked November 9, 2016, the EEOC issued a Notice of Right to Sue, which Ms. Phelps received on November 10, 2016. See Exhibit G. The original complaint in this action has thus been filed within ninety days of the Notice of Right to Sue.
FACTUAL ALLEGATIONS 20. Sandia maintains uniform employment, compensation, performance review, and promotion policies throughout the United States. Sandia also cultivates and promotes a common corporate culture. These policies and this culture originate in Sandia headquarters in the State of New Mexico, and are disseminated to its offices in the rest of the country. 21. Sandia’s laboratories and offices throughout the U.S. use a common organizational structure, organizing employees by common job titles. 22. While Sandia does not publish diversity figures, it has been reported in the popular press that women make up only 32 percent of Sandia employees.1 23. Sandia discriminates against female employees in (1) performance evaluations; (2) compensation; and (3) promotions.
1 See Kevin Robinson-Avila, Hruby breaks glass ceiling at Sandia National Labs, Albuquerque Journal, June 22, 2015, available at https://www.abqjournal.com/602365/jill-hruby-will-headsandia-labs.html (last visited Dec. 14, 2016).
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Performance Evaluations 24. Sandia uses common, unvalidated, unreliable, and discriminatory procedures for
evaluating employee performance that systematically undervalue female employees relative to their similarly situated male peers. This has been true throughout the class period.
25. Sandia uses a companywide “stack ranking” system for evaluating employee performance, which requires supervisors to rank employees from worst to best using a performance rating from 1 through 5, with 1 being worst, and 5 being best. Only a certain percentage of employees in a defined peer group may be assigned certain ranks—for example, only a certain percentage of employees may receive a 5.
26. This process is an invalid performance measurement system, as it sets arbitrary cutoffs among performers with similar performance. The stack ranking process forces a distribution of performance ratings outcomes (from 1 through 5) regardless of whether there are meaningful performance differences between individual employees within a particular peer group.
27. Worse still, an employee’s rank is not based on valid and reliable performance measures. Sandia instructs managers to evaluate employees, in part, based on four “personality” or “behavior” factors: Strategic Thinking, Adapting to Meet Demands, Teaming with Others, and Modeling Personal Accountability. These criteria are invalid and unreliable and disadvantage women. Supervisors were instructed to use the four unreliable qualitative assessments of employees’ performance (that is, Strategic Thinking, Adapting to Meet Demands, Teaming with Others, and Modeling Personal Accountability) in assigning the employees in their review group a recommended ranking from worst to best (1 through 5).
28. Employees have been organized into peer groups to be rated against one another in so-called “Centers,” which are collections of several managers’ employees. Supervisors attend these meetings and present the merits of their own employees as compared to the other
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supervisors’ employees. Because of the lack of reliable metrics, an employee could end up with a poor rating within a “Center,” regardless of her actual performance record and the rank her supervisor originally recommended.
29. This forced ranking process takes place annually, and performance review scores are used for compensation and promotion decisions.
30. In this system, female employees are systematically undervalued compared to their male peers because female employees receive, on average, lower rankings despite equal or better performance. Upon information and belief, female employees are particularly adversely impacted by “Center” meetings, where the vast majority of attending managers are men. The proportion of men in management roles only increases at higher levels of the organization.
31. Predictably, performance management systems that include unreliable and invalid criteria create inaccurate and biased outcomes, especially when they operate within a culture of bias towards women, as is true at Sandia.
32. Upon information and belief, Sandia’s stack ranking system has had an adverse impact upon female employees. Compensation
33. Sandia employs common, unvalidated, unreliable, and discriminatory procedures for determining employees’ compensation that disparately impact female employees.
34. Gender inequity in compensation compounds over time because every annual compensation decision, such as the amount of salary increase, is affected by an employee’s current salary and salary band.
35. Class Members’ compensation includes two components: salary and bonus. After each review period, Class Members are eligible for a merit increase to their base salary and a bonus. Whether, and how much, an employee receives in any of these categories is determined by her performance rating and job title. Because women have been systematically disadvantaged
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by the stack ranking performance evaluation process, their outcomes in terms of raises and bonuses have suffered compared to their male peers.
36. Sandia’s uniform employment practices of salary setting and performance evaluation cause a disparate impact on female employees’ compensation at Sandia. Promotions
37. Sandia also employs common, unvalidated, unreliable, and discriminatory procedures for selecting employees for promotion. Because promotions are tied to the performance review process, female employees are adversely impacted in promotions as well. Promotions are not determined by objective, valid, and/or reliable performance measures.
38. In order to be eligible for promotion at Sandia, an employee must be at the higher end of a salary band for his or her job title. Because women earn less than similarly situated men, men are placed more highly in the salary band and are therefore more likely to eligible for promotion based on this factor.
39. Additionally, to be eligible for promotion, employees must also have demonstrated “leadership,” an unreliable, poorly defined, and tainted criterion, especially because women often do not receive leadership opportunities in light of a culture of gender bias.
40. Overall, upon information and belief, Sandia promotes an overwhelmingly disproportionate number of men, and passes over equally or more qualified women.
CLASS ACTION ALLEGATIONS 41. Plaintiffs Kennicott, Garcia, and Phelps bring this class action pursuant to Federal Rules of Civil Procedure 23(a), (b)(2), and (c)(4) seeking liability-phase injunctive and declaratory relief on behalf of a nationwide Class of all female employees employed by Sandia in the United States at any time from February 20, 2014 through the resolution of this action for claims under Title VII and the New Mexico Human Rights Act. Plaintiffs also bring this class action pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3) seeking backpay, monetary
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damages, and other make-whole relief on behalf of a nationwide Class of all female employees employed by Sandia in the United States at any time from February 20, 2014 through the resolution of this action for claims under Title VII and the New Mexico Human Rights Act, and for the period from December 17, 2008 through resolution of this action for claims under the New Mexico Fair Pay for Women Act. Plaintiffs reserve the right to amend the definition of the Class based on discovery or legal developments.
42. Plaintiffs are members of the Class they seek to represent. 43. The members of the Class identified herein are so numerous that joinder of all members is impracticable. Sandia had a headcount of approximately 11,700 employees in 2015. Although Plaintiffs do not know the precise number of female employees at Sandia nationwide, the number is far greater than can be feasibly addressed through joinder. 44. There are questions of law and fact common to the Class, and these questions predominate over any questions affecting only individual members. Common questions include:
a. whether Sandia’s policies and practices discriminate against female employees;
b. whether Sandia’s policies and practices violate Title VII and/or the New Mexico Human Rights Act and/or the New Mexico Fair Pay for Women Act;
c. whether Sandia’s performance evaluation system discriminates against female employees;
d. whether Sandia’s compensation system discriminates against female employees;
e. whether Sandia’s promotion system discriminates against female employees;
f. whether Sandia has failed to implement policies and procedures to prevent retaliation against employees who challenge gender discrimination in the workplace, has failed
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to address complaints of gender discrimination in the workplace, and has failed to conduct proper investigations of the same; and
g. whether equitable remedies, injunctive relief, compensatory damages, and punitive damages for the Class are warranted.
45. Plaintiffs’ claims are typical of the claims of the Class they seek to represent. 46. Plaintiffs will fairly and adequately represent and protect the interests of the Class they seek to represent. 47. Plaintiffs have retained counsel competent and experienced in complex class actions and employment discrimination litigation. 48. Class certification is appropriate pursuant to Federal Rule of Civil Procedure 23(b)(2) because Sandia has acted and/or refused to act on grounds generally applicable to the Class, making appropriate declaratory and injunctive relief with respect to Plaintiffs and the Class they seek to represent. The Class Members are entitled to injunctive relief to end Sandia’s common, uniform, unfair, and discriminatory policies and practices. 49. Class certification is also appropriate as to the Class pursuant to Federal Rule of Civil Procedure 23(b)(3) because common questions of fact and law predominate over any questions affecting only individual members of the Class, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. The Class Members have been damaged and are entitled to recovery as a result of Sandia’s common, unfair, and discriminatory policies and practices. Sandia has computerized laboratory data, payroll data, and personnel data that will make calculation of damages for specific Class Members relatively simple. The propriety and amount of punitive damages are based on Sandia’s common conduct, making these issues common to the Class.
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CLAIMS OF NAMED PLAINTIFFS Plaintiff Lisa A. Kennicott
50. Plaintiff Kennicott was hired by Sandia in 1995 as a Member of Technical Staff. She worked at that title until 1998, when she left for other employment. In 1999, Sandia re-hired Plaintiff Kennicott as a Senior Member of Technical Staff. In 2005, she was promoted to the title of Principal Member of Technical Staff, a standard title she has functionally held to the present within the Advanced Instrumentation Systems, Flight & Instrumentation Systems, Equipment Engineering, and Transporter Systems Development organizations of Sandia.
51. Ms. Kennicott earned a master’s degree in computer science from the University of New Mexico in 1991 and also holds a master’s degree from Harvard University.
52. During the Class period, Ms. Kennicott has been subject to Sandia’s company performance review process and has received reviews that have not adequately recognized her contributions, negatively affecting her compensation and opportunity for promotion. Despite contributing equally or surpassing her male peers, Ms. Kennicott has not received a top review score of 5 during the class period. Unlike her male colleagues who have advanced from the title of Principal level to the Distinguished level at a steady rate, Ms. Kennicott has held the same job title for more than 12 years.
53. Each year as part of the performance review process, Ms. Kennicott received either a chart indicating her salary relative to employees of the same salary band, or a “compa ratio” figure, indicating the same information. In a majority of years during the class period, Ms. Kennicott’s salary was consistently below average, despite positive performance evaluations. After her promotion to the Principal level in 2005, it took Ms. Kennicott nearly a decade to rise to even the average salary within her salary band.
54. In the fall of 2013, Ms. Kennicott expressed interest in a technical opportunity. Ms. Kennicott’s experience and skills matched the needs of the advertised position, but she was
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advised that a less qualified male colleague had already been selected prior to publication of the job posting.
55. Recognizing that she and other women were not offered leadership positions and opportunities to work on high-profile projects at the same rate as their male colleagues, in March 2014, Ms. Kennicott raised concerns about the treatment of women at Sandia to the director of Ms. Kennicott’s Center (a collection of several managers’ employees), a male. The director told her he commenced an internal Equal Employment Opportunity (“EEO”) investigation.
56. In June 2014, Ms. Kennicott applied for a technical leadership opportunity. During her interview for the position, a male manager informed her that he did not want to select her for the job because of her pending EEO complaint and advised her to be less intense “on these women issues.” Ms. Kennicott was not fairly considered for the position in retaliation for raising concerns of gender discrimination.
57. Additionally, soon after Ms. Kennicott raised her gender discrimination complaint, her manager, a male, retaliated against her by expressing concerns about unspecified negative “behaviors.” Meanwhile, despite the fact that she was undergoing cancer treatment for which she was on a doctor-specified works-hours restriction, her manager increased Ms. Kennicott’s workload substantially above that of her peers. During August 2014, to keep up with her extreme workload and trying to mitigate the risk of further retaliation regarding her work, Ms. Kennicott refrained from taking a needed cancer medication for several months, putting her life at risk. Her manager did not to reduce her workload despite repeated requests.
58. Whereas Ms. Kennicott earned a second-highest review score in 2010, 2011, 2012, and 2013 (a 4 on a 1 to 5 scale), in 2014—after she raised concerns of gender discrimination—Ms. Kennicott received a score of 3 on a 1 to 5 scale. In his oral delivery of her review, her manager, who had earlier told her to be “softer” in her speech, engaged in additional gender-based critiques of her communication and teamwork skills, noting that she had a
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reputation of being “difficult.” Ms. Kennicott then refuted his comments with correspondence from her colleagues praising her communication and teamwork skills. Nevertheless, her manager—in coordination with the male manager who did not offer her the leadership opportunity because of the discrimination complaint—justified Ms. Kennicott’s performance review score by fabricating an assignment he claimed that she did not complete. When she met with two co-workers, two managers, and an HR professional to discuss the fabricated assignment, she successfully refuted its existence. After the meeting, the HR professional handed her a list of further gender-based critiques: she should be less of a “driver in meetings,” exhibit better “teaming behavior,” and stop exhibiting “victim behaviors.” Additionally, the HR professional told her that ultimately her “problem” was that she is an “alpha female.”
59. In 2015, Ms. Kennicott’s manager continued to retaliate against her for having raised a gender discrimination complaint by forcing her to maintain a workload in excess of her male peers and at great cost to her personal health. Despite several requests for medical accommodations, including requests in October 2014, January 2015, and February 2015—and the fact that in December 2014 Sandia’s medical department placed her on a 48-hour workweek restriction—Ms. Kennicott regularly worked 60 or more hours per week until March 2015. During that time period, she also on several occasions worked in excess of 14 hours per day. Once again, in January 2015, Ms. Kennicott received a performance review score of 3.
60. Ms. Kennicott’s performance review scores of 3 in 2014 and 2015 disqualified her from being eligible for promotion to the Distinguished level.
61. To escape retaliation and career stagnation, Ms. Kennicott moved to different organizations of Sandia in September 2015 (Engineering Equipment) and September 2016 (Secure Transportation Systems), maintaining the same Principal level title with each move. With each move, Ms. Kennicott’s potential to excel in her position and achieve promotion to the Distinguished level has diminished. And with each move, Ms. Kennicott has continued to
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observe a culture of bias. For example, in her last position, Ms. Kennicott, a computer engineer at the Principal level, was assigned to report to a male Technologist—a subordinate position. In her current position, she has observed a male manager describe efforts to “rough up” women in job interviews to ensure that “they can take it here.”
62. As a result of Sandia’s performance evaluation, compensation, and promotion process, Ms. Kennicott has been paid less than comparable male coworkers in the same position. She has also been denied a promotion that she was eligible and qualified for, while equally or less qualified men were promoted above her.
63. As a result of Sandia’s retaliation against Ms. Kennicott for raising a gender discrimination complaint, Ms. Kennicott suffered harm, including reduced pay and promotion opportunity. Plaintiff Lisa A. Garcia
64. Plaintiff Garcia was hired by Sandia in July 1988 as a custodian. She rose through the ranks of the mailroom, payment processing department, and administrative section of the Radiation Protection department. In 1997, she began working as a Health Physics Technologist in Dosimetry within Radiation Protection. However, for her first year working as a Technologist, Plaintiff Garcia, unlike her male colleagues, was required to hold the lower-paying administrative title of Management Assistant. Then, in 1998, she was given the formal title of Health Physics Technologist in Dosimetry within Radiation Protection. In 1999, she was promoted to Senior Health Physics Technologist in Dosimetry within Radiation Protection. In 2000, she made a lateral move to the title of Electromechanical Senior Technologist in Secure Transportation. This was not a promotion. Then, in 2005, she made another lateral move to the title of Electronics Senior Technologist in Satellites. Again, this was not a promotion. In 2008, she was promoted for the first time in 9 years to the title of Principal Technologist in Satellites,
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and then in 2009, she made a lateral move to the title of Principal Technologist in Telemetry. She has held the title of Principal Technologist from 2008 to the present.
65. Ms. Garcia earned a bachelor’s degree in business from the College of Santa Fe in 2001. Additionally, in 2003, she earned a Certificate in Electronics from what was then known as the Technical Vocational Institute of New Mexico.
66. During the Class period, Ms. Garcia has been subject to Sandia’s performance review process and has received reviews that have not fully recognized her contributions, which have negatively affected her compensation.
67. Ms. Garcia was paid less than men with significantly less seniority and experience in her Technologist roles. For example, in 2002, Ms. Garcia learned that she was earning less than a male Technologist with less seniority and experience.
68. While Ms. Garcia has received review scores of 4, she has never received a top review score of 5. Comments within her reviews have revealed a culture of sexism at Sandia. She has been told both that she can “never compete” with the “younger men’s education,” and she can “never compete” with “older men’s experience.” In essence, she has been told that she cannot “compete” with any of her male colleagues. In light of this environment of bias and her failure to receive review scores of 5 despite strong contributions, Ms. Garcia, unlike similarly situated male colleagues, has not been promoted to Distinguished Technologist or Member of Technical Staff.
69. Gender-based stereotypes abound at Sandia. While Ms. Garcia’s male colleagues are offered projects that involve travel, Ms. Garcia is generally not offered these opportunities, despite her expressed interest. Sandia’s exclusion of Ms. Garcia from travel opportunities has limited her ability to demonstrate “leadership” and achieve promotion. Ms. Garcia has also been told to “clean this lab like you would your kitchen,” and when she uses power tools in the
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ordinary course of her job, she is asked if she knows how to use them, despite her years of experience.
70. As a result of Sandia’s performance evaluation, compensation, and promotion process, Ms. Garcia has been paid less than comparable male coworkers in the same position and has not received promotions for which she was eligible and qualified. Plaintiff Sue C. Phelps
71. Plaintiff Phelps was hired by Sandia in May 1989 as a Member of Technical Staff, Scientific Computing. In 1997, she was promoted to Senior Member of Technical Staff, Scientific Computing. She did not receive another promotion for more than 15 years, despite making significant contributions to her job and earning a Ph.D. degree in the meantime. In 2000, Ms. Phelps made a lateral move to the title of Senior Member of Technical Staff, High Performance Computing Research; in 2005, she made a lateral move to the title of Senior Member of Technical Staff within the division of Defense Systems and department of Missile Defense; and in 2011, Ms. Phelps made a lateral move to the title of Senior Member of Technical Staff within the division of Defense Systems and department of Phenomenology & Sensor Sciences. None of these lateral moves were promotions. In 2013, she was finally promoted to Principal Member of Technical Staff, remaining in the division of Defense Systems and department of Phenomenology & Sensor Sciences. Ms. Phelps retired in April 2016.
72. Ms. Phelps received a B.S. in Mathematics from Purdue University in 1972, a master’s in computer science from the University of Illinois, Champaign-Urbana in 1989, and a Ph.D. in computer science from the New Mexico Institute of Mining and Technology in 2005.
73. Ms. Phelps’s less qualified and less experienced male colleagues rose through the ranks much faster than she did. They were offered greater leadership opportunities, and in approximately 2009, one of the peers Ms. Phelps mentored was promoted over her. In the years that followed, male colleagues and supervisors excluded Ms. Phelps from meetings, and
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supervisors specifically asked her to perform, in their words, “low visibility” work, and Ms. Phelps was never promoted to the Distinguished level.
74. Upon receiving her performance reviews, Ms. Phelps observed from 2013 to 2016 that her “compa ratio” demonstrated that she was paid less than her similarly situated male colleagues. Such disparities fit into a trend. Unlike her male colleagues, when Ms. Phelps was promoted to the Senior level in 1997, she did not receive any increase in her base salary. Then, in approximately 2002, Ms. Phelps asked her colleague why her salary at the time was significantly lower than that of others at her skill level, and her colleague explained that the reason was likely that Ms. Phelps’s earlier years’ salaries at Sandia were lower than those of her colleagues. Earning a Ph.D. did not remedy the problem. When Ms. Phelps obtained her degree in 2005, she did not receive a salary increase in recognition of her accomplishment; instead, she received a one-time award of only $500. Because annual salary increases at Sandia are a percentage of base salary, Ms. Phelps was thus at a persistent disadvantage due to her low starting salary in her first two positions at Sandia. Additionally, because employees must be at the higher end of their job title’s salary band before promotion, Ms. Phelps was also at a persistent disadvantage in terms of her opportunity for promotion to the Distinguished level.
75. As a result of Sandia’s performance evaluation, compensation, and promotion process, Ms. Phelps was paid less than comparable male coworkers in the same positions, and did not receive promotions for which she was eligible and qualified.
CAUSES OF ACTION FIRST CLAIM FOR RELIEF
Intentional Discrimination (Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Lilly
Ledbetter Fair Pay Act of 2009) (On Behalf of Plaintiffs and the Class) 76. Plaintiffs incorporate the preceding paragraphs as alleged above.
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77. This claim is brought by Plaintiffs on behalf of themselves and the Class they seek to represent. Plaintiffs Kennicott, Garcia, and Phelps have filed timely charges with the EEOC on behalf of themselves and the Class Members.
78. Sandia has engaged in an intentional, company-wide, and systematic policy, pattern, and/or practice of discrimination against its female employees. Sandia has intentionally discriminated against Plaintiffs and the Class in violation of Title VII by, among other things:
a. Utilizing a biased performance rating system; b. Utilizing a biased compensation system; c. Utilizing a biased promotion system; and d. Failing to take reasonable and adequate steps to prevent and correct the use of unreliable, unvalidated, and/or illegitimate criteria to determine the terms and conditions of employment. 79. These company-wide policies are intended to and do have the effect of: a. Denying Plaintiffs and Class Members business opportunities because of their gender; b. Compensating them less because of their gender; c. Failing to promote them because of their gender; d. Evaluating their performance more negatively because of their gender; and e. Providing them with inferior terms and conditions of employment as a result of discriminatory performance measures that systematically disadvantaged them because of their gender. 80. The discriminatory acts that constitute Sandia’s pattern and/or practice of discrimination have occurred both within and outside the liability period in this case.
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81. As a direct result of Sandia’s discriminatory policies and/or practices as described above, Plaintiffs and the Class have suffered damages including, but not limited to, lost past and future income, compensation, and benefits.
82. The foregoing conduct constitutes illegal, intentional discrimination and unjustified disparate treatment prohibited by 42 U.S.C. § 2000e et seq.
83. Plaintiffs request relief as hereinafter described. SECOND CLAIM FOR RELIEF Disparate Impact Discrimination
(Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Lilly Ledbetter Fair Pay Act of 2009)
(On Behalf of Plaintiffs and the Class) 84. Plaintiffs incorporate the preceding paragraphs as alleged above. 85. This claim is brought by Plaintiffs on behalf of themselves and the Class they seek to represent. Plaintiffs Kennicott, Garcia, and Phelps have filed timely charges with the EEOC on behalf of themselves and the Class Members. 86. Sandia’s reliance on illegitimate and unvalidated systems and criteria to evaluate employee performance, set compensation, select individuals for promotion, and determine other terms and conditions of employment, have an adverse impact on female employees in violation of Title VII and are not, and cannot be, justified by business necessity. Even if such system and/or policies could be justified by business necessity, less discriminatory alternatives exist and would equally serve any alleged necessity. 87. Sandia has maintained these discriminatory policies, patterns, and/or practices both within and outside the liability period in this case. 88. As a direct result of Sandia’s discriminatory policies and/or practices as described above, Plaintiffs and the Class have suffered damages including, but not limited to, lost past and future income, compensation, and benefits.
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Case 1:17-cv-00188 Document 1 Filed 02/07/17 Page 20 of 26
89. The foregoing policies, patterns, and/or practices have an unlawful disparate impact on women in violation of 42 U.S.C. § 2000e et seq.
90. Plaintiffs request relief as hereinafter described. THIRD CLAIM FOR RELIEF Intentional Discrimination
(New Mexico Human Rights Act, N.M. Stat. Ann. 1978, § 28-1-1 et seq.) (On Behalf of Plaintiffs and the Class)
91. Plaintiffs incorporate the preceding paragraphs as alleged above. 92. This claim is brought by Plaintiffs on behalf of themselves and the Class they seek to represent. Plaintiffs Kennicott, Garcia, and Phelps have filed timely charges with the New Mexico Human Rights Bureau on behalf of themselves and the Class Members. 93. Sandia has engaged in an intentional, company-wide, and systematic policy, pattern, and/or practice of discrimination against its female employees. Sandia has intentionally discriminated against Plaintiffs and the Class in violation of the New Mexico Human Rights Act by, among other things:
a. Utilizing a biased performance rating system; b. Utilizing a biased compensation system; c. Utilizing a biased promotion system; and d. Failing to take reasonable and adequate steps to prevent and correct the use of unreliable, unvalidated, and/or illegitimate criteria to determine the terms and conditions of employment. 94. These company-wide policies are intended to and do have the effect of: a. Denying Plaintiffs and Class Members business opportunities because of their gender; b. Compensating them less because of their gender; c. Failing to promote them because of their gender;
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Case 1:17-cv-00188 Document 1 Filed 02/07/17 Page 21 of 26
d. Evaluating their performance more negatively because of their gender; and e. Providing them with inferior terms and conditions of employment as a result of discriminatory performance measures that systematically disadvantaged them because of their gender. 95. The discriminatory acts that constitute Sandia’s pattern and/or practice of discrimination have been based in and emanated from within the State of New Mexico, and have occurred both within and outside the liability period in this case. The discriminatory policies, patterns, and practices have had a discriminatory impact on the female employees of Sandia nationwide. 96. As a direct result of Sandia’s discriminatory policies and/or practices as described above, Plaintiffs and the Class have suffered damages including, but not limited to, lost past and future income, compensation, and benefits. 97. The foregoing conduct constitutes illegal, intentional discrimination and unjustified disparate treatment prohibited by the New Mexico Human Rights Act, N.M. Stat. Ann. 1978, § 28-1-1 et seq. 98. Plaintiffs request relief as hereinafter described.
FOURTH CLAIM FOR RELIEF Disparate Impact Discrimination (New Mexico Human Rights Act, N.M. Stat. Ann. 1978, § 28-1-1 et seq.) (On Behalf of Plaintiffs and the Class) 99. Plaintiffs incorporate the preceding paragraphs as alleged above. 100. This claim is brought by Plaintiffs on behalf of themselves and the Class they seek to represent. Plaintiffs Kennicott, Garcia, and Phelps have filed timely charges with the New Mexico Human Rights Bureau on behalf of themselves and the Class Members. 101. Sandia’s reliance on illegitimate and unvalidated systems and criteria to evaluate employee performance, set compensation, and select individuals for promotion, and determine
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Case 1:17-cv-00188 Document 1 Filed 02/07/17 Page 22 of 26
other terms and conditions of employment, have an adverse impact on female employees in violation of the New Mexico Human Rights Act and are not, and cannot be, justified by a bona fide occupational qualification. Even if such systems and/or policies could be justified by a bona fide occupational qualification, less discriminatory alternatives exist and would equally serve any alleged necessity.
102. Sandia has maintained these discriminatory policies, patterns, and/or practices arising in and/or emanating from within the State of New Mexico, both within and outside the liability period in this case. The discriminatory policies, patterns, and practices have had a discriminatory impact on the female employees of Sandia nationwide.
103. As a direct result of Sandia’s discriminatory policies and/or practices as described above, Plaintiffs and the Class have suffered damages including, but not limited to, lost past and future income, compensation, and benefits.
104. The foregoing policies, patterns, and/or practices have an unlawful disparate impact on women in violation of the N.M. Stat. Ann. 1978, § 28-1-1 et seq.
105. Plaintiffs request relief as hereinafter described. FIFTH CLAIM FOR RELIEF
(New Mexico Fair Pay for Women Act, N.M. Stat. Ann. 1978 § 28-23 et seq,) (On Behalf of Plaintiffs and the Class)
106. Plaintiffs incorporate the preceding paragraphs as alleged above. 107. This claim is brought by Plaintiffs on behalf of themselves and the Class they seek to represent. 108. Sandia has discriminated against employees on the basis of sex by paying wages to female employees at a rate less than the rate paid to male employees for work of equal skill, effort, and responsibility. 109. This disparity in pay cannot be justified by a seniority system, merit system, or system that measures earnings by quantity or quality of production.
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Case 1:17-cv-00188 Document 1 Filed 02/07/17 Page 23 of 26
110. As a result of Sandia’s conduct described above, Plaintiffs and the Class have suffered damages including, but not limited to, lost compensation and benefits tied to compensation.
111. Sandia’s practice of paying women less than men for equivalent work violates N.M. Stat. Ann. 1978 § 28-23 et seq.
112. Plaintiffs request relief as hereinafter described. SIXTH CLAIM FOR RELIEF Retaliation
(Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.) (On Behalf of Plaintiff Kennicott Individually)
113. Plaintiff Kennicott incorporates the preceding paragraphs as alleged above. 114. This claim is brought by Plaintiff Kennicott. Plaintiff Kennicott has timely filed a charge with the EEOC alleging retaliation claims and has thus exhausted her administrative remedies. 115. Plaintiff Kennicott engaged in protected activities, including making internal complaints of unlawful discrimination and filing charges with the EEOC and New Mexico Human Rights Bureau complaining of Sandia’s discriminatory policies and practices. 116. Sandia took adverse actions against Plaintiff Kennicott with the purpose of retaliating against her because of her participation in protected activities, and Plaintiff Kennicott suffered damages as a result of that conduct. 117. Plaintiff Kennicott requests relief as hereinafter described.
SEVENTH CLAIM FOR RELIEF Retaliation
(New Mexico Human Rights Act, N.M. Stat. Ann. 1978, § 28-1-1 et seq.) (On Behalf of Plaintiff Kennicott Individually)
118. Plaintiff Kennicott incorporates the preceding paragraphs as alleged above.
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Case 1:17-cv-00188 Document 1 Filed 02/07/17 Page 24 of 26
119. This claim is brought by Plaintiff Kennicott individually. Plaintiff Kennicott has timely filed a charge with the New Mexico Human Rights Bureau alleging retaliation claims and has thus exhausted her administrative remedies.
120. Plaintiff Kennicott engaged in protected activities, including making internal complaints of unlawful discrimination and filing charges with the EEOC and New Mexico Human Rights Bureau complaining of Sandia’s discriminatory policies and practices.
121. Sandia took adverse actions against Plaintiff Kennicott with the purpose of retaliating against her because of her participation in protected activities during the liability period in the State of New Mexico, and Plaintiff Kennicott suffered damages in the State of New Mexico as a result of that conduct.
122. Plaintiff Kennicott requests relief as hereinafter described. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs and the Class pray for relief as follows: a. Certification of the case as a class action on behalf of the proposed Class; b. Designation of Representative Plaintiffs Kennicott, Garcia, and Phelps as
representatives of the Class; c. Designation of Representative Plaintiffs’ counsel of record as Class
Counsel for the Class; d. A declaratory judgment that the practices complained of herein are
unlawful and violate 42 U.S.C. § 2000e et seq.; the New Mexico Human Rights Act, N.M. Stat. Ann. 1978, § 28-1-1 et seq.; and the New Mexico Fair Pay for Women Act, N.M. Stat. Ann. 1978 § 28-23 et seq.
e. A preliminary and permanent injunction against Sandia and its officers, agents, successors, employees, representatives, and any and all persons acting in concert with
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Case 1:17-cv-00188 Document 1 Filed 02/07/17 Page 25 of 26
them, from engaging in policies, patterns, and/or practices that discriminate against Plaintiffs or the Class because of their gender or participation in this lawsuit;
f. An order that Sandia institute and carry out policies, practices, and programs that provide equal employment opportunities for all employees regardless of gender, and that it eradicate the effects of its past and present unlawful employment practices;
g. An order requiring Sandia to develop and institute accurate and validated standards for evaluating performance, determining pay, and making promotion decisions;
h. An order appointing a monitor to ensure that Sandia complies with the injunction provisions of any decree that the Court orders;
i. An order retaining jurisdiction over this action to ensure that Sandia complies with such a decree;
j. An order restoring Class Members to their rightful positions at Sandia (i.e., reinstatement), or in lieu of reinstatements, an order for front pay benefits;
k. Back pay (including interest and benefits) for the Representative Plaintiffs and Class Members;
l. All damages sustained as a result of Sandia’s conduct, including damages for emotional distress, according to proof;
m. Exemplary and punitive damages in an amount commensurate with Sandia’s ability to pay and to deter future conduct;
n. Costs incurred herein, including reasonable attorneys’ fees to the extent allowable by law;
o. Pre-judgment and post-judgment interest, as provided by law; and p. Such other and further legal and equitable relief as this Court deems necessary, just, and proper.
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JURY DEMAND Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs demand a trial

by jury in this action.

Respectfully submitted,

Dated: February 7, 2017

By: ____________________________
Kelly M. Dermody (N.M. Fed. Bar No. 17-18) Lin Y. Chan (N.M. Fed. Bar No. 17-17) Anne B. Shaver (N.M. Fed. Bar No. 17-22) Michael Levin-Gesundheit (N.M. Fed. Bar No. 17-20) LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-Mail: kdermody@lchb.com E-Mail: lchan@lchb.com E-Mail: ashaver@lchb.com E-Mail: mlevin@lchb.com
Adam T. Klein* Elizabeth V. Stork* OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, New York 10017 Telephone: (212) 245-1000 Facsimile: (212) 977-4005 E-Mail: atk@outtengolden.com E-Mail: estork@outtengolden.com
David Lopez* OUTTEN & GOLDEN LLP 601 Massachusetts Avenue NW Second Floor West Suite Washington, D.C. 20001 Telephone: (202) 847-4400 Facsimile: (202) 847-4410 E-Mail: pdl@outtengolden.com Attorneys for Plaintiffs and the proposed Class *application for admission forthcoming

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 Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 1 of 23
U.S. District Court District of New Mexico − Version 6.2.4 (Albuquerque) CIVIL DOCKET FOR CASE #: 1:17−cv−00188−JB−GJF

CLOSED

Kennicott et al v. Sandia Corporation Assigned to: District Judge James O. Browning Referred to: Magistrate Judge Gregory J. Fouratt Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 02/07/2017 Date Terminated: 05/24/2019 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Lisa A. Kennicott

represented by Lisa A. Kennicott P O Box 1285 Tijeras, NM 87059 505 281 7776 Email: lakennicott@gmail.com PRO SE

Anne Brackett Shaver Lieff Cabraser Heimann & Bernstein, LLP 275 Battery Street 29th Floor San Francisco, CA 94122 415−956−1000 Fax: 415−956−1008 Email: ashaver@lchb.com TERMINATED: 05/24/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gretchen Mary Elsner Elsner Law & Policy, LLC 150 Washington Avenue, Suite 201 Santa Fe, NM 87501 505−303−0980 Email: gretchen@elsnerlaw.org TERMINATED: 05/24/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly Maureen Dermody Lieff Cabraser Heimann & Bernstein, LLP 275 Battery Street 29th Floor San Francisco, CA 94122 415−956−1000 Fax: 415−956−1008 Email: kdermody@lchb.com TERMINATED: 05/24/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Bien Outten & Golden LLP One California St. 12th Floor San Francisco, CA 94111 415−638−8800 Fax: 415−638−8810 Email: rmb@outtengolden.com TERMINATED: 05/24/2019 LEAD ATTORNEY

Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 2 of 23
PRO HAC VICE ATTORNEY TO BE NOTICED
Adam T. Klein Outten & Golden LLP 685 Third Avenue 25th Floor New York, NY 10017 212−245−1000 Fax: 646−509−2060 Email: atk@outtengolden.com TERMINATED: 05/24/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Cheryl−Lyn Bentley Outten & Golden LLP 685 Third Avenue 25th Floor New York, NY 10017 212−245−1000 Fax: 212−509−2060 Email: cbentley@outtengolden.com TERMINATED: 05/24/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
David Lopez Outten & Golden LLP 601 Massachusets Ave. NW Second Floor West Suite Washington D.C. 20001 202−847−4400 Fax: 202−847−4410 Email: pdl@outtengolden.com TERMINATED: 05/24/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Stork Outten & Golden LLP 685 Third Avenue 25th Floor New York, NY 10017 212−245−1000 Fax: 646−509−2060 Email: estork@outtengolden.com TERMINATED: 02/20/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Lin Yee Chan Lieff Cabraser Heimann & Bernstein, LLP 275 Battery Street 29th Floor San Francisco, CA 94122 415−956−1000 Fax: 415−956−1008 Email: lchan@lchb.com TERMINATED: 05/24/2019 ATTORNEY TO BE NOTICED
Michael Ian Levin−Gesundheit Lieff Cabraser Heimann & Bernstein, LLP 275 Battery Street

Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 3 of 23

29th Floor San Francisco, CA 94122 415−956−1000 Fax: 415−956−1008 Email: mlevin@lchb.com TERMINATED: 05/24/2019 ATTORNEY TO BE NOTICED

Shira J. Tevah Lieff Cabraser Heimann & Bernstein, LLP 275 Battery St., 29th Floor San Francisco, CA 94111 415−956−1000 Fax: 415−956−1008 Email: stevah@lchb.com TERMINATED: 09/14/2018 ATTORNEY TO BE NOTICED

Tiseme Gabriella Zegeye Lieff Cabraser Heimann & Bernstein, LLP 275 Battery Street 29th Floor San Francisco, CA 94111 415−956−1000 Fax: 415−956−1008 Email: tzegeye@lchb.com TERMINATED: 05/24/2019 ATTORNEY TO BE NOTICED

Plaintiff Lisa A. Garcia

represented by Gretchen Mary Elsner (See above for address) TERMINATED: 05/24/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly Maureen Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Bien (See above for address) TERMINATED: 05/24/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adam T. Klein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Anne Brackett Shaver (See above for address) ATTORNEY TO BE NOTICED

Cheryl−Lyn Bentley (See above for address) TERMINATED: 05/24/2019 PRO HAC VICE ATTORNEY TO BE NOTICED

David Lopez

Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 4 of 23

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Elizabeth Stork (See above for address) TERMINATED: 02/20/2018 PRO HAC VICE ATTORNEY TO BE NOTICED

Lin Yee Chan (See above for address) ATTORNEY TO BE NOTICED

Michael Ian Levin−Gesundheit (See above for address) TERMINATED: 05/24/2019 ATTORNEY TO BE NOTICED

Shira J. Tevah (See above for address) TERMINATED: 09/14/2018 ATTORNEY TO BE NOTICED

Tiseme Gabriella Zegeye (See above for address) TERMINATED: 05/24/2019 ATTORNEY TO BE NOTICED

Plaintiff
Sue C. Phelps on behalf of themselves and a class of those similarly situated

represented by Anne Brackett Shaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gretchen Mary Elsner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly Maureen Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Bien (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adam T. Klein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Cheryl−Lyn Bentley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

David Lopez (See above for address) PRO HAC VICE

Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 5 of 23
ATTORNEY TO BE NOTICED
Elizabeth Stork (See above for address) TERMINATED: 02/20/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Lin Yee Chan (See above for address) ATTORNEY TO BE NOTICED
Michael Ian Levin−Gesundheit (See above for address) ATTORNEY TO BE NOTICED
Shira J. Tevah (See above for address) TERMINATED: 09/14/2018 ATTORNEY TO BE NOTICED
Tiseme Gabriella Zegeye (See above for address) ATTORNEY TO BE NOTICED
Plaintiff
Judi Doolittle

V.
Defendant
Sandia Corporation doing business as Sandia National Laboratories

represented by Cindy Jean Lovato−Farmer Sandia National Laboratories Legal Department P. O. Box 5800 MS 0141 Albuquerque, NM 87185−0141 505−284−5284 Fax: 505−844−2363 Email: cinlova@sandia.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin E Poore Sandia Corporation P.O. Box 5800 MS 0141 Albuquerque, NM 87185−0141 505−284−6336 Fax: 505−844−2363 Email: jepoore@sandia.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott D. Gordon Rodey, Dickason, Sloan, Akin & Robb, P.A. Post Office Box 1888 Albuquerque, NM 87103 (505) 765−5900 Fax: (505) 768−7395 Email: sdgordon@rodey.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 6 of 23
Grace E. Speights Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004−2541 202−739−3000 Fax: 202−739−3001 Email: grace.speights@morganlewis.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey L. Lowry Rodey, Dickason, Sloan, Akin & Robb, P.A. P O Box 1888 Albuquerque, NM 87103 505−765−5900 Fax: 505−768−7395 Email: jlowry@rodey.com ATTORNEY TO BE NOTICED
Krissy A. Katzenstein Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004−2541 202−739−3000 Fax: 202−739−3001 Email: krissy.katzenstein@morganlewis.com PRO HAC VICE ATTORNEY TO BE NOTICED
Michael S. Burkhardt Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004−2541 202−739−3000 Fax: 202−739−3001 Email: michael.burkhardt@morganlewis.com PRO HAC VICE ATTORNEY TO BE NOTICED
Paola Viviana Jaime Rodey, Dickason, Sloan, Akin & Robb, P.A. P.O. Box 1888 Albuquerque, NM 87103 505−765−5900 Fax: 505−768−7395 Email: pjaimesaenz@rodey.com ATTORNEY TO BE NOTICED
Stephanie Latimer Rodey Dickason Sloan Akin & Robb 201 3rd Street NW, Suite 2200 Albuquerque, NM 87102 5057667529 Fax: 5057687395 Email: slatimer@rodey.com TERMINATED: 03/27/2018 ATTORNEY TO BE NOTICED
Theresa W. Parrish Rodey, Dickason, Sloan, Akin & Robb, P.A. P.O. Box 1888

Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 7 of 23
Albuquerque, NM 87103 (505) 765−5900 Fax: (505) 768−7395 Email: tparrish@rodey.com ATTORNEY TO BE NOTICED

Date Filed 02/07/2017 02/07/2017 02/07/2017 02/07/2017
02/07/2017 02/14/2017
02/16/2017 02/22/2017 02/22/2017

# Docket Text
1 COMPLAINT against Sandia Corporation d/b/a Sandia National Laboratories ( Filing Fee − Online Payment), filed by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C, # 5 Exhibit Exhibit D, # 6 Exhibit Exhibit E, # 7 Exhibit Exhibit F, # 8 Exhibit Exhibit G)(Levin−Gesundheit, Michael) (Entered: 02/07/2017)
Filing and Administrative Fees Received: $ 400 receipt number 1084−5042798 re 1 Complaint, filed by Lisa A. Garcia, Sue C. Phelps, Lisa A. Kennicott (Payment made via Pay.gov)(Levin−Gesundheit, Michael) (Entered: 02/07/2017)
United States Magistrate Judge William P Lynch and United States Magistrate Judge Gregory J. Fouratt assigned. (ln) (Entered: 02/07/2017)
2 PLEASE TAKE NOTICE that this case has been randomly assigned to United States Magistrate Judge William P Lynch to conduct dispositive proceedings in this matter, including motions and trial. Appeal from a judgment entered by a Magistrate Judge will be to the United States Court of Appeals for the Tenth Circuit. It is the responsibility of the case filer to serve a copy of this Notice upon all parties with the summons and complaint. Consent is strictly voluntary, and a party is free to withhold consent without adverse consequences. Should a party choose to consent, notice should be made no later than 21 days after entry of the Order setting the Rule 16 Initial Scheduling Conference. For e−filers, visit our Web site at www.nmd.uscourts.gov for more information and instructions. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ln) (Entered: 02/07/2017)
Summons Issued as to Sandia Corporation. (ln) (Entered: 02/07/2017)
4 PLEASE TAKE NOTICE that this case has been reassigned to District Judge James O. Browning as the trial judge.
Under D.N.M.LR−Civ. 10.1, the first page of each document must have the case file number and initials of the assigned judges.
Accordingly, further documents filed in this matter must bear the case number and the judges' initials shown in the case caption and the NEF for this document. Kindly reflect this change in your filings.
Magistrate Judge William P Lynch no longer assigned to this case. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (iam) (Entered: 02/14/2017)
5 NOTICE REGARDING DOCUMENT ENTRIES: Because this case has been reassigned to a district judge, please be advised that any documents filed by the parties under Rule 73(b) have been permanently removed from the docket. Document(s) removed: No. 3. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (dc) (Entered: 02/16/2017)
6 NOTICE of Entry of Appearance by Scott D. Gordon, Theresa W. Parrish, Jeffrey L. Lowry and Stephanie L. Latimer on behalf of Sandia Corporation (Lowry, Jeffrey) Modified on 2/23/2017 to add additional attorneys(mr). (Entered: 02/22/2017)
7 ASSOCIATION of Attorney Licensed Outside the District for Defendant Sandia Corporation by Jeffrey L. Lowry on behalf of: Grace E. Speights Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW

Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 8 of 23

02/22/2017 02/22/2017 02/22/2017
02/22/2017 02/22/2017 02/22/2017
02/22/2017 02/22/2017 02/27/2017 03/17/2017 03/17/2017 03/17/2017

Washington, DC 20004−2541 202−739−3000 Fax 202−739−3001 grace.speights@morganlewis.com (Association Dues − Online Payment) (Lowry, Jeffrey) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 02/22/2017)
Association Dues Received: $ 100 receipt number 1084−5068320 re: # 7 Association of Attorney Licensed Outside the District, filed by Sandia Corporation (Payment made via Pay.gov)(Lowry, Jeffrey) (Entered: 02/22/2017)
8 NOTICE of Appearance and LR 83.3 Certification by Jeffrey L. Lowry on behalf of Sandia Corporation (Lowry, Jeffrey) (Entered: 02/22/2017)
9 ASSOCIATION of Attorney Licensed Outside the District for Defendant Sandia Corporation by Jeffrey L. Lowry on behalf of: Michael S. Burkhardt Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004−2541 202−739−3000 Fax 202−739−3001 michael.burkhardt@morganlewis.com (Association Dues − Online Payment) (Lowry, Jeffrey) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 02/22/2017)
Association Dues Received: $ 100 receipt number 1084−5068377 re: # 9 Association of Attorney Licensed Outside the District, filed by Sandia Corporation (Payment made via Pay.gov)(Lowry, Jeffrey) (Entered: 02/22/2017)
10 NOTICE of Appearance and LR 83.3 Certification by Jeffrey L. Lowry on behalf of Sandia Corporation (Lowry, Jeffrey) (Entered: 02/22/2017)
11 ASSOCIATION of Attorney Licensed Outside the District for Defendant Sandia Corporation by Jeffrey L. Lowry on behalf of: Krissy A. Katzenstein Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004−2541 202−739−3000 Fax 202−739−3001 krissy.katzenstein@morganlewis.com (Association Dues − Online Payment) (Lowry, Jeffrey) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 02/22/2017)
Association Dues Received: $ 100 receipt number 1084−5068402 re: # 11 Association of Attorney Licensed Outside the District, filed by Sandia Corporation (Payment made via Pay.gov)(Lowry, Jeffrey) (Entered: 02/22/2017)
12 NOTICE of Appearance and LR 83.3 Certification by Jeffrey L. Lowry on behalf of Sandia Corporation (Lowry, Jeffrey) (Entered: 02/22/2017)
13 NOTICE Notice of Stipulated Extension of Time by Sandia Corporation. (Gordon, Scott) Modified text on 4/28/2017 (meq). (Entered: 02/27/2017)
14 MOTION to Dismiss State Law Claims by Sandia Corporation. (Lowry, Jeffrey) (Entered: 03/17/2017)
15 ANSWER to 1 Complaint, by Sandia Corporation. Related document: 1 Complaint, filed by Lisa A. Garcia, Sue C. Phelps, Lisa A. Kennicott.(Lowry, Jeffrey) (Entered: 03/17/2017)
16 Corporate Disclosure Statement by Sandia Corporation (Lowry, Jeffrey) (Entered: 03/17/2017)

Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 9 of 23

03/31/2017 03/31/2017
04/14/2017 04/14/2017 04/14/2017 04/18/2017
04/18/2017
04/18/2017 04/18/2017 04/20/2017
04/20/2017 04/20/2017
04/27/2017
04/27/2017 04/28/2017

17 NOTICE of Appearance by Tiseme Gabriella Zegeye on behalf of Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Zegeye, Tiseme) (Entered: 03/31/2017)
18 RESPONSE in Opposition re 14 MOTION to Dismiss State Law Claims and Motion to Conduct Jurisdictional Discovery filed by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Attachments: # 1 Affidavit Declaration of Tiseme G. Zegeye in Support of Motion to Conduct Jurisdictional Discovery and Opposition to Motion to Dismiss, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D) (Zegeye, Tiseme) (Entered: 03/31/2017)
19 NOTICE by Sandia Corporation re 18 Response in Opposition to Motion, Deft's Resp to Pl's Mot to Conduct Jurisdictional Discovery (Lowry, Jeffrey) (Entered: 04/14/2017)
20 REPLY to Response to Motion re 14 MOTION to Dismiss State Law Claims filed by Sandia Corporation. (Lowry, Jeffrey) (Entered: 04/14/2017)
21 NOTICE of Briefing Complete by Sandia Corporation re 14 MOTION to Dismiss State Law Claims filed by Sandia Corporation (Lowry, Jeffrey) (Entered: 04/14/2017)
22 ASSOCIATION of Attorney Licensed Outside the District for Plaintiffs Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps by Elizabeth Stork (Association Dues − Online Payment) (Stork, Elizabeth) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 04/18/2017)
23 ASSOCIATION of Attorney Licensed Outside the District for Plaintiffs Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps by Adam T. Klein (Association Dues − Online Payment) (Klein, Adam) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 04/18/2017)
Association Dues Received: $ 100 receipt number 1084−5156158 re: # 23 Association of Attorney Licensed Outside the District, filed by Lisa A. Garcia, Sue C. Phelps, Lisa A. Kennicott (Payment made via Pay.gov)(Klein, Adam) (Entered: 04/18/2017)
Association Dues Received: $ 100 receipt number 1084−5156169 re: # 22 Association of Attorney Licensed Outside the District, filed by Lisa A. Garcia, Sue C. Phelps, Lisa A. Kennicott (Payment made via Pay.gov)(Stork, Elizabeth) (Entered: 04/18/2017)
24 ASSOCIATION of Attorney Licensed Outside the District for Plaintiffs Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps by P. David Lopez (Association Dues − Online Payment) (Lopez, P.) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 04/20/2017)
Association Dues Received: $ 100 receipt number 1084−5160723 re: # 24 Association of Attorney Licensed Outside the District, filed by Lisa A. Garcia, Sue C. Phelps, Lisa A. Kennicott (Payment made via Pay.gov)(Lopez, P.) (Entered: 04/20/2017)
25 NOTICE by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps re 22 Association of Attorney Licensed Outside the District, 23 Association of Attorney Licensed Outside the District, 24 Association of Attorney Licensed Outside the District, Certification by Member of the Federal Bar of the District of New Mexico (Levin−Gesundheit, Michael) (Entered: 04/20/2017)
26 Plaintiffs' REPLY Memorandum in Support of Motion to Conduct Jurisdictional Discovery re 18 Response in Opposition to Motion, 19 Notice (Other) filed by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Attachments: # 1 Affidavit Declaration of Michael Levin−Gesundheit in Support of Plaintiffs' Reply Memorandum in Support of Plaintiffs' Motion to Conduct Jurisdictional Discovery, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C) (Zegeye, Tiseme) (Entered: 04/27/2017)
27 NOTICE by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps re 26 Reply, Notice of Completion of Briefing (Zegeye, Tiseme) (Entered: 04/27/2017)
28 INITIAL SCHEDULING ORDER by District Judge James O. Browning scheduling the Initial Scheduling Conference for 6/2/2017 at 02:30 PM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning; JSR/PDP due

Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 10 of 23

04/28/2017
05/02/2017 05/09/2017 05/17/2017 06/01/2017 06/01/2017 06/05/2017
06/06/2017 06/06/2017 06/09/2017
06/09/2017 06/11/2017 06/12/2017 06/12/2017 06/16/2017

5/26/2017. (kw) (Entered: 04/28/2017)
29 NOTICE of motion hearing regarding the Defendant's Motion to Dismiss State Law Claims 14 and the Plaintiffs' Motion to Conduct Jurisdictional Discovery 18 scheduled for 6/2/2017 at 02:30 PM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning. (kw) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 04/28/2017)
30 Corporate Disclosure Statement by Sandia Corporation (Lowry, Jeffrey) (Entered: 05/02/2017)
31 MOTION to Continue Hearing & Conference by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Levin−Gesundheit, Michael) (Entered: 05/09/2017)
32 ORDER by District Judge James O. Browning granting 31 MOTION to Continue Hearing & Conference and rescheduling both for 6/12/2017 at 01:30 PM in Albuquerque − 460 Vermejo Courtroom. (meq) (Entered: 05/17/2017)
33 CERTIFICATE OF SERVICE by Sandia Corporation of its Initial Disclosures to Plaintiffs' Counsel (Gordon, Scott) (Entered: 06/01/2017)
34 CERTIFICATE OF SERVICE by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps of Plaintiffs' Initial Disclosures (Zegeye, Tiseme) (Entered: 06/01/2017)
35 MINUTE ORDER, pursuant to the direction of District Judge James O. Browning, notifying the parties that the Court will be out of district in the Dallas, Texas area on 6/12/2017 and that the Court would like to conduct the motion hearing and Initial Scheduling Conference scheduled for 6/12/2017 out of district and by telephone. The purpose of this order is, in part, to request consent from the parties to allow the Court to conduct the hearing out of district from the Dallas, Texas area. If the parties consent to the Court doing so, they should submit a filing with the Court so stating; if they do not consent, they should submit a filing so stating and the Court will determine whether to continue the hearing to a later date. Should counsel also wish to appear telephonically for the hearing they should contact the Court's Courtroom Deputy ((505) 348−2289)) to coordinate arrangements. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.(kw) (Entered: 06/05/2017)
36 NOTICE by Sandia Corporation re 35 Minute Order,,, Consent to Out−of−District Hearing (Gordon, Scott) (Entered: 06/06/2017)
37 NOTICE by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps Consent to Telephonic Hearing (Zegeye, Tiseme) (Entered: 06/06/2017)
38 MINUTE ORDER, pursuant to the direction of District Judge James O. Browning, notifying the parties that to telephonically connect to the hearing scheduled on 6/12/2017 they should contact (888) 684−8852 and utilize Access Code 5469085. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (kw) (Entered: 06/09/2017)
39 Joint Status Report by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Zegeye, Tiseme) (Entered: 06/09/2017)
40 CERTIFICATE OF SERVICE by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps of Amended Initial Disclosures (Levin−Gesundheit, Michael) (Entered: 06/11/2017)
41 CERTIFICATE OF SERVICE by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps of Plaintiffs' Second Set of Requests for Production of Documents (Levin−Gesundheit, Michael) (Entered: 06/12/2017)
98 Clerk's Minutes for proceedings held before District Judge James O. Browning: Motion Hearing held on 6/12/2017 re 14 MOTION to Dismiss State Law Claims filed by Sandia Corporation, Scheduling Conference held on 6/12/2017. (Court Reporter J. Bean) (meq) (Entered: 03/14/2018)
42 CERTIFICATE OF SERVICE by Sandia Corporation of its First Set of Interrogatories and First Requests for Production of Documents to counsel for Lisa Kennicott (Gordon, Scott) (Entered: 06/16/2017)

Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 11 of 23

06/16/2017 06/16/2017 06/28/2017 07/10/2017 07/12/2017 07/31/2017 08/02/2017 08/07/2017

43 CERTIFICATE OF SERVICE by Sandia Corporation of its First Set of Interrogatories and First Requests for Production of Documents to counsel for Lisa Garcia (Gordon, Scott) (Entered: 06/16/2017)
44 CERTIFICATE OF SERVICE by Sandia Corporation of its First Set of Interrogatories and First Requests for Production of Documents to counsel for Sue Phelps (Gordon, Scott) (Entered: 06/16/2017)
45 CERTIFICATE OF SERVICE by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps of Second Amended Initial Disclosures (Levin−Gesundheit, Michael) (Entered: 06/28/2017)
46 CERTIFICATE OF SERVICE by Sandia Corporation of its Objections & Responses to Plaintiffs' First Set of Requests for Production of Documents (Gordon, Scott) (Entered: 07/10/2017)
47 CERTIFICATE OF SERVICE by Sandia Corporation of its Objections & Responses to Plaintiffs' Second Set of Requests for Production of Documents (Katzenstein, Krissy) (Entered: 07/12/2017)
48 Joint MOTION to Extend (other) Deadlines for Motions to Compel by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Shaver, Anne) (Entered: 07/31/2017)
49 CERTIFICATE OF SERVICE by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps of Discovery Responses (Levin−Gesundheit, Michael) (Entered: 08/02/2017)
50 TRANSCRIPT of Proceedings held on 06/12/17, before District Judge James O. Browning. Court Reporter/Transcriber Jennifer Bean, Telephone number 505−348−2283. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us.

08/14/2017 08/21/2017
08/22/2017 08/24/2017 08/24/2017 08/31/2017

Notice of Intent to Request Redaction set for 8/14/2017. Redaction Request due 8/28/2017. Redacted Transcript Deadline set for 9/7/2017. Release of Transcript Restriction set for 11/6/2017.(jab) (Entered: 08/07/2017)
51 ORDER by District Judge James O. Browning granting 48 ORDER on Motion to Extend Deadlines for Motions to Compel (meq) (Entered: 08/14/2017)
52 NOTICE of status conference scheduled for 8/22/2017 at 10:00 AM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning. (mnb) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 08/21/2017)
86 Clerk's Minutes for proceedings held before District Judge James O. Browning: Status Conference held on 8/22/2017. (Court Reporter J. Bean) (meq) (Entered: 02/22/2018)
53 Joint MOTION for Protective Order by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Zegeye, Tiseme) (Entered: 08/24/2017)
54 STIPULATION CONCERNING PRODUCTION OF ELECTRONICALLY STORED INFORMATION by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Zegeye, Tiseme) (Entered: 08/24/2017)
55 Joint Status Report re Discovery by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Zegeye, Tiseme) (Entered: 08/31/2017)

Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 12 of 23

09/12/2017
09/12/2017
09/12/2017 10/02/2017 10/18/2017 10/24/2017
10/24/2017
10/30/2017 10/30/2017 11/07/2017 11/07/2017
11/16/2017 11/20/2017
11/29/2017 12/01/2017 12/01/2017
12/04/2017

56 ASSOCIATION of Attorney Licensed Outside the District for Plaintiffs Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps by Cheryl−Lyn Bentley (Association Dues − Online Payment) (Bentley, Cheryl−Lyn) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 09/12/2017)
Association Dues Received: $ 100 receipt number 1084−5392647 re: # 56 Association of Attorney Licensed Outside the District, filed by Lisa A. Garcia, Sue C. Phelps, Lisa A. Kennicott (Payment made via Pay.gov)(Bentley, Cheryl−Lyn) (Entered: 09/12/2017)
57 NOTICE by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps re 56 Association of Attorney Licensed Outside the District, Certification by Member of the Federal Bar of the District of New Mexico (Levin−Gesundheit, Michael) (Entered: 09/12/2017)
58 STATUS REPORT Joint Discovery Status Report by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Zegeye, Tiseme) (Entered: 10/02/2017)
59 CERTIFICATE OF SERVICE by Sandia Corporation of its Second Set of Request for Production to counsel for Lisa Kennicott (Gordon, Scott) (Entered: 10/18/2017)
60 BRIEF re 18 Response in Opposition to Motion, Plaintiffs' Supplemental Submission in Support of Plaintiffs' Opposition to Defendant's Motion to Dismiss State Law Claims by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Levin−Gesundheit, Michael) (Entered: 10/24/2017)
61 DECLARATION re 60 Brief, Declaration of Michael Levin−Gesundheit ISO Plaintiffs' Supplemental Submission ISO Plaintiffs' Opposition to Defendant's Motion to Dismiss State Law Claims by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Levin−Gesundheit, Michael) (Entered: 10/24/2017)
62 Unopposed MOTION for Extension of Time to File Response/Reply to Plaintiffs' Supplemental Submission by Sandia Corporation. (Lowry, Jeffrey) (Entered: 10/30/2017)
63 STATUS REPORT Joint Discovery Status Report by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Zegeye, Tiseme) (Entered: 10/30/2017)
64 ORDER by District Judge James O. Browning granting 62 Motion for Extension of Time to File Response (meq) (Entered: 11/07/2017)
65 RESPONSE to Plaintiffs' Supplemental Submission in Support of Plaintiffs Opposition to Defendants Motion to Dismiss State Law Claims re 60 Brief, filed by Sandia Corporation. (Attachments: # 1 Exhibit 1 and 2) (Lowry, Jeffrey) (Entered: 11/07/2017)
66 CERTIFICATE OF SERVICE by Lisa A. Kennicott of Objections & Response to Defendant's 2nd Set of Request for Production of Documents (Zegeye, Tiseme) (Entered: 11/16/2017)
67 Unopposed MOTION for Leave to File Reply to Sandia's Response to Plaintiffs' Supplemental Submission In Support of Plaintiffs' Opposition to Sandia's Motion to Dismiss State Law Claims by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Levin−Gesundheit, Michael) (Entered: 11/20/2017)
68 STATUS REPORT Joint Discovery Status Report by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Zegeye, Tiseme) (Entered: 11/29/2017)
69 ORDER by District Judge James O. Browning granting 67 Motion for Leave to File Reply (meq) (Entered: 12/01/2017)
70 Plaintiffs' REPLY to Sandia's Response to Plaintiffs' Supplemental Submission ISO Plaintiffs' Opposition to Sandia's Motion to Dismiss State Law Claims re 65 Response, filed by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Levin−Gesundheit, Michael) (Entered: 12/01/2017)
71 NOTICE of Briefing Complete by Sandia Corporation re 14 MOTION to Dismiss State Law Claims filed by Sandia Corporation (Lowry, Jeffrey) (Entered: 12/04/2017)

Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 13 of 23

12/11/2017 12/13/2017 12/29/2017 01/05/2018
01/18/2018
01/18/2018 01/19/2018 01/23/2018 01/24/2018

72 ORDER by District Judge James O. Browning granting 53 Motion for Protective Order (meq) (Entered: 12/11/2017)
73 ORDER by District Judge James O. Browning re 54 Stipulation Concerning Production of Electronically Stored Information (meq) (Entered: 12/13/2017)
74 STATUS REPORT Joint Discovery Report by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Zegeye, Tiseme) (Entered: 12/29/2017)
75 NOTICE of Status Conference scheduled for 1/18/2018 at 02:30 PM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning. (mnb) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 01/05/2018)
76 NOTICE of Motion Hearing regarding the Defendant's Motion to Dismiss state Law Claims 14 scheduled for 1/19/2018 at 11:00 AM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning. (mnb) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 01/18/2018)
89 Clerk's Minutes for proceedings held before District Judge James O. Browning: Status Conference held on 1/18/2018. (Court Reporter J. Bean) (kg) (Entered: 02/22/2018)
88 Clerk's Minutes for proceedings held before District Judge James O. Browning: Motion Hearing held on 1/19/2018 re 14 MOTION to Dismiss State Law Claims filed by Sandia Corporation. (Court Reporter J. Bean) (kg) (Entered: 02/22/2018)
77 CERTIFICATE OF SERVICE by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps of Plaintiffs' First Set of Interrogatories to Defendant (Levin−Gesundheit, Michael) (Entered: 01/23/2018)
78 TRANSCRIPT of Motion Proceedings held on 01/19/18, before District Judge James O. Browning. Court Reporter/Transcriber Jennifer Bean, Telephone number 505−348−2833. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us.

01/25/2018 01/26/2018 01/29/2018 01/31/2018

Notice of Intent to Request Redaction set for 1/31/2018. Redaction Request due 2/14/2018. Redacted Transcript Deadline set for 2/26/2018. Release of Transcript Restriction set for 4/24/2018. (jab) (Entered: 01/24/2018)
79 Joint MOTION to Extend (other) Case Schedule by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Zegeye, Tiseme) (Entered: 01/25/2018)
80 ORDER by Magistrate Judge Gregory J. Fouratt GRANTING 79 Joint Motion to Extend Case Schedule. (kdj) (Entered: 01/26/2018)
81 STATUS REPORT Joint Discovery Status Report by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Zegeye, Tiseme) (Entered: 01/29/2018)
82 TRANSCRIPT of Motion Proceedings held on 01/18/18, before District Judge James O. Browning. Court Reporter/Transcriber Jennifer Bean, Telephone number 505−348−2833. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of

Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 14 of 23

any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us.

01/31/2018 02/15/2018 02/16/2018 02/22/2018 02/27/2018 03/01/2018 03/05/2018 03/05/2018
03/07/2018
03/19/2018 03/19/2018 03/26/2018 03/28/2018 03/29/2018 03/29/2018 03/30/2018

Notice of Intent to Request Redaction set for 2/7/2018. Redaction Request due 2/21/2018. Redacted Transcript Deadline set for 3/5/2018. Release of Transcript Restriction set for 5/1/2018. (jab) (Entered: 01/31/2018)
83 MEMORANDUM in Support re 14 MOTION to Dismiss State Law Claims Supplemental Post−Hearing Brief filed by Sandia Corporation. (Attachments: # 1 Exhibit A) (Lowry, Jeffrey) (Entered: 01/31/2018)
84 Plaintiffs' RESPONSE to Sandia's Supplemental Post−Hearing Brief re 83 Memorandum in Support filed by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Levin−Gesundheit, Michael) (Entered: 02/15/2018)
85 NOTICE by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps of Withdrawal of Attorney Elizabeth V. Stork (Stork, Elizabeth) (Entered: 02/16/2018)
87 NOTICE of Appearance by Shira J. Tevah on behalf of Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Tevah, Shira) (Entered: 02/22/2018)
90 STATUS REPORT Joint Discovery Status Report by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Zegeye, Tiseme) (Entered: 02/27/2018)
91 CERTIFICATE OF SERVICE by Sandia Corporation of Objections and Responses to First Set of Interrogatories (Katzenstein, Krissy) Modified text on 3/2/2018 (bap). (Entered: 03/01/2018)
92 REDACTED DOCUMENT: Plaintiffs' Motion to Compel Production of Documents by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Tevah, Shira) (Entered: 03/05/2018)
94 DECLARATION re 92 Redacted Document in Support of Plaintiffs' Motion to Compel by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C − Exhibit Under Seal, # 4 Exhibit D − Exhibit Under Seal) (Tevah, Shira) (Entered: 03/05/2018)
96 DECLARATION re 92 Redacted Document / Amended Declaration in Support of Plaintiffs' Motion to Compel by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Attachments: # 1 Exhibit A − Corrected, # 2 Exhibit D − Corrected Exhibit Under Seal) (Tevah, Shira) (Entered: 03/07/2018)
99 RESPONSE in Opposition re 93 MOTION to Compel Production of Documents filed by Sandia Corporation. (Katzenstein, Krissy) (Entered: 03/19/2018)
100 DECLARATION re 99 Response in Opposition to Motion to Compel Production of Documents by Sandia Corporation (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Katzenstein, Krissy) (Entered: 03/19/2018)
101 NOTICE by Sandia Corporation of Stephanie L. Latimer Withdrawal as Counsel for Defendant (Gordon, Scott) (Entered: 03/26/2018)
102 NOTICE of Appearance by Paola Viviana Jaime on behalf of Sandia Corporation (Jaime, Paola) (Entered: 03/28/2018)
103 STATUS REPORT Joint Discovery Status Report by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Zegeye, Tiseme) (Entered: 03/29/2018)
104 Joint MOTION to Extend (other) Case Schedule by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Zegeye, Tiseme) (Entered: 03/29/2018)
105 ORDER GRANTING 104 Joint Motion to Extend Case Schedule by Magistrate Judge Gregory J. Fouratt. (sr) (Entered: 03/30/2018)

Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 15 of 23

03/31/2018 04/02/2018 04/02/2018 04/19/2018
05/01/2018 05/02/2018 05/14/2018 05/14/2018 05/18/2018

106 ORDER by District Judge James O. Browning granting Defendant's Motion to Dismiss State Law Claims 14 (hj) (Entered: 03/31/2018)
107 REPLY to Response to Motion re 93 MOTION to Compel Production of Documents filed by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Dermody, Kelly) (Entered: 04/02/2018)
108 NOTICE of Briefing Complete by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps re 93 MOTION to Compel Production of Documents filed by Lisa A. Garcia, Sue C. Phelps, Lisa A. Kennicott (Dermody, Kelly) (Entered: 04/02/2018)
109 ORDER SETTING MOTION HEARING on 93 Plaintiffs' Motion to Compel by Magistrate Judge Gregory J. Fouratt. Telephonic motion hearing set for 5/2/2018 at 1:30 PM. The parties shall call Judge Fouratt's "Meet Me" line at (505) 348−2695 to be connected to the proceedings. (sr) (Entered: 04/19/2018)
110 STATUS REPORT Joint Discovery Report by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Zegeye, Tiseme) (Entered: 05/01/2018)
111 Clerk's Minutes for hearing on 93 Plaintiffs' Motion to Compel Production of Documents held on 5/2/18 before Magistrate Judge Gregory J. Fouratt. (sr) (Entered: 05/03/2018)
112 ORDER GRANTING 93 Plaintiffs' Motion to Compel by Magistrate Judge Gregory J. Fouratt. (sr) (Entered: 05/14/2018)
113 MEMORANDUM OPINION by District Judge James O. Browning granting Defendant's Motion to Dismiss State Law Claims 14 (hj) (Entered: 05/14/2018)
114 TRANSCRIPT of Hearing on Plaintiffs' Motion to Compel held on May 2, 2018, before Magistrate Judge Gregory J. Fouratt. Court Reporter/Transcriber Rose and Ray Transcription, Telephone number 505−881−2711. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us.

05/25/2018 05/25/2018 05/25/2018 05/25/2018 05/29/2018

Notice of Intent to Request Redaction set for 5/25/2018. Redaction Request due 6/8/2018. Redacted Transcript Deadline set for 6/18/2018. Release of Transcript Restriction set for 8/16/2018.(jg) Modified Docket Text on 5/22/2018 (jg). (Entered: 05/18/2018)
115 MOTION to Extend (other) Deadline to Produce Documents by Sandia Corporation. (Katzenstein, Krissy) (Entered: 05/25/2018)
116 RESPONSE to Motion re 115 MOTION to Extend (other) Deadline to Produce Documents filed by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Zegeye, Tiseme) (Entered: 05/25/2018)
117 OBJECTIONS to Magistrate Judge's Order Granting Plaintiffs' Motion to Compel by Sandia Corporation (Katzenstein, Krissy) (Entered: 05/25/2018)
118 DECLARATION re 117 Objections to Magistrate Judge's Order Granting Plaintiffs' Motion to Compel by Sandia Corporation (Attachments: # 1 Exhibit 1 − Excerpts from Hearing Transcript) (Katzenstein, Krissy) (Entered: 05/25/2018)
119 ORDER SETTING TELEPHONIC MOTION HEARING on 115 Motion to Extend Deadlines for 6/1/2018 at 02:30 PM in Las Cruces by Magistrate Judge Gregory J. Fouratt. The parties shall call Judge Fouratt's "Meet Me" line at (505) 348−2695 to be

Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 16 of 23

05/29/2018 05/29/2018 05/31/2018 05/31/2018
06/04/2018 06/06/2018 06/08/2018
06/08/2018 06/08/2018
06/08/2018 06/08/2018 06/08/2018 06/13/2018 06/13/2018

connected to the proceedings. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (kdj) (Entered: 05/29/2018)
120 MOTION to Stay Magistrate's Order Pending District Court's Ruling on Defendants Objections by Sandia Corporation. (Gordon, Scott) (Entered: 05/29/2018)
121 STATUS REPORT Joint Discovery Status Report #11 by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Zegeye, Tiseme) (Entered: 05/29/2018)
122 NOTICE by Sandia Corporation re 115 MOTION to Extend (other) Deadline to Produce Documents (Katzenstein, Krissy) (Entered: 05/31/2018)
123 ORDER RESETTING TELEPHONIC MOTION HEARING by Magistrate Judge Gregory J. Fouratt. The telephonic motion hearing that was originally set by 119 for June 1, 2018 is now RESET TO June 8, 2018 at 2:30 pm. The hearing is on 115 Sandia's Motion to Extend Deadline to Produce Documents and 120 Sandia's Motion to Stay Magistrate's Order Pending District Court's Ruling on Defendant's Objections. The parties shall call Judge Fouratt's "Meet Me" line at (505) 348−2695 to be connected to the proceedings. (sr) (Entered: 05/31/2018)
124 RESPONSE in Opposition re 120 MOTION to Stay Magistrate's Order Pending District Court's Ruling on Defendants Objections filed by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Levin−Gesundheit, Michael) (Entered: 06/04/2018)
125 REPLY to Response to Motion re 120 MOTION to Stay Magistrate's Order Pending District Court's Ruling on Defendants Objections filed by Sandia Corporation. (Gordon, Scott) (Entered: 06/06/2018)
126 ORDER SETTING TELEPHONIC STATUS CONFERENCE for 6/27/2018 at 01:30 PM by Magistrate Judge Gregory J. Fouratt. The parties shall call Judge Fouratt's "Meet Me" line at (505) 348−2695 to be connected to the proceedings. (kdj) (Entered: 06/08/2018)
127 RESPONSE to Sandia's Objections to Magistrate Judge's Order Granting Plaintiffs' Motion to Compel Production of Documents re 117 Objections filed by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Levin−Gesundheit, Michael) (Entered: 06/08/2018)
128 DECLARATION re 127 Response, Declaration of Michael Levin−Gesundheit In Support of Plaintiffs' Response to Sandia's Objections to Magistrate Judge's Order Granting Plaintiffs' Motion to Compel Production of Documents by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Levin−Gesundheit, Michael) (Entered: 06/08/2018)
129 ORDER DENYING AS MOOT 115 Defendant's Motion for Extension of Time to Produce Documents by Magistrate Judge Gregory J. Fouratt. (sr) (Entered: 06/08/2018)
130 ORDER GRANTING 120 Defendant's Motion to Stay Magistrate's Order Pending District Court's Ruling on Defendant's Objections by Magistrate Judge Gregory J. Fouratt. (sr) (Entered: 06/08/2018)
131 Clerk's Minutes for Motion Hearing held before Magistrate Judge Gregory J. Fouratt on 6/8/2018. (sr) (Entered: 06/08/2018)
132 CERTIFICATE OF SERVICE by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps of Third Amended Initial Disclosures (Levin−Gesundheit, Michael) (Entered: 06/13/2018)
133 ASSOCIATION of Attorney Licensed Outside the District for Plaintiffs Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps by Tiseme Gabriella Zegeye on behalf of: Rachel Bien Outten & Golden, LLP 601 S Figueroa Street, Suite 4050 Los Angeles, CA 90017 (646) 825−4385 Fax (646) 509−2058 rmb@outtengolden.com

Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 17 of 23

06/13/2018
06/13/2018 06/13/2018 06/18/2018
06/20/2018 06/21/2018 06/22/2018 06/22/2018 06/22/2018 06/27/2018 06/27/2018 06/28/2018 06/29/2018
07/05/2018 07/06/2018

(Association Dues − Online Payment) (Zegeye, Tiseme) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 06/13/2018)
Association Dues Received: $ 100 receipt number 1084−5868572 re: # 133 Association of Attorney Licensed Outside the District,, filed by Lisa A. Garcia, Sue C. Phelps, Lisa A. Kennicott (Payment made via Pay.gov)(Zegeye, Tiseme) (Entered: 06/13/2018)
134 NOTICE by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps re 133 Association of Attorney Licensed Outside the District,, Certification by Member of the Federal Bar of the District of New Mexico (Zegeye, Tiseme) (Entered: 06/13/2018)
135 CERTIFICATE OF SERVICE by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps of Plaintiffs' Third Set of Requests for Production of Documents (Levin−Gesundheit, Michael) (Entered: 06/13/2018)
136 ORDER RESETTING TELEPHONIC STATUS CONFERENCE by Magistrate Judge Gregory J. Fouratt. The telephonic status conference originally set by 126 for 6/27/18 at 1:30 pm is now RESET TO 6/28/18 at 1:30 pm. The parties shall call Judge Fouratt's "Meet Me" line at (505) 348−2695 to be connected to the proceedings. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (sr) (Entered: 06/18/2018)
137 Joint MOTION to Extend (other) Case Schedule by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Zegeye, Tiseme) (Entered: 06/20/2018)
138 ORDER GRANTING 137 Joint Motion to Extend Case Schedule by Magistrate Judge Gregory J. Fouratt. (sr) (Entered: 06/21/2018)
139 REPLY re 117 Objections filed by Sandia Corporation. (Katzenstein, Krissy) (Entered: 06/22/2018)
140 DECLARATION re 139 Reply by Sandia Corporation (Attachments: # 1 Exhibit 1 − Excerpts of Hearing Transcript) (Katzenstein, Krissy) (Entered: 06/22/2018)
141 NOTICE by Sandia Corporation re 117 Objections Completion of Briefing (Katzenstein, Krissy) (Entered: 06/22/2018)
142 STATUS REPORT Joint Discovery Status Report #12 by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Zegeye, Tiseme) (Entered: 06/27/2018)
143 NOTICE of Appearance by Gretchen Mary Elsner on behalf of All Plaintiffs (Elsner, Gretchen) (Entered: 06/27/2018)
144 Clerk's Minutes for Discovery Status Conference held before Magistrate Judge Gregory J. Fouratt on 6/28/2018. (sr) (Entered: 06/28/2018)
145 ORDER SETTING TELEPHONIC DISCOVERY STATUS CONFERENCE by Magistrate Judge Gregory J. Fouratt. Telephonic Discovery Status Conference set for 8/30/2018 at 2:00 PM MDT. The parties shall file their Joint Discovery Status Report No. 14 no later than 8/29/2018 at 12:00 PM MDT. The parties shall call Judge Fouratt's "Meet Me" line at (505) 348−2695 to be connected to the proceedings. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (sr) (Entered: 06/29/2018)
146 AMENDED COMPLAINT against Sandia Corporation. adding Judi Doolittle., filed by Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Zegeye, Tiseme) (Entered: 07/05/2018)
147 ORDER SETTING TELEPHONIC STATUS CONFERENCE by Magistrate Judge Gregory J. Fouratt. Telephonic Status Conference set for 7/10/2018 at 3:00 PM MT. Counsel should be prepared to discuss the effects, if any, of the First Amended Class Action Complaint 146 on the pending Objections to Magistrate Judge's Order Granting Plaintiffs' Motion to Compel 117 and whether supplemental briefing is required. The parties shall call Judge Fouratt's "Meet Me" line at (505) 348−2695 to be connected to the proceedings. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (sr) (Entered: 07/06/2018)

Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 18 of 23

07/10/2018 07/12/2018 07/13/2018 07/13/2018 07/20/2018 07/20/2018
07/27/2018 08/09/2018 08/09/2018 08/23/2018
08/23/2018 08/29/2018 08/30/2018 08/31/2018 08/31/2018
09/05/2018 09/06/2018 09/06/2018 09/06/2018

148 Clerk's Minutes for Status Conference held before Magistrate Judge Gregory J. Fouratt on 7/10/2018. (sr) (Entered: 07/11/2018)
149 Unopposed MOTION to Extend (other) Time to Respond to Plaintiffs' First Amended Class Action Complaint by Sandia Corporation. (Lowry, Jeffrey) (Entered: 07/12/2018)
150 CERTIFICATE OF SERVICE by Sandia Corporation of its Objections and Responses to Plaintiffs' Third Set of Requests for Production of Documents (Gordon, Scott) (Entered: 07/13/2018)
151 ORDER GRANTING 149 Defendant's Unopposed Motion to Extend Time to Respond to Plaintiffs' First Amended Class Action Complaint by Magistrate Judge Gregory J. Fouratt. (sr) (Entered: 07/13/2018)
152 BRIEF re 117 Objections by Sandia Corporation (Katzenstein, Krissy) (Entered: 07/20/2018)
153 As Ordered In ECF No. 149, RESPONSE Plaintiffs' Supplemental Brief Regarding the Effect of the First Amended Complaint on Sandia's Objections (ECF No. 117) to Order Granting Plaintiffs' Motion to Compel Production of Documents (ECF No. 112) re 148 Status Conference filed by Judi Doolittle, Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Tevah, Shira) (Entered: 07/20/2018)
154 STATUS REPORT Joint Discovery Status Report #13 by Judi Doolittle, Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Zegeye, Tiseme) (Entered: 07/27/2018)
155 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Sandia Corporation. (Katzenstein, Krissy) (Entered: 08/09/2018)
156 MOTION to Stay Discovery Pending Ruling on Defendant's Motion to Dismiss Class Claims by Sandia Corporation. (Katzenstein, Krissy) (Entered: 08/09/2018)
157 RESPONSE in Opposition re 155 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Judi Doolittle, Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Levin−Gesundheit, Michael) Modified text on 8/23/2018 per attorney request (gr). (Entered: 08/23/2018)
158 RESPONSE in Opposition re 156 MOTION to Stay Discovery Pending Ruling on Defendant's Motion to Dismiss Class Claims filed by Judi Doolittle, Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Levin−Gesundheit, Michael) (Entered: 08/23/2018)
159 Joint Status Report #14 by Judi Doolittle, Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Levin−Gesundheit, Michael) (Entered: 08/29/2018)
160 MEMORANDUM OPINION AND ORDER overruling 117 Objections to Magistrate Judge's order by District Judge James O. Browning. (vv) (Entered: 08/30/2018)
161 Clerk's Minutes for Discovery Management Conference held on 8/30/2018 before Magistrate Judge Gregory J. Fouratt. (mm) (Entered: 08/31/2018)
162 INTERIM DISCOVERY ORDER by Magistrate Judge Gregory J. Fouratt. Telephonic Discovery Management Hearing set for 10/30/2018 at 02:30 PM. The parties shall call Judge Fouratt's "Meet Me" line at (505) 348−2695 to be connected to the proceedings. Status Report due by 10/29/2018. (mm) (Entered: 08/31/2018)
163 NOTICE of Appearance by Cindy Jean Lovato−Farmer on behalf of Sandia Corporation (Lovato−Farmer, Cindy) (Entered: 09/05/2018)
164 NOTICE of Appearance by Justin E Poore on behalf of Sandia Corporation (Poore, Justin) (Entered: 09/06/2018)
165 REPLY to Response to Motion re 155 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Sandia Corporation. (Katzenstein, Krissy) (Entered: 09/06/2018)
166 REPLY to Response to Motion re 156 MOTION to Stay Discovery Pending Ruling on Defendant's Motion to Dismiss Class Claims filed by Sandia Corporation. (Katzenstein, Krissy) (Entered: 09/06/2018)

Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 19 of 23

09/07/2018 09/07/2018 09/14/2018 09/20/2018 09/25/2018 09/26/2018
09/27/2018 09/27/2018
10/01/2018
10/02/2018
10/02/2018 10/08/2018 10/09/2018
10/09/2018 10/09/2018 10/11/2018 10/11/2018 10/12/2018

167 NOTICE of Briefing Complete by Sandia Corporation re 155 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Sandia Corporation (Gordon, Scott) (Entered: 09/07/2018)
168 NOTICE of Briefing Complete by Sandia Corporation re 156 MOTION to Stay Discovery Pending Ruling on Defendant's Motion to Dismiss Class Claims filed by Sandia Corporation (Gordon, Scott) (Entered: 09/07/2018)
169 Notice of withdrawal of attorney appearance by Judi Doolittle, Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Tevah, Shira) Modified on 9/17/2018 (vv). (Entered: 09/14/2018)
170 ORDER DENYING 156 Motion to Stay by Magistrate Judge Gregory J. Fouratt. (kdj) (Entered: 09/20/2018)
171 Joint Status Report #15 by Judi Doolittle, Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Levin−Gesundheit, Michael) (Entered: 09/25/2018)
172 ORDER SETTING TELEPHONIC STATUS CONFERENCE by Magistrate Judge Gregory J. Fouratt. Telephonic status conference set for 9/27/2018 at 02:00 PM. The parties shall call Judge Fouratt's "Meet Me" line at (505) 348−2695 to be connected to the proceedings. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (mm) (Entered: 09/26/2018)
173 Clerk's Minutes for Status Conference before Magistrate Judge Gregory J. Fouratt held on 9/27/2018. (mm) (Entered: 09/27/2018)
174 ORDER GRANTING EXTENSION OF TIME by Magistrate Judge Gregory J. Fouratt. The parties shall submit a joint proposed revised schedule or competing proposed revised schedules not later than October 11, 2018. (mm) (Entered: 09/27/2018)
175 NOTICE of Hearing on Motion 155 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : Motion Hearing set for 10/10/2018 at 01:30 PM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning. (cab) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 10/01/2018)
176 AMENDED NOTICE of Hearing on Motion 155 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM: Motion Hearing set for 10/17/2018 at 09:00 AM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning. (cab) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 10/02/2018)
177 Letter by District Judge James O. Browning (meq) (Entered: 10/02/2018)
178 CERTIFICATE OF SERVICE by Sandia Corporation of its Supplemental Disclosures (Gordon, Scott) (Entered: 10/08/2018)
179 MINUTE ORDER, pursuant to the direction of District Judge James O. Browning, the motions hearing presently scheduled for 10/17/18 is VACATED and will be reset by separate notice at a later date. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED (cab) (Entered: 10/09/2018)
180 Letter by counsel (vv) (Entered: 10/09/2018)
181 Email by counsel (vv) (Entered: 10/09/2018)
182 Letter by US District Judge Browning to counsel re clerk (vv) (Entered: 10/11/2018)
183 STIPULATION Joint Proposed Case Schedule by Judi Doolittle, Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Shaver, Anne) (Entered: 10/11/2018)
184 NOTICE of Hearing on Motion 155 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : Motion Hearing set for 10/17/2018 at 10:00 AM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning. (cab) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered:

Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 20 of 23

10/17/2018 10/26/2018

10/12/2018)
185 Clerk's Minutes for proceedings held before District Judge James O. Browning: Motion Hearing held on 10/17/2018 re 155 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Sandia Corporation. (Court Reporter J. Bean) (vv) (Entered: 10/17/2018)
186 TRANSCRIPT of Motion Proceedings held on October 17 2018, before District Judge James O. Browning. Court Reporter/Transcriber Jennifer Bean, Telephone number 505−348−2283. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us.

11/12/2018 11/15/2018 11/15/2018 11/20/2018 11/26/2018 11/29/2018 12/03/2018 12/06/2018
12/06/2018
12/10/2018

Notice of Intent to Request Redaction set for 11/2/2018. Redaction Request due 11/16/2018. Redacted Transcript Deadline set for 11/26/2018. Release of Transcript Restriction set for 1/24/2019. (jab) (Entered: 10/26/2018)
187 STATUS REPORT Letter to Judge Browning re case schedule by Judi Doolittle, Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Shaver, Anne) (Entered: 11/12/2018)
188 STATUS REPORT Letter to Judge Browning re Case Schedule by Sandia Corporation (Katzenstein, Krissy) (Entered: 11/15/2018)
189 STATUS REPORT Reply Letter to Judge Browning re Case Schedule by Judi Doolittle, Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Shaver, Anne) (Entered: 11/15/2018)
190 MEMORANDUM OPINION AND ORDER granting in part and denying in part 187 188 Status Report by District Judge James O. Browning. (vv) (Entered: 11/20/2018)
191 CERTIFICATE OF SERVICE by Sandia Corporation of its First Set of Interrogatories and First Set of Requests for Production of Documents to Plaintiff Judi Doolittle (Gordon, Scott) (Entered: 11/26/2018)
192 CERTIFICATE OF SERVICE by Judi Doolittle, Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps Fourth Amended Initial Disclosures (Zegeye, Tiseme) (Entered: 11/29/2018)
193 CERTIFICATE OF SERVICE by Judi Doolittle, Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps of Plaintiffs' Fourth Set of Requests for Production of Documents (Levin−Gesundheit, Michael) (Entered: 12/03/2018)
194 STATUS REPORT Letter to the Honorable Gregory J. Fouratt Requesting Teleconference to Resolve Two Discovery Disputes on an Expedited Basis by Judi Doolittle, Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Levin−Gesundheit, Michael) (Entered: 12/06/2018)
195 NOTICE of Hearing: Discovery Hearing set for 12/11/2018 at 08:30 AM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning. Should counsel wish to appear telephonically for the hearing they should contact the Court's Courtroom Deputy (carol_bevel@nmd.uscourts.gov or (505) 348−2289) to coordinate arrangements. (cab) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 12/06/2018)
196 STATUS REPORT Letter from K. Katzenstein in Response to Plaintiffs' December 6 Letter by Sandia Corporation (Attachments: # 1 Exhibit 1 − Email Exchange, # 2 Exhibit 2 − Sandia Document, # 3 Exhibit 3 − Pls' Fourth Set of RFPs) (Katzenstein,

Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 21 of 23

12/10/2018
12/11/2018 12/20/2018 12/21/2018 12/31/2018 01/09/2019
01/09/2019 01/11/2019 01/15/2019 01/16/2019 01/17/2019 01/18/2019 01/18/2019 01/18/2019 01/23/2019 01/28/2019 01/30/2019 02/01/2019 02/04/2019

Krissy) (Entered: 12/10/2018)
197 STATUS REPORT Reply Letter to the Honorable James O. Browning Regarding December 11, 2018 Discovery Hearing (ECF Nos. 194, 195) by Judi Doolittle, Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Levin−Gesundheit, Michael) (Entered: 12/10/2018)
198 Clerk's Minutes for proceedings held before District Judge James O. Browning: Discovery Hearing held on 12/11/2018. (Court Reporter J Bean) (vv) (Entered: 12/11/2018)
199 CERTIFICATE OF SERVICE by Judi Doolittle, Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps re discovery (Zegeye, Tiseme) Modified on 12/20/2018 (vv). (Entered: 12/20/2018)
200 Joint Status Report # 16 by Judi Doolittle, Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Shaver, Anne) (Entered: 12/21/2018)
201 CERTIFICATE OF SERVICE by Sandia Corporation Objections and Response to Plaintiffs' Fourth Set of Requests for Production (Katzenstein, Krissy) (Entered: 12/31/2018)
202 NOTICE of Hearing: Telephonic Status Conference set for 1/11/2019 at 10:00 AM in Albuquerque − Telephonic Hearing/Conference before District Judge James O. Browning. Counsel shall call the Court's AT&T Conference line at 1−888−684−8852, Access Code: 5469085 to participate in the telephonic status conference. (cab) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 01/09/2019)
203 CERTIFICATE OF SERVICE by Judi Doolittle, Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps Plaintiff Judi Doolittle Objections and Responses to Defendant First Set of Requests for Production of Documents (Zegeye, Tiseme) (Entered: 01/09/2019)
204 Clerk's Minutes for proceedings held before District Judge James O. Browning: Telephonic Status Conference held on 1/11/2019. (Court Reporter J. Bean) (kg) (Entered: 01/11/2019)
205 Letter by Krissy Katzenstein to Judge Browning. (kg) (Entered: 01/15/2019)
206 Letter to counsel by District Judge James O. Browning (Attachments: # 1 Exhibit) (vv) (Additional attachment(s) added on 1/16/2019: # 2 Exhibit) (vv). (Entered: 01/16/2019)
207 CERTIFICATE OF SERVICE by Judi Doolittle, Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps of Plaintiffs' Fifth Set of Requests for Production of Documents ( (Levin−Gesundheit, Michael) (Entered: 01/17/2019)
208 Email by counsel to court (vv) (Entered: 01/18/2019)
209 ORDER re 206 Letter by District Judge James O. Browning. (vv) (Entered: 01/18/2019)
210 NOTICE OF WITHDRAWAL OF DOCUMENT by Sandia Corporation (Katzenstein, Krissy) (Entered: 01/18/2019)
211 STATUS REPORT Joint Discovery Status Report #17 by Judi Doolittle, Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Zegeye, Tiseme) (Entered: 01/23/2019)
212 CERTIFICATE OF SERVICE by Sandia Corporation of its Supplemental Response to Plaintiffs' Request for Production No. 1 (Gordon, Scott) (Entered: 01/28/2019)
213 MEMORANDUM OPINION AND ORDER re 194 Status Report by District Judge James O. Browning. (vv) (Entered: 01/30/2019)
214 ANSWER to 146 Amended Complaint by Sandia Corporation.(Katzenstein, Krissy) (Entered: 02/01/2019)
215 NOTICE of Hearing: Discovery Hearing set for 2/21/2019 at 08:30 AM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning. (cab)

Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 22 of 23

02/15/2019
02/21/2019
03/01/2019 03/05/2019 04/03/2019
04/11/2019 04/11/2019 04/15/2019 04/15/2019
04/18/2019
04/22/2019
04/23/2019 04/23/2019 05/03/2019
05/06/2019 05/13/2019 05/13/2019 05/14/2019
05/14/2019 05/17/2019

[THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 02/04/2019)
216 CERTIFICATE OF SERVICE by Sandia Corporation Objections and Response to Plaintiffs' Fifth Set of Requests for Production (Katzenstein, Krissy) (Entered: 02/15/2019)
217 Clerk's Minutes for proceedings held before District Judge James O. Browning: Discovery Status Conference held on 2/21/2019. (Court Reporter J Bean) (vv) (Entered: 02/21/2019)
218 Joint Status Report by Judi Doolittle, Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps (Levin−Gesundheit, Michael) (Entered: 03/01/2019)
219 Joint Status Report by Sandia Corporation (Katzenstein, Krissy) (Entered: 03/05/2019)
223 MOTION to Withdraw Lisa Kennicott as Class Representative and Sever Claims by Judi Doolittle, Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Levin−Gesundheit, Michael) (Entered: 04/03/2019)
224 Letter by Lisa Kennicott (vv) (Entered: 04/11/2019)
225 NOTICE by Sandia Corporation of Re−Docketing it Motion to Dismiss (Lovato−Farmer, Cindy) (Entered: 04/11/2019)
226 ORDER by District Judge James O. Browning granting 223 Motion to withdraw as class representative (vv) (Entered: 04/15/2019)
227 RESPONSE in Opposition to Sandia's Request for Redocketing of Motion to Dismiss & Request for Settlement Conference re 225 Notice (Other) filed by Judi Doolittle, Lisa A. Garcia, Sue C. Phelps. (Levin−Gesundheit, Michael) (Entered: 04/15/2019)
229 REDACTED DOCUMENT: as to 228 MOTION to Withdraw as Attorney for Former Plaintiff Lisa A. Kennicott; [Proposed] Order (Under Seal) by Judi Doolittle, Lisa A. Garcia, Sue C. Phelps (Levin−Gesundheit, Michael) (Entered: 04/18/2019)
230 ERRATA re 228 MOTION to Withdraw as Attorney for Former Plaintiff Lisa A. Kennicott; [Proposed] Order (Under Seal), 229 Redacted Document by Judi Doolittle, Lisa A. Garcia, Sue C. Phelps (Levin−Gesundheit, Michael) (Entered: 04/22/2019)
231 REPLY re 225 Notice (Other) filed by Sandia Corporation. (Lowry, Jeffrey) (Entered: 04/23/2019)
232 NOTICE by Sandia Corporation re 225 Notice (Other) of Completion (Lowry, Jeffrey) (Entered: 04/23/2019)
233 NOTICE of Hearing on Motion 228 MOTION to Withdraw as Attorney for Former Plaintiff Lisa A. Kennicott; [Proposed] Order (Under Seal) : Motion Hearing set for 5/14/2019 at 08:30 AM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning. (cab) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 05/03/2019)
234 STIPULATION of Dismissal by Judi Doolittle, Lisa A. Garcia, Sue C. Phelps (Shaver, Anne) (Entered: 05/06/2019)
235 Letter by Lisa Kennicott (vv) (Entered: 05/13/2019)
236 REPLY re 235 Letter filed by Judi Doolittle, Lisa A. Garcia, Lisa A. Kennicott, Sue C. Phelps. (Shaver, Anne) (Entered: 05/13/2019)
237 Clerk's Minutes for proceedings held before District Judge James O. Browning: Motion Hearing held on 5/14/2019 re 228 MOTION to Withdraw as Attorney (Court Reporter J Bean) (vv) (Entered: 05/15/2019)
245 CM/ECF Pro Se Notification Form by Lisa A. Kennicott (vv) (Entered: 05/24/2019)
238 MOTION for Final Judgment and New Caption & Case Number by Sandia Corporation. (Gordon, Scott) (Entered: 05/17/2019)

Case: 1:17-cv-188 As of: 01/23/2020 10:08 AM MST 23 of 23

05/20/2019 05/21/2019 05/23/2019 05/23/2019
05/24/2019 05/24/2019

239 Letter by counsel (vv) (Entered: 05/20/2019)
240 INITIAL SCHEDULING ORDER: by District Judge James O. Browning. Rule 16(c) Hearing set for 5/28/2019 at 01:30 PM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning. (vv) (Entered: 05/21/2019)
241 STIPULATION of Dismissal with Prejudice by Sandia Corporation (Gordon, Scott) (Entered: 05/23/2019)
242 MINUTE ORDER pursuant to the direction of District Judge James O. Browning, pursuant to the Stipulation of Dismissal filed on this date, the Initial Scheduling Conference set for 5/28/19 is vacated. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (cab) (Entered: 05/23/2019)
243 FINAL JUDGMENT by District Judge James O. Browning. (vv) (Entered: 05/24/2019)
244 ORDER granting 228 MOTION to Withdraw as Attorney by District Judge James O. Browning. (vv) (Entered: 05/24/2019)

 
 Case 1:17-cv-00188-JB-GJF Document 113 Filed 05/14/18 Page 1 of 55

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

LISA A. KENNICOTT; LISA A. GARCIA and SUE C. PHELPS, on behalf of themselves and a class of those similarly situated,

Plaintiffs,

vs.

No. CIV 17-0188 JB/GJF

SANDIA CORPORATION,

Defendant.

MEMORANDUM OPINION1

THIS MATTER comes before the Court on the Defendant’s Motion to Dismiss State

Law Claims, filed March 17, 2017 (Doc. 14)(“Motion”). The Court held hearings on June 12,

2017 and January 19, 2018. The primary issues are: (i) whether the federal enclave doctrine

applies to state-law employment discrimination claims if the employer makes allegedly

discriminatory decisions off the enclave; (ii) whether the federal enclave doctrine bars Plaintiffs

Lisa A. Kennicott’s, Lisa A. Garcia’s, and Sue Phelps’ claims against Defendant Sandia

Corporation (“Sandia Labs”) under the New Mexico Human Rights Act, N.M. Stat. Ann

§ 28-1-7(A) (“NMHRA”), and the New Mexico Fair Pay for Women Act, N.M. Stat. Ann.

§ 28-23-3(A) (“NMFPWA”); and (iii) whether Sandia Labs made the employment decisions

underlying those claims on the Kirtland Air Force Base. The Court concludes that: (i) the federal

enclave doctrine applies to state employment discrimination claims when a plaintiff works on a

1The Court previously entered an Order that granted the Defendant’s Motion to Dismiss State Law Claims, filed March 17, 2017 (Doc. 14). See Order, filed March 31, 2018 (Doc. 106). In that Order, the Court stated that it would “issue a Memorandum Opinion at a later date more fully detailing its rationale for this decision.” Order at 1 n.1. This Memorandum Opinion is the promised opinion and details the Court’s rationale for the previous Order.

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federal enclave, no matter where the employer makes the decisions underlying those claims;
(ii) the federal enclave doctrine bars the Plaintiffs’ NMHRA and NMFPWA claims, because the
Plaintiffs worked on the Kirtland Air Force Base, and those state statutes do not apply in that federal enclave2; and (iii) Sandia Labs has not established that it made the employment decisions
underlying the Plaintiffs’ claims on Kirtland Air Force Base, so if the Court were to
decide -- which it does not -- that the federal enclave doctrine applies only when the challenged
employment decisions are made on an enclave, then the Plaintiffs’ NMHRA and NMFPWA
would survive the Motion. Accordingly, the Court grants the Motion and dismisses the Plaintiffs’ NMHRA and NMFPWA claims with prejudice.3
FACTUAL BACKGROUND
In the Motion, Sandia Labs moves the Court to dismiss the Plaintiffs’ NMHRA and
NMFPWA claims for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). When deciding rule 12(b)(6) motions, the Court generally may not consider “matters
2The Court also concludes that the federal enclave doctrine would apply when an employer makes discriminatory employment decisions on a federal enclave even if those decisions impact individuals who do not work on the enclave. See infra at n.22.
3The Court dismisses the Plaintiffs’ state claims with prejudice, because, when the federal enclave doctrine applies, “only federal law applies to the claims at issue.” Hallak v. L3 Commc’ns Corp., No. CV 10-00794 R (JCX), 2010 WL 11518537, at *1 (C.D. Cal. Apr. 27, 2010)(Real, J.)(“Plaintiffs’ state law claims fail to state a claim upon which relief can be granted and, therefore, the Court dismisses those claims with prejudice, because only federal law applies to the claims at issue.”), aff’d, 490 F. App’x 2 (9th Cir. 2012). Because federal law applies to the Plaintiffs’ employment discrimination claims against Sandia Labs, the Plaintiffs cannot state a NMHRA or NMFPWA claim for which the Court can soundly grant relief. See also Shurow v. Gino Morena Enterprises, LLC, No. 3:16-CV-02844, 2017 WL 1550162, at *4 (S.D. Cal. May 1, 2017)(Lorenz, J.)(dismissing with prejudice state claims that the federal enclave doctrine bars); Smelser v. Sandia Corp., No. CIV 17-388, 2018 WL 1627214, at *9 (D.N.M. Mar. 30, 2018) (Yarbrough, M.J.)(same); Stiefel v. Bechtel Corp., 497 F. Supp. 2d 1138, 1148–49 (S.D. Cal. 2007)(Huff, J)(same); Mersnick v. USProtect Corp., No. C-06-03993 RMW, 2007 WL 2669816, at *4 (N.D. Cal. Sept. 7, 2007)(Whyte, J)(not reported)(same).
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outside the pleadings.” Fed. R. Civ. P. 12(d). The parties have also done some discovery, however, and the parties have consented to the Court converting the Motion into one for summary judgment under rule 56 of the Federal Rules of Civil Procedure. Thus, the Court will give two factual sections. First, it will explain what the Complaint alleges as relevant background of the case. Second, it will set out the undisputed facts to help it determine whether there is a genuine dispute as to a material fact.
1. The Complaint’s Facts. Sandia Labs is a “federally-funded research and development contractor operating under contract for the Department of Energy.” Class Action Complaint ¶ 2, at 1-2, filed February 7, 2017 (Doc. 1)(“Complaint”). Kennicott worked for Sandia Labs as a member of Technical Staff from January, 1995, to February, 1998. See Complaint ¶ 50, at 11. She returned to Sandia Labs in 1999 as a Senior Member of Technical Staff, and, in 2005, was promoted to Principal Member of Technical Staff. See Complaint ¶ 50, at 11. She has a master’s degree in computer science from the University of New Mexico and a master’s degree from Harvard University. See Complaint ¶ 51, at 11. Garcia started working at Sandia Labs in 1988 as a custodian, and advanced through the mailroom, the payment processing department, and the Radiation Protection department’s administrative section. See Complaint ¶ 64, at 14. Eventually, she worked as a Health Physics Technologist in Dosimetry4 within Radiation Protection, was promoted to Senior Health Physics Technologist in Dosimetry, made a “lateral move” to Electromechanical Senior Technologist in Secure Transportation, and then made another lateral move to Electronics Senior Technologist in
4“Dosimetry is the study, measurement, method of measurement, or instrument of measurement of radiation dose.” Radiation Safety Division, United States Department of Agriculture, Dosimetry, https://www.dm.usda.gov/ohsec/rsd/dosimetry.htm.
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Satellites. Complaint ¶ 64, at 14. In 2008, she was promoted to Principal Technologist in Satellites, and, a year later, made a lateral move to Principal Technologist in Telemetry,5 where she still works. See Complaint ¶ 64, at 14. Garcia has a bachelor’s degree in business from the College of Santa Fe and a Certificate in Electronics from what was then known as the Technical Vocation Institute of New Mexico.6 See Complaint ¶ 65, at 15.
Phelps began working at Sandia Labs in May, 1989, as a member of Technical Staff, Scientific Computing, and, in 1997, was promoted to Senior Member of Technical Staff, Scientific Computing. See Complaint ¶ 71, at 16. Since then, she has made several lateral movies, first to Senior Member of Technical Staff, High Performance Computing Research, then to “Senior Member of Technical Staff within the division of Defense Systems and department of Missile Defense,” and then to “Senior Member of Technical Staff within the division of Defense Systems and department of Phenomenology & Sensor Sciences.” Complaint ¶ 71, at 16. In 2013, she was promoted to Principal Member of Technical Staff in the Division of Defense Systems and Department of Phenomenology & Sensor Sciences, before retiring in 2016. See Complaint ¶ 71, at 16. Phelps has a B.S. in Mathematics from Purdue University, a master’s degree in computer science from the University of Illinois, Champaign-Urbana, and a Ph.D. in computer science from the New Mexico Institute of Mining and Technology. See Complaint ¶ 72, at 16.
5Telemetry is “an automated communications process by which measurements and other data are collected at remote or inaccessible points and transmitted to receiving equipment for monitoring.” Telemetry, https://en.wikipedia.org/wiki/Telemetry.
6The Technical Vocation Institute of New Mexico is now known as Central New Mexico Community College. See Central New Mexico Community College, https://en.wikipedia. org/wiki/Central_New_Mexico_Community_College.
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2. The Undisputed Facts.
Rule 12(d) of the Federal Rules of Civil Procedure states that, if a court considers matters
outside the pleadings on a rule 12(b)(6) motion to dismiss, it must convert the motion to one for
summary judgment under rule 56 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P.
Rule 12(d). In this Memorandum Opinion, the Court will consider matters outside the pleadings
when determining whether Sandia Labs made its employment decisions on Kirtland Air Force
Base, so it will convert the Motion into a rule 56 motion for summary judgment regarding that
issue.7 Accordingly, the Court presents these undisputed of facts based on the parties’ additional
pleadings and evidence.8
Sandia Labs’ Talent Acquisition group -- also called Talent Acquisition &
Strategies -- “partner[s] with the compensation department as well as the hiring manager to set
an appropriate salary based on experience and market.”9 Deposition of Yvonne Baros at
7In the January 18, 2018 hearing, see Draft Hearing Transcript (taken January 19, 2018) (“2018 Tr.”), the parties orally consented to the Court converting the Motion into a rule 56 motion for summary judgment. See 2018 Tr. at 21:2-4 (Shaver)(“We can consent to the idea of submitting this as a Rule 56 decision.”); id. at 22:16-17 (Gordon)(“I do think it’s appropriate, if Your Honor chooses to, to convert this to a Rule 56 motion.”).
8Because Sandia Labs filed a motion to dismiss, it did not comply with D.N.M.LR-Civ 56.1(b) (“The [movant’s] Memorandum must set out a concise statement of all the material facts as to which the movant contends no genuine issue exists.”), nor did the Plaintiffs, in their Response, comply with D.N.M.LR-Civ 56.1(b) (“The Response must contain a concise statement of the material facts cited by the movant as to which the non-movant contends a genuine issue does exist.”). Thus, the Court is somewhat hindered by not having the numbered paragraphs listing the material facts to determine whether there is a genuine issue of material fact. The Court has to determine the undisputed facts the old-fashioned way -- by reading all the evidence in the record and making a commonsense determination without the benefit of targeted pleadings.
9The Plaintiffs assert that the Talent Acquisition group “set[s] and approv[es] starting salaries for all new employees.” Supp. Submission at 3. Sandia Labs responds that Baros testified that the Talent Acquisition group performs those roles in collaboration with other groups. See Supp. Response at 3. The Baros Depo. clearly indicates that the Talent Acquisition group is not alone in setting and approving starting salaries. See Baros Depo. at 216:25-217:3
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216:8-12, (taken October 5, 2017)(Baros), filed October 24, 2017 (Doc. 61-2)(“Baros Depo.”).10 Talent Acquisition is located off the Kirtland Air Force Base. See Supp. Submission at 3-4; Human Resources Organization Chart at 10, filed October 24, 2017 (Doc. 61-1)(“HR Chart”) (stating that Talent Acquisition is located at “IPOC”). 11 From February, 2012, to February 2013, Sandia Labs’ Talent Management & Employee Engagement organization was located in Tech Area 1 on the Kirtland Air Force Base. See HR Chart at 1-5. From March, 2013, to June, 2014, the Talent Management & Employee Engagement organization was located off the Kirtland Air Force Base, at the Innovation Parkway Office Center (“IPOC”). HR Chart at 5-10. From July, 2014, to the present, the Talent Management & Employee Engagement organization was again located in Tech Area 1. See HR Chart at 10-12.
Talent Management & Employee Engagement trains Sandia Labs’ employees on policies regarding antidiscrimination and investigating discrimination complaints. See Supp. Submission at 7.; Baros Depo. at 207:5-21, 208:7-11 (Levin-Gesundheit, Baros). From 2014 to 2015, a “subdivision of HR known simply as Human Resources” (“Human Resources Group”) was located off the Kirtland Air Force Base. Supp. Submission at 3-4; HR Chart at 8-12 (indicating that the Human Resources Group was located at IPOC). Talent Management & Development and Talent Acquisition report to the Human Resources Group. See Division 3000 HR &
(Baros)(“It is their function to partner with the compensation department as well as the hiring manager to set an appropriate salary based on experience and market.”).
10The Plaintiffs “requested a Rule 30(b)(6) deposition regarding Sandia’s corporate and HR organizational structure.” Supp. Submission at 2. On October 5, 2017, the Plaintiffs deposed Yvonne Baros, Sandia Labs’ “Manager, Business Strategy and Early Career Foundation.” Supp. Submission at 2.
11According to the Plaintiffs, “IPOC” is not on Kirtland Air Force Base. Supp. Submission at 3. See Innovation Parkway Office Center (IPOC) webpage, filed March 31, 2017 (Doc. 18-4)(listing the IPOC’s address as 1611 Innovation Pkwy. SE, Albuquerque, New Mexico, 87123).
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Communications Organization Chart at 1, filed October 24, 2017 (Doc. 61-3)(“HR. Org. Chart”); Baros Depo. at 199:8-11 (Levin-Gesundheit, Baros)(establishing that the HR Org. Chart’s “vertical lines . . . indicate reporting relationships”).
HR & Communications is located on the Kirtland Air Force Base. See HR Chart at 1-20 (indicating that, for each month between January, 2012, to April, 2017, HR & Communications is listed as being on the Kirtland Air Force Base). In May, 2017, HR & Communications Vice President’s location is not listed on the HR Chart. See HR Chart at 21.12 In June, 2017, a HR & Communications Director was located at the IPOC. See HR Chart at 21.13 HR & Communications is listed two other times for that month, and both of those entries indicate that they were on the Kirtland Air Force Base. See HR Chart at 21. The Vice President of HR & Communications is tasked with final approval of “compensation policy,” Baros Depo. at 104:23-105:1 (Baros), and “antidiscrimination policies,” Baros Depo. at 107:20-23 (Baros), and is responsible “for the promotion, compensation, performance evaluations, antidiscrimination polices, including investigation of employee complaints,” Baros Depo. at 108:2-11 (Baros).
The Compensation Group is located on Kirtland Air Force Base. See Supp. Response at 2; HR Chart at 1-20. The Compensation Group “conducts gender-based disparate impact analysis of performance evaluation scores.” Supp. Submission at 6; Baros Depo. at 85:14-86:7 (Levin-Gesundheit, Baros). The Compensation Group “administer[s]” Sandia Labs’ performance evaluation process. Bars Depo. at 53:11-3 (Baros)(“The function of the
12HR & Communications is listed two other times for May, 2017, and both of those entries indicate that they were on the Kirtland Air Force Base. See HR Chart at 21.
13Sandia Labs asserts that this June, 2017, entry “pertain[s] to a single director who was transitioning from the Communications center to another position outside of the HR & Communications division at that time.” Supp. Response at 3. In any event, HR & Communications is listed two other times for that month, and both of those entries indicate that they were on the Kirtland Air Force Base. See HR Chart at 21.
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compensation department was to . . . administer compensation job evaluation for the labs”); id. at
53:4-9 (Baros)(agreeing that the Compensation Group “has a role in administering the
performance evaluation system”). “Administering” a policy includes “draft[ing]” and/or
“crafting” the policy. Baros Depo. at 220:16-25 (Levin-Gesundheit, Baros)(stating that those
who administrate policies “are the drafters of the policy,” and that they are “the ones that are
responsible for crafting the policy and overseeing [it] when there [are] questions”).14
The Vice President of HR worked on Tech Area 1 at Kirtland Air Force Base during all
relevant time periods. See Supp. Response at 5; HR Chart at 1-20 (indicating that the HR &
Communications’ “Vice Pres” worked at “Tech Area 1,” which is on the Kirtland Air Force
Base).15 The Vice President of HR has “final approval over compensation, performance
evaluation, and promoting policies.” Supp. Response at 6. Baros Dep. at 104:23-105:1 (Baros)
(stating that HR & Communications’ Vice President has final approval of Sandia Labs’
compensation policy); id. 105:2-10 (Levin-Gesundheit, Baros)(establishing that HR &
14The Plaintiffs assert that the Compensation Group “creat[es]” Sandia Labs’ promotion policy, Supp. Submission at 6, and “creat[es]” the performance evaluation policy, Supp. Submission at 5. Sandia Labs responds that the record to which the Plaintiffs cite for those propositions do not indicate that the Compensation Group creates those policies. See Supp. Response at 2. The Plaintiffs reply that the record to which it cites for that proposition states that the Compensation Group administers the performance evaluation policy, and, elsewhere in the record, Baros states generally that “administering” means “crafting” or “draft[ing]” a policy. Supp. Reply at 3 (citing Baros Depo. at 220:22-25 (Levin-Gesundheit, Baros)). Although Baros does not state specifically that the Compensation Group crafts, drafts, or otherwise creates the performance evaluation policy, it is clear that Mr. Michael Ian Levin-Gesundheit, the Plaintiffs’ attorney, asks Baros what she means generally when she says that a group “administers” a policy. Baros Depo. at 220:18-21 (Levin-Gesundheit, Baros)(“You used the term administer before, not that terribly long ago. You said that compensation administers the compensation policy, for example. So what do you mean by ‘administer’?”). Nothing in Baros’ deposition testimony suggests that her general characterization for “administering” a policy does not apply to the Compensation Group’s administration of Sandia Labs’ employee performance evaluation policies.
15The HR Chart’s entry for May, 2017, however, does not list any location for H&R Communications’ Vice President. See HR Chart at 21; supra at 4.
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Communications’ Vice President is responsible for Sandia Labs’ performance evaluation policy); id. at 105:25-106:2-3 (Levin-Gesundheit, Baros)(establishing that HR & Communications’ Vice President has final approval of Sandia Labs’ promotions policy).
From January, 2012, to August, 2015, the Sandia Labs’ Equal Employment Opportunity/Affirmative Action (“EEO/AA”) organization was located in Tech Area 1. See HR Chart from 1-14. From September, 2015, to the present, the EEO/AA has been located off-base. See Supp. Submission at 8; HR Chart at 14-22.16 The EEO/AA addresses employee discrimination complaints and is responsible for “complying with the antidiscrimination regulations of the Office of Federal Contract Compliance Programs, including auditing for systemic discrimination.” Supp. Submission at 8. See Baros Depo. at 55:21-56:1; id. at 57:3-7; id. at 219:21-24. The EEO/AA organization reports to Sandia Labs’ Diversity & Inclusion organization. See Supp. Submission at 8; Baros Depo. at 134:14-16. The Diversity & Inclusion organization is responsible for diversity training across Sandia. See Supp. Submission at 8; Baros Depo. at 67:2-4. From January, 2012, to April, 2015, the Diversity, Inclusion & EEO/AA organization was located on Kirtland Air Force Base. See HR Chart at 1-13. From May, 2015, to August, 2015, Diversity and Inclusion was located on Kirtland Air Force Base. See HR Chart at 13-14. From September, 2015, to October, 2016, Diversity and Inclusion was located off the Kirtland Air Force Base. See HR Chart at 14-19. From November, 2016, to present, Diversity and Inclusion returned to Kirtland Air Force Base. See HR Chart at 19-21.
PROCEDURAL BACKGROUND In the Complaint, the Plaintiffs allege that Sandia Labs violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (“Title VII”), the NMHRA, and the NMFPWA.
16A group called “EEO/AA, EMP Labor Relations & HRBP,” however, has remained on Kirtland Air Force Base. HR Chart at 14-22.
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Complaint ¶ 1, at 1. Specifically, they allege that Sandia Labs discriminates against female employees in performance evaluations, compensation, and promotions. See Complaint ¶ 23, at 5.
1. The Motion to Dismiss. In its Motion, Sandia Labs contends that the federal enclave doctrine bars the Plaintiffs’ state-law claims. See Motion at 2. According to Sandia Labs, Congress has “exclusive authority” over federal enclaves, including Kirtland Air Force Base, where Sandia Labs is located. Motion at 3. Sandia Labs notes that neither the NMHRA nor the NMFPWA existed when Kirtland Air Force Base was established in 1954. See Motion at 3-4. Accordingly, Sandia Labs contends, the Court should dismiss the Plaintiffs’ NMHRA and NMFPWA claims, because those statutes do not apply on the Kirtland Air Force Base. See Motion at 4-5. 2. The Response. The Plaintiffs respond to the Motion. See Plaintiffs’ Opposition to Motion to Dismiss State Law Claims and Motion to Conduct Jurisdictional Discovery, filed March 31, 2017 (Doc. 18)(“Response”). In the Response, the Plaintiffs assert that “Sandia is not a federal enclave for the classwide, common policies at issue.” Response at 1. The Plaintiffs contend that federal enclave’s application depends on “the locus of relevant decisions-making,” i.e., “where the employment policies are practices were made.” Response at 1. See id. at 5-6. The Plaintiffs argue that, “[a]t this early stage, Plaintiffs understand that at least some of the female employees covered by this lawsuit worked outside of federal land, and that Sandia substantially conducted its common human resources functions off-base.” Response at 2. See id. at 6-7. The Plaintiffs move for jurisdictional discovery. See Response at 4-5; id. at 7-8. 3. The Reply. Sandia Labs filed a reply. See Reply in Support of Defendant’s Motion to Dismiss State
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Law Claims, filed April 14, 2017 (Doc. 20)(“Reply”). Sandia Labs argues that the Plaintiffs’ Response allegations -- that Sandia Labs set its discriminatory policies off of Kirtland Air Force Base -- is inconsistent with the Complaint’s contention that relevant actions occurred at Sandia Labs. See Reply at 3-4. Sandia Labs contends that the Court cannot soundly consider these new alleged facts in a rule 12(b)(6) motion to dismiss. See Reply at 4-5 (“At this stage . . . the only question is whether Plaintiffs’ state law claims are barred by the federal enclave doctrine based on the allegations in the one and only complaint that has been filed in this lawsuit.”).
4. The First Hearing. The Court held a hearing on June 12, 2017. See Transcript (taken June 12, 2017), filed August 8, 2017 (Doc. 50)(“2017 Tr.”). The Court stated that it is “very likely” that the federal enclave doctrine bars the Plaintiffs’ state law claims. See 2017 Tr. at 6:8-10 (Court). Sandia Labs stated that, at this point, “it makes more sense to us to dismiss the state law claims, let them ask whatever questions they want about jurisdictional issues in the meantime, and then just see where it takes us.” 2017 Tr. at 6:20-24 (Gordon). The Plaintiffs shared their concern that if you were to dismiss the state claims, and then, downstream, reinstate them, there might be some question as to when the state class period starts. And . . . if the state class period would only start at the time that the claims were added to the amended complaint, obviously, we would be very concerned about the prejudice to the class. 2017 Tr. at 9:5-22 (Dermody). The Court stated that, although it was inclined to grant the Motion, it would not enter an order immediately. See 2017 Tr. at 10:2-6 (Court). The Court stated that the Plaintiffs may provide the Court with additional material or information it might secure in discovery relating to the federal enclave question. See 2017 Tr. at 10:8-19 (Court). 5. The Plaintiffs’ Supplemental Submission. After conducting discovery, the Plaintiffs filed a Supplemental Submission in Support of Plaintiffs’ Opposition to Defendant’s Motion to Dismiss State Law Claims, filed October 24,
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2017 (Doc. 60)(“Supp. Submission”). The Plaintiffs allege that, based on depositions and discovered documents, Sandia Labs’ “decision-making occurs within the state of New Mexico but outside the Kirtland Air Force Base with respect to the administration and development of core human resources policies and corporate practices at issue in this lawsuit.” Supp. Submission at 2.
6. Response to the Supplemental Submission. Sandia Labs filed its Response to Plaintiffs’ Supplemental Submission in Support of Plaintiffs’ Opposition to Defendant’s Motion to Dismiss State Law Claims, filed November 7, 2017 (Doc. 65)(“Supp. Response”). Sandia Labs contends that the Plaintiffs improperly focus on where policies are “administered” when the critical issue is “where the relevant decision-making occurred.” Supp. Response at 1. According to Sandia Labs, the Plaintiffs, in the Complaint, challenge decisions that were each made on the federal enclave. See Supp. Response at 4-5. Sandia Labs also contends that the Plaintiffs “misrepresent and misconstrue the evidence in the record” in various respects. Supp. Response at 1-2. Sandia Labs also states that, to the extent that the Plaintiffs continue to challenge policies created in the federal enclave, there is nothing in the record indicating that the Court should not dismiss the state claims. See Supp. Response at 6-7. 7. Supplemental Submission Reply. The Plaintiffs replied to the Supp. Response. See Plaintiffs’ Reply to Sandia’s Response to Plaintiffs’ Supplemental Submission in Support of Plaintiffs’ Opposition to Sandia’s Motion to Dismiss State Law Claims, filed December 1, 2017 (Doc. 70)(“Supp. Reply”). The Plaintiffs state that “it cannot be disputed that the core HR policies challenged in this action have been administered off-base during virtually the entire discovery period (since at least 2013).” Supp. Reply at 1. The Plaintiffs contend that, in their Supp. Submission, they do not misrepresent the
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discovery evidence. See Supp. Reply at 2-5. They also contend that the location where the named Plaintiffs’ and the proposed class’ workplaces is irrelevant to their challenge to Sandia Labs’ “common policies.” Supp. Reply at 5.
8. The Second Hearing. The Court held another hearing on January 19, 2018. See Hearing Transcript (taken January 19, 2018)(Doc. 78)(“2018 Tr.”). The Court began by expressing surprise that Sandia Labs would agree with the Plaintiffs that the standard -- expressed in Camargo v. Gino Morena Enterprises, L.L.C., No. EP-10-CV-242-KC, 2010 WL 3516186, at *2 (W.D. Tex. Sept. 2, 2010) (Cardone, J.)(“Camargo”) -- that the federal enclave doctrine applies to state claims when the locus of decisionmaking is on the federal enclave. See 2018 Tr. at 3:15-4:6 (Court). The Court stated that it would have imagined that the standard would be where the damage [or] injury occurred, and where the employees worked, in an employment case. So it would be much like analogizing it to a choice of law, in that you don’t look to necessarily where the decision was made; you would look at where the injury occurred. And so, particularly in New Mexico, being a Restatement 1 situation, you would look at where the injury occurred. And it seemed to me in an employment case it would be where the employee is housed. And so that would be what would govern is where does the employee work? Where did the injury occur? 2018 Tr. at 4:7-20 (Court). Sandia Labs began arguing for its Motion, stating that there are three reasons why the federal enclave doctrine “applies here to preempt the state law claims.” 2018 Tr. at 6:21-23 (Gordon). The first reason that Sandia Labs asserted is that the three named Plaintiffs worked on the Kirtland Air Force Base, and they challenge decisions made on the Kirtland Air Force Base. See 2018 Tr. at 6:24-7:2 (Gordon). Second, Sandia Labs asserted that its promotion, compensation, and evaluation policies “originated from inside Kirtland Air Force Base.” 2018 Tr. at 7:7:9-14 (Gordon). Sandia Labs contends that “either way you look at it, the locus of the
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decisionmaking is inside Kirtland Air Force Base, and it’s the locus of decisionmaking that matters.” 2018 Tr. at 7:15-17 (Gordon). Sandia Labs explained that it agreed with the Camargo standard, because Sandia Labs wished to find common ground with the Plaintiffs and, under Camargo, the facts supported Sandia’s position. See 2018 Tr. at 8:3-7 (Gordon). Sandia Labs asserted that its human resources’ Vice President approves the challenged policies and that the vice-president, during the relevant time period, worked “inside Tech Area 1 inside Kirtland Air Force Base.” 2018 Tr. at 8:8-14 (Gordon). Sandia Labs recognized that there are human resources employees who work off of Kirtland Air Force Base, but they are not “the decisionmakers either with respect to the three named plaintiffs or with respect to issuing the policies that are at issue.” 2018 Tr. at 8:15-21 (Gordon). Sandia Labs illustrated its argument with an example:
You could be a mid-level manager in human resources and draft a policy in an airplane flying over Kansas, or [drafting a policy] on the back of a napkin at the Frontier on Central.[17] That Policy isn’t issued or finally approved until it comes inside Kirtland Air Force Base, and goes to the desk of the vice-president of human resources, and gets vetted and reviewed and revised, and then it’s approved. And there is no question here that these policies they’re trying to challenge were finally approved by the vice-president of human resources from inside Kirtland Air Force Base. 2018 Tr. at 8:22-9:5 (Gordon). Sandia Labs argued that, even if the challenged policies are enforced outside of Kirtland Air Force Base, “the people who apply . . . or administer these policies [are not] decisionmakers, nor does it change the locus of the decisionmaking.” 2018 Tr. at 9:10-19 (Gordon). The Court asked why it should look to federal common law in interpreting whether the
17The Frontier Restaurant is located on Albuquerque’s Central Avenue near the University of New Mexico, and is known for its New Mexican food and John Wayne portraits adoring the walls. See Zora O’Neill, 36 Hours in Albuquerque, N.Y. Times, Oct. 20, 2011, https://www.nytimes.com/2011/10/23/travel/36-hours-in-albuquerque.html.
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federal enclave doctrine applies to state claims. See 2018 Tr. at 11:24-12:2 (Court). Sandia Labs replied that the federal enclave doctrine is “procedural law that says: if the state cause of action -- whatever it is, statutory [or] common law -- if it was created after the federal enclave was created, then the federal enclave doctrine preempts them.” 2018 Tr. at 12:3-13 (Gordon).
The Plaintiffs argued that, on a rule 12 motion, the Court must view all facts in the light most favorable to the plaintiff, and, in this case, they have alleged facts that “the locus of the relevant decisionmaking off base [sufficient] to survive a motion to dismiss.” 2018 Tr. at 16:9-15 (Shaver). The Plaintiffs contended that there is a factual dispute where the Vice President of human resources worked, because a chart provided by Sandia leaves blank an entry describing where the vice-president of human resources worked in 2017. See 2018 Tr. at 16:16-17:3 (Shaver). Moreover, the Plaintiffs contended that there is “no dispute” that the human resources and communications division is listed as being not on the Kirtland Air Force Base. 2018 Tr. at 17:4-11 (Shaver).
The Court asked the Plaintiffs if they would consent to the Court converting the motion to a motion for summary judgment, if the Court ultimately decides doing so is necessary. See 2018 Tr. at 20:8-11 (Court). The Plaintiffs said that they would consent to the Court converting the motion to one for summary judgment. See 2018 Tr. at 20:12-16 (Court, Shaver). Sandia Labs also said that it would consent. See 2018 Tr. at 22:16-17 (Sandia).
9. Post-Hearing Supplemental Brief. Sandia Labs submitted Sandia’s Supplemental Post-Hearing Brief in Support of Sandia’s Motion to Dismiss State Law Claims, filed January 31, 2018 (Doc. 83)(“Post-Hearing Brief”). Sandia Labs states that the Post-Hearing Brief “clarifies Sandia’s position regarding how the federal enclave doctrine should be applied in this case.” Post-Hearing Brief at 1. Sandia Labs asserts that it “continues to maintain that the determining factor for applying the federal enclave
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doctrine is the place where a plaintiff worked because that is the place where the alleged injury occurred.” Post-Hearing Brief at 2. According to Sandia Labs, its arguments relating to Camargo “were simply intended to convey that even if Camargo set forth the applicable standard, dismissal is still appropriate because all relevant decisions occurred on [the Kirtland Air Force Base].” Post-Hearing Brief at 2. Sandia contends that the United States Court of Appeals for the Tenth Circuit and the Court have determined that “state law claims are precluded when the plaintiff worked on [the Kirtland Air Force Base].” Post-Hearing Brief at 3 (citing Benavidez v. Sandia National Laboratories, 212 F. Supp. 3d 1039, 1094-97 (D.N.M. 2016) (Browning, J.)(“Benavidez”); Allison v. Boeing Laser Tech. Servs., 689 F.3d 1234, 1236 (10th Cir. 2012)(Tymkovich, J); Perkins v. Chugach Management Servs., 2015 WL 13666993 (D.N.M. Feb. 18, 2015)(Herrera, J)). Sandia contends that the federal enclave doctrine bars the state claims whether the Court looks to the place where a plaintiff worked or where the decisions are made. See Post-Hearing Brief at 4-5.
10. The Plaintiffs’ Post-Hearing Supplemental Brief Response. The Plaintiffs respond to the Post-Hearing Brief. See Plaintiffs’ Response to Sandia’s Supplemental Post-Hearing Brief Regarding Sandia’s Motion to Dismiss State Law Claims, filed February 15, 2018 (Doc. 84)(“Post-Hearing Response”). The Plaintiffs contend that the Court’s decision in Benavidez is consistent with Camargo, “and both cases support denial of Sandia’s motion.” Post-Hearing Response at 1. According to the Plaintiffs, “an employee’s job site is not determinative of where the employment discrimination claim arises.” Post-Hearing Response at 2. Moreover, the Plaintiffs contend that the Supreme Court of New Mexico instructs courts to look at Title VII federal law for guidance on where a discrimination claim arises, see PostHearing Response at 2 (citing Garcia v. Hatch Valley Pub. Sch., 2016-NMCA-034, ¶ 11, 369 P.3d 1, 4, rev’d, No. S-1-SC-35641, 2018 WL 1099030 (N.M. March. 1, 2018)), and, in the
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Tenth Circuit, a discrimination claim arises where the discriminatory decisions are made, see Post-Hearing Response at 2 (citing Reid v. D.P. Curtis Trucking, Inc., No. CIV 12-134, 2012 WL 5409786, at *1 (D.N.M. Oct. 31, 2012)(Molzen, M.J.); Tipnis v. Emery Tel., No. CIV A06CV02402WYDCBS, 2007 WL 1306495, at *1 (D. Colo. May 3, 2007)(Daniel, J.)).
The Plaintiffs assert that the Court’s decision in Benavidez is consistent with Camargo, because, in Benavidez, the Court asked “‘whether the events giving rise to this lawsuit took place at the Kirtland Air Force Base.’” Post-Hearing Response at 4 (quoting Benavidez, 2016 WL 9777419, at *40). The Plaintiffs contend that, in Benavidez, there was no question that the challenged decisions occurred on the Kirtland Air Force Base, whereas here, there is dispute whether the challenged decisions were made elsewhere. See Post-Hearing Response at 4-5.
LAW REGARDING RULE 12(b)(6) Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). The complaint’s sufficiency is a question of law, and, when considering a rule 12(b)(6) motion, a court must accept as true the complaint’s well-pled factual allegations, view those allegations in the light most favorable to the nonmoving party, and draw all reasonable inferences in the plaintiff’s favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)(“[O]nly if a reasonable person could not draw . . . an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations
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in a complaint and view these allegations in the light most favorable to the plaintiff.”)(citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006)).
A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. at 678 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678. “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. at 555.
To survive a motion to dismiss, a plaintiff’s complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)(emphasis omitted). The United States Court of Appeals for the Tenth Circuit has stated:
“[P]lausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if
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assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(citations omitted)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570). See Gallegos v. Bernalillo Cty. Board of Cty. Comm’rs, 278 F. Supp. 3d 1245, 1258, 2017 WL 4402422, at *9 (D.N.M. 2017)(Browning, J.). “When a party presents matters outside of the pleadings for consideration, as a general rule ‘the court must either exclude the material or treat the motion as one for summary judgment.’” Brokers’ Choice of America, Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir. 2017)(quoting Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th Cir. 2004)). There are three limited exceptions to this general principle: (i) documents that the complaint incorporates by reference, see Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); (ii) “documents referred to in the complaint if the documents are central to the plaintiff’s claim and the parties do not dispute the documents’ authenticity,” Jacobsen v. Deseret Book Co., 287 F.3d at 941; and (iii) “matters of which a court may take judicial notice,” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322. See Brokers’ Choice of America, Inc. v. NBC Universal, Inc., 861 F.3d at 1103 (holding that the district court did not err by reviewing a seminar recording and a TV episode on a rule 12(b)(6) motion, which were “attached to or referenced in the amended complaint,” central to the plaintiff’s claim, and “undisputed as to their accuracy and authenticity”). “[T]he court is permitted to take judicial notice of its own files and records, as well as facts which are a matter of public record.” Van Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000), abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001). In Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010), the defendants “supported their motion with numerous documents, and the district court cited portions of those motions in
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granting the [motion to dismiss].” 627 F.3d at 1186. The Tenth Circuit held that “[s]uch reliance was improper” and that, even if “the district court did not err initially in reviewing the materials, the court improperly relied on them to refute Mr. Gee’s factual assertions and effectively convert the motion to one for summary judgment.” 627 F.3d at 1186-87. In other cases, the Tenth Circuit has emphasized that, “[b]ecause the district court considered facts outside of the complaint, however, it is clear that the district court dismissed the claim under Rule 56(c) and not Rule 12(b)(6).” Nard v. City of Okla. City, 153 F. App’x 529, 534 n.4 (10th Cir. 2005)(unpublished). In Douglas v. Norton, 167 F. App’x 698 (10th Cir. 2006)(unpublished), the Tenth Circuit addressed an untimely filed charge with the Equal Employment Opportunity Commission -- which the Tenth Circuit analogized to a statute of limitations analysis -- and concluded that, because the requirement was not jurisdictional, the district court should have analyzed the question under rule 12(b)(6), and “because the district court considered evidentiary materials outside of Douglas’ complaint, it should have treated Norton’s motion as a motion for summary judgment.” 167 F. App’x at 704-05.
The Court has previously ruled that, when a plaintiff references and summarizes defendants’ statements in a complaint, the Court cannot rely on documents containing those statements that the Defendant’s attach in their briefing. See Mocek v. City of Albuquerque, 2013 WL 312881, at *50-51 (D.N.M. Jan. 14, 2013)(Browning, J.). The Court reasoned that the statements were neither incorporated by reference nor central to the plaintiff’s allegations in the complaint, because the plaintiff cited the statements only to attack the Defendant’s reliability and truthfulness. See 2013 WL 312881, at *50-51. The Court has also previously ruled that, when determining whether to toll a statute of limitations in an action alleging fraud and seeking subrogation from a defendant, the Court may not use interviews and letters attached to a motion
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to dismiss, which show that a plaintiff was aware of the defendant’s alleged fraud before the statutory period expired. See Great Am. Co. v. Crabtree, 2012 WL 3656500, at *3, *22-23 (D.N.M. Aug. 23, 2012)(Browning, J.)(“Crabtree”). The Court in Crabtree determined that the documents did not fall within any of the Tenth Circuit’s exceptions to the general rule that a complaint must rest on the sufficiency of its contents alone, as the complaint did not incorporate the documents by reference or refer to the documents. See 2012 WL 3656500, at *22-23; Mocek v. City of Albuquerque, 2013 WL 312881, at *50 (refusing to consider statements that were not “central to [the plaintiff’s] claims”).
On the other hand, in a securities class action, the Court has ruled that a defendant’s operating certification, to which plaintiffs referred in their complaint, and which was central to whether the plaintiffs adequately alleged a loss, fell within an exception to the general rule, so the Court could consider the operating certification when ruling on the defendant’s motion to dismiss without converting the motion into one for summary judgment. See Genesee Cty. Emps.’ Retirement Sys. v. Thornburg Mortg. Secs. Trust 2006-3, 825 F. Supp. 2d 1082, 1150-51 (D.N.M. 2011)(Browning, J.); Mata v. Anderson, 760 F. Supp. 2d 1068, 1101 (D.N.M. 2009)(Browning, J.)(relying on documents outside of the complaint, because they were “documents that a court can appropriately view as either part of the public record, or as documents upon which the Complaint relies, and the authenticity of which is not in dispute”); S.E.C. v. Goldstone, 952 F. Supp. 2d 1060, 1217-18 (D.N.M. 2013)(Browning, J.)(considering, on a motion to dismiss, electronic mail transmissions referenced in the complaint as “documents referred to in the complaint,” which are “central to the plaintiff’s claim” and whose authenticity the plaintiff did not challenge).
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LAW REGARDING TITLE VII EMPLOYMENT DISCRIMINATION CASES “Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on
race, color, religion, sex, or national origin.” Brown v. Gen. Servs. Admin., 425 U.S. 820, 825 (1976)(citing 42 U.S.C. §§ 2000e-2, 2000e-3). The Court has noted that Title VII generally protects individuals from employers’ improperly motivated adverse treatment in the workplace: “Title VII of the Civil Rights Act of 1964 prohibits an employer from failing or refusing to hire or discharging any individual, or otherwise discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Farley v. Leavitt, No. CIV 05-1219, 2007 WL 6364329, at *6 (D.N.M. Dec. 31, 2007)(Browning, J.)(quoting 42 U.S.C. § 2000e-2(a)(1)) (internal quotation marks omitted)(alterations omitted). With the 1972 amendments to the statute, Title VII’s protections apply to federal and private employees. See Brown v. Gen. Servs. Admin., 425 U.S. at 825-26 (citing 42 U.S.C. § 2000e(b)); Walton v. New Mexico State Land Office, 113 F. Supp. 3d 1178, 1184 (D.N.M. 2015)(Browning, J.); Gerald v. Locksley, 785 F. Supp. 2d 1074, 1098 (D.N.M. 2011)(Browning, J.).
1. Disparate Treatment Discrimination. “To prevail on a disparate treatment claim under Title VII of the Civil Rights Act, a plaintiff must show that [the] employer intentionally discriminated against [the plaintiff] for a reason prohibited by the statute.” Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1306 (10th Cir. 2005). Courts apply the burden-shifting framework that the Supreme Court established in McDonnell Douglas Corp. v. Green, which initially places the burden on the plaintiff to prove a prima facie case of discrimination. See, e.g., EEOC v. PVNF, LLC, 487 F.3d 790, 800-01 (10th Cir. 2007).
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The elements that the Supreme Court established in McDonnell Douglas Corp. v. Green address only a refusal to rehire. Accordingly, the articulation of a plaintiff’s prima facie case “varies depending on the type of adverse action the employee alleges was discriminatory.” EEOC v. PVNF, LLC, 487 F.3d at 800 (citing Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005)). See 1 Lex K. Larson, Employment Discrimination § 8.08[1], at 8-103 (2d ed. 2012)(“[C]ourts have applied the McDonnell Douglas prima facie case, sometimes modifying the proof requirements to fit the specific facts of the case, to cases involving promotion, discharge, demotion, discipline, layoffs, and other types of employer actions.”). Generally, to prove a disparate-treatment discrimination claim at the summary judgment stage, “a prima facie case of discrimination must consist of evidence that (1) the victim belongs to a protected class; (2) the victim suffered an adverse employment action; and (3) the challenged action took place under circumstances giving rise to an inference of discrimination.” EEOC v. PVNF, LLC, 487 F.3d at 800. See Sorbo v. United Parcel Serv., 432 F.3d 1169, 1173 (10th Cir. 2005)(holding that a “prima facie case for discrimination” requires the “plaintiff to show that (1) he belongs to the protected age group; (2) his job performance was satisfactory; (3) adverse employment action was taken against him; . . . [in (4)] ‘circumstances giving rise to an inference of discrimination’” (quoting Salguero v. City of Clovis, 366 F.3d 1168, 1175 (10th Cir. 2004))(citing Plotke v. White, 405 F.3d at 1101; Hysten v. Burlington N. & Santa Fe Ry. Co., 296 F.3d 1177, 1181 (10th Cir. 2002))); Jones v. Denver Post Corp., 203 F.3d 748, 753 (10th Cir. 2000)). A prima facie case of disparate discipline may be established if the plaintiff proves by a preponderance of the evidence that: (1) the plaintiff is a racial minority, (2) the plaintiff was disciplined by the employer, and (3) the employer imposed the discipline under circumstances giving rise to an inference of racial discrimination. Cf. Mathews v. Denver Newspaper Agency LLP, 649 F.3d
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1199, 1208 (10th Cir. 2011)(“[The plaintiff] bears the initial burden of . . . presenting evidence
that (i) he is a member of a protected class, (ii) he was qualified for the job as Unit Supervisor,
(iii) he was demoted from that job, and (iv) the position was not eliminated.” (citing Jones v.
Denver Post Corp., 203 F.3d at 753)).18 See Walton v. New Mexico State Land Office, 113 F.
Supp. 3d at 1188.
18The Court has previously written: “To establish a prima-facie case of discrimination, a plaintiff must demonstrate that: (i) she is a member of a protected class; (ii) she suffered an adverse-employment action, and (iii) similarly situated employees were treated differently.” Gerald v. Locksley, 785 F. Supp. 2d at 1099. The Court cited to the Tenth Circuit’s August, 2005, decision of Orr v. City of Albuquerque 417 F.3d 1149 (10th Cir. 2005), in which the Tenth Circuit stated: “To make out a prima facie case of discrimination, the female Plaintiffs must demonstrate (1) membership in a protected class, (2) adverse employment action, and (3) disparate treatment among similarly situated employees.” Orr v. City Of Albuquerque, 417 F.3d 1140, 1149 (10th Cir. 2005). Only a few months after Orr v. City Of Albuquerque, in December, 2005, the Tenth Circuit held that a district court’s inclusion in the plaintiff’s prima facie case of showing “comparable employees who were not in a protected class did not receive comparable adverse employment action” was the “recitation of an outmoded prima facie case test” and that showing disparate treatment of similarly situated individuals is only one way to prove the third McDonnell Douglas Corp. v. Green element. Sorbo v. United Parcel Serv., 432 F.3d at 1173. The Tenth Circuit recognized that the proper third element is -- and had been since at least 1999 -- the broader prima facie requirement that the defendant took the adverse employment action under “circumstances giving rise to an inference of discrimination.” Sorbo v. United Parcel Serv., 432 F.3d at 1173 (citing Perry v. Woodward, 199 F.3d 1126, 1135-40 (1999); Salguero v. City of Clovis, 366 F.3d at 1175; Plotke v. White, 405 F.3d at 1101; Hysten v. Burlington N. & Santa Fe Ry. Co., 296 F.3d at 1181; Jones v. Denver Post Corp., 203 F.3d at 753). It noted that, “[w]hile this broader requirement may be (and often is) satisfied by proof that the employer treated similarly situated employees more favorably, such proof is just one sufficient means to do this and should not itself be mistaken as an indispensable element of the prima facie case.” United Parcel Serv., 432 F.3d at 1173. At the same time, the Tenth Circuit noted that its precedent has been inconsistent on whether a prima facie discrimination case requires showing similarly situated individuals were treated more favorably: “As noted in Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1307 n.1 (10th Cir. 2005), this court’s own jurisprudence has not been entirely consistent in this regard.” Sorbo v. United Postal Serv., 432 F.3d at 1173 n.4 (citing, as an e.g. cite, MacKenzie v. City & Cnty. of Denver, 414 F.3d at 1277).
Similarly, in the context of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (“ADEA”), which also applies the McDonnell Douglas Corp. v. Green prima facie case framework, the Supreme Court declared: “Because it lacks probative value, the fact that a[] . . . plaintiff was replaced by someone outside the protected class is not a proper element of the McDonnell Douglas prima facie case.” O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996). The Supreme Court held that “the proper solution to the problem lies not
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2. Title VII Retaliation. To establish a prima facie case of retaliation, a plaintiff must show: “(1) that he [or she] engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action.” Proctor v. United Parcel Serv., 502 F.3d 1200, 1208 (10th Cir. 2007)(quoting Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d at 1202). “To establish that a causal connection exists,” a plaintiff “may proffer ‘evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.’” Proctor v. United Parcel Serv., 502 F.3d at 1208 (quoting Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1228 (10th Cir. 2006)). Generally speaking, if this temporal proximity between the protected activity and the adverse action are not “very close in time,” the plaintiff “must offer additional evidence to establish causation.” Proctor v. United Parcel Serv., 502 F.3d at 1209 (internal quotation marks omitted)(quoting Haynes v. Level 3 Commc’ns, LLC, 456 F.3d at 1228). See Walton v. New Mexico State Land Office, 113 F. Supp. 3d at 1190; Gerald v. Locksley, 785 F. Supp. 2d at 1099-1100. 3. Materially Adverse Employment Action. The Tenth Circuit liberally defines what constitutes an adverse employment action. See Orr v. City of Albuquerque, 417 F.3d 1144, 1150 (10th Cir. 2005)(“Because of the remedial
in making an utterly irrelevant factor an element of the prima facie case, but rather in recognizing that the prima facie case requires ‘evidence adequate to create an inference that an employment decision was based on an illegal discriminatory criterion.’” 517 U.S. at 312-13 (emphasis in original)(quoting Teamsters v. United States, 431 U.S. 324, 358 (1977)). The Court, therefore, concludes that its articulation of the McDonnell Douglas Corp. v. Green prima facie case elements for discrimination in Gerald v. Locksley, based on the Tenth Circuit’s decision in Orr v. City of Albuquerque, which was among the Tenth Circuit’s jurisprudence “not . . . entirely consistent in this regard,” Sorbo v. United Postal Serv., 432 F.3d at 1173 n.4, is not the best statement of the law.
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nature of Title VII lawsuits, we broadly define adverse employment action.”). The Tenth Circuit has stated:
Such actions are not simply limited to monetary losses in the form of wages or benefits. Instead, we take a case-by-case approach, examining the unique factors relevant to the situation at hand. Nevertheless, we will not consider a mere inconvenience or an alteration of job responsibilities to be an adverse employment action. Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir. 1998)(internal quotation marks omitted)(citations omitted). See Proctor v. United Parcel Serv., 502 F.3d at 1208. An adverse action “is not limited to discriminatory actions that affect the terms and conditions of employment.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006). “[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d 1126, 1133 (10th Cir. 2010)(internal quotation marks omitted) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. at 68). “The antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. at 68 (“We speak of material adversity because we believe it is important to separate significant from trivial harms.”). “We construe the phrase ‘adverse employment action’ liberally and do not limit it to ‘monetary losses in the form of wages or benefits.’” Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d at 1133 (quoting Annett v. Univ. of Kan., 371 F.3d 1233, 1239 (10th Cir. 2004)). Acts that carry “a significant risk of humiliation, damage to reputation, and a concomitant harm to future employment prospects” may be considered adverse actions, although “a mere inconvenience or an alteration of job responsibilities will not suffice.” Annett v. Univ. of Kan., 371 F.3d at 1239
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(internal quotation marks omitted)(citation omitted). In Anderson v. Clovis Municipal Schools, 265 F. App’x 699 (10th Cir. 2008)
(unpublished), the Tenth Circuit, in an unpublished opinion, addressed the requirement of an adverse employment action in the context of a disparate-treatment claim and a hostile work environment claim. There, an employee, who had been placed on a growth plan, alleged other harsh treatment and a written reprimand in support of his claim that he suffered a hostile work environment. Relying on Schuler v. City of Boulder, 189 F.3d 1304 (10th Cir. 1999), the plaintiff, Anderson, argued that the growth plan and formal reprimand rose to the level of an adverse employment action under Tenth Circuit law. See Schuler v. City of Boulder, 189 F.3d 1304 (10th Cir. 1999). In discussing Anderson v. Clovis Municipal School’s reliance on Schuler v. City of Boulder, the Tenth Circuit stated in MacKenzie v. City & Cty. of Domier, 414 F.3d 1266 (10th Cir. 2005): “While adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions . . . would form the basis of a discrimination suit.” 414 F.3d at 1279. See Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 857 (10th Cir. 2007)(explaining that Title VII proscribes only discriminatory conduct that “alters the employee’s compensation, terms, conditions, or privileges of employment, or adversely affects [the employee’s] status as an employee” (internal quotation marks omitted)). “Only acts that constitute a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits will rise to the level of an adverse employment action.” Robinson v. Cavalry Portfolio Serv., LLC, 365 F. App’x 104, 114 (10th Cir. 2010)(unpublished)(quoting Haynes v. Level 3 Commc’ns, 456 F.3d at 1218-19)(internal quotation marks omitted). See
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Walton v. New Mexico State Land Office, 113 F. Supp. 3d at 1190-92; Gerald v. Locksley, 785 F. Supp. 2d at 1100-01.
LAW REGARDING THE NMHRA The NMHRA, which the New Mexico Human Rights Division and the New Mexico Human Rights Commission administers, makes it an unlawful discriminatory practice for an employer, unless based on a bona fide occupational qualification or other statutory prohibition, to refuse to hire, to discharge, to promote or demote or to discriminate in matters of compensation, terms, conditions or privileges of employment against any person otherwise qualified because of race, age, religion, color, national origin, ancestry, sex, physical or mental handicap or serious medical condition, or, if the employer has fifty or more employees, spousal affiliation; provided, however, that 29 U.S.C. Section 631(c)(1) and (2) shall apply to discrimination based on age; or, if the employer has fifteen or more employees, to discriminate against an employee based upon the employee’s sexual orientation or gender identity[.] N.M. Stat. Ann. § 28-1-7A. The NMHRA allows individuals to bring a lawsuit in the appropriate district court after exhausting their administrative remedies. See Luboyeski v. Hill, 117-NMSC-380, 872 P.2d 353, 355 (1994). The NMHRA sets out the same standard for establishing wrongful discrimination as Title VII. See Orr v. City of Albuquerque, 417 F.3d 1144, 1149 n.5 (10th Cir. 2005)(“Plaintiffs’ burden under the NMHRA is identical to their burden under Title VII.”); Lobato v. N.M. Env’t Dep’t, 733 F.3d 1283, 1296-97 (10th Cir. 2013) (holding that, “because we conclude that Lobato has no Title VII claim, we also conclude he has no NMHRA claim”). The NMHRA requires an individual to first exhaust his or her administrative remedies before bringing a lawsuit. See Luboyeski v. Hill, 117-NMSC-380, 872 P.2d at 355; Bates v. N.M. Corr. Dep’t, No. CIV 08-1013, 2010 WL 4339367, at *7 (D.N.M. Sept. 30, 2010)(Browning, J.)(“NMHRA claims must be administratively exhausted before being brought in federal court.”). The NMHRA provides: A person aggrieved by an order of the commission may obtain a trial de novo in
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the district court of the county where the discriminatory practice occurred or where the respondent does business by filing a notice of appeal within ninety days from the date of service of the [New Mexico Human Rights] commission’s order. N.M. Stat. Ann. § 28-1-13A. The Supreme Court of New Mexico applies the framework that the Supreme Court of the United States established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), “[w]hen considering a violation of the NMHRA.” Juneau v. Intel Corp., 2006-NMSC-002, ¶ 9, 127 P.3d 548, 551. The Supreme Court of New Mexico has stated that, “when considering claims under the NMHRA, we may look at federal civil rights adjudication for guidance in interpreting the NMHRA. Our reliance on the methodology developed in the federal courts, however, should not be interpreted as an indication that we have adopted federal law as our own.” Ocana v. Am. Furniture Co., 2004-NMSC-018, ¶ 23, 91 P.3d 58, 68 (internal quotation marks omitted)(citations omitted). “[C]laims of age, race, national origin, gender discrimination, and retaliation are all subject to the burden shifting framework that the Supreme Court established in McDonnell Douglas Corp. v. Green.” Gamez v. Country Cottage Care and Rehab., 377 F. Supp. 2d 1103, 1119 (D.N.M. 2005)(citing McDonnell Douglas Corp. v. Green, 411 U.S. at 802-804). Under the McDonnell Douglas Corp. v. Green framework, a plaintiff must set forth a prima facie case of discrimination. See Kelley v. City of Albuquerque, 375 F. Supp. 2d 1183, 1210 (D.N.M. 2004)(Browning, J.). If the plaintiff establishes a prima facie case for any of his discrimination claims, “the burden shifts to the defendant to come forward with a legitimate nondiscriminatory reason for its employment related decision.” McDonnell Douglas Corp. v. Green, 411 U.S. at 802. “Upon the employer’s articulation of a legitimate, nondiscriminatory reason . . . the presumption of discrimination established by the prima facie case simply drops out of the picture.” Kelley v. City of Albuquerque, 375 F. Supp. 2d at 1210 (internal quotations omitted).
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The plaintiff then must present evidence that the defendant’s proffered reason for the employment decision was pretextual. See Kelley v. City of Albuquerque, 375 F. Supp. 2d at 1210 (citing Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000)). The Supreme Court of New Mexico has stated that the framework it applies to discrimination claims under the NMHRA is as follows: “[A]n employee bears the initial burden of demonstrating a prima facie case of discrimination, which then shifts the burden to the employer to provide a legitimate, non-discriminatory reason for the adverse employment action. The employee then has the opportunity to rebut the employer’s proffered reason as pretextual or otherwise inadequate.” Juneau v. Intel Corp., 2006-NMSC-002, ¶ 9, 127 P.3d at 551 (citing McDonnell Douglas Corp. v. Green, 411 U.S. at 802-805). This approach is the same as the McDonnell Douglas Corp. v. Green framework.
While New Mexico uses federal law to interpret the NMHRA, there are two ways in which the NMHRA is broader than federal law. First, as this Court has previously acknowledged, the Supreme Court of New Mexico allows for personal liability under the NMHRA. See Duprey v. Twelfth Judicial Dist. Court, No. 08-0756 JB, 2009 WL 2482170, at *7 (D.N.M. July 28, 2009)(Browning, J.). The NMHRA defines “employer” as “any person employing four or more persons and any person acting for an employer.” N.M. Stat. Ann. § 281-2B. While acknowledging that there is generally no personal liability under Title VII, the Supreme Court of New Mexico has “reject[ed] the proposition that there can exist no individual liability under the NMHRA.” Sonntag v. Shaw, 2001-NMSC-015, ¶ 13, 22 P.3d 1188, 1193. In Sonntag v. Shaw, a defendant relied on Title VII case law to argue that employees cannot sue a corporation’s owner in the owner’s individual capacity under the NMHRA. See 2001-NMSC015, ¶ 13, 22 P.3d at 1193. Although it held that the defendant could not be held personally
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liable, given that the plaintiff had failed to exhaust administrative remedies, the Supreme Court of New Mexico declined to close the door on individual liability under the NMHRA. See 2001NMSC-015, ¶ 13, 22 P.3d at 1193. The Supreme Court of New Mexico noted:
[T]his Court has acknowledged the possibility of individual liability for discrimination claims. Cf. Luboyeski v. Hill, 117 N.M. 380, 382, 872 P.2d 353, 355 (1994)(affirming the dismissal of individual defendants because the plaintiff failed to exhaust administrative remedies against them); Mitchell-Carr v. McLendon, 1999-NMSC-025, ¶ 10, 127 N.M. 282, 980 P.2d 65 (citing Luboyeski). As Plaintiff suggests, the potential for individual liability for discrimination claims is rooted in the language of the NMHRA itself, which forbids “any person” from supporting a discriminatory practice. Section 28-17(i); see N.M.S.A. 1978, § 28-1-2(A) (1993)(including within its definition of “person” for purposes of the NMHRA, “one or more individuals”). 2001-NMSC-015, ¶ 12, 22 P.3d at 1193. Second, the NMHRA’s definition of “serious medical condition,” N.M. Stat. Ann. § 28-1-7, is broader in scope than the ADA’s definition of disability. See Clayton v. Pioneer Bank, No. 07-0680, 2008 WL 5787472, at *17-18 (D.N.M. Dec. 31, 2008)(Browning, J.)(recognizing that, although “the terms ‘medical condition’ under the NMHRA, and ‘disability,’ under the ADA, may be interchangeable in some cases[,]” they may not be the same in others).
LAW REGARDING THE FEDERAL ENCLAVE DOCTRINE The Constitution of the United States’ Enclave Clause gives Congress the power to: exercise exclusive Legislation . . . over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings. U.S. Const. art. I, § 8, cl. 17. Under the federal enclave doctrine, “state law that is adopted after the creation of the enclave generally does not apply on the enclave.” Allison v. Boeing Laser Tech. Servs., 689 F.3d at 1235. The central principle of the federal enclave doctrine is that Congress has exclusive authority over these enclaves. See Allison v. Boeing Laser Tech. Servs., 689 F.3d at 1235. The Tenth Circuit has explained:
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But in the absence of applicable federal legislation displacing state law, those state laws that existed at the time that the enclave was ceded to the federal government remain in force. “Since a State may not legislate with respect to a federal enclave unless it reserved the right to do so when it gave its consent to the purchase by the United States, only state law existing at the time of the acquisition remains enforceable, not subsequent laws.” Paul [v. U.S.], 371 U.S. [245,] 268 [(1953)]. Thus, the federal government acquires property subject to state law.
The Constitution does not command that every vestige of the laws of the former sovereignty must vanish. On the contrary its language has long been interpreted so as to permit the continuance until abrogated of those rules existing at the time of the surrender of sovereignty which govern the rights of the occupants of the territory transferred. This assures that no area however small will be left without a developed legal system for private rights.
James Stewart & Co. v. Sandrakula, 309 U.S. 94, 99-100 (1940). And even though state law will not remain static outside the enclave, any changes made to the state law applicable within the enclave must be a matter of federal law. Because “future statutes of the state are not a part of the body of laws in the ceded area,” “Congressional action is necessary to keep [state law] current.” James Stewart, 309 U.S. at 100.
Allison v. Boeing Laser Tech. Servs., 689 F.3d at 1237. The law of federal enclaves, however,
allows for three exceptions. See Allison v. Boeing Laser Tech. Servs., 689 F.3d at 1237.
The Supreme Court has recognized at least three exceptions to the rule that only state law in effect at the time of cession applies within the federal enclave: 1) where Congress has, by statute, provided a different rule; 2) where the state explicitly retained the right to legislate over specific matters at the time of cession; and 3) where minor regulatory changes modify laws existing at the time of cession.
The first exception recognizes the obvious fact that Congress can legislate on behalf of the enclave and may provide for the application of state laws enacted after the creation of the enclave. See [U.S. v.] Sharpnack, 355 U.S. [286,] 294-95 [(1958)]. Thus, for example, the first Federal Crimes Act, enacted in 1790, defined a number of federal crimes that applied to federal enclaves, and in 1825 Congress adopted the first Assimilated Crimes Act, which allowed state criminal codes to apply to crimes committed on federal enclaves. Id. at 288, 290. State criminal codes now apply to crimes committed on military bases, Indian reservations, federal facilities, and public lands unless other federal statutes bar their application. Congress has also allowed the application of state law to a variety of civil claims in federal enclaves, such as wrongful death, 16 U.S.C. §
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457; workers’ compensation, 40 U.S.C. § 3172; unemployment compensation, 26 U.S.C. § 3305(d); and fish and game regulation, 10 U.S.C. § 2671.
But no federal statute yet allows the broad application of state employment, tort, and contract law to federal enclaves. And “it is well established that in order for Congress to subject a federal enclave to state jurisdiction, there must be a specific congressional deferral to state authority over federal property.” West River Elec. Ass’n, Inc. v. Black Hills Power and Light Co., 918 F.2d 713, 719 (8th Cir. 1990).
The second exception deals with those powers the states expressly reserved at the time of cession. In James v. Dravo Contracting Co., 302 U.S. 134 (1937), the Supreme Court upheld the power of states to transfer only partial jurisdiction to the federal government, retaining some authority over the ceded lands. Common reservations of power include the authority to collect state taxes and the right to serve civil and criminal process within an enclave. See, e.g., James v. Dravo Contracting Co., 302 U.S. at 149, and Paul, 371 U.S. at 266 (discussing West Virginia and California federal enclave cession consent statutes). Reservations may also be much broader, preserving a wide range of state powers. See United States v. Fields, 516 F.3d 923, 929 (10th Cir. 2008)(explaining that an Oklahoma cession statute “indicates that the United States is being ceded full civil and criminal jurisdiction, with a concurrent jurisdiction reserved to the State”).
The third exception applies to minor regulatory changes to state programs that existed at the time of cession. In Paul, the Supreme Court considered state regulatory schemes that were in place when the state ceded sovereignty but required ongoing maintenance from a regulatory body. The Court found, for example, that changes in milk pricing regulations applicable on a federal enclave might be permissible “provided the basic state law authorizing such control has been in effect since the time[ ] of [cession].” Paul, 371 U.S. at 269.
Allison v. Boeing Laser Tech. Servs., 689 F.3d at 1237-38.
ANALYSIS
The Court concludes that the federal enclave doctrine applies to state employment
discrimination claims when the plaintiffs work and are harmed on the federal enclave, even if the
employer makes allegedly discriminatory decisions elsewhere. Consequently, the federal
enclave doctrine bars the Plaintiffs’ NMHRA and NMFPWA claims, because the Plaintiffs were
harmed on the federal enclave, and the NMHRA and NMFPWA do not predate the federal
enclave’s creation. If the federal enclave doctrine applied to state-law employment
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discrimination claims only when an employer makes the employment decisions on the federal enclave, the Court would not grant summary judgment in this case, because Sandia Labs has not established that the allegedly discriminatory decisions happened on Kirtland Air Force Base. I. THE FEDERAL ENCLAVE DOCTRINE APPLIES TO THE PLAINTIFFS’
STATE-LAW CLAIMS. The Plaintiffs work or worked on Kirtland Air Force Base, and they bring state-law employment discrimination claims against Sandia Labs. Although courts are split whether the federal enclave doctrine applies to state employment discrimination claims when an employer makes an allegedly discriminatory decision off the federal enclave, the Court concludes that the best rule is that the federal enclave doctrine applies when an employee works on a federal enclave. Here, it is clear that most, if not all, of the Plaintiffs work on the federal enclave, and, if there was a tortious employment practice, the injury and damage are on the federal enclave. A. COURTS ARE SPLIT WHETHER THE FEDERAL ENCLAVE
DOCTRINE APPLIES WHEN ALLEGEDLY DISCRIMINATORY DECISIONS ARE MADE OFF OF THE ENCLAVE. When employees who work on a federal enclave bring state-based employment claims, some federal courts look to where the defendant employer made an allegedly discriminatory decision when deciding whether the federal enclave doctrine applies to the claims. In Camargo, the plaintiff worked as a hairdresser on Fort Bliss, a United States Army post headquartered in El Paso, Texas, and she sued her employer, a contractor, alleging that she was terminated for discriminatory reasons. See 2010 WL 3516186, at *1. The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, stated that, [f]or federal enclave jurisdiction to apply, in employment discrimination cases, the adverse employment decision must have been made on federal territory, because the locus of decision-making is where such a tort arises. The fact that the employee’s day-to-day job site is on a federal enclave, alone, is not sufficient for these purposes; rather, the location where management made the illegal decision controls.
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2010 WL 3516186, at *2. See Balderrama v. Pride Indus., Inc., 963 F. Supp. 2d 646, 659 (W.D. Tex. 2013)(Cardone, J)(determining that the federal enclave doctrine does not bar the plaintiff’s state law claims when the complaint alleges that the defendants made “discriminatory and retaliatory decisions in El Paso, but off of Fort Bliss”); Lawler v. Miratek Corp., No. EP-09-CV252-KC, 2010 WL 743925, at *4 (W.D. Tex. Mar. 2, 2010)(Cardone, J.)(concluding that federal enclave jurisdiction does not apply to the plaintiff’s state-law claims, because the “employmentdiscrimination misdeeds allegedly committed by Miratek -- such as the termination of Lawler’s employment for improper reasons -- . . . were committed where its management was located, which is a building outside of Fort Bliss”); Gavrilovic v. Worldwide Language Res., Inc., 441 F. Supp. 2d 163, 177 (D. Me. 2006)(Hornby, J)(stating that the federal enclave doctrine does not apply to United States military bases abroad, but, even if it did, it would not apply to the plaintiff’s employment claims, because “company senior management in Maine” made the allegedly retaliatory decision to recall her from the military base and to discontinue her security clearance).
Other federal courts -- mostly in California -- apply the federal enclave doctrine whenever the employee works on a federal enclave, even if a challenged employment decision occurred off of the enclave. In Powell v. Tessada & Assocs., Inc., No. C 04-05254, 2005 WL 578103 (N.D. Cal. Mar. 10, 2005)(Fogel, J19)(unpublished), the plaintiffs worked for a contractor as janitors at Moffett Federal Airfield, a federal enclave in Northern California. See 2005 WL 578103, at *2. When their employer got a new contract to provide janitorial services to Moffett Federal Airfield, the employer did not retain the plaintiffs, and the plaintiffs brought state-law
19The Honorable Jeremy D. Fogel, United States Senior District Judge for the Northern District of California, currently serves as the Federal Judicial Center’s Director. See Senior Staff, https://www.fjc.gov/about/senior-staff (last visited May 4, 2018).
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claims alleging that the employer discriminated against them on the basis of their age. See 2005 WL 578103, at *2. The plaintiffs argued that, although they worked on a federal enclave, the federal enclave doctrine did not apply, because the “Defendants’ refusal to retain Plaintiffs was accomplished in Defendants’ corporate office in Virginia,” not on the federal enclave. 2005 WL 578103, at *2. Judge Fogel concluded that, “regardless of where the decision not to retain Plaintiffs was made, the decision reflects Defendants’ employment practice on the enclave. As a result, Plaintiffs cannot maintain their state law claims.” 2005 WL 578103, at *2.
In Shurow v. Gino Morena Enterprises, LLC, No. 3:16-CV-02844, 2017 WL 1550162 (S.D. Cal. May 1, 2017)(Lorenz, J.)(slip copy), the plaintiff worked for a contractor on Camp Pendleton, a federal enclave in Southern California, and brought state-law employment claims alleging harassment and retaliation. See 2017 WL 1550162, at *1. The plaintiff argued that the federal enclave doctrine does not bar her state claims, because the human resources department was located outside Camp Pendleton, and management was outside Camp Pendleton when it decided to terminate her. See 2017 WL 1550162, at *2. The Honorable M. James Lorenz, United States District Judge for the Southern District of California, rejected those arguments, stating: “In the context of claims by employees against contractor employers operating on a federal enclave, the Doctrine applies if the plaintiff's place of employment was located on the federal enclave. Because Plaintiff’s place of employment was located on Camp Pendleton, the Federal Enclave Doctrine applies.” 2017 WL 1550162, at *2 (citations omitted). See Haining v. Boeing Co., No. 2:12-CV-10704-ODW, 2013 WL 4874975, at *3 (C.D. Cal. Sept. 11, 2013) (Wright II, J)(unpublished)(“The enclave’s law governs the employment claims of an employee of a federal contractor operating on a federal enclave. Because Haining was employed by Boeing exclusively at Vandenberg, his claims arose within a federal enclave -- regardless of
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where decisions concerning his employment or termination were made.” (citations omitted)); Lockhart v. MVM, Inc., 97 Cal. Rptr. 3d 206, 212 (2009), as modified (July 24, 2009) (“[A]lthough [the termination] letter may have originated at respondent’s corporate headquarters in Virginia . . . appellant was the employee of a federal contractor operating on a federal enclave. Thus, her employment claims are governed by the enclave’s law.”); Taylor v. Lockheed Martin Corp., 92 Cal. Rptr. 2d 873, 872 (Cal Ct. 2d 2000)(“As the employee of a contractor operating on the enclave, Taylor’s claims are governed by the enclave’s law, rather than by state law.”).
The Tenth Circuit has not considered the question, but several United States District Court for the District of New Mexico decisions have determined that the federal enclave doctrine applies to claims by an employee who works on the federal enclave even when the alleged discriminatory decision occurred off the federal enclave. For instance, in Allison v. Boeing Laser Tech. Servs., the Honorable Robert Hayes Scott, United States Magistrate Judge, determined that the federal enclave doctrine bars a federal enclave employee’s state-law claims even if some employment decisions were made off of the federal enclave. See Allison v. Boeing Laser Tech. Servs., No. CV 09-275, 2010 WL 11590920, at *5 (D.N.M. Aug. 2, 2010) (Scott, M.J.)(citing Rosseter v. Industrial Light & Magic, 2009 WL 210452, at *2 (N.D. Cal. Jan. 27, 2009)(Alsup, J.); Powell v. Tessada & Assocs., 2005 WL 578103, at *2 (N.D. Cal. Mar. 10, 2005); Lockhart v. MVM, Inc., 97 Cal. Rptr. 3d 206, 212 (Ct. App. 2d Dist. Cal. 2009); Taylor v. Lockheed Martin Corp., 92 Cal. Rptr. 2d at 872).
In Richards v. Lockheed Martin Corp., the Honorable William P. Johnson, then-United States District Judge and now Chief Judge, similarly concluded that, “although the actual decision to terminate Plaintiff may have been made” off of the federal enclave -- in that case, the White Sands Missile Base -- the federal enclave doctrine applied to the plaintiff’s claims;
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“‘regardless of where the decision not to retain [the plaintiff] was made, the decision reflects Defendants’ employment practice on the enclave.’” Richards v. Lockheed Martin Corp., 2012 U.S. Dist. LEXIS 191331, *4 (quoting Powell v. Tessada & Assocs., 2005 WL 578103, at *2) (citing Rosseter v. Industrial Light & Magic, 2009 WL 210452, at *2; Lockhart v. MVM, Inc., 97 Cal. Rptr. 3d at 212; Taylor v. Lockheed Martin Corp., 92 Cal. Rptr. 2d at 872). “In other words,” Judge Johnson explained, “any claims that Plaintiff asserts with regard to his termination arose by virtue of his employment on the federal enclave.” Richards v. Lockheed Martin Corp., 2012 U.S. Dist. LEXIS 191331, *4.
Recently, the Honorable Steven C. Yarbrough, United States Magistrate Judge, faced facts similar to those in this case. In Smelser v. Sandia Corporation, No. CIV 17-388, 2018 WL 1627214 (D.N.M. March 30, 2018)(Yarbrough, M.J.)(slip copy), the plaintiff worked for Sandia Labs on the Kirtland Air Force Base. See 2018 WL 1627214, at *8.
Although Plaintiff does not dispute that some of her state law claims are barred under the federal enclave doctrine to the extent they are premised on conduct that occurred on Kirtland Air Force Base, she asserts in her response brief and accompanying affidavit that the federal enclave doctrine should not bar any claims arising from conduct that occurred off base. Specifically, Plaintiff states in her affidavit that Sandia’s human resources department was located off base during the relevant time period, that she met with the human resources department, including an equal opportunity representative, to report her need for reasonable accommodations and the instances of discrimination, harassment, and retaliation that she was subjected to, and that the human resources department took no action. 2018 WL 1627214, at *8 (citations omitted). Magistrate Judge Yarbrough notes that the plaintiff did not make these HR-related allegations in the complaint, but “even taking into account Plaintiff’s assertions regarding the location and involvement of Sandia’s human resources department, the Court nevertheless concludes that Plaintiff’s claims remain subject to the federal enclave doctrine.” 2018 WL 1627214, at *8. Magistrate Judge Yarbrough continued:
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[T]he critical inquiry is whether the conduct or employment decision at issue here “reflects Defendants’ employment practice on the enclave” – in other words, whether the claims that Plaintiff asserts with regard to her employment “arose by virtue of [her] employment on the federal enclave.” See Richards v. Lockheed Martin Corporation et al., No. 2:11-cv-01033-WJ-CG, March 1, 2012 Mem. Op. and Order at 3. Defendants correctly characterize this as a determination of “the locus in which the claim arose”, i.e., “where the ‘substance and consummation of the’ claim occurred, and where ‘all pertinent events occurred.’” Doc. 25 at 2 (quoting Olig v. Xanterra Parks & Resorts, Inc., 2013 WL 3936904, at *3 (D. Mont. July 30, 2013) (unpublished) (internal citations omitted)). Here, Plaintiff does not dispute that she worked in a Sandia building on Kirtland Air Force Base and that all of the events giving rise to this lawsuit -- with the exception of the above assertions regarding Sandia’s human resources department -- took place on Kirtland Air Force Base. Specifically, the reasonable accommodations Plaintiff alleges were not provided, the alleged discrimination and retaliatory incidents, and the purported violations of Sandia’s employee handbook all concerned her work activities on the base. . . .

Under these facts, the Court concludes that Plaintiff’s claims arose by virtue of her work on a federal enclave and that any decisions Sandia’s human resources department may have undertaken reflected Defendants’ employment practices on the enclave.

Smelser v. Sandia Corp., 2018 WL 1627214, at *8 (emphasis added)(citing Richards v.

Lockheed Martin Corp., 2012 U.S. Dist. LEXIS 191331, *4; Shurow v. Gino Morena

Enterprises, LLC, 2017 WL 1550162, at *2; Haining v. Boeing Co., 2013 WL 4874975, at *3;

Lockhart v. MVM, Inc., 175 Cal. App. 4th at 1459).

B. THE FEDERAL ENCLAVE DOCTRINE APPLIES TO FEDERAL

ENCLAVE

EMPLOYEES’

STATE-LAW

EMPLOYMENT

DISCRIMINATION CLAIMS.

The federal enclave doctrine applies to state law employment discrimination claims that

employees who work on a federal enclave bring, because the harm happens on the federal

enclave. The Court, therefore, agrees with its fellow District of New Mexico judges in adopting

the Ninth Circuit’s approach to apply the federal enclave doctrine when the employee works on a

federal enclave no matter where the employer made a discriminatory decision.

The Plaintiffs contend that the Court should apply the federal enclave doctrine only when

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an employer makes a discriminatory decision while on the federal enclave. See Post-Hearing Response at 2. The Plaintiffs contend that looking to where the decision was made is the correct approach, because, according to the Plaintiffs, (i) the Court should apply the federal enclave doctrine to state employment discrimination claims when the state claim originates on the federal enclave; and (ii) New Mexico courts would consider a discrimination claim to originate where a discriminatory decision is made. See Post-Hearing Response at 2.
The Court declines to adopt the Plaintiffs’ suggested approach for two reasons. First, the Constitution of the United States of America grants Congress the power “[t]o exercise exclusive legislation” in federal enclaves, so it would not make sense for state choice-of-law rules to determine the scope of that power. U.S. Const. art. I, § 8. Applying the federal enclave doctrine only when state law would conclude that a claim arose on the federal enclave would subordinate a power that the Constitution grants to Congress. See U.S. Const. art. VI (“This Constitution, and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”). When Congress exercises exclusive jurisdiction over federal enclaves, it “‘acts as a state government with total legislative, executive, and judicial power.’” Allison v. Boeing Laser Tech. Servs., 689 F.3d at 1236-37 (quoting United States v. Jenkins, 734 F.2d 1322, 1325-26 (9th Cir.1983)). The federal enclave doctrine “operates as a choice of law doctrine that dictates which law applies to causes of action arising on federal enclaves.” Allison v. Boeing Laser Tech. Servs., 689 F.3d at 1235. Under the federal enclave doctrine, only state laws in effect when the federal enclave was established may be enforced; there are a few exceptions to this general rule, but they underscore only the principle that state laws only apply on federal enclaves when Congress expressly says they do.
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See Allison v. Boeing Laser Tech. Servs., 689 F.3d at 1237 (noting that exceptions to the federal enclave doctrine’s rule that only state laws in effect before the federal enclave’s existence apply include “1) where Congress has, by statute, provided a different rule; 2) where the state explicitly retained the right to legislate over specific matters at the time of cession; and 3) where minor regulatory changes modify laws existing at the time of cession”).
Second, even if New Mexico law determined the federal enclave doctrine’s application in this case, there is no sound reason to believe that New Mexico would place an employment discrimination action where the discriminatory decision was made. The Plaintiffs contend that, although New Mexico courts have not determined where an employment discrimination claim originates, New Mexico courts look to Title VII for guidance when interpreting the NMHRA. See Post-Hearing Response at 2 (citing Garcia v. Hatch Valley Pub. Sch., 2016-NMCA-034, ¶ 11, 369 P.3d at 4). In Garcia v. Hatch Valley Pub. Sch., the Court of Appeals of New Mexico stated that, “where there is no New Mexico precedent which resolves issues regarding the NMHRA, we look to federal law interpreting Title VII for guidance.” 2016-NMCA-034, ¶ 11, 369 P.3d at 4, rev’d on other grounds, 2018-NMSC-020, ¶ 11. According to the Plaintiffs, the Court should conclude that an NMHRA action arises where a discriminatory decision is made, because Title VII grants jurisdictions in venues in which a discriminatory decision is made. See Post-Hearing Response at 2 (citing Reid v. D.P. Curtis Trucking, Inc., 2012 WL 5409786, at *1; Tipnis v. Emery Tel., 2007 WL 1306495, at *1). Essentially, the Plaintiffs urge the Court to follow the Western District of Texas, which looks to Title VII’s venue rules to determine that an employment discrimination claim arose where a decision was made:
The Court first observes that there appears to be very little Texas precedent on the subject of determining the exact geographical location at which an employment discrimination claim may be said to arise; accordingly, the Court will turn to related areas of federal jurisprudence to analyze this issue. See Rodriguez v.
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Flitertek, 518 F.Supp.2d 845, 849 (W.D.Tex.2007)(holding that federal employment-discrimination law may be used to shed light on [Texas Commission on Human Rights Act, V.T.C.A. Labor Code § 21 (“TCHRA”)] when on-point state-law precedents are scarce). One context in which courts discuss the question of where an employment discrimination tort actually occurs is in connection with the venue provisions of the Title VII federal employment discrimination laws. See 42 U.S.C. § 2000e–5(f)(3) (providing that venue is proper “in any judicial district in the State in which the unlawful employment practice is alleged to have been committed,” among other places). Ordinarily, Courts assume that the place where the allegedly unlawful employment practice was committed is simply the place where the aggrieved employee had been working or was seeking work. See, e.g., March v. ABM Sec. Serv. Inc., No. H–09–CV–2422, 2010 WL 104480, at *1 (S.D.Tex. Jan.7, 2010); see also Ferguson v. Exelon Nuclear, No. 09–CV–1237, 2010 WL 107566, at *1 (C.D.Ill. Jan.7, 2010).
However, when the location of the aggrieved worker’s supervisor is different than the location where the worker or prospective worker is situated, courts generally hold that the place where the “unlawful employment practice is alleged to have been committed” is the place where the employer “made the decision” which is the subject of the complaint, not the place where the “effects are felt .” Whipstock v. Raytheon Co., No. 2:07–CV–11137, 2007 WL 2318745, at *3 (E.D.Mich. Aug. 10, 2007). Instead of looking to where the worker is located, when “determining where an alleged unlawful employment practice was committed, the Court must look to the place where the decisions and actions concerning the employment practices occurred.” Ifill v. Potter, No. 05–CV–2320, 2006 WL 3349549, at *2 (D.D.C. Nov. 17, 2006) (internal citations and quotation marks omitted).
Lawler v. Miratek Corp., No. EP-09-CV-252-KC, 2010 WL 743925, at *3.
If the Court had to determine whether an NMHRA claim originated from the place of the
work or the place of the decision, the Court would not look to Title VII venue for guidance,
because there is plenty of state caselaw and Restatement principles to guide the Court. For
example, New Mexico follows the traditional lex loci delicti commissi doctrine for tort claims,
i.e., that “the substantive rights of the parties are governed by the law of the place where the
wrong occurred.” Terrazas v. Garland & Loman, Inc., 2006-NMCA-111, ¶ 12, 142 P.3d at 377.
Thus, New Mexico courts continue to adhere to the Restatement (First) of Conflicts of Laws
(1934), such that the state where the wrong occurred is “the state where the last event necessary
to make an actor liable for an alleged tort takes place.” Restatement (First) Conflicts of Law §
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377 & cmt. a (1934). See Flemma v. Halliburton Energy Servs., 2013-NMSC-022, 303 P.3d
814, 819 (“New Mexico follows the Restatement (First) of Conflict of Laws when analyzing
choice of law issues.”); United Wholesale Liquor Co. v. Brown-Forman Distillers Corp., 1989-
NMSC-030, ¶ 9, 775 P.2d 233, 469 (“New Mexico adheres to a traditional conflicts of law
analysis contained in Restatement (First) of Conflicts of Law.”). Although no New Mexico court
has determined whether an employment discrimination claim arises where the allegedly
discriminatory employment decision is made, the Court sees no sound reason to treat the
NMHRA and the NMFPWA differently than any other tort under New Mexico law. New
Mexico precedent and the Restatement (First) of Conflicts of Law indicate that, if the Plaintiffs
suffered harm in New Mexico, then New Mexico would apply its own laws. Otherwise, New
Mexico would not apply its own law. There is, therefore, no need to look to Title VII for guidance in interpreting NMHRA on this issue.20
20Moreover, Title VII’s venue provisions -- which determine the courts that can decide a Title VII claim -- is not an appropriate benchmark to determine what laws to apply. Title VII states that plaintiffs may bring Title VII claims
in any judicial district in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. 42 U.S.C. § 2000e-5(f)(3). For discriminatory compensation decisions, an unlawful employment practice occurs
when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.
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Here, the Plaintiffs were largely, if not entirely, working on Kirtland Air Force Base. It is not a big leap to say that the harm occurred on Kirtland Air Force Base and that the Court should focus on the harm’s locus. New Mexico follows the Restatement (First) for the Conflicts of Laws, which directs courts to apply the law of the land where the harm occurred. See Terrazas v. Garland & Loman, Inc., 2006-NMCA-111, ¶ 12, 142 P.3d at 377. Although the Court does not conclude that the Restatement (First) for the Conflicts of Laws governs the federal enclave doctrine analysis, its principles provide useful guidance for determining whether the federal enclave doctrine applies to the Plaintiffs’ employment discrimination claims. The Restatement (First) rules are clear and easy to apply. Focusing on the place of the harm is the most pragmatic metric so that the federal enclave doctrine applies to claims for employment discrimination that employees who work on federal enclaves bring. The silliness and burden of deciding where decisions were made, when all the harm occurs on the federal enclave, is not the best use of courts’ or the parties’ time. The place of decision is an arbitrary benchmark, and there is not much justice to be gained by ferreting out where a decisionmaker happened to be standing when making a certain decision.21 The decision only matters insofar as it affects the worker’s employment experience.22
42 U.S.C.A. § 2000e-5(e)(3)(A). Thus, Title VII venue may be premised on many different actions, including the place where a discriminatory decision is adopted, but also where “an individual is affected” by the decision, § 2000e-5(e)(3)(A), where the relevant employment records are located, or where a worker would have worked but for a discriminatory decision, see § 2000e-5(f)(3). Far from establishing that an employment discrimination claim arises from the place where the discriminatory decision was made, Title VII’s § 2000e-5 provides a guide for determining which venue or venues may hear a particular Title VII claim. See Reid v. D.P. Curtis Trucking, Inc., 2012 WL 5409786, at *1 (stating that the Title VII’s venue statute “favors factors convenient to the employer [and] trumps the more general venue statute found at 28 U.S.C. § 1404(a), which favors a plaintiff's choice of forum”). In other words, Title VII’s venue provisions tell the Court little about what laws to apply to a given action.
21In this case, there is not any discernable justice to be gained in deciding whether a
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II. THE FEDERAL ENCLAVE DOCTRINE BARS THE PLAINTIFFS’ STATE-LAW CLAIMS. Under the federal enclave doctrine, the general rule is that “state law that is adopted after
the creation of the enclave generally does not apply on the enclave.” Allison v. Boeing Laser
Tech. Servs., 689 F.3d at 1235. Here, the New Mexico Legislature adopted the NMHRA and the
NMFPWA after the Kirtland Air Force Base became a federal enclave. Kirtland Air Force Base
was established as a federal enclave in 1954. See Allison v. Boeing Laser Tech. Servs., 689 F.3d
at 1235. The New Mexico Legislature enacted the NMHRA in 1969. See Benavidez, 212 F.
Supp. 3d at 1097; Human Rights Comm’n of New Mexico v. Bd. of Regents of Univ. of New
Mexico Coll. of Nursing, 1981-NMSC-026, ¶ 9, 624 P.2d 518, 519. The New Mexico
Legislature enacted the NMFPWA in 2013. See 2013 N.M. Laws ch. 12 (“Enacting the Fair Pay
for Women Act”). Given that the Kirtland Air Force Base became a federal enclave before New
decision is “made” in the off-enclave HR office where an allegedly discriminatory policy is written or at the on-enclave HR’s vice-president’s office where the policy is approved.
22On the other hand, if the tortious employment decisions were made on the federal enclave and injured a plaintiff who does not work and is not on the federal enclave, there is no sound reason to not give the employer the benefit and protection of the federal enclave doctrine. In other words, although the Court concludes that the better rule is a broader federal enclave doctrine rather than a more narrow one that may be difficult to apply, the Court’s approach and the District Court of the Western District of Texas’ rules do not have to be mutually exclusive.
Thus, the only place where the federal enclave doctrine should not protect an employer like Sandia Labs, which is operating largely on a federal enclave, is where the employer makes the decision off the federal enclave and the plaintiff was also off the federal enclave. For example, if Sandia Lab’s off-enclave official discriminates against a job applicant residing in Tennessee, the federal enclave doctrine would not apply. In that scenario, it cannot be soundly said that the place of the harm is the workplace if the plaintiff has presumably never worked on the federal enclave and -- if interviewed remotely -- may never have stepped foot on it. Absent this rare situation, however, the federal enclave doctrine should apply to an employer with the bulk of its offices and employees on a federal enclave.
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Mexico enacted the NMHRA and the NMFPWA, the federal enclave doctrine therefore bars those claims.23
III. IF THE PLACE OF DECISION RULE APPLIED, THE COURT COULD NOT SOUNDLY GRANT SUMMARY JUDGMENT, BECAUSE SANDIA LABS HAS NOT ESTABLISHED THAT IT MADE THE CHALLENGED DECISIONS ON KIRTLAND AIR FORCE BASE.
Before considering where certain decisions were made, it is necessary to identify what
specific decisions are at issue. Reviewing the Complaint, there appears to be two categories of
decisions: (i) broad decisions in designing, approving, and implementing certain evaluation and
compensation policies; and (ii) narrow decisions in evaluating, compensating, and promoting
specific employees.
As to the broad policy decisions, the Plaintiffs allege that Sandia Lab’s evaluation system
disadvantages women. See Complaint ¶¶ 24-32, at 6-7. It follows, according to the Plaintiffs,
that Sandia Labs violated the NMHRA by intentionally discriminating against women:
Sandia has engaged in an intentional, company-wide, and systematic policy, pattern, and/or practice of discrimination against its female employees. Sandia has intentionally discriminated against Plaintiffs and the Class in violation of the New Mexico Human Rights Act by, among other things:
a. Utilizing a biased performance rating system;
b. Utilizing a biased compensation system;
c. Utilizing a biased promotion system; and
d. Failing to take reasonable and adequate steps to prevent and correct the use of unreliable, unvalidated, and/or illegitimate criteria to determine the terms and conditions of employment.
23As mentioned supra at 44, there are three exceptions to the general rule that the federal enclave doctrine bars state laws enacted after the federal enclave is established: “1) where Congress has, by statute, provided a different rule; 2) where the state explicitly retained the right to legislate over specific matters at the time of cession; and 3) where minor regulatory changes modify laws existing at the time of cession.” Allison v. Boeing Laser Tech. Servs., 689 F.3d at 1237. None of those exceptions apply in this case, and indeed the Plaintiffs have not argued that they apply.
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These company-wide policies are intended to and do have the effect of: a. Denying Plaintiffs and Class Members business opportunities because of their gender; b. Compensating them less because of their gender; c. Failing to promote them because of their gender; d. Evaluating their performance more negatively because of their gender; and e. Providing them with inferior terms and conditions of employment as a result of discriminatory performance measures that systematically disadvantaged them because of their gender.
Complaint ¶¶ 93-94, at 20-21. The Plaintiffs also argue that Sandia Labs’ policies have had an “unlawful disparate impact on women” in violation of the NMHRA. Complaint ¶ 104, at 22. As for the NMFPWA, the Plaintiffs allege that “Sandia has discriminated against employees on the basis of sex by paying wages to female employees at a rate less than the rate paid to male employees for work of equal skill, effort, and responsibility.” Complaint ¶ 108, at 22.
According to the Plaintiffs, Sandia Labs conducts an annual performance evaluation process in which employees are “organized into peer groups to be rated against one another in so-called ‘Centers,’ which are collections of several managers’ employees. Supervisors attend these meetings and present the merits of their own employees as compared to the other supervisors’ employees.” Complaint ¶ 28, at 6-7. The “supervisors to rank employees from worst to best using a performance rating from 1 through 5, with 1 being worst, and 5 being best” and “[o]nly a certain percentage of employees in a defined peer group may be assigned certain ranks -- for example, only a certain percentage of employees may receive a 5.” Complaint ¶ 25, at 6. The Plaintiffs identify a few flaws to this system. One, because the rankings are curved, the process “forces a distribution of performance ratings outcomes . . regardless of whether there are meaningful performance differences between individual employees with in a particular peer group.” Complaint ¶ 26, at 6. Second,
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because these evaluation process are done in group “Centers,” which are “collections of several managers’ employees,” an employee “could end up with a poor rating . . . regardless of her actual performance record and the rank her supervisor originally recommended.” Complaint ¶ 28, at 7. Third, the managers evaluate employees in part “based on four ‘personality’ or ‘behavior’ factors: Strategic Thinking, Adapting to Meet Demands, Teaming with Others, and Modelling Personal Accountability,” which, according to the Plaintiffs, are “invalid and unreliable” factors. Complaint ¶ 27, at 6.
According to the Plaintiffs, this system disadvantages women, because it “create[s] inaccurate and biased outcomes, especially when they operate within a culture of bias towards women, as is true in Sandia.”24 Complaint ¶ 31, at 7. For instance, the Plaintiffs contend that “female employees are particularly adversely impacted by ‘Center’ meetings, where the vast majority of attending managers are men [and the] proportion of men in management roles only increases at higher levels of the organization.” Complaint ¶ 30, at 7.
As for individualized decisions, the named Plaintiffs allege many specific discriminatory decisions. Kennicott, for instance, alleges that she sought another Sandia Lab position but learned that a less qualified male employee was already hired for the job before the position was advertised. See Complaint ¶ 54, at 11-12. Kennicott also alleges that, after she made a gender discrimination complaint to superiors, male managers retaliated against her by not hiring her to
24The Plaintiffs assert that the “personality” or “behavior” factors -- Strategic Thinking, Adapting to Meet Demands, Teaming with Others, and Modeling Personal Accountability -- are “invalid and unreliable and disadvantage women.” Complaint ¶ 27, at 6. Although the Plaintiffs do not explain precisely why evaluation employees on those factors in particular disadvantage women, the Court can imagine a theory that these factors, at the very least, provide biased managers -- whom the Plaintiffs allege are mostly men -- the means or avenues to apply those biases to female employees’ disadvantage. For example, Kennicott specifically alleges that her manager “engaged in . . . gender-based critiques of her communication and teamwork skills, noting that she had a reputation for being ‘difficult’” and advised her to be “‘softer’ in her speech,” Complaint ¶ 58, at 12-13 -- critiques that, conceivably, may not levied in the same way against male employees.
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another position, “expressing concerns about unspecific negative ‘behaviors,’” and not reducing her workload while she underwent cancer treatment, rating her as a 3 after years of receiving 4 ratings. Complaint ¶ 55-59, at 12. See also id. ¶¶ 113-116, at 23. Kennicott also alleges that mangers made “gender-based critiques of her communication and teamwork skills.” Complaint ¶ 58, at 12-13.
Garcia alleges that her reviews “have not fully recognized her contributions” and that she is paid less than men with “significantly less seniority and experience.” Complaint ¶ 66-67, at 15. She contends that “[c]omments within her reviews have revealed a culture of sexism at Sandia.” Complaint ¶ 68, at 15. She asserts that “[g]ender-based stereotypes about at Sandia” such that she is not offered projects involving travel, and employees presume that she does not know how to operate power tools. Complaint ¶ 69, at 15-17.
Phelps alleges that “less qualified and less experienced male colleagues rose through the ranks must faster than she did. They were offered greater leadership opportunities, and in approximately 2009, one of the peers Ms. Phelps mentored was promoted over her. In the years that followed, male colleagues and supervisors excluded Ms. Phelps from meetings, and supervisors specifically asked her to perform, in their words, ‘low visibility’ work.” Complaint ¶ 73, at 16-17. Phelps also contends that she has been paid less than similarly situated colleagues. See Complaint ¶ 74, at 17.
A. THE ADVERSE EMPLOYMENT DECISION IS WHERE SANDIA LABS MAKES DETERMINATIONS ON COMPENSATION AND PROMOTIONS.
Camargo states that, for the federal enclave jurisdiction to apply in an employment discrimination case, “the adverse employment decision must have been made on federal territory, because the locus of decision-making is where such a tort arises.” Camargo, 2010 WL 3516186, at *2 (citing Lawler v. Miratek, Corp., 2010 WL 743925, at *3-4). When it comes to decisions
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to fire or not hire, the decisionmaking’s locus is a fairly straightforward inquiry. When the allegedly discriminatory decision relates to a policy, however, the locus is harder to pin down.
The Court does not believe that the locus of decision in this case for the Plaintiffs’ statelaw claims would be where Sandia Labs’ employees created the performance evaluation policy.25 Writing a performance evaluation policy harms no one if it is not approved and implemented. Likewise, the Court does not believe that the locus of decision in this case is necessarily where a policy is approved. Sandia Labs asserts that the place of decision is where the Vice President of HR & Communications officially approved the performance evaluation policy. See Supp. Response at 6; Tr. at 8:25-9:9 (Gordon). The Vice President can stamp “APPROVED” over a printed-out copy of a proposed performance evaluation process all he or she likes; the officially approved process is still several steps away from affecting anyone. Although the Vice President may be the ultimate authority for how Sandia Labs will evaluate its employees, that Vice President may, for example, change his or her mind before moving forward with the plan. In that case, there is no harm to anyone.
The next question is whether the adverse employment decision is the one that a manager makes when rating an employee pursuant to Sandia Labs’ performance evaluation policy, or whether the adverse employment decision is when compensation and promotions decisions are made pursuant to those ratings. The Court concludes that a discriminatory employee performance rating system harms an employee only when the employer uses the rating’s results to determine compensation and promotion. The NMHRA states that is unlawful to “refuse to hire, to discharge, to promote or demote or to discriminate in matters of compensation, terms,
25The record suggests that Sandia Labs’ Compensation Group was involved in creating the employee performance evaluation process. See supra n.14.
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conditions or privileges of employment against any person otherwise qualified because of . . . [a person’s] sex.” N.M. Stat. Ann. § 28-1-7(a). Those rules implicate discriminatory personnel decisions and not necessarily discriminatory evaluations. Just as officially approving a policy does not, at that moment, affect employees, rating employees based on that policy does not affect those employees until the employer uses the results to make decisions on raises, promotions, demotions, or terminations. The question would then become where Sandia Labs made decisions affecting the Plaintiffs’ pay and career paths.
B. THE RECORD DOES NOT SHOW WHERE SANDIA LABS MADE DETERMINATIONS ON EMPLOYEE COMPENSATION AND PROMOTIONS.
Surprisingly, the record does not reveal where decisions on employees’ pay and promotions are made. The Plaintiffs have framed the place of decision dispute over where decisions are made regarding policies. Thus the record shows that the Compensation Group -- which has operated on Kirtland Air Force Base for all relevant time periods, see Supp. Response at 2; HR Chart at 1-20 -- administers Sandia Labs’ performance evaluation process and analyzes the results for gender-based outcome disparities, see Bars Depo. at 53:11-3; id. at 53:4-9. The record shows that the Vice President of H&R Communications -- who has worked on the Kirtland Air Force Base for all relevant time periods, with the possible exception of May, 2017, see Supp. Response at 5; HR Chart at 1-21 -- has final approval of Sandia Labs’ policies on compensation, promotions, antidiscrimination, and performance evaluations, see Supp. Response at 6; Baros Dep. at 104:23-105:1 (Baros); id. 105:2-10 (Levin-Gesundheit, Baros); id. at 105:25-106:2-3. The record shows that Talent Acquisition -- which has operated off of Kirtland Air Force Base for all relevant time periods, see Supp. Submission at 3-4; HR Chart at 10 -- works with the compensation department and hiring managers to set salaries for new hires, see Baros Depo. at 216:8-12 (Baros). The record shows that Talent Management -- which has
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operated on and off Kirtland Air Force Base at various times, see HR Chart at 1-12 -- trains
Sandia Labs’ employees on antidiscrimination policies, see Supp. Submission at 7; Baros Depo.
at 207:5-21, 208:7-11 (Levin-Gesundheit, Baros). The record does not show, however, where
Sandia Labs looks at individual employees’ performance evaluation rankings and managers’
comments and makes compensation or promotion decisions based on those results.
Consequently, even if the Court applied Camargo’s place of decision rule in this case, the Court
would not be able to determine whether the Plaintiffs’ state claims challenge allegedly discriminatory decisions made on or off the federal enclave.26 Because Sandia Labs has the
burden to show, on a motion for summary judgment, that it is entitled to judgment as a matter of
law, the Court would deny the motion if it applied the Camargo rule.
The Plaintiffs’ specific complaints do not clearly indicate where the alleged actions took
place. Many of their allegations relate to managers’ decisions to assign review scores and/or
make evaluation comments, see Complaint ¶ 52, at 11 (alleging that Kennicott has not received
top review score of 5 despite contributing equally or surpassing male peers); id. ¶ 58, at 12
(alleging that, “after she raised concerns of gender discrimination,” Kennicott received an
26The Plaintiffs argue that, because they challenge Sandia Labs’ policies, the decision place at issue is where those policies were created and/or managed. See, e.g., Response at 2 (“[T]he challenged common policies and practices at the heart of this class action appear to have been created and/or monitored off federal land.”); Post-Hearing Response at 4 (arguing that the Plaintiffs do not challenge managers’ decisions but rather the “systematic discrimination against women as a class by way of four company-wide policies”); id. at 4-5 (“Plaintiffs have even shown how the named Plaintiffs’ individual allegations stem from specific, challenged companywide policies.”). Company policies may violate employment discrimination laws, and employers may be liable for creating those policies, but, when a court looks to Camargo to determine whether the federal enclave doctrine applies, the critical question is where the adverse employment decision happened. 2010 WL 3516186, at *2 (considering where an employer made the decision to terminate an employee). There is no sound reason to consider the place where an employer drafts or approves a policy as the critical adverse employment decision, given that additional decisions are necessary -- e.g., decisions to terminate or to not promote an employee -- before anyone is harmed.
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evaluation score of 3); id. ¶ 68, at 15 (alleging that Garcia never received a 5 score on her employee evaluations); id. ¶ 68, at 15 (contending that “[c]omments within [Garcia’s] reviews have revealed a culture of sexism at Sandia”), yet the record does not establish where managers typically make those decisions, nor do the Complaint’s allegations indicate where managers made those specific decisions.
Many allegations relate to where Sandia Labs makes decisions on hiring, promoting, and salary, see Complaint ¶ 54, at 11-12 (alleging that Kennicott sought another Sandia Lab position, but learned that a less qualified male employee was already hired for the job before the position was advertised); id. ¶ 56, at 12 (alleging that a “male manager informed [Kennicott] that he did not want to select her” for a “technical leadership opportunity” because of her pending equal employment opportunity complaint); id. ¶ 67, at 15 (alleging that Garcia is paid less than men with “significantly less seniority and experience”); id. ¶ 69, at 15 (alleging that Garcia is not offered project opportunities that involve traveling); id. ¶ 73, at 16-17 (alleging that “less qualified and less experienced male colleagues rose through the ranks must faster than [Phelps] did,” and that “supervisors specifically asked her to perform, in their words, ‘low visibility’ work”); id. ¶ 73, at 17 (contending that Phelps was never promoted to “Distinguished Level”); id. ¶ 74, at 17 (contending that Phelps has been paid less than similarly situated colleagues), yet the record does not establish where Sandia Labs typically make those decisions, see supra at 51, nor do the Complaint’s allegations indicate where they made the specific decisions relating to the Plaintiffs.
The Plaintiffs’ remaining allegations relate to various acts or statements, see Complaint ¶ 59, at 12 (alleging that Kennicott’s manager forced her to work excessive hours while she underwent cancer treatment); id. ¶ 58, at 12-13 (alleging that mangers made “gender-based
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critiques of [Kennicott’s] communication and teamwork skills”); id. ¶ 68, at 15 (contending that Garcia has been told that she can “never compete” with “younger men’s education” or with “older men’s experience”); id. ¶ 69, at 15-17 (alleging that other employees presume that Garcia does not know how to operate power tools with which she has years of experience), yet the Complaint does not specify where these acts or statements were made.27
In sum, the Court cannot determine where Sandia Labs made the allegedly adverse employment decisions against the Plaintiffs, because the pleadings and the record do not clearly indicate where Sandia Labs made decisions on compensation and promotions. Accordingly, Sandia Labs has not met its burden of showing that it is entitled to judgment on the state law claims, if the Camargo rule applies. Thus, while the Court will grant Sandia Labs’ Motion, the Court concludes that, if the Camargo rule applied, it would not grant summary judgment on the Plaintiffs’ state-law claims. The Court suspects, however, that if and when it has a more robust record, most, if not all, of the state law claims would fall within the federal enclave even with the Camargo rule.
IT IS ORDERED that (i) the Defendant’s Motion to Dismiss State Law Claims, filed March 17, 2017 (Doc. 14), is granted; and (ii) the state law claims that Plaintiffs Lisa A. Kennicott, Lisa A. Garcia, and Sue C. Phelps assert in the Class Action Complaint, filed February 7, 2017 (Doc. 1), are dismissed with prejudice.
27A good guess for a lot of these events is, of course, that they happened on Kirtland Air Force Base, where the named Plaintiffs work or worked, but the Court cannot say that -- if Camargo rules applied -- Sandia Labs has made that showing.
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Counsel:
Anne Brackett Shaver Michael Ian Levin-Gesundheit Shira J. Tevah Kelly Maureen Dermody Lin Yee Chan Tiseme Gabriella Zegeye Lieff Cabraser Heimann & Bernstein, LLP San Francisco, California
--and--
Adam T. Klein Cheryl-Lyn Bentley Elizabeth Stork Outten & Golden LLP New York, New York
Attorneys for the Plaintiffs
Grace E. Speights Krissy A. Katzenstein Michael S. Burkhardt Morgan, Lewis & Bockius LLP Washington, D.C.
--and--
Scott D. Gordon Jeffrey L. Lowry Paola Viviana Jaime Stephanie Latimer Theresa W. Parrish Rodey, Dickason, Sloan, Akin & Robb, P.A. Albuquerque, New Mexico
Attorneys for the Defendant

________________________________ UNITED STATES DISTRICT JUDGE

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 Case 1:17-cv-00188-JB-GJF Document 190 Filed 11/20/18 Page 1 of 69

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

LISA A. KENNICOTT, LISA A. GARCIA, SUE C. PHELPS, and JUDI DOOLITTLE, on behalf of themselves and a class of those similarly situated,

Plaintiffs,

vs.

No. CIV 17-0188 JB\GJF

SANDIA CORPORATION d/b/a SANDIA NATIONAL LABORATORIES,

Defendant.

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on: (i) the Plaintiffs’ Letter from Anne B. Shaver,

Lieff, Cabraser, Heimann & Bernstein, LLP, to the Court (dated November 12, 2018), filed

November 12, 2018 (Doc. 187)(“Letter”); and (ii) the Letter from Krissy A. Katzenstein, Morgan

Lewis, to the Court (dated November 15, 2018), filed November 15, 2018 (Doc. 188)(“Letter

Response”). The primary issues are: (i) whether the Court should, at this time, decide Defendant’s

Motion to Dismiss Plaintiffs’ Class Claims, filed August 9, 2018 (Doc. 155)(“MTD”); (ii) whether

the Court should grant the proposed case schedule in the Plaintiffs’ Letter, which modifies pretrial

deadlines to which the parties stipulated in the Joint Proposed Case Schedule at 4, filed October

11, 2018 (Doc. 183), by requiring Defendant Sandia Corporation (“Sandia Labs”) to complete

electronically stored information (“ESI”) production by January 4, 2019, and the Plaintiffs to

submit their motion for class certification and expert reports by April 5, 2019, to accommodate a

July 1, 2019, class certification hearing deadline; and (iii) whether the Court should grant the

proposed case schedule in Sandia Labs’ Letter Response, which modifies pretrial deadlines for the

same reason and requires Sandia Labs to complete ESI production by February 1, 2019, and the

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Plaintiffs to submit their motion for class certification and expert reports by March 25, 2019. The Court will not, at this time, decide the MTD, because the Court will address the MTD after the class certification hearing. The Court will amend the Joint Proposed Case Schedule as described below and require Sandia Labs to complete ESI production on January 15, 2019, and the Plaintiffs to submit their motion for class certification and expert reports by March 25, 2019.
FACTUAL BACKGROUND Plaintiffs Lisa A. Kennicott, Lisa A. Garcia, Sue C. Phelps, and Judi Doolittle allege that Sandia Labs, “a federally-funded research and development contractor operating under contract for the Department of Energy and managed by Sandia Corporation,” First Amended Class Action Complaint ¶ 1, at 1, filed July 5, 2018 (Doc. 146)(“First Amended Complaint”), has “policies, patterns, and practices,” which result in female employees earning lower compensation and fewer promotions than “their male counterparts,” First Amended Complaint, ¶ 3, at 2. According to the Plaintiffs, Sandia Labs applies uniform policies in its offices throughout the United States of America. See First Amended Complaint ¶¶ 22-23, at 5-6. The Plaintiffs allege that Sandia Labs’ employee performance evaluation process, see First Amended Complaint ¶¶ 26-30, at 6-7, initial salary calculations, see First Amended Complaint ¶¶ 31-35, at 7-8, and promotion system, see First Amended Complaint ¶¶ 36-40, at 8-9, disadvantage women, see First Amended Complaint ¶¶ 2640, at 6-9.
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PROCEDURAL BACKGROUND Kennicott, Garcia, and Phelps sue Sandia Labs on behalf of themselves and a class of those similarly situated. See Class Action Complaint, filed February 7, 2017 (Doc. 1)(“Complaint”).1 Doolittle joined Kennicott, Garcia, and Phelps as a named plaintiff when the Plaintiffs amended their Complaint. See First Amended Complaint at 1. In the First Amended Complaint, the Plaintiffs assert: (i) that Sandia Labs engages in intentional discrimination, violating Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-15 (“Title VII”); and (ii) that Sandia Labs engages in disparate impact discrimination in violation of Title VII. See Amended Complaint ¶¶ 85-99, at 21-23. Kennicott asserts individual Title VII claims against Sandia Labs for retaliation and constructive discharge. See Amended Complaint ¶¶ 100-08, at 23-24. Sandia Labs filed its MTD on August 9, 2018, arguing that the Plaintiffs are on a fishing expedition, because the First Amended Complaint is inconsistent with the Complaint; that the Plaintiffs cannot satisfy rule 23(a) of the Federal Rules of Civil Procedure’s commonality requirement, or rule 23(b)(2)’s or (b)(3)’s requirements for class action certification; and that the Plaintiffs have not identified specific actions resulting in a disparate impact. See MTD at 1-3. Simultaneously, Sandia Labs requests that, to conserve resources, the Court stay discovery until the Court decides the MTD. See Motion to Stay Discovery Pending Ruling on Defendant’s MTD Class Claims at 4, filed August 9, 2018 (Doc. 156). The Plaintiffs respond, averring that the First Amended Complaint satisfies the pleading requirements and that Sandia Labs’ MTD mainly addresses class certification, which the parties will address when the Plaintiffs move to certify a class. See Plaintiffs’ Response in
1The Court dismissed the Plaintiffs’ state-law claims -- the Complaint’s Counts III, IV, V, and VII of the Complaint -- under the federal enclave doctrine. See Order at 1, filed March 31, 2018 (Doc. 106). For the Court’s reasoning for the dismissal, see generally Memorandum Opinion, 314 F. Supp. 3d 1142 (D.N.M. 2018)(Browning, J.), filed May 14, 2018 (Doc. 113).
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Opposition to Defendant’s MTD Plaintiffs’ Class Claims at 1, filed August 23, 2018 (Doc. 157).

In response to Sandia Labs’ request to stay discovery, the Plaintiffs accuse Sandia Labs of

attempting to delay discovery and argue that, because Sandia Labs will lose the MTD, discovery

will continue regardless the MTD. See Plaintiffs’ Response in Opposition to Defendant’s Motion

to Stay Discovery at 1, filed August 23, 2018 (Doc. 158).

On October 11, 2018, the Plaintiffs filed a Joint Proposed Case Schedule. See Joint

Proposed Case Schedule at 4. As part of the Joint Proposed Case Schedule, the parties stipulated

to a discovery stay to end on December 14, 2018. See Joint Proposed Case Schedule at 2. The

Joint Proposed Case Schedule provides for the following deadlines:

Event Stipulated discovery stay ends Sandia completes production of ESI, including final privilege log Pre-class certification discovery deadline Plaintiffs submit motion for class certification and expert reports Sandia submits opposition to class certification and expert reports Plaintiffs submit reply motion and expert reports

Proposed Deadline December 14, 2018 March 1, 2019
April 12, 2019 May 9, 2019
July 25, 2019
September 13, 2019

Joint Proposed Case Schedule at 2.

The Court held a hearing on the MTD on October 17, 2018. See Draft Transcript of

Hearing at 1 (taken October 17, 2018)(“Tr.”).2 At the hearing, the Court said it thought the MTD

was an attempt to preempt and shortcut the Plaintiffs’ upcoming motion for class certification

without allowing the Plaintiffs to conduct discovery, and the Court said it would “sit” on the MTD

2The Court’s citations to the transcript of the hearing refer to the court reporter’s original, unedited version. Any final transcript may contain slightly different page and/or line numbers.

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for a while, planning to decide the MTD at or after the class certification hearing.3 Tr. at 4:5-4:12 (Court). 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)(citing Fed. R. Civ. P. 23). See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-52 (2011)(“Wal-Mart”); Vallario v. Vandehey, 554 F.3d 1259, 1267 (10th Cir. 2009). In response to the Court’s declination to decide the MTD immediately or promptly, the Court and the parties agreed that the parties and the Court would schedule a class certification hearing for July 1, 2019, and that the parties would modify the Joint Proposed Case Schedule to account for the July 1, 2019, class certification hearing. See Tr. at 37:25-38:12 (Court, Shaver, Katzenstein).
1. The Letter. The Plaintiffs filed the Letter to notify the Court that the parties could not agree to a modified case schedule. See Letter at 1. The Plaintiffs state that they will struggle to meet the

3As Sandia Labs filed its MTD on August 9, 2018, the MTD appears on the six-month list

for September, 2019. The six-month list is “a semiannual report showing, by U.S. district judge

and magistrate judge, all motions pending more than six months . . . . The reporting

requirements . . . are designed to help reduce both costs and delays in civil litigation in the district

courts.”

Civil Justice Reform Act Report, United States Courts,

http://www.uscourts.gov/statistics-reports/analysis-reports/civil-justice-reform-act-report (last

visited November 19, 2018). The Court set the hearing on July 1, 2019, because the parties did

not indicate that they plan to submit documents after the class certification hearing. See Tr. at

36:13-37:24. The Court wants to have time to decide the motion for class certification and the

MTD by the end of September, 2019.

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July 1, 2019, class certification hearing deadline and explain that Sandia Labs has refused to

withdraw its MTD or speed its ESI production to allow the Plaintiffs to meet the July 1, 2019,

class certification hearing deadline. See Letter at 2. According to the Plaintiffs, the parties each

proposed a modified case schedule, and the Plaintiffs summarize the proposed schedules:

Event Stipulated discovery stay ends

Sandia’s Proposed Deadline
November 30, 2018

Plaintiffs’ Proposed Deadline
November 26, 2018

Sandia completes production of ESI, including final privilege log Pre-class certification discovery deadline Plaintiffs submit motion for class certification and expert reports Sandia submits opposition to class certification and expert reports Plaintiffs submit reply motion and expert reports Class certification hearing

February 1, 2019 March 24, 2019 March 25, 2019 May 16, 2019 June 18, 2019 July 1, 2019

January 4, 2019 April 4, 2019 April 5, 2019 May 16, 2019 June 18, 2019 July 1, 2019

Letter at 5. The Plaintiffs ask for “a minimum of three months after ESI is produced” to file the class
certification motion and expert reports, but, according to the Plaintiffs, Sandia Labs wants to limit the Plaintiffs to seven weeks for the task. See Letter at 3. The Plaintiffs justify their request, explaining that Sandia Labs has refused to provide relevant compensation documents, promotion policy documents, and email information; that the Plaintiffs intend to compel Sandia Labs to produce these documents; and that the Plaintiffs anticipate needing to compel additional information, because Sandia Labs has been slow to provide discovery documents. See Letter at 3. The Plaintiffs also expect that the parties will “need to litigate a number of privilege-related

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disputes,” because Sandia Labs produced an incomplete privilege log and has refused to produce “an augmented privilege log.” Letter at 4. The Plaintiffs further explain that the parties agreed to defer litigating the privilege log issues until after Sandia Labs completes ESI production and that the Plaintiffs anticipate other litigation following the ESI production’s completion. See Letter at 4. According to the Plaintiffs, they will “have to review potentially millions of pages of documents, identify witnesses for fact depositions, and schedule and take those depositions” before filing their class certification motion and expert reports, and that the parties anticipate logistical difficulties scheduling witness meetings, because they must accommodate the witnesses’ and the parties’ schedules. Letter at 4. The Plaintiffs complain that Sandia Labs’ schedule allows the Plaintiffs only seven weeks to complete the tasks listed above, and it grants Sandia Labs two months for ESI production, and six weeks for drafting responses to the class certification motion and expert reports. See Letter at 4. Accordingly, the Plaintiffs request either that the Court dismiss Sandia Labs’ MTD or that the Court grant the Plaintiffs’ proposed case schedule. See Letter at 5.
2. The Letter Response. Sandia Labs responded to the Plaintiffs’ Letter on November 15, 2018. See Letter Response at 1. In the Letter Response, Sandia Labs explains that, following the October 17, 2018, hearing, Sandia Labs proposed a case schedule that maintained the discovery stay, reduced Sandia Labs’ time to complete ESI production, and reduced proportionately the parties’ time to complete the class certification responses and replies. See Letter Response at 1. According to Sandia Labs, the Plaintiffs, in response, suggested that Sandia Labs complete ESI production by December 14, 2018, the date that the parties’ stipulated discovery stay ends. Sandia Labs depicts this proposal as an attempt to “back out of the stipulated discovery stay.” Letter Response at 1. Sandia Labs
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explains that it then proposed two months for its ESI production and two months for pre-class certification discovery. See Letter Response at 2.
Sandia Labs complains that the Plaintiffs’ proposed case schedule requires Sandia Labs to complete ESI production, involving “millions of pages of documents,” in six weeks “during the holiday season.” Letter Response at 2. Sandia Labs also worries that the Plaintiffs’ proposed case schedule shortens Sandia Labs’ time for responding to the Plaintiffs’ class certification motion and expert reports from seventy-five to forty-one days, but gives the Plaintiffs thirty-two days for replying to the response; this change shortens Sandia Labs’ response time by forty-five percent and the Plaintiffs’ reply time by thirty-six percent. See Letter Response at 2. Sandia Labs avers that the Plaintiffs’ request for additional time for discovery and preparation before their class certification motion reflects that the Plaintiffs “have no idea what this case is about or who the relevant witnesses are.” Letter Response at 2.
Sandia Labs also responds to the Plaintiffs’ complaints about its discovery production. See Letter Response at 3. Addressing the Letter’s allegations, Sandia Labs indicates that: (i) the parties have disputed the 2018 policy document production since May, 2018, and the Plaintiffs could move to compel the information; (ii) the Plaintiffs identified their concerns about deficiencies regarding other policy, compensation, and correspondence production shortly before the stipulated discovery stay, and Sandia Labs is prepared to address these issues; (iii) the Plaintiffs addressed their concerns about the privilege log shortly before the parties agreed to the stipulated discovery stay, although Sandia Labs produced the privilege log more than nine months before the Plaintiffs mentioned their concerns; (iv) the Plaintiffs could have challenged Sandia Labs’ attorney-client privilege assertions earlier. See Letter Response at 3. Accordingly, Sandia Labs
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asks the Court to grant its MTD or adopt Sandia Labs’ proposed case schedule. See Letter Response at 4.
3. The Letter Reply. The Plaintiffs replied on November 15, 2018, to Sandia Labs’ Letter Response. See Letter from Anne B. Shaver, Lieff, Cabraser, Heimann & Bernstein, LLP, to the Court at 1-2 (dated November 15, 2018), filed November 15, 2018 (Doc. 189)(“Letter Reply”). First, the Plaintiffs dispute Sandia Labs’ allegations that the Plaintiffs have delayed in bringing motions to compel. See Letter Reply at 1. The Plaintiffs explain that the parties agreed, and informed the Court, that the parties would resolve the motions to compel “once the ESI custodians are resolved or ESI production is complete.” Letter Reply at 1. Second, the Plaintiffs aver that the parties have recognized since the case’s beginning that the Plaintiffs require ESI production, and that commonsense dictates that ESI production will help the Plaintiffs identify witnesses to depose. See Letter Reply at 2. Third, the Plaintiffs explain that they identified discovery deficiencies well before agreeing to the stipulated discovery stay in October, 2018. See Letter Reply at 2. Finally, the Plaintiffs note that Sandia Labs has offered no reason why it cannot complete ESI production by January 4, 2019, the Plaintiffs’ proposed ESI production deadline. See Letter Reply at 2. The Plaintiffs summarize: [A]ssuming Sandia has a good faith reason for not completing ESI production by January 4, the appropriate remedy is not simply to move that date in a way that prejudices Plaintiffs by unfairly squeezing their review time but to adjust the remainder of the schedule so that neither side is prejudiced. Letter Reply at 2.
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LAW REGARDING RULE 12(b)(6) Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). The Complaint’s sufficiency is a question of law, and, when considering a rule 12(b)(6) motion, a court must accept as true all well-pled factual allegations in the complaint, view those allegations in the light most favorable to the nonmoving party, and draw all reasonable inferences in the plaintiff’s favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)(“[O]nly if a reasonable person could not draw . . . an inference [of plausibility] from the alleged facts would the defendant prevail on a MTD.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006))). A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678. “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. at 555.
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To survive an MTD, a plaintiff’s complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)(emphasis omitted). The United States Court of Appeals for the Tenth Circuit has stated:
“[P]lausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(citations omitted)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570). See Gallegos v. Bernalillo Cty. Bd. of Cty. Comm’rs, 278 F. Supp. 3d 1245, 1259 (D.N.M. 2017)(Browning, J.). “When a party presents matters outside of the pleadings for consideration, as a general rule ‘the court must either exclude the material or treat the motion as one for summary judgment.’” Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir. 2017)(quoting Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th Cir. 2004)). There are three limited exceptions to this general principle: (i) documents that the complaint incorporates by reference, see Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322; (ii) ”documents referred to in the complaint if the documents are central to the plaintiff’s claim and the parties do
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not dispute the documents’ authenticity,” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002); and (iii) ”matters of which a court may take judicial notice,” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322. See Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d at 1103 (holding that the district court did not err by reviewing a seminar recording and a TV episode on a rule 12(b)(6) motion, which were “attached to or referenced in the amended complaint,” central to the plaintiff’s claim, and “undisputed as to their accuracy and authenticity”). “[T]he court is permitted to take judicial notice of its own files and records, as well as facts which are a matter of public record.” Van Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000), abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001).
In Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010), the defendants “supported their motion with numerous documents, and the district court cited portions of those motions in granting the [MTD].” 627 F.3d at 1186. The Tenth Circuit held that “[s]uch reliance was improper” and that, even if “the district court did not err initially in reviewing the materials, the court improperly relied on them to refute Mr. Gee’s factual assertions and effectively convert the motion to one for summary judgment.” 627 F.3d at 1186-87. In other cases, the Tenth Circuit has emphasized that, “[b]ecause the district court considered facts outside of the complaint . . . it is clear that the district court dismissed the claim under Rule 56(c) and not Rule 12(b)(6).” Nard v. City of Okla. City, 153 F. App’x 529, 534 n.4 (10th Cir. 2005)(unpublished).4 In Douglas v. Norton, 167 F. App’x
4Nard v. City of Okla. City is an unpublished opinion, but the Court can rely on an unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A), 28 U.S.C. (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, . . . [a]nd we have generally determined that citation to unpublished opinions is not favored. However, if an unpublished opinion or order and judgment has persuasive value
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698 (10th Cir. 2006)(unpublished), the Tenth Circuit addressed an untimely filed charge with the Equal Employment Opportunity Commission -- which the Tenth Circuit analogized to a statute of limitations -- and concluded that, because the requirement was not jurisdictional, the district court should have analyzed the question under rule 12(b)(6), and “because the district court considered evidentiary materials outside of Douglas’ complaint, it should have treated Norton’s motion as a motion for summary judgment.” 167 F. App’x at 704-05.
The Court has previously ruled that, when a plaintiff references and summarizes defendants’ statements in a complaint, the Court cannot rely on documents containing those statements that the defendants attach in their briefing. See Mocek v. City of Albuquerque, No. CIV 11-1009 JB/KBM, 2013 WL 312881, at *50-51 (D.N.M. Jan. 14, 2013)(Browning, J.). The Court reasoned that the statements were neither incorporated by reference nor central to the plaintiff’s allegations in the complaint, because the plaintiff cited the statements only to attack the defendant’s reliability and truthfulness. See 2013 WL 312881, at *50-51. The Court has also previously ruled that, when determining whether to toll a statute of limitations in an action alleging fraud and seeking subrogation from a defendant, the Court may not use interviews and letters attached to an MTD, which show that a plaintiff was aware of the defendant’s alleged fraud before the statutory period expired. See Great Am. Co. v. Crabtree, No. CIV 11-1129 JB/KBM, 2012 WL 3656500, at *3, *22-23 (D.N.M. Aug. 23, 2012)(Browning, J.)(“Crabtree”). The Court in
with respect to a material issue in a case and would assist the court in its disposition, we allow a citation to that decision. United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court concludes that Nard v. City of Oklahoma City and Douglas v. Norton, 167 F. App’x 698 (10th Cir. 2006), Rhoads v. Miller, [352 F. App’x 289 (10th Cir. 2009), and Hamilton v. Water Whole International Corp., 302 F. App’x 789, 798 (10th Cir. 2008), have persuasive value with respect to a material issue, and will assist the Court in its disposition of this Memorandum Opinion and Order.
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Crabtree determined that the documents did not fall within any of the Tenth Circuit’s exceptions to the general rule that a complaint must rest on the sufficiency of its contents alone, as the complaint did not incorporate the documents by reference or refer to the documents. See 2012 WL 3656500, at *22-23; Mocek v. City of Albuquerque, 2013 WL 312881, at *50 (refusing to consider statements that were not “central to [the plaintiff’s] claims”).
On the other hand, in a securities class action, the Court has ruled that a defendant’s operating certification, to which plaintiffs refer in their complaint, and which was central to whether the plaintiffs adequately alleged a loss, falls within an exception to the general rule, so the Court may consider the operating certification when ruling on the defendant’s MTD without converting the motion into one for summary judgment. See Genesee Cty. Emps.’ Ret. Sys. v. Thornburg Mortg. Secs. Tr. 2006-3, 825 F. Supp. 2d 1082, 1150-51 (D.N.M. 2011)(Browning, J.). See also Sec. & Exch. Comm’n v. Goldstone, 952 F. Supp. 2d 1060, 1217-18 (D.N.M. 2013)(Browning, J.)(considering, on a MTD, electronic mail transmissions referenced in the complaint as “documents referred to in the complaint,” which are “central to the plaintiff’s claim” and whose authenticity the plaintiff did not challenge); Mata v. Anderson, 760 F. Supp. 2d 1068, 1101 (D.N.M. 2009)(Browning, J.)(relying on documents outside of the complaint because they were “documents that a court can appropriately view as either part of the public record, or as documents upon which the Complaint relies, and the authenticity of which is not in dispute”).
LAW REGARDING MODIFICATION OF SCHEDULING ORDERS Rule 16 of the Federal Rules of Civil Procedure provides that courts will, with some exceptions, issue scheduling orders in each case:
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(b) Scheduling. (1) Scheduling Order. Except in categories of actions exempted by local rule, the district judge -- or a magistrate judge when authorized by local rule -- must issue a scheduling order: (A) after receiving the parties’ report under Rule 26(f);5 or (B) after consulting with the parties’ attorneys and any unrepresented parties at a scheduling conference. (2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but unless the judge finds good cause for delay, the judge must issue it within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared. (3) Contents of the Order. (A) Required Contents. The scheduling order must limit the time to join other parties, amend the pleadings, complete discovery, and file motions. (B) Permitted Contents. The scheduling order may: (i) modify the timing of disclosures under Rules 26(a)6 and 26(e)(1);7 (ii) modify the extent of discovery; (iii) provide for disclosure, discovery, or preservation of electronically stored information; (iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation
5Rule 26(f) requires parties to provide the court with a discovery plan. See Fed. R. Civ. P. 26(f).
6Rule 26(a) enumerates disclosures required under the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 26(a).
7Rule 26(e)(1) requires parties to supplement or correct information provided in their required disclosures. See Fed. R. Civ. P. 26(e)(1).
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Fed. R. Civ. P. 16(b).

material after information is produced, including agreements reached under Federal Rule of Evidence 502;8
(v) direct that before moving for an order relating to discovery, the movant must request a conference with the court;
(vi) set dates for pretrial conferences and for trial; and
(vii) include other appropriate matters.

“The District Court has wide discretion in its regulation of pretrial matters.” Si-Flo, Inc.

v. SFHC, Inc., 917 F.2d 1507, 1514 (10th Cir. 1990). Scheduling orders, however, “may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Accord

Street v. Curry Bd. of Cty. Comm’rs, No. CIV 06-0776 JB/KBM, 2008 WL 2397671, at *6

(D.N.M. Jan. 30, 2008)(Browning, J.). The advisory committee notes to rule 16 observe:

[T]he court may modify the schedule on a showing of good cause if it cannot reasonably be met despite the diligence of the party seeking the extension. Since the scheduling order is entered early in the litigation, this standard seems more appropriate than a “manifest injustice” or “substantial hardship” test. Otherwise, a fear that extensions will not be granted may encourage counsel to request the longest possible periods for completing pleading, joinder, and discovery.

Fed. R. Civ. P. 16(b)(4) advisory committee’s note to 1983 amendment.

The Tenth Circuit has held that the concepts of good cause, excusable neglect, and

diligence are related. “The Tenth Circuit . . . has recognized the interrelation between ‘excusable

neglect’ and ‘good cause.’” Pulsecard, Inc. v. Discover Card Servs. Inc., 168 F.R.D. 295, 301

(D. Kan. 1996)(Rushfelt, J.)(citing Broitman v. Kirkland (In re Kirkland), 86 F.3d 172, 175 (10th

8Rule 502 of the Federal Rules of Evidence allows parties to reach agreements about the effects of accidentally disclosing attorney-client-privileged or work-product information. See Fed. R. Evid. 502.

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Cir. 1996)(“In re Kirkland”)). “Properly construed, ‘good cause’ means that scheduling deadlines cannot be met despite a party’s diligent efforts.” Street v. Curry Bd. of Cty. Comm’rs, 2008 WL 2397671, at *6 (quoting Fed. R. Civ. P. 16(b)). See Advanced Optics Elecs., Inc. v. Robins, 769 F. Supp. 2d 1285, 1313 (D.N.M. 2010)(Browning, J.)(noting that the “rule 16(b) good-cause inquiry focuses on the diligence of the party seeking [to] amend the scheduling order.”). In In re Kirkland, the Tenth Circuit dealt with the definition of “good cause” in the context of a predecessor to modern rule 4(m) of the Federal Rules of Civil Procedure,9 and noted:
[W]ithout attempting a rigid or all-encompassing definition of “good cause,” it would appear to require at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice, and some showing of “good faith on the part of the party seeking the enlargement and some reasonable basis for noncompliance within the time specified” is normally required.
86 F.3d at 175 (emphasis in original)(internal quotation marks omitted)(quoting Putnam v. Morris, 833 F.2d 903, 905 (10th Cir. 1987)). The Tenth Circuit explained that Putnam v. Morris “thus recognized that the two standards, although interrelated, are not identical and that ‘good cause’ requires a greater showing than ‘excusable neglect.’” In re Kirkland, 86 F.3d at 175.
9Rule 4(m) provides: If a defendant is not served within 120 days after the complaint is filed, the
court -- on motion or on its own after notice to the plaintiff -- must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1). Fed. R. Civ. P. 4(m). The Tenth Circuit in In re Kirkland interpreted rule 4(j), which was substantially identical. See 86 F.3d at 174 (“Rule 4(j) requires the court to dismiss a proceeding if service has not been made upon the defendant within 120 days after filing and the party responsible for service cannot show good cause why it was not made.”).
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Where a party is diligent in its discovery efforts and nevertheless cannot comply with the scheduling order, the Court has found good cause to modify the scheduling order if the requesting party timely brings forward its request. In Advanced Optics Electronics, Inc. v. Robins, the Court concluded that, where the defendant did not conduct discovery or make any good-faith discovery requests, and where the defendant did not make efforts “diligent or otherwise” to conduct discovery, the defendant did not, therefore, show good cause to modify the scheduling order. 769 F. Supp. 2d at 1313 n.8. In Street v. Curry Board of County Commissioners, No. CIV 06-0776 JB/KBM, 2008 WL 2397671 (D.N.M. Jan. 30, 2008)(Browning, J.), however, the Court concluded that the plaintiff had “shown good cause for a delay in seeking leave to amend,” because she “was diligent in pursuing discovery . . . [and] brought to the Court’s attention her identification of an additional claim in a timely manner,” where she discovered the claim through “documents provided in discovery.” 2008 WL 2397671, at *11. In Montoya v. Sheldon, No. CIV 10-0360 JB/WDS, 2012 WL 5353493 (D.N.M. Oct. 7, 2012)(Browning, J.), the Court did not find good cause to modify the scheduling order and reopen discovery, and refused to grant the plaintiffs’ request to do so, where the plaintiffs’ excuse for not disclosing their expert before the close of discovery was that they thought that the case would settle and they would thus not require expert testimony. See 2012 WL 5353493, at *14. The Court noted:
The [plaintiffs] filed this case on April 15, 2010. Because [Plaintiff] D. Montoya had seen the physician before that date, the fact that the [plaintiffs] are only now bringing the physician forward as a newly identified expert witness, over two years later, and over one and a half years after the deadline to disclose expert witnesses, does not evidence circumstances in which the Court can find excusable neglect nor good cause. 2012 WL 5353493, at *14.
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In Scull v. Management & Training Corp., No. CIV 11-0207 JB/RHS, 2012 WL 1596962 (D.N.M. May 2, 2012)(Browning, J.), the Court denied a plaintiff’s request for an extension of time to name an expert witness against a defendant. 2012 WL 1596962, at *9. The plaintiff asserted that he had waited to name an expert witness until a second defendant joined the case, but a scheduling order was in effect before the second defendant entered the case. 2012 WL 1596962, at *4, *8-9. The Court concluded that the plaintiff should have known that he would need to name an expert witness against the defendant already in the case. See 2012 WL 1596962, at *8. The Court determined that the plaintiff was seeking “relief from his own disregard” for the deadline. 2012 WL 1596962, at *8. “Despite his knowledge that [defendant] PNA had yet to enter the case, [plaintiff] Scull chose to allow the deadline to pass without naming expert witnesses against [defendant] MTC.” 2012 WL 1596962, at *8. Regarding the defendant who entered the case at a later date, however, the Court allowed the plaintiff an extension of time to name an expert witness, because it “was not unreasonable for Scull to expect a new deadline to name expert witnesses upon PNA’s entrance into the case because he had not yet had the opportunity to engage in discovery against PNA as he had against MTC.” 2012 WL 1596962, at *9. The Court also noted that not naming an expert witness “is a high price to pay for missing a deadline that was arguably unrealistic when it was set,” as Scull could not have determined the need for an expert witness until after PNA entered the case. 2012 WL 1596962, at *9.
In Stark-Romero v. National Railroad Passenger Co. (AMTRAK), 275 F.R.D. 544 (D.N.M. 2011)(Browning, J.), the Court concluded that a lawyer had shown excusable neglect when he missed a scheduling deadline because, soon after his son’s wedding, his father-in-law developed a tumor in his chest, and the lawyer arranged his father-in-law’s medical care, and only after the lawyer returned to his work did he realize that a deadline passed. See 275 F.R.D. 549-50. The
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Court noted that the lawyer could have avoided missing the deadline had he not left his work until the last minute, just before his son’s wedding, but concluded that the lawyer had demonstrated good faith and missed the deadline because of “life crises,” and not because of his inadvertence. 275 F.R.D. 549-50. In West v. New Mexico Taxation and Revenue Department, No. CIV 09-0631 JB/CEG, 2010 WL 3834341 (D.N.M. July 29, 2010)(Browning, J.), the Court allowed a plaintiff extended time to file a response to a defendant’s motion for summary judgment, in part because of the difficulty that the plaintiff’s counsel experienced attempting to obtain depositions with certain defense witnesses, and thus it was not her fault, and in part because cross-motions on summary judgment are particularly helpful for the Court:
[C]ross-motions tend to narrow the factual issues that would proceed to trial and promote reasonable settlements. In some cases, it allows the Court to determine that there are no genuine issues for trial and thereby avoid the expenses associated with trial. The Court prefers to reach the merits of motions for summary judgment when possible. 2010 WL 3834341, at *4-5. On the other hand, in Liles v. Washington Tru Solutions, LLC, No. CIV 06-854 JB/CEG, 2007 WL 2298440 (D.N.M. June 13, 2007)(Browning, J.), the Court denied a plaintiff’s request for additional time to respond to a defendant’s motion for summary judgment, when the only rationale that the plaintiff provided was that its counsel’s “family and medical emergencies” precluded the plaintiff from timely responding. 2007 WL 2298440, at *2. See Gallegos v. Wood, No. CIV 13-1055 JB/KBM, 2017 WL 3701866, at *38 (D.N.M. Aug. 25, 2017)(Browning, J.)(determining that the plaintiffs established “good cause” when the plaintiffs relied on the United States’ initial assurances that it would not object to an extension for designating expert witnesses); Trujillo v. Rio Arriba Cty., No. CIV 15-0901 JB/WPL, 2016 WL 4035340, at *10 (D.N.M. June 15, 2016)(Browning, J.)(concluding that “good cause” existed for extending discovery when a plaintiff missed a discovery deadline, because the plaintiff relied on
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the defendants’ assertions while working with the defendants’ schedule to organize depositions); Upky v. Lindsey, No. CIV 13-0553 JB/GBW, 2015 WL 3543058, at *6-7 (D.N.M. May 14, 2015)(Browning, J.)(granting a scheduling modification to obtain a firm trial date, and stating that the Court would not modify a pretrial schedule because a witness’ deposition could only be done by videotape); Peshlakai v. Ruiz, No. CIV 13-0752 JB/ACT, 2013 WL 6503604, at *14-15 (D.N.M. Nov. 20, 2013)(Browning, J.)(allowing a scheduling modification where the plaintiffs shaped “their initial expert strategy around apparent misinformation” and later discovered that they required an expert, and rejecting the argument that postponing trial and requiring the defendants’ to revise their summary judgment briefing would incurably prejudice the defendants); United States v. Hopkins, No. CIV 11-0416 JB/CG, 2012 WL 6846400, at *6 (D.N.M. Dec. 22, 2012)(Browning, J.)(concluding that, where a plaintiff proceeded “pro se, from federal prison,” and sought information from the United States, which possessed the information sought, the plaintiff showed good cause).
LAW REGARDING GOOD CAUSE AND EXCUSABLE NEGLECT The Tenth Circuit has “recognized the interrelation between ‘excusable neglect’ and ‘good cause.’” Pulsecard, Inc. v. Discover Card Servs. Inc., 168 F.R.D. at 301 (citing In re Kirkland, 86 F.3d at 175). In general, the phrases “good cause” and “excusable neglect” are assumed to have the same meaning in various statutory contexts. Courts generally presume that a drafter of a statute intends identical language in statutes with similar purposes to have the same meaning. See Merrill Lynch, Pierce, Fenner & Smith v. Dabit, 547 U.S. 71, 85-86 (2006)(Stevens, J.). Moreover, “[t]he rules of statutory construction apply to the Federal Rules.” In re Kubler, No. MC 11-0048 JB, 2012 WL 394680, at *11 (D.N.M. Jan. 25, 2012)(Browning, J.). Accord Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993)(applying the expressio
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unius est exclusio alterius canon10 to interpret rule 9(b) of the Federal Rules of Civil Procedure); Hillis v. Heineman, 626 F.3d 1014, 1017-18 (9th Cir. 2010)(“This same principle of statutory construction applies to interpreting the Federal Rules of Civil Procedure.”). The Court, for example, has relied upon the meaning of “good cause” under rule 16 of the Federal Rules of Civil Procedure -- which concerns amendments of scheduling orders -- when interpreting “good cause” under rule 32 of the Federal Rules of Criminal Procedure -- which concerns criminal sentencing and judgment. United States v. Jones, No. CR 14-0769 JB, 2016 U.S. Dist. LEXIS 9938, at *8-11 (D.N.M. Jan. 15, 2016)(Browning, J.).
In the civil rule 16 context, the Court has stated that the good-cause inquiry focuses on the diligence of the party seeking to amend a scheduling deadline. See Walker v. THI of N.M. at Hobbs Ctr., 262 F.R.D. 599, 602-03 (D.N.M. 2009)(Browning, J.); Guidance Endodontics, LLC v. Dentsply Int’l, Inc., No. CIV 08-1101 JB/RLP, 2009 WL 3672505, at *2-3 (D.N.M. Sept. 29, 2009)(Browning, J.); Trujillo v. Bd. of Educ. of the Albuquerque Pub. Schs., Nos. CIV 02-1146 JB/LFG, CIV 03-1185 JB/LFG, 2007 WL 2296955, at *3 (D.N.M. June 5, 2007)(Browning, J.). The Court has concluded that, “[p]roperly construed, ‘good cause’ means that scheduling deadlines cannot be met despite a party’s diligent efforts.” Advanced Optics Elecs., Inc. v. Robins, 769 F. Supp. 2d at 1313. Accord Gerald v. Locksley, No. CIV 10-0721 JB/LFG, 2011 WL 3510845, at *13-14 (D.N.M. Aug. 1, 2011)(Browning, J.). Thus, “the moving party [must] show that it has been diligent in attempting to meet the deadlines, which means it must provide an adequate explanation for any delay.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006).
10Expressio unius est exclusio alterius is “the canon that expressing one item of a commonly associated group or series excludes another left unmentioned.” United States v. Vonn, 535 U.S. 55, 65 (2002).
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Where a party is diligent in its discovery efforts and nevertheless cannot comply with the scheduling order, the Court has found good cause to modify the scheduling order if the requesting party timely brings forward its request. For example, in Advanced Optics Electronics, Inc. v. Robins, the Court found that, where the defendant did not conduct discovery or make any goodfaith discovery requests, and where the defendant did not make efforts “diligent or otherwise” to conduct discovery, the defendant did not show good cause to modify the scheduling order. 769 F. Supp. 2d at 1313 n.8. By contrast, in Street v. Curry Board of County Commissioners, the Court found that the plaintiff had “shown good cause for a delay in seeking leave to amend,” because she “was diligent in pursuing discovery . . . [and] brought to the Court’s attention her identification of an additional claim in a timely manner,” where she discovered the claim through “documents provided in discovery.” 2008 WL 2397671, at *11. The Court arrived at a similar determination in Abraham v. WPX Production Productions, LLC, No. CIV 06-0776 JB/KBM, 2016 WL 548251 (D.N.M. Jan. 25, 2016)(Browning, J.). There, the Court found good cause to amend a pleading when the plaintiffs had a very short amount of time to amend the pleadings, “even though discovery had only just begun.” 2016 WL 548251, at *20. “The Plaintiffs may not have obtained or reviewed all of the documents that might reveal their conspiracy claim’s existence before the deadline to amend passed.” 2016 WL 548251, at *20. Furthermore, the delay was minimal and would not prejudice the defendants. See 2016 WL 548251, at *20.
Overall, good cause requires diligence and a conscientious attempt to comply with the Court’s scheduling order. When parties have not done so, the Court has not found good cause. In Montoya v. Sheldon, the Court did not find good cause to modify the scheduling order and reopen discovery where the plaintiffs’ excuse for not disclosing their expert before the close of discovery
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was that they thought the case would settle and they would thus not require expert testimony. See 2012 WL 5353493, at *14. The Court noted:
The [plaintiffs] filed this case on April 15, 2010. Because [Plaintiff] D. Montoya had seen the physician before that date, the fact that the [plaintiffs] are only now bringing the physician forward as a newly identified expert witness, over two years later, and over one and a half years after the deadline to disclose expert witnesses, does not evidence circumstances in which the Court can find excusable neglect nor good cause. 2012 WL 5353493, at *14. The Tenth Circuit has previously considered the meaning of “excusable neglect” in the context of relief from a final judgment, order, or proceeding under rule 60(b) of the Federal Rules of Civil Procedure. United States v. Timers Pres., 999 F.2d 452, 454 (10th Cir. 1993). “[T]hree requirements . . . must be met when setting aside a default judgment under Rule 60(b): (1) the moving party’s culpable conduct did not cause the default; (2) the moving party has a meritorious defense; and (3) the non-moving party will not be prejudiced by setting aside the judgment.” United States v. Timers Pres., 999 F.2d at 454 (citing Meadows v. Dominican Republic, 817 F.2d 517, 521 (9th Cir. 1987); INVST Fin. Grp., Inc. v. Chem-Nuclear Sys., Inc., 815 F.2d 391, 398 (6th Cir. 1987); 6 James W. Moore, et al., Moore’s Federal Practice ¶ 55.10[1] (2d ed. 1992)). In determining whether a party’s neglect is excusable, the question “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Relevant factors include “the danger of prejudice to the [opposing party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Jennings v. Rivers, 394 F.3d 850, 856-57 (10th Cir. 2005)(quoting Pioneer Inv. Servs. Co. v. Brunswich Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)(“Pioneer”)). In this context, as in others, the Tenth Circuit has stated that the reason for delay is an important, if not the most important,
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factor in this analysis. See Hamilton v. Water Whole Int’l Corp., 302 F. App’x 789, 798 (10th Cir. 2008)(unpublished)(citing United States v. Torres, 372 F.3d 1159, 1163 (10th Cir. 2004)(analyzing the excusable neglect standard in the context of rule 4(b)(4) of the Federal Rules of Appellate Procedure, where the party filed an untimely notice of appeal)).
The relevant factors that the Tenth Circuit used in Jennings v. Rivers with regard to 60(b)(1) have been used to determine whether excusable neglect exists in a number of other contexts. See Pioneer, 507 U.S. at 395 (discussing application of the excusable neglect standard to Federal Rules Bankruptcy Procedure 9006(b)(1)); In re Kirkland, 86 F.3d at 175 (concluding that in Pioneer “the Supreme Court [ of the United States] relied upon use of the term ‘excusable neglect’ in a broad sense in Rules 6(b), 13(f), 60(b)(1), and 60(b)(6),” but that the Pioneer factors did not apply to the “good cause” standard under rule 4(j)); City of Chanute v. Williams Nat. Gas Co., 31 F.3d 1041, 1046 (10th Cir. 1994)(“Thus, we apply the Pioneer test for ‘excusable neglect’ under Fed. R. App. P. 4(a)(5).”); United States v. Torres, 372 F.3d at 1162 (“We now likewise conclude that the Supreme Court’s construction of ‘excusable neglect’ in Pioneer also applies to the term ‘excusable neglect’ as it is used in Federal Rule of Appellate Procedure 4(b)(4).”). Deliberate tactics do not create excusable neglect; “‘[e]xcusable litigation mistakes are not those which were the result of a deliberate and counseled decision by the complaining party . . . . ;’ rather, they are the ‘kinds of mistakes that a party could not have protected against.’” Thompson v. THI of N.M. at Casa Arena, No. CIV 05-1331 JB/LCS, 2008 WL 5999653, at *18 (D.N.M. Dec. 24, 2008)(Browning, J.)(quoting Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. 1999)).
The Court has applied the Pioneer factors to find that a party demonstrated excusable neglect when its attorney failed to respond to a motion for summary judgment, because its attorney mistakenly thought that the Court’s vacating a scheduling order meant there was no deadline for
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filing responsive pleadings. See Estate of Anderson v. Denny’s, Inc., No. CIV 12-0605 JB/GBW, 2013 WL 690809, at *13-14 (D.N.M. Feb. 7, 2013)(Browning, J.). The Court noted that the attorney’s failure to file a responsive pleading was not unintentional, as the attorneys’ misunderstanding of local court rules caused him to think that he did not need to respond. See 2013 WL 690809, at *14. The Court also noted that the attorney was honest with his reason for not filing, as he did not make up an excuse of catastrophic circumstances precluding him from responding. See 2013 WL 690809, at *14. The Court recognized that granting the party leave to file a late response was “generous,” and that the attorney’s failure to respond was “barely excusable.” 2013 WL 690809, at *14. The Court also explained that it is bound by Tenth Circuit precedent requiring the Court to determine motions for summary judgment on their merits, rather than granting such motions for procedural defaults. See 2013 WL 690809, at *14 (citing Reed v. Bennett, 312 F.3d 1190, 1196 (10th Cir. 2002)). The Court also found that the prejudice to the party requesting summary judgment was little, as the only costs the party would incur are those it would also have incurred had the attorney timely responded. See Estate of Anderson v. Denny’s, Inc., 2013 WL 690809, at *14-15.
By contrast, the Court has denied a plaintiff’s request for an extension of time to name an expert witness against a defendant, when the plaintiff asserted that he had waited to name an expert witness until a second defendant joined the case, because, before the second defendant entered the case, a scheduling order was in effect, and the plaintiff should have known that he would need to name an expert witness against the defendant already in the case. See Scull v. Mgmt. & Training Corp., 2012 WL 1596962, at *8. The Court stated that the plaintiff was seeking “relief from his own disregard” for the deadline. 2012 WL 1596962, at *8. “Despite his knowledge that [Defendant] PNA had yet to enter the case, [Plaintiff] Scull chose to allow the deadline to pass
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without naming expert witnesses against [Defendant] MTC.” 2012 WL 1596962, at *8. Regarding the defendant who entered the case at a later date, however, the Court allowed the plaintiff an extension of time to name an expert witness, as it “was not unreasonable for Scull to expect a new deadline to name expert witnesses upon PNA’s entrance into the case because he had not yet had the opportunity to engage in discovery against PNA as he had against MTC.” 2012 WL 1596962, at *9. The Court also noted that not naming an expert witness “is a high price to pay for missing a deadline that was arguably unrealistic when it was set,” as Scull could not have determined the need for an expert witness until after PNA entered the case. 2012 WL 1596962, at *9.
In Stark-Romero v. National Railroad Passenger Co. (AMTRAK), the Court found that a lawyer had shown excusable neglect when his reason for missing a scheduling deadline was that soon after his son’s wedding, his father-in-law developed a tumor in his chest, the lawyer arranged his father-in-law’s medical care, and only after the lawyer returned to his work did he realize that a deadline passed. See 275 F.R.D. at 549-50. The Court noted that the lawyer could have avoided missing the deadline had he not left his work until the last minute, just before his son’s wedding, but found that the lawyer had demonstrated good faith and missed the deadline because of “life crises,” and not his own inadvertence. 275 F.R.D. at 549-50. On the other hand, in Liles v. Washington Tru Solutions, LLC, the Court denied a plaintiff’s request for additional time to respond to a defendant’s motion for summary judgment, when the plaintiff’s only rationale was that its counsel’s “family and medical emergencies” -- without further explanation -- precluded the plaintiff from timely responding. 2007 WL 2298440, at *2.
LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the
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movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The movant bears the
initial burden of ‘show[ing] that there is an absence of evidence to support the nonmoving party’s
case.’” Herrera v. Santa Fe Pub. Sch., 956 F. Supp. 2d 1191, 1221 (D.N.M.
2013)(Browning, J.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th
Cir. 1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(“Celotex”).
Before the court can rule on a party’s motion for summary judgment, the moving party must satisfy its burden of production in one of two ways: by putting evidence into the record that affirmatively disproves an element of the nonmoving party’s case, or by directing the court’s attention to the fact that the non-moving party lacks evidence on an element of its claim, “since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323-25. On those issues for which it bears the burden of proof at trial, the nonmovant “must go beyond the pleadings and designate specific facts to make a showing sufficient to establish the existence of an element essential to his case in order to survive summary judgment.” Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007). Plustwik v. Voss of Nor. ASA, No. CIV 11-0757, 2013 WL 1945082, at *1 (D. Utah May 9,
2013)(Sam, J.). “If the moving party will bear the burden of persuasion at trial, that party must
support its motion with credible evidence -- using any of the materials specified in Rule 56(c) --
that would entitle it to a directed verdict if not controverted at trial.” Celotex, 477 U.S. at 331 (Brennan, J., dissenting)(emphasis in original).11 Once the movant meets this burden, rule 56
requires the nonmoving party to designate specific facts showing that there is a genuine issue for
trial. See Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986)(“Liberty Lobby”). In American Mechanical Solutions, LLC v. Northland Process Piping,
11Although the Honorable William J. Brennan, Jr., Associate Justice of the Supreme Court of the United States, dissented in Celotex, this sentence is widely understood to be an accurate statement of the law. See 10A Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 2727, at 470 (3d ed. 1998)(“Although the Court issued a five-to-four decision, the majority and dissent both agreed as to how the summary-judgment burden of proof operates; they disagreed as to how the standard was applied to the facts of the case.”).
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Inc., 184 F. Supp. 3d 1030 (D.N.M. 2016)(Browning, J.), the Court granted summary judgment for the defendant when the plaintiff did not offer expert evidence supporting causation or proximate causation in its breach-of-contract or breach-of-the-implied-warranty-ofmerchantability claims. 184 F. Supp. 3d at 1075. The Court reasoned that the plaintiff could prove neither the breach-of-contract claim’s causation requirement nor the breach-of-the-impliedwarranty-of-merchantability claims’ proximate-causation requirement with mere common knowledge, and the plaintiff provided no expert testimony bolstering its arguments. See 184 F. Supp. 3d at 1075, 1079. Without the requisite evidence, the plaintiff, the Court determined, failed to prove “an essential element of the nonmoving party’s case,” rendering “all other facts immaterial.” 184 F. Supp. 3d at 1075 (quoting Plustwik v. Voss of Nor. ASA, 2013 WL 1945082, at *1).
The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993)(“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” (internal quotation marks omitted)(quoting Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d at 1241)). Rule 56(c)(1) provides: “A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1). It is not enough for the party opposing a properly
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supported motion for summary judgment to “rest on mere allegations or denials of his pleadings.” Liberty Lobby, 477 U.S. at 256. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980)(“[O]nce a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.” (internal quotation marks omitted)(quoting Coleman v. Darden, 595 F.2d, 533, 536 (10th Cir. 1979)).
Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat’l Ins. v. Omer, No. CIV 07-2123, 2008 WL 2309005, at *1 (D. Kan. June 2, 2008)(Robinson, J.)(citing Fed. R. Civ. P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’” Colony Nat’l Ins. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).
To deny a motion for summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Liberty Lobby, 477 U.S. at 250. A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Liberty Lobby, 477 U.S. at 248). Rather, there must be sufficient evidence on which the fact finder could reasonably find for the nonmoving party. See Liberty Lobby, 477 U.S. at 251 (citing Vitkus v. Beatrice Co., 11 F.3d at 1539; Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)). “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to
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return a verdict for that party. If the evidence is merely colorable . . . or is not significantly probative, . . . summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249 (citations omitted)(citing First Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968); Dombrowski v. Eastland, 387 U.S. 82, 87 (1967)). Where a rational trier of fact, considering the record as a whole, cannot find for the nonmoving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Liberty Lobby, 477 U.S. at 249. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind the actual quantum and quality of proof necessary to support liability.” Liberty Lobby, 477 U.S. at 254. Third, the court must resolve all reasonable inferences and doubts in the nonmoving party’s favor, and construe all evidence in the light most favorable to the nonmoving party. See Liberty Lobby, 477 U.S. at 255 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”); Hunt v. Cromartie, 526 U.S. 541, 550-55 (1999). Fourth, the court cannot decide any issues of credibility. See Liberty Lobby, 477 U.S. at 255.
There are, however, limited circumstances in which the court may disregard a party’s version of the facts. This doctrine developed most robustly in the qualified immunity arena. In Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court concluded that summary judgment is appropriate where video evidence “quite clearly contradicted” the plaintiff’s version of the facts. 550 U.S. at 378-81. The Supreme Court explained:
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At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus[.] Co. v. Zenith Radio Corp., 475 U.S. [at] 586-587 . . . (footnote omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. [at] 247-248 . . . . When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.
550 U.S. at 380-81 (emphasis in original).
The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304
(10th Cir. 2009), and explained:
[B]ecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiff’s version of the facts must find support in the record: more specifically, “[a]s with any motion for summary judgment, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts.” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)(quoting Scott[ v. Harris], 550 U.S. at 380); see also Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1258 (10th Cir. 2008).
584 F.3d at 1312 (brackets omitted). “The Tenth Circuit, in Rhoads v. Miller, 352 F. App’x 289
[, 291] (10th Cir. 2009) . . . [(unpublished),] explained that the blatant contradictions of the record
must be supported by more than other witnesses’ testimony[.]” Lymon v. Aramark Corp., 728
F. Supp. 2d 1222, 1249 (D.N.M. 2010)(Browning, J.), aff’d, 499 F. App’x 771 (10th Cir. 2012).
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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 plaintiff12 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.13 See Rutstein v. Avis
12Technically, it is the party seeking certification, i.e., the movant, who bears the burden of proof, and defendants may also move for class certification. See William B. Rubenstein, Newberg on Class Actions § 7:20 (5th ed.). As a practical matter, however, motions for class certification are made almost exclusively by plaintiffs.
13As the Court has previously noted, Tenth Circuit precedent suggests that the Court must show some level of deference to the Complaint’s factual allegations when ruling on a rule 23 motion: “The Court must accept a plaintiff’s substantive allegations as true,” but it “need not blindly rely on conclusory allegations which parrot Rule 23,” and “may consider the legal and factual issues presented by plaintiff’s complaints.” In re Thornburg Mortg., Inc. Sec. Litig., 912 F. Supp. 2d 1178, 1120 (D.N.M. 2012)(Browning, J.)(citing Shook v. El Paso Cty., 386 F.3d 963, 968 (10th Cir. 2004); J.B. v. Valdez, 186 F.3d 1280, 1290 n.7 (10th Cir. 1999); Eisen v. Carlisle & Jacquelin, 417 U.S. at 178). Since the Court’s statement in In re Thornburg Mortgage, Inc. Securities Litigation, however, the Tenth Circuit issued an opinion stating that district courts
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Rent-A-Car Sys., Inc., 211 F.3d at 1234 (“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 at 799. See Vallario v. Vandehey, 554 F.3d at 1267 (“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
should apply a “strict burden of proof” to class certification issues. Wallace B. Roderick Revocable Living Tr. v. XTO Energy, Inc., 725 F.3d 1213, 1218 (10th Cir. 2013). This request is consistent with the general trend in the federal judiciary toward using an ordinary preponderance standard to find facts at the class certification stage. See, e.g., Teamsters Local 445 Freight Div. Pension Fund v. Bombardier, Inc., 546 F.3d 196, 202 (2d Cir. 2008); In re Hydrogen Peroxide Litig., 552 F.3d 305, 318-20 (3d Cir. 2008); William B. Rubenstein, Newberg on Class Actions § 7.21 (5th ed. 2017)(“Newberg”)(tracing the shift in the case law from deferring to plaintiffs’ representations to adopting an ordinary preponderance standard, and disclaiming the Court’s statement from In re Thornburg Mortgage, Inc. Securities Litigation -- a statement that earlier versions of the treatise espoused). Thus, although the Tenth Circuit has not yet explicitly adopted the preponderance standard for fact-finding in class certification analyses, it most likely will, and the Court will employ that standard here.
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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, 564 U.S. at 350-52. 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). 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, 306 F.R.D. 312, 378 n.39 (D.N.M. 2015)(Browning, J.).
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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), and 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).
Rule 23(a)(2) requires that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). 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
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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)(citing In re Am. Med. Sys., Inc., 75 F.3d 1069, 1080 (6th Cir. 1996); Adamson v. Bowen, 855 F.2d at 676)). 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.).
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
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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,” [Gen. Tel. Co. of the S.W. v. Falcon, 457 U.S. at 157]. 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
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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, the Honorable Antonin Scalia, Associate Justice of the Supreme Court of the
United States, 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.
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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
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adjudicating the controversy. The matters pertinent to these findings include: (A) the putative class members’ interests in
individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against putative class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. Fed. R. Civ. P. 23(b). “Only one of rule 23(b)’s subdivisions must be satisfied to meet the classaction requirements.” Gonzales v. City of Albuquerque, No. CIV 09-0520 JB/RLP, 2010 WL 4053947, at *11 (D.N.M. Aug. 21, 2010)(Browning, J.)(citing Carpenter v. Boeing, Co., 456 F.3d 1183, 1187 (10th Cir. 2006)(stating that the district court must determine whether a suit “falls within one of the categories of actions maintainable as class actions”)). The three categories of class actions -- really four, as rule 23(b)(1) contains two subcategories, known as (b)(1)(A) and (b)(1)(B) class actions -- are not of equal utility. Class actions under (b)(1) can be certified only in very particular circumstances. Class actions under (b)(2) are broadly available, but are only capable of seeking injunctive or declaratory relief, and not damages. Far and away the most controversial class action category, (b)(3), can be brought for class-wide damages, injunctive relief, declaratory relief, or any combination thereof. Class actions under (b)(3) always require notice to all proposed class members of certification of the class, and those individuals must be given the opportunity to opt out if they so desire. See Fed. R. Civ. P. 23(c)(2)(B); Phillips Petrol. Co. v. Shutts, 472 U.S. 797, 812 (1985)(“[W]e hold that due
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process requires at a minimum that an absent plaintiff be provided with an opportunity to remove
himself from the class by executing and returning an ‘opt out’ or ‘request for exclusion’ form to
the court.”). The other class action categories, however, are ordinarily mandatory, and neither
notice nor opportunity to opt out needs to be given. See Fed. R. Civ. P. 23(c)(2)(B); Phillips Petrol.
Co. v. Shutts, 472 U.S. at 811 n.3 (limiting the constitutional requirement of an opt-out notice “to
those class actions which seek to bind known plaintiffs concerning claims wholly or predominately
for money judgments”). The Court will focus on the most important form of class action, the
(b)(3) damages class action.14
14The Court will briefly address the other class-action types. Rule 23(b)(1) contains two subcategories of class action, (b)(1)(A) actions and (b)(1)(B) actions; a class need satisfy the requirements of only one to be certified. See Fed. R. Civ. P. 23(b)(1). Class actions under (b)(1)(A) are designed to avoid the situation in which a defendant subject to suit by multiple plaintiffs is ordered to undertake incompatible courses of conduct as a result of the non-centralized nature of the adjudication. See Fed. R. Civ. P. 23(b)(1)(A). “Incompatible” means more than simply inconsistent. A situation in which, for example, a defendant was ordered to pay ten thousand dollars to a plaintiff in one case, was ordered to pay ten million dollars to another plaintiff in an identical or similar case, and was found to not be at fault at all in yet another case, may be inconsistent, but it does not create “incompatible standards of conduct for the party opposing the class.” Fed. R. Civ. P. 23(b)(1)(A). Such alleged inconsistency is a normal and expected part of the system of individualized adjudication used by the judiciary to apply a uniform set of laws to varied factual settings. What (b)(1)(A) is designed to avoid is injunctive or declaratory “whipsawing,” in which, e.g., one court orders a school district to close an underperforming innercity school and bus its students to suburban schools, and another court orders the district to keep the school open and bus suburban students in to the school. Class actions under (b)(1)(B) serve a similar role, but apply when varying adjudications would result in practically -- rather than legally -- incompatible judgments. See Fed. R. Civ. P. 23(b)(1)(B). Rule 23(b)(1)(B) applies when the defendant has possession or control of a res -- a pot of money or thing that constitutes the relief that the proposed class seeks -- and the relief sought by all the individual members of the proposed class would more than exhaust the res. For example, if a Ponzi scheme operator took ten billion dollars of investors’ money, and, upon law enforcement’s discovery of the scheme, had only six billion dollars remaining, then the individual investors’ claims to recover their rightful share would add up to four billion dollars more than existed in the res. Thus, the court might certify a (b)(1)(B) class action to ensure that the custodian of the res does not pay out the entire res to the first investors to file suit, but, instead, distributes the res fairly among all investors.
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The two subcategories of (b)(1) class action have other things in common as well. Both exist, in a sense, for the benefit of the defendant -- at least relative to (b)(2) and (b)(3) class actions -- and are rarely brought, in part because plaintiffs have little incentive to bring them. In the (b)(1)(B) example, each investor hopes to recover the full value of his or her investment, not a 60% value, and thus is incentivized to file as an individual. In the (b)(1)(A) example, the plaintiff seeking to close down the school (i) does not care about the inconsistent obligations of the school district, and (ii) would rather not be joined in a class action with plaintiffs who want to keep the school open. Last, (b)(1) class actions, along with (b)(2) class actions, are mandatory: if certified, no person covered under the class definition may opt out of it or pursue his or her own individual claim. As such, no notice needs to be given to the class members that they are part of ongoing litigation, although the certifying court may elect to direct notice in appropriate circumstances. See Fed. R. Civ. P. 23(c)(2)(A). Class actions under (b)(2) provide for injunctive or declaratory relief when a defendant has “acted or refused to act on grounds that apply generally to the class.” Fed. R. Civ. P. 23(b)(2).
The key to the (b)(2) class is “the indivisible nature of the injunctive or declaratory remedy warranted -- the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Nagareda, supra, at 132. In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.
Wal-Mart, 564 U.S. at 360-61 (emphasis in original). The (b)(2) class action was invented for the purpose of facilitating civil rights suits, and much of its use is in that field today. See Newberg § 4:26. The (b)(2) class action allows civil rights litigants to advocate on behalf of all similarly situated individuals, such as a disenfranchised black voter representing a class of all black voters within an unconstitutionally drawn district or a jail inmate representing all inmates in an overcrowding case. Anyone familiar with the nation’s seminal civil rights cases, however, knows that many of them are not brought as class actions, which raises a question:
[W]hy would anyone ever bring one? . . . Th[is] inquiry is generated because if an individual litigant pursues an individual case for injunctive relief and prevails, she can generally get all of the remedy that she needs without going through the hurdles of certifying a class. For example, to return to Brown v. Board of Education, once Linda Brown prevailed on her race discrimination claim, her remedy -- a desegregated school -- was hers to pursue. Although that remedy would affect many other persons not a part of her litigation, hence making class certification appropriate, there is no requirement that to secure that remedy, she had to file a class action.
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To satisfy rule 23(b)(3), the court must find “that the questions of law or fact common to
the members of the class predominate over any questions affecting only individual members, and
that a class action is superior to other available methods for the fair and efficient adjudication of
the controversy.” Fed. R. Civ. P. 23(b)(3). Rule 23(b)(3) provides that “[t]he matters pertinent to
these findings include”: (i) the class members’ interest in individually controlling the prosecution
or defense of separate actions; (ii) the extent and nature of any litigation concerning the
controversy already commenced by or against members of the class; (iii) the desirability or
undesirability of concentrating the litigation of the claims in the particular forum; and (iv) the
Nonetheless, social change advocates tend to pursue class certification under Rule 23(b)(2) for several reasons. First, and perhaps most importantly, Linda Brown will likely graduate from school long before her case ends; if hers is simply an individual action, it will become moot and risk dismissal. Class certification, however, constitutes an exception to the mootness doctrine in certain circumstances. Second, the scope of the plaintiff’s relief is likely augmented by certifying a class. It is arguable that all that Linda Brown would have been able to secure as a remedy for her individual claim was a desegregated school for herself, not for students throughout the entire school district; there is some relationship between the scope of the class and the scale of the remedy. Third, it is often the case that the attorneys pursuing civil rights actions are doing so as public interest lawyers paid by an organization like the NAACP Legal Defense Fund or the American Civil Liberties Union (ACLU); they may therefore have a financial incentive to pursue a class’s case rather than a series of individual cases as they have limited resources, and the economies of scale may argue for a class action suit. Most generally, many civil rights cases are brought as class suits because the attorneys and clients pursuing them conceptualize their efforts in group, not individual, terms. Thus, while an individual civil rights plaintiff might be able to secure the relief that she seeks without a (b)(2) class, a series of factors may encourage the pursuit of one.
Newberg § 4:26 (footnotes omitted). Like (b)(1) class actions, (b)(2) class actions are mandatory -- individuals covered under the class definition may not opt out -- and do not require notice to be given to the class. See Fed. R. Civ. P. 23(c)(2)(A).
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difficulties likely to be encountered in the management of a class action. Fed. R. Civ. P. 23(b)(3)(A)-(D).
Rule 23(b)(3)’s first requirement is that questions common to the class predominate over those that are individualized. See Fed. R. Civ. P. 23(b)(3). A question is common when “the same evidence will suffice for each member to make a prima facie showing,” Blades v. Monsanto Co., 400 F.3d 562, 566 (8th Cir. 2005)(citing In re Visa Check/MasterMoney Antitrust Litig., 208 F.3d 124, 136-40 (2d Cir. 2001)), or when the issue is “susceptible to generalized, class-wide proof,” In re Nassau Cty. Strip Search Cases, 461 F.3d 219, 227 (2d Cir. 2006). A question is individual when “the members of a proposed class will need to present evidence that varies from member to member,” Blades v. Monsanto Co., 400 F.3d at 566. Although a case need not present only common questions to merit certification, and the presence of some individual questions does not destroy predominance, the rule 23(b)(3) predominance requirement is much stricter than the rule 23(a)(1) commonality requirement: the latter requires only that a common question or questions exist; the former requires that the common question or questions predominate over the individual ones. See Amchem Prods., Inc. v. Windsor, 521 U.S. at 623-24; In re Thornburg Mortg., Inc. Sec. Litig., 912 F. Supp. 2d 1178, 1225 (D.N.M. 2012)(Browning, J.)(“The predominance criterion of rule 23(b)(3) is ‘far more demanding’ than rule 23(a)(2)’s commonality requirement.”). As the Tenth Circuit, addressing a Title VII claim, put it:
The myriad discriminatory acts that Plaintiffs allege (e.g., failure to promote, failure to train, unequal pay, disrespectful treatment, etc.) each require independent legal analysis, and similarly challenge the predominance requirement of Rule 23(b)(3) if not also the commonality requirement of Rule 23(a). . . . .
Although we do not rest our decision upon Rule 23(a), cases that interpret . . . the commonality requirement of Rule 23(a) illustrate the instant Plaintiffs’
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inability to satisfy Rule 23(b)(3)’s “far more demanding” requirement that common issues predominate. Monreal v. Potter, 367 F.3d 1224, 1237 (10th Cir. 2004)(footnote omitted). The predominance question applies to both macro damages -- the total class damages -and to the micro damages -- the individual damages. In Comcast Corp. v. Behrend, 569 U.S. 27 (2013), the Supreme Court held that it could not accept the regression model which the plaintiffs’ expert had developed as evidence that damages were susceptible of measurement across an entire class -- as rule 23(b)(3) requires. The plaintiffs argued four theories of antitrust violations; one theory was that Comcast Corp.’s activities had an antitrust impact, because Comcast Corp.’s activities reduced the level of competition from “overbuilders,” companies that build competing cable networks in areas where an incumbent cable company already operates. 569 U.S. at 31. The district court found, among other things, that the damages resulting “from overbuilder-deterrence impact could be calculated on a classwide basis.” 569 U.S. at 31-32. To establish such damages, [the plaintiffs relied] solely on the testimony of Dr. James McClave. Dr. McClave designed a regression model comparing actual cable prices in the Philadelphia [Designated Market Area] with hypothetical prices that would have prevailed but for [Comcast Corp.’s] allegedly anticompetitive activities. The model calculated damages of $875,576,662.00 for the entire class. As Dr. McClave acknowledged, however, the model did not isolate damages resulting from any one theory of antitrust impact. The district court nonetheless certified the class. 569 U.S. at 31-32 (citations omitted). The United States Court of Appeals for the Third Circuit affirmed the district court decision. The Third Circuit concluded that the plaintiffs “provided a method to measure and quantify damages on a classwide basis,” finding it unnecessary to decide “whether the methodology was a just and reasonable inference or speculation.” 569 U.S. at 32 (quoting 655 F.3d 182, 206 (3d Cir. 2011)). The Supreme Court granted certiorari on the question of “[w]hether
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a district court may certify a class action without resolving whether the plaintiff class had introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” 569 U.S. at 39. Justice Scalia criticized the Third Circuit’s reluctance to entertain arguments against the plaintiffs’ damages model “simply because those arguments would also be pertinent to the merits determination.” 569 U.S. at 34. Justice Scalia said that
it is clear that, under the proper standard for evaluating certification, respondents’ model falls far short of establishing that damages are capable of measurement on a classwide basis. Without presenting another methodology, respondents cannot show Rule 23(b)(3) predominance: Questions of individual damage calculations will inevitably overwhelm questions common to the class. 569 U.S. at 34. Justice Scalia stated that, under the Third Circuit’s logic, “at the class-certification stage, any method of measurement is acceptable so long as it can be applied classwide, no matter how arbitrary the measurements may be. Such a proposition would reduce rule 23(b)(3)’s predominance requirement to a nullity.” 569 U.S. at 35 (emphasis in original). It is clear that Comcast Corp. v. Behrend applies to classwide damages. It is less clear that Comcast Corp. v. Behrend’s language applies to the determination of individual damages. There are three ways that the Court could deal with Comcast Corp. v. Behrend and the determination of individual damage awards. First, the Court could decide that Comcast Corp. v. Behrend applies only to classwide damages and is not controlling at all in the determination of individual damages. Second, the Court could decide that everything that Justice Scalia said about classwide damages also applies to the determination of individual damages. Third, the Court could decide that Justice Scalia said some things relating to the determination of individual damages, but not the same things that apply to classwide damages. As to the first option, while much could be said of limiting Justice Scalia’s opinion to classwide damages -- even from the language of the opinion and from
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the wording of the question presented -- the Court is reluctant to say that it has nothing to say that might be relevant to the determination of individual damages awards. Some of Justice Scalia’s concerns about admissible evidence to determine damages -- whether classwide or individual damage awards -- still seem relevant to whether damages are classwide or individual. While Justice Scalia was not addressing the determination of individual damage awards, some of what he said -- and how he said it -- causes the Court to be cautious in determining a methodology for calculating individual damage awards. On the other hand, the Court is not convinced that it should or even can apply Comcast Corp. v. Behrend’s language to the individual determination of damages as it does to classwide damages. The dissent stated that “[r]ecognition that individual damages calculations do not preclude class certification under Rule 23(b)(3) is well nigh universal.” 569 U.S. at 42 (Ginsburg, J., dissenting). Justice Scalia did not refute this proposition, and the Court has no reason to think the dissent’s statement -- which is accurate -- does not remain good law. Accordingly, just because each plaintiff and class member may get a different amount and there has to be a separate calculation of each plaintiff’s damages does not defeat class certification.
What the Court thinks that Comcast Corp. v. Behrend says that is relevant to the individual determination of damages is threefold. First, at the class certification stage, the Court cannot ignore how individual damages, if any are appropriate, are to be decided. In other words, the Court cannot ignore the possible complexities of the individual damages determinations in making the predominance calculation. A class can have individual damage calculations, but the Court has to look at the issues of individual damages calculations at the class certification stage. Second, the methodology for all class members needs to be common or, if there are different methodologies for some plaintiffs and class members, the Court must take these differences into account at the
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class certification stage in the predominance analysis. In other words, if the Court is going to use different methodologies for different class members, it must decide: (i) whether these differences create questions affecting only individual members; and (ii) whether these individual questions predominate over the questions of law or fact common to the class. Third, even if the methodology is common to the class, the Court must decide whether it will operate in a consistent way for each individual class member. The law and methodology may be the same, but when applied to the class, they may create issues for one class member or group of class members that they do not create for other class members or groups. The predominance analysis must identify precisely the common issues and uncommon issues that application of the class methodology or methodologies raise, and then determine whether, in the total issue mix, the common issues predominate over the individual ones.
A defendant’s desire to assert individual counterclaims15 does not typically defeat predominance. See Phillips Petrol. Co. v. Shutts, 472 U.S. at 810; Allapattah Servs., Inc. v. Exxon Corp., 333 F.3d 1248, 1260 (11th Cir. 2003). A defendant’s desire to assert individual affirmative defenses also often does not defeat predominance, see Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 39 (1st Cir. 2003)(“Courts traditionally have been reluctant to deny class action status under Rule 23(b)(3) simply because affirmative defenses may be available against individual members.”), but this statement is less true after Wal-Mart.16 Other recurring individual issues
15Generally speaking, counterclaims, even common ones, are not permitted against absent class members at all.
16Limitations defenses are an especially common breed of affirmative defense. Limitations defenses generally present common questions, rather than individual ones, because a limitations defense’s merits rest on two facts: (i) the date on which the claim accrued; and (ii) the date on which the action was filed. Fact (ii) is a common issue in virtually every class action, because the entire class gets credit for the filing date of the class action complaint. Fact (i) may not be truly
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present more serious challenges to predominance, such as: (i) the prima facie element of reliance
or due diligence in common-law fraud and other cases;17 (ii) differences in the applicable law in a
common, but it might be, if, for example, the discovery rule delays accrual of a claim until the cause of action is discovered, and all class members’ causes of action are discovered at the same time, or if a single act by the defendant breached contracts with all class members at once. Even if the question is individual -- for example, if a class is defined as only encompassing preexisting filed claims, or if the discovery rule might delay the accrual of the claim for some class members but not others -- it still typically does not defeat predominance.
Although a necessity for individualized statute-of-limitations determinations invariably weighs against class certification under Rule 23(b)(3), we reject any per se rule that treats the presence of such issues as an automatic disqualifier. In other words, the mere fact that such concerns may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones. As long as a sufficient constellation of common issues binds class members together, variations in the sources and application of statutes of limitations will not automatically foreclose class certification under Rule 23(b)(3). Predominance under Rule 23(b)(3) cannot be reduced to a mechanical, single-issue test.
Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir. 2000)(citing 5 James W. Moore et al., Moore’s Federal Practice ¶ 23.46[3] (3d ed. 1999)). See Newberg § 4:57 (confirming that the above passage “reflects the law in most circuits” (footnote omitted)).
17The advisory committee’s notes to rule 23 state that
a fraud perpetrated on numerous persons by the use of similar misrepresentations may be an appealing situation for a class action, and it may remain so despite the need, if liability is found, for separate determination of the damages suffered by individuals within the class. On the other hand, although having some common core, a fraud case may be unsuited for treatment as a class action if there was material variation in the representations made or in the kinds or degrees of reliance by the persons to whom they were addressed.
Fed. R. Civ. P. 23 advisory committee’s notes (citing Miller v. Nat’l City Bank of N.Y., 166 F.2d 723 (2d Cir. 1948); Oppenheimer v. F. J. Young & Co., Inc., 144 F.2d 387 (2d Cir. 1944)).
Despite the generalized concern about the individual nature of the misrepresentations and/or reliance inquiry in fraud cases, there are at least three recurring situations in which courts have found common issues predominant in fraud cases: (1) those in which reliance is common across the class; (2) those in
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multi-state, state-law-based class actions,18 see Castano v. Am. Tobacco Co., 84 F.3d 734, 741
(5th Cir. 1996); and (iii) the need to determine individual personal injury damages, which presents
which courts have excused a showing of individual reliance; and (3) those in which the underlying law does not require a showing of individual reliance.
Newberg § 4:58. Reliance may be a common issue when the same misrepresentation is made to the entire class; some circuits have held that written misrepresentations may be common issues while oral misrepresentations are presumed to be individualized. See, e.g., Moore v. PaineWebber, Inc., 306 F.3d 1247, 1253 (2d Cir. 2002)(“[T]he Third, Fourth, Fifth, Sixth, and Seventh Circuits . . . have held that oral misrepresentations are presumptively individualized.”); In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 319 (3d Cir. 1998)(certifying class where alleged misrepresentations were written and uniform); Spencer v. Hartford Fin. Servs. Grp., Inc., 256 F.R.D. 284, 297 (D. Conn. 2009)(Hall, J.)(certifying class where class definition was narrowed to include only those who had received written communications from defendant). The requirement that plaintiffs show reliance is most often presumed or excused in so-called fraud-on-the-market securities cases, in which class members -investors in the defendant company -- are presumed to be rational, fully informed actors who use all of the information available to the general public, but are also presumed to not possess insider information.
We have found a rebuttable presumption of reliance in two different circumstances. First, if there is an omission of a material fact by one with a duty to disclose, the investor to whom the duty was owed need not provide specific proof of reliance. Second, under the fraud-on-the-market doctrine, reliance is presumed when the statements at issue become public. The public information is reflected in the market price of the security. Then it can be assumed that an investor who buys or sells stock at the market price relies upon the statement.
Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, 552 U.S. 148, 159 (2008)(citing Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 153 (1972); Basic Inc. v. Levinson, 485 U.S. 224, 245 (1988)).
18In In re Bridgestone/Firestone, Inc., 288 F.3d 1012 (7th Cir. 2002), The Honorable Frank H. Easterbrook, United States Circuit Judge for the Seventh Circuit, in an opinion that predates Wal-Mart and Comcast, stated:
No class action is proper unless all litigants are governed by the same legal rules. Otherwise the class cannot satisfy the commonality and superiority requirements of Fed. R. Civ. P. 23(a), (b)(3). Yet state laws about theories such as those presented by our plaintiffs differ, and such differences have led us to hold
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that other warranty, fraud, or products-liability suits may not proceed as nationwide classes
288 F.3d at 1015. Judge Easterbrook then discussed how variations in tires defeat class treatment: Because these claims must be adjudicated under the law of so many
jurisdictions, a single nationwide class is not manageable. Lest we soon see a Rule 23(f) petition to review the certification of 50 state classes, we add that this litigation is not manageable as a class action even on a statewide basis. About 20% of the Ford Explorers were shipped without Firestone tires. The Firestone tires supplied with the majority of the vehicles were recalled at different times; they may well have differed in their propensity to fail, and this would require sub-subclassing among those owners of Ford Explorers with Firestone tires. Some of the vehicles were resold and others have not been; the resales may have reflected different discounts that could require vehicle-specific litigation. Plaintiffs contend that many of the failures occurred because Ford and Firestone advised the owners to underinflate their tires, leading them to overheat. Other factors also affect heating; the failure rate (and hence the discount) may have been higher in Arizona than in Alaska. Of those vehicles that have not yet been resold, some will be resold in the future (by which time the tire replacements may have alleviated or eliminated any discount) and some never will be resold. Owners who wring the last possible mile out of their vehicles receive everything they paid for and have claims that differ from owners who sold their Explorers to the second-hand market during the height of the publicity in 2000. Some owners drove their SUVs off the road over rugged terrain, while others never used the “sport” or “utility” features; these differences also affect resale prices.
Firestone’s tires likewise exhibit variability; that’s why fewer than half of those included in the tire class were recalled. The tire class includes many buyers who used Firestone tires on vehicles other than Ford Explorers, and who therefore were not advised to underinflate their tires.
. . . .
When courts think of efficiency, they should think of market models rather than central-planning models.
Our decision in Rhone-Poulenc Rorer made this point, and it is worth reiterating: only “a decentralized process of multiple trials, involving different juries, and different standards of liability, in different jurisdictions” (51 F.3d at 1299) will yield the information needed for accurate evaluation of mass tort claims.
. . . .
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such a challenge to predominance that class certification of mass tort claims is now exceedingly rare, see Amchem Prods., Inc. v. Windsor, 521 U.S. at 625. There is little uniform guidance on how to assess when common issues predominate over individual ones, and the Court’s statements to this point have, obviously, done more to disavow various tempting but fallacious rules than they have to set forth a usable standard.
There is currently a split of authority between the United States Courts of Appeals over the proper way to analyze predominance. The Honorable Richard A. Posner, United States Circuit Judge for the Seventh Circuit, concludes that the predominance inquiry boils down to “a question of efficiency.” Butler v. Sears, Roebuck & Co., 702 F.3d 359, 362 (7th Cir. 2012), vacated, 569 U.S. 1015 (2013). Judge Posner poses the predominance question as: “Is it more efficient, in terms both of economy of judicial resources and of the expense of litigation to the parties, to decide some issues on a class basis or all issues in separate trials?” Butler v. Sears, Roebuck & Co., 702 F.3d at 362. In Butler v. Sears, Roebuck & Co., the Seventh Circuit reversed a district court’s denial of
No matter what one makes of the decentralized approach as an original matter, it is hard to adopt the central-planner model without violence not only to Rule 23 but also to principles of federalism. Differences across states may be costly for courts and litigants alike, but they are a fundamental aspect of our federal republic and must not be overridden in a quest to clear the queue in court. See BMW v. Gore, 517 U.S. [559, 568-73 (1996)]; Szabo[v. Bridgeport Machines, Inc., 249 F.3d 672 (7th Cir. 2001)](reversing a nationwide warranty class certification); Spence v. Glock, Ges.m.b.H., 227 F.3d 308 (5th Cir. 2000)(reversing a nationwide tort class certification); Larry Kramer, Choice of Law in Complex Litigation, 71 N.Y.U. L. Rev. 547, 579 (1996); Linda S. Mullenix, Mass Tort Litigation and the Dilemma of Federalization, 44 DePaul L. Rev. 755, 781 (1995); Robert A. Sedler, The Complex Litigation Project’s Proposal for Federally-Mandated Choice of Law in Mass Torts Cases: Another Assault on State Sovereignty, 54 La. L .Rev. 1085 (1994). Tempting as it is to alter doctrine in order to facilitate class treatment, judges must resist so that all parties’ legal rights may be respected. 288 F.3d at 1018-20.
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certification of a class of washing-machine owners who alleged that Sears’ washing machines were
prone to cultivate mold and affirmed the district court’s certification of the same class to pursue a
claim that the machines’ control units were defective. See 702 F.3d at 360-61. The Seventh Circuit
certified the class -- which spanned six states -- to pursue its mold claim under state breach-of-
warranty law:
A class action is the more efficient procedure for determining liability and damages in a case such as this, involving a defect that may have imposed costs on tens of thousands of consumers yet not a cost to any one of them large enough to justify the expense of an individual suit. If necessary a determination of liability could be followed by individual hearings to determine the damages sustained by each class member (probably capped at the cost of replacing a defective washing machine -there doesn’t seem to be a claim that the odors caused an illness that might support a claim for products liability as distinct from one for breach of warranty). But probably the parties would agree on a schedule of damages based on the cost of fixing or replacing class members’ mold-contaminated washing machines. The class action procedure would be efficient not only in cost, but also in efficacy, if we are right that the stakes in an individual case would be too small to justify the expense of suing, in which event denial of class certification would preclude any relief.
. . . .
[T]he district court will want to consider whether to create different subclasses of the control unit class for the different states. That should depend on whether there are big enough differences among the relevant laws of those states to make it impossible to draft a single, coherent set of jury instructions should the case ever go to trial before a jury.
Butler v. Sears, Roebuck & Co., 702 F.3d at 362. Along with numerous other class actions pending
appeal before the Supreme Court, the Supreme Court vacated Butler v. Sears, Roebuck & Co., and
remanded it to the Seventh Circuit “for reconsideration in light of Comcast Corp. v. Behrend.”
Butler v. Sears, Roebuck & Co., 727 F.3d 796, 797 (7th Cir. 2013). On reconsideration, the
Seventh Circuit reaffirmed its prior decision, again in an opinion written by Judge Posner:
Sears thinks that predominance is determined simply by counting noses: that is, determining whether there are more common issues or more individual
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issues, regardless of relative importance. That’s incorrect. An issue “central to the validity of each one of the claims” in a class action, if it can be resolved “in one stroke,” can justify class treatment. [Wal-Mart, 564 U.S. at 338]. That was said in the context of Rule 23(a)(2), the rule that provides that class actions are permissible only when there are issues common to the members of the class (as of course there are in this case). But predominance requires a qualitative assessment too; it is not bean counting. In Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, [568 U.S. at 468], the Court said that the requirement of predominance is not satisfied if “individual questions . . . overwhelm questions common to the class,” and in Amchem Products, Inc. v. Windsor, 521 U.S. . . . [at] 623 . . . , it said that the “predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” And in In re Inter-Op Hip Prosthesis Liability Litigation, 204 F.R.D. 330, 345 (N.D. Ohio 2001), we read that “common issues need only predominate, not outnumber individual issues.” . . .
As we noted in Carnegie v. Household Int’l., Inc., 376 F.3d 656, 661 (7th Cir. 2004), “the more claimants there are, the more likely a class action is to yield substantial economies in litigation. It would hardly be an improvement to have in lieu of this single class 17 million suits each seeking damages of $15 to $30. . . . The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30” (emphasis in original). The present case is less extreme: tens of thousands of class members, each seeking damages of a few hundred dollars. But few members of such a class, considering the costs and distraction of litigation, would think so meager a prospect made suing worthwhile.
There is a single, central, common issue of liability: whether the Sears washing machine was defective. Two separate defects are alleged, but remember that this class action is really two class actions. In one the defect alleged involves mold, in the other the control unit. Each defect is central to liability. Complications arise from the design changes and from separate state warranty laws, but can be handled by the creation of subclasses. See, e.g., Johnson v. Meriter Health Services Employee Retirement Plan, 702 F.3d [364,] 365[ 7th Cir. 2012] (10 subclasses).
Butler v. Sears, Roebuck & Co., 727 F.3d at 801-02 (emphasis in original).19
19In addition to articulating the Seventh Circuit’s construction of the predominance inquiry, Judge Posner addressed Comcast Corp. v. Behrend’s impact on the Seventh Circuit’s case:
So how does the Supreme Court’s Comcast decision bear on the rulings . . . in our first decision?
Comcast holds that a damages suit cannot be certified to proceed as a class action unless the damages sought are the result of the class-wide injury that the suit
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alleges. Comcast was an antitrust suit, and the Court said that “if [the plaintiffs] prevail on their claims, they would be entitled only to damages resulting from reduced overbuilder competition, since that is the only theory of antitrust impact accepted for class-action treatment by the District Court. It follows that a model purporting to serve as evidence of damages in this class action must measure only those damages attributable to that theory. If the model does not even attempt to do that, it cannot possibly establish that damages are susceptible of measurement across the entire class for purposes of Rule 23(b)(3).” “[A] methodology that identifies damages that are not the result of the wrong” is an impermissible basis for calculating class-wide damages. [569 U.S. at 37](emphasis added). “For all we know, cable subscribers in Gloucester County may have been overcharged because of petitioners’ alleged elimination of satellite competition (a theory of liability that is not capable of classwide proof).” And on the next page of its opinion the Court quotes approvingly from Federal Judicial Center, Reference Manual on Scientific Evidence 432 (3d ed. 2011), that “the first step in a damages study is the translation of the legal theory of the harmful event into an analysis of the economic impact of that event.” (emphasis the [Supreme] Court’s). None of the parties had even challenged the district court’s ruling that class certification required “that the damages resulting from . . . [the antitrust violation] were measurable ‘on a classwide basis’ through use of a ‘common methodology.’”
Unlike the situation in Comcast, there is no possibility in this case that damages could be attributed to acts of the defendants that are not challenged on a class-wide basis; all members of the mold class attribute their damages to mold and all members of the control-unit class to a defect in the control unit.
Sears argues that Comcast rejects the notion that efficiency is a proper basis for class certification, and thus rejects our statement that “predominance” of issues common to the entire class, a requirement of a damages class action under Rule 23(b)(3), “is a question of efficiency.” But in support of its argument Sears cites only the statement in the dissenting opinion in Comcast that “economies of time and expense” favor class certification, -- a statement that the majority opinion does not contradict. Sears is wrong to think that anything a dissenting opinion approves of the majority must disapprove of.
Sears compares the design changes that may have affected the severity of the mold problem to the different antitrust liability theories in Comcast. But it was not the existence of multiple theories in that case that precluded class certification; it was the plaintiffs’ failure to base all the damages they sought on the antitrust impact -- the injury -- of which the plaintiffs were complaining. In contrast, any buyer of a Kenmore washing machine who experienced a mold problem was harmed by a breach of warranty alleged in the complaint.
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The United States Court of Appeals for the Sixth Circuit handled essentially the same case
-- a class action against Sears for defective washing machines -- in In re Whirlpool Corp. Front-
Loading Washing Products Liability Litigation, 678 F.3d 409 (6th Cir. 2012), and also elected to
certify the mold-based claim.20
[W]e have no difficulty affirming the district court’s finding that common questions predominate over individual ones and that the class action mechanism is the superior method to resolve these claims fairly and efficiently. This is especially true since class members are not likely to file individual actions because the cost of litigation would dwarf any potential recovery. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997)(finding that in drafting Rule 23(b)(3), “the Advisory Committee had dominantly in mind vindication of ‘the rights of groups of people who individually would be without effective strength to bring their opponents into court at all’”). Further, [as] the district court observed, any class member who wishes to control his or her own litigation may opt out of the class under Rule 23(b)(3)(A).
In re Whirlpool Corp. Front-Loading Washing Prods. Liab. Litig., 678 F.3d at 421 (citation
omitted). That case was also vacated after Comcast Corp. v. Behrend, and, like the Seventh
Circuit, the Sixth Circuit reaffirmed its prior decision, fleshing out the predominance inquiry in
more detail than it had done in its prior opinion:
Whirlpool does not point to any “fatal dissimilarity” among the members of the certified class that would render the class action mechanism unfair or inefficient
Furthermore and fundamentally, the district court in our case, unlike Comcast, neither was asked to decide nor did decide whether to determine damages on a class-wide basis. As we explained in McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 491-92 (7th Cir. 2012), a class action limited to determining liability on a class-wide basis, with separate hearings to determine - if liability is established -- the damages of individual class members, or homogeneous groups of class members, is permitted by Rule 23(c)(4) and will often be the sensible way to proceed.
Butler v. Sears, Roebuck & Co., 727 F.3d at 799-800 (emphasis in Butler v. Sears, Roebuck & Co. but not Comcast Corp. v. Behrend, except as noted)(citations omitted).
20The Sixth Circuit’s class “did not involve the other claim in [the Seventh Circuit’s] case, the control unit claim.” Butler v. Sears, Roebuck & Co., 727 F.3d at 802.
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for decision-making. Instead, Whirlpool points to “a fatal similarity --[an alleged] failure of proof as to an element of the plaintiffs’ cause of action.” That contention, the Supreme Court instructs, “is properly addressed at trial or in a ruling on a summary-judgment motion. The allegation should not be resolved in deciding whether to certify a proposed class.” Tracking the Supreme Court’s reasoning, we conclude here that common questions predominate over any individual ones. Simply put, this case comports with the “focus of the predominance inquiry” -- it is “sufficiently cohesive to warrant adjudication by representation.”
In re Whirlpool Corp. Front-Loading Washing Prods. Liab. Litig., 722 F.3d 838, 859 (7th Cir.
2013)(citations omitted). The Seventh Circuit and Sixth Circuit, thus, define predominance in
much the same way: if the district court can design a mechanism for trying the case that is fair to
the defendants and more efficient than individual litigation of the same dispute, then predominance
is satisfied. See Butler v. Sears, Roebuck & Co., 727 F.3d at 802. This styling of the predominance
inquiry is in keeping with that given, many years earlier, by a leading class-action treatise:
[A] court addressing predominance must determine whether the evidence about the putative class representative’s circumstances and the opposing evidence from the defense will enable a jury to make across-the-board “yes” or “no” factual determinations that fairly resolve the claims of the entire class. Where the right to recover for each class member would “turn . . . on facts particular to each individual plaintiff,” class treatment makes little sense. If the resolution of the common issues devolves into an unmanageable variety of individual issues, then the lack of increased efficiency will prohibit certification of the class.
The predominance and efficiency criteria are of course intertwined. When there are predominant issues of law or fact, resolution of those issues in one proceeding efficiently resolves those issues with regard to all claimants in the class. When there are no predominant issues of law or fact, however -- as in the instant case -- class treatment would be either singularly inefficient, as one court attempts to resolve diverse claims from around the country in its own courtroom, or unjust, as the various factual and legal nuances of particular claims are lost in the press to clear the lone court’s docket.
McLaughlin on Class Actions § 5:23 (11th ed. 2016)(omission in original)(footnotes omitted).
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Although the Seventh Circuit and the Sixth Circuit may agree about the definition of
predominance, the Third Circuit, Tenth Circuit, and United States Court of Appeals for the
Eleventh Circuit stake out a different test.
“Whether an issue predominates can only be determined after considering what value the resolution of the class-wide issue will have in each class member’s underlying cause of action.” Common issues of fact and law predominate if they “‘ha[ve] a direct impact on every class member’s effort to establish liability’ that is more substantial than the impact of individualized issues in resolving the claim or claims of each class member.” If “after adjudication of the classwide issues, plaintiffs must still introduce a great deal of individualized proof or argue a number of individualized legal points to establish most or all of the elements of their individual claims, [their] claims are not suitable for class certification under Rule 23(b)(3).”
Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Serv., Inc., 601 F.3d 1159, 1170
(11th Cir. 2010)(emphasis in original)(citations omitted).21 The Eleventh Circuit, however,
21The Eleventh Circuit first adopted this test -- relying on district court decisions -- in 2004 in Klay v. Humana, Inc., 382 F.3d 1241 (11th Cir. 2004), and gave renewed articulations of the test in 2009 in Vega v. T-Mobile USA, Inc., 564 F.3d 1256 (11th Cir. 2009), and in 2010, in Sacred Heart Health Systems, Inc. v. Humana Healthcare Services, Inc. In each case, the Eleventh Circuit made some reference to additionally adopting a United States Court of Appeals for the Fifth Circuit rule-of-thumb test:
An alternate formulation of this test was offered in Alabama v. Blue Bird Body Co., 573 F.2d 309 (5th Cir. 1978). In that case, we observed that if common issues truly predominate over individualized issues in a lawsuit, then “the addition or subtraction of any of the plaintiffs to or from the class [should not] have a substantial effect on the substance or quantity of evidence offered.” Put simply, if the addition of more plaintiffs to a class requires the presentation of significant amounts of new evidence, that strongly suggests that individual issues (made relevant only through the inclusion of these new class members) are important. Alabama v. Blue Bird Body Co., 573 F.2d at 322 (“If such addition or subtraction of plaintiffs does affect the substance or quantity of evidence offered, then the necessary common question might not be present.”). If, on the other hand, the addition of more plaintiffs leaves the quantum of evidence introduced by the plaintiffs as a whole relatively undisturbed, then common issues are likely to predominate.
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imposes a different, more rigorous, second step: the district court’s trial plan must spend more time
adjudicating the common questions than it does adjudicating the individual questions. The
Eleventh Circuit’s test may not be the greatest -- the Court sees little reason why negative-value
cases that can be fairly and efficiently adjudicated via class action should not be certified22 -- but
Klay v. Humana, Inc., 382 F.3d at 1255. See Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Serv., Inc., 601 F.3d at 1170 (“In practical terms, while ‘[i]t is not necessary that all questions of fact or law be common,’ ‘the addition or subtraction of any of the plaintiffs to or from the class [should not] have a substantial effect on the substance or quantity of evidence offered.’”); Vega v. T-Mobile USA, Inc., 564 F.3d at 1270 (quoting the above portion of Klay v. Humana, Inc.).
The Fifth Circuit, however, was not setting forth a test for when predominance is satisfied so much as a test for when an issue is common versus individualized. The Fifth Circuit’s full quote -- without the Eleventh Circuit’s alterations -- is:
We only point out that in a situation wherein one seeks to represent a nationwide class in order to obtain redress for harm done from a nationwide conspiracy consideration should be given to whether the addition or subtraction of any of the plaintiffs to or from the class will have a substantial effect on the substance or quantity of evidence offered. If such addition or subtraction of plaintiffs does affect the substance or quantity of evidence offered, then the necessary common question might not be present.
Alabama v. Blue Bird Body Co., 573 F.2d at 322 (footnote omitted). 22In fairness to the Eleventh Circuit, Judge Posner’s test merges the predominance and
superiority inquiries -- effectively reading out predominance -- in negative-value cases. Thus, the Eleventh Circuit’s test is truer to rule 23’s text than Judge Posner’s. “Predominate,” the word that rule 23 uses, means “[t]o be of greater power, importance, or quantity; be most important or outstanding.” The American Heritage Dictionary of the English Language, supra, at 1032. Rule 23’s text thus arguably suggests a direct comparison of common and individual issues, and not -as Judge Posner suggests -- an indirect comparison that decides the predominance question on the basis of a fancy economic analysis. There are, however, two other rule 23 provisions whose impact on predominance is not often discussed: (i) the issue class-action clause, see Fed. R. Civ. P. 23(c)(4) (“When appropriate, an action may be brought or maintained as a class action with respect to particular issues.”); and (ii) the subclassification clause, see Fed. R. Civ. P. 23(c)(5) (“When appropriate, a class may be divided into subclasses that are each treated as a class under this rule.”). These provisions are unfortunate for those who wish to read rule 23 as containing the seeds of its own destruction. Rule 23(c)(4) allows for adjudication of common issues, even if these issues do not add up to a common claim. Rule 23(c)(5) allows for collective adjudication, even if it falls short of being completely “classwide” adjudication. Judge Posner’s test explicitly admits of
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subclasses and issue classes. Even if it had not allowed for these classes, their impact in Judge Posner’s analysis would be obvious: the district court uses the tools of subclassification and issue classification -- along with other management tools, such as polyfurcation -- to design a classaction management plan, and then decide whether the plan is more or less efficient than separate trials.
The impact that these provisions have on the Eleventh Circuit’s approach is less clear. The Eleventh Circuit’s best discussion of subclasses comes from Sacred Heart Health Systems, Inc. v. Humana Military Healthcare Services, Inc.:
[W]e cannot accept the district court’s proposal to use subclasses corresponding to the hospitals’ six categories of payment clauses. We recognize the long and venerated practice of creating subclasses as a device to manage complex class actions, but the six subclasses proposed here mask a staggering contractual variety. The sixth proposed subclass -- a miscellaneous residue of numerous payment clauses that are insusceptible of ready classification -- alone is fatal to predominance. When this “potpourri” subclass, as Humana has termed it, is broken down into its disparate component parts, the illusion of uniformity gives way to nearly thirty subclasses.
Common sense tells us that “[t]he necessity of a large number of subclasses may indicate that common questions do not predominate,” Manual for Complex Litigation § 21.23 (4th ed. 2004); see also Harding v. Tambrands Inc., 165 F.R.D. 623, 630 (D. Kan. 1996)(“The potential for numerous different subclasses weighs against a finding of predominance of common issues.”). Here, the necessary recourse to a “miscellaneous” subclass readily indicates the lack of a predominant question.
Ultimately, after examining the many individualized payment clauses contained in the network agreements, we perceive a “distinct possibility that there was a breach of contract with some class members, but not with other class members.” Subclasses are no answer to this problem, meaning that the efficiency of a class action will be lost entirely unless the hospitals are allowed “to stitch together the strongest contract case based on language from various [contracts], with no necessary connection to their own contract rights. The hospitals, however, may not lawfully “amalgamate” their disparate claims in the name of convenience. The Rules Enabling Act, 28 U.S.C. § 2072 -- and due process -- prevents the use of class actions from abridging the substantive rights of any party. Yet, from the record before us, an abridgment of the defendant’s rights seems the most likely result of class treatment. By glossing over the striking differences in the material terms of the agreements, the district court created an “unnecessarily high risk,” of such unlawful results, and thereby abused its discretion.
601 F.3d at 1176 (citations omitted). These statements imply that, but for the sixth “category” of payment clauses -- really a catchall for all contracts that did not fit into one of the five real
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categories -- the class would be certifiable. The only “abridgement of the defendant’s rights” that the district court’s plan would produce would be the “‘amalgamat[ion]’” of different contractual language into a single category -- the sixth category. 601 F.3d at 1176. That case, thus, leaves open the question whether subclassification and issue certification can aid in satisfying predominance, or if these techniques are separate from the predominance inquiry.
The Fifth Circuit staked out a clear answer to this question in its much-discussed Castano v. American Tobacco Company, 84 F.3d 734 (5th Cir. 1996) case, deciding the issue in a way one might expect:
Severing the defendants’ conduct from reliance under rule 23(c)(4) does not save the class action. A district court cannot manufacture predominance through the nimble use of subdivision (c)(4). The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial. Reading rule 23(c)(4) as allowing a court to sever issues until the remaining common issue predominates over the remaining individual issues would eviscerate the predominance requirement of rule 23(b)(3); the result would be automatic certification in every case where there is a common issue, a result that could not have been intended.
84 F.3d at 745 n.21 (citations omitted). This logic is hardly unassailable. Namely, the result of reading rules 23(c)(4) and (c)(5) as bearing on the predominance inquiry would not be “automatic certification in every case where there is a common issue,” because superiority must still be satisfied. Castano v. Am. Tobacco Co., 84 F.3d at 745 n.21. If a proposed class action is superior -- e.g., if it lacks the value to be brought on an individual basis -- and individual issues can be pared away via rules 23(c)(4) and (c)(5) then it is not clear why certification “could not have been intended” by the rule. Castano v. Am. Tobacco Co., 84 F.3d at 745 n.21. Moreover, it is a poor reading of the rule’s text. Presumably, even if rules 23(c)(4) and (c)(5) are mere “housekeeping rule[s],” they would still alleviate “likely difficulties in managing a class action.” Castano v. Am. Tobacco Co., 84 F.3d at 745 n.21; Fed. R. Civ. P. 23(b)(3)(D). Because rule 23 directs that “[t]he matters pertinent to these findings [predominance and superiority] include: . . . the likely difficulties in managing a class action,” the Court, if it were writing on a clear slate would think that rules 23(c)(4) and (c)(5) would play a part in the predominance determination, Fed. R. Civ. P. 23(b)(3), and that this result thus “could not have been intended.” Castano v. Am. Tobacco Co., 84 F.3d at 745 n.21. The Fifth Circuit’s approach attracted the adherence of a revered jurist on the Fourth Circuit -- although not the Fourth Circuit itself. The Honorable Paul V. Niemeyer, United States Circuit Judge for the Fourth Circuit, endorsed the Fifth Circuit’s view in an opinion concurring in part and dissenting in part from an opinion in which the Fourth Circuit adopted the opposing view:
Despite the overwhelming predominance of these individualized issues and claims over the common issue that the majority now certifies for class treatment, the majority has adopted an inventive approach to Rule 23 that allows certification
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of a class where the predominance requirement of Rule 23(b)(3) is admittedly unmet in the context of the case as a whole. According to the majority, to require the certified issue in this case to predominate over the individualized issues in the action as a whole ignores Rule 23(c)(4)(A), which it appears to view as a fourth avenue for class certification, on equal footing with Rules 23(b)(1), 23(b)(2), and 23(b)(3). In doing so, the majority glorifies Rule 23(c)(4)(A) -- a housekeeping rule that authorizes a court to certify for class treatment “particular issues” in a case that otherwise satisfies Rule 23(a) and 23(b) -- with the effect of materially rewriting Rule 23 such that Rule 23(b)(3)’s requirements no longer need be applied to “[a]n action,” see Fed. R. Civ. P. 23(b), but rather to any single issue, no matter how small.
Not only does the majority’s approach expand Rule 23 beyond its intended reach, but it also creates a direct conflict with the Fifth Circuit which has held:
A district court cannot manufacture predominance through the nimble use of subdivision (c)(4). The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) in that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.
Castano v. American Tobacco Co., 84 F.3d [at ]745 n.21 . . . .
Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 446-47 (4th Cir. 2003)(Niemeyer, J., concurring in part and dissenting in part). Despite Judge Niemeyer’s concern with creating a circuit split, the United States Court of Appeals for the Second Circuit, the United States Court of Appeals for the Ninth Circuit, and, of course, the Seventh Circuit have all held that subclasses can be used to satisfy predominance concerns since at least 2001, two years before Gunnells v. Healthplan Services, Inc. See Zinser v. Accufix Research Inst., Inc. 253 F.3d 1180, 1189-90, 1192 n.8 (9th Cir. 2001). See Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 167-69 (2d Cir. 2001); Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 898 (7th Cir. 1999).
The Eleventh Circuit has refrained from taking a side on this question:
Some have been critical of the piecemeal certification of class action status for claims within a case. See Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 446-47 (4th Cir. 2003)(Niemeyer, J., dissenting)(arguing that the predominance requirement in Fed. R. Civ. P. 23(b) applies to the action as a whole, not to individual subclasses or claims); Castano v. Am. Tobacco Co., 84 F.3d . . . 745 n.21 . . . (“The proper interpretation of the interaction between [Fed. R. Civ. P. 23] subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that
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it is commendable in that it is a test that district courts can use, rather than yet another meaningless recitation, see CGC Holding Co. v. Broad & Cassel, 773 F.3d 1076, 1087 (10th Cir. 2014)(“[T]he predominance prong ‘asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation defeating, individual issues.” (quoting William B. Rubenstein, Newberg on Class Actions § 4:49 (5th ed. 2017)(“Newberg”))), circular axiom, see, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. at 623 (“The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.”), obvious guidepost, see Reed v. Bowen, 849 F.2d at 1309 (“Each case must be decided on its own facts, on the basis of ‘practicalities and prudential considerations.’”), self-evident comparison, see Monreal v. Potter, 367 F.3d at 1237 (“[T]he predominance criterion of Rule 23(b)(3) [i]s ‘far more demanding’ tha[n] the Rule 23(a) commonality requirement[.]” (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. at 623-24)), or
allows courts to sever the common issues for a class trial.”). We did not directly address the propriety of such partial certification in Klay. Borrero v. United Healthcare of N.Y., Inc., 610 F.3d 1296, 1310 n.5 (11th Cir. 2010)(alterations in original). The Tenth Circuit also appears to have refrained from taking a side:
Plaintiffs urge us to consider a “hybrid” certification whereby the liability stage might be certified for class treatment under Rule 23(b)(2) even if the damages stage does not qualify for such treatment. See Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 167-69 (2d Cir. 2001). Compare Lemon v. Int’l Union of Operating Engr’s, Local No. 139, AFL-CIO, 216 F.3d 577, 581 (7th Cir. 2000), and Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 898 (7th Cir. 1999), with Allison v. Citgo Petroleum Corp., 151 F.3d 402, 420-22 (5th Cir. 1998). We do not need to rule on a hybrid possibility because in the instant case, the liability stage does not satisfy either Rules 23(b)(2) or 23(b)(3). The district court’s ruling that plaintiffs did not allege a sufficient policy, practice or pattern of discrimination to warrant class treatment for liability determination is not an abuse of discretion. Monreal v. Potter, 367 F.3d at 1237 n.12.
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worthless slogan, see Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 600 (3d Cir.
2012)(exhorting district courts to examine claims “‘through the prism’ of Rule 23(b)(3)”).
The Tenth Circuit followed the Eleventh Circuit’s approach in CGC Holding Co., LLC v.
Broad and Cassel.
Predominance regularly presents the greatest obstacle to class certification, especially in fraud cases. Accordingly, the issues disputed in this case are not unusual. And given our obligation to ensure that the district court did not err in conducting its rigorous analysis, we must characterize the issues in the case as common or not, and then weigh which issues predominate. Here, that task requires us to survey the elements of the class’s RICO claims to consider (1) which of those elements are susceptible to generalized proof, and (2) whether those that are so susceptible predominate over those that are not. Stated another way, consideration of how the class intends to answer factual and legal questions to prove its claim -and the extent to which the evidence needed to do so is common or individual -will frequently entail some discussion of the claim itself.
In this context, it is worth reiterating that our review on appeal is limited. For the purposes of class certification, our primary function is to ensure that the requirements of Rule 23 are satisfied, not to make a determination on the merits of the putative class’s claims. But it is impractical to construct “an impermeable wall” that will prevent the merits from bleeding into the class certification decision to some degree. So, although class certification does not depend on the merits of the suit, “[e]valuation of many of the questions entering into determination of class action questions is intimately involved with the merits of the claims.”
With these legal principles in mind, “[c]onsidering whether ‘questions of law or fact common to class members predominate’ begins, of course, with the elements of the underlying cause of action.” For this limited purpose, we consider the proposed class’s claim for a RICO conspiracy.
CGC Holding Co., LLC v. Broad and Cassel, 773 F.3d at 1087-88.
ANALYSIS
The Court will address the MTD at or after the class certification hearing, and so the Court
will deny the Plaintiffs’ and Sandia Labs’ invitations to consider the MTD at this point. After
considering both the Plaintiffs’ and Sandia Labs’ proposed case schedules, the Court concludes
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that it will provide the parties with a case schedule varying slightly from both proposed case

schedules. The Court will modify the Joint Proposed Case Schedule as follows:

Event

Original Deadline

Stipulated discovery stay ends

November 26, 2018

Sandia completes production of ESI, including January 15, 2019

final privilege log

Pre-class certification discovery deadline

March 11, 2019

Plaintiffs submit motion for class certification and expert reports Sandia submits opposition to class certification and expert reports Plaintiffs submit reply motion and expert reports

March 25, 2019 May 16, 2019 June 18, 2019

Class certification hearing

July 1, 2019

The Court recognizes that condensing the case schedule to accommodate a July 1, 2019, class certification hearing challenges both parties. The parties have expressed their concerns about shortened deadlines: Sandia Labs worries about completing ESI production, see Letter Response at 2; the Plaintiffs have concerns about completing discovery, litigating discovery issues, and preparing the class certification motion and expert reports, see Letter at 4; and both proposed case schedules reflect attempts to maximize the parties’ time to respond to class certification and expert briefings, see Letter at 2, Letter Response at 2.
The Court concludes that the revised case schedule will best address its and the parties’ concerns. The revised case schedule allows Sandia Labs slightly over six weeks and time after the holidays to complete its ESI production. The Court is disinclined to grant Sandia Labs additional time for ESI production, because the Court hesitates to reduce the time between the ESI production’s completion and the pre-class certification discovery, class certification motion, and

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expert reports deadlines to a degree that would disallow the Court and the parties time for litigation, which the Plaintiffs have indicated they will seek, about the discovery. See Letter at 4; Letter Reply at 1-2. The Court’s experience with Sandia Labs’ discovery production has not been the best, and the Court fears it better build in time for and anticipate forthcoming discovery disputes. See generally Memorandum Opinion and Order Overruling the Defendant’s Objections and Affirming the Magistrate Judge’s Order, 2018 WL 4148423, filed August 30, 2018 (Doc. 160). As the July 1, 2019, class certification hearing deadline responds to the Court’s scheduling needs and the Court wants to address discovery litigation before the class certification hearing, the Court’s schedule reflects an attempt to leave time for the Court and the parties to address the discovery litigation without interfering with the class certification deadline. Sandia Labs can always withdraw the MTD to relieve pressure on its ESI production; if Sandia Labs withdraws its MTD, the Court has no need to set aside the case schedule to which the parties previously agreed. As long as Sandia Labs insists on keeping its MTD on file, the Court must rule on it before the six-month deadline, and the Court thinks it would be best to rule on it with the Plaintiffs’ upcoming class certification motion. The March deadline for the class certification motion and expert reports allows the Plaintiffs over two months for discovery and preparation for the motion and reports. The initial stipulated time between the ESI production completion, and the class certification motion and expert reports deadline was similarly just over two months. See Joint Proposed Case Schedule at 2. The revised case schedule will also reduce Sandia Labs’ response time and the Plaintiffs’ reply time proportionately, by forty percent, giving Sandia Labs forty-five days to respond to the Plaintiffs’ class certification motion and expert reports, and the Plaintiffs thirty days to reply to Sandia Labs’ responses. Fairness demands that the parties face equal reductions in their response and reply times.
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IT IS ORDERED that: (i) the requests in the Plaintiffs’ Letter from Anne B. Shaver, Lieff, Cabraser, Heimann & Bernstein, LLP, to the Court (dated November 12, 2018), filed November 12, 2018 (Doc. 187), are granted in part and denied in part; and (ii) the requests in the Defendant’s Letter from Krissy A. Katzenstein, Morgan Lewis, to the Court at 1 (dated November 15, 2018), filed November 15, 2018 (Doc. 188), are granted in part and denied in part.

Counsel:
Gretchen Mary Elsner Elsner Law & Policy, LLC Santa Fe, New Mexico
--and--
Rachel Bien Outten & Golden LLP San Francisco, California
--and--
Adam T. Klein Cheryl-Lyn D. Bentley Elizabeth V. Stork Outten & Golden LLP New York, New York
--and--
David Lopez Outten & Golden LLP Washington, D.C.
--and--

________________________________ UNITED STATES DISTRICT JUDGE

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Anne Brackett Shaver Kelly Maureen Dermody Lin Yee Chan Michael Ian Levin-Gesundheit Shira J. Tevah Tiseme Gabriella Zegeye Lieff Cabraser Heimann & Bernstein, LLP San Francisco, California
Attorneys for the Plaintiffs Justin E. Poore Cindy Jean Lovato-Farmer Sandia Corporation Albuquerque, New Mexico --and-Michael S. Burkhardt Grace E. Speights Krissy A. Katzenstein Morgan, Lewis & Bockius LLP Washington, D.C. --and-Scott D. Gordon Theresa W. Parrish Jeffrey L. Lowry Paola Viviana Jaime Stephanie L. Latimer Rodey, Dickason, Sloan, Akin & Robb, P.A. Albuquerque, New Mexico
Attorneys for the Defendant
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 Case 1:17-cv-00188-JB-GJF Document 213 Filed 01/30/19 Page 1 of 54

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

LISA A. KENNICOTT, LISA A. GARCIA, SUE C. PHELPS, and JUDI DOOLITTLE, on behalf of themselves and a class of those similarly situated,

Plaintiffs,

vs.

No. CIV 17-0188 JB\GJF

SANDIA CORPORATION d/b/a SANDIA NATIONAL LABORATORIES,

Defendant.

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on Plaintiffs’ Letter from Anne B. Shaver, Lieff,

Cabraser, Heimann & Bernstein, LLP, to the Court (dated December 6, 2018), filed December 6,

2018 (Doc. 194)(“Letter”). The Court held a hearing on December 11, 2018. See Clerk’s Minutes

at 1, filed December 11, 2018 (Doc. 198). The primary issues are: (i) whether the Court should

order Defendant Sandia Corporation d/b/a Sandia National Laboratories (“Sandia Labs”) to

produce discovery on its current -- post-April, 2017 -- employment policies and practices; and

(ii) whether the Court should order Sandia Labs to produce data on its employees’ prior pay. In

the Letter from Krissy A. Katzenstein, Morgan Lewis, to the Court (dated December 10, 2018),

filed December 10, 2018 (Doc. 196)(“Letter Response”), Sandia Labs concedes that it will produce

discovery on the prior pay data. See Letter Response at 4. Accordingly, the Court need not order

Sandia Labs to produce such information. Because discovery postdating April, 2017, is relevant

to the Plaintiffs’1 claims and because the Court can order Sandia Labs to produce discovery that is

proportional to the Plaintiffs’ needs, the Court will order Sandia Labs to produce its 2018, policy

documents and electronically stored information (“ESI”) related to the “vice president of human

resources post-transition” -- now “associate laboratory director of human resources” (hereinafter,

“vice president” or “vice president of human resources”). Draft Transcript of Hearing at 20:11-13

1“Plaintiffs” refers to the named Plaintiffs -- Lisa A. Kennicott, Lisa A. Garcia, Sue C. Phelps, and Judi Doolittle -- and similarly situated individuals “employed by Sandia in the United States at any time from February 20, 2014 through the resolution of this action.” See First Amended Class Action Complaint at 1, filed July 5, 2018 (Doc. 146); id. ¶ 41, at 9.

Case 1:17-cv-00188-JB-GJF Document 213 Filed 01/30/19 Page 2 of 54
(taken December 11, 2018)(Levin-Gesundheit)(“Tr.”); id. at 22:8 (Levin-Gesundheit).2 The
Court, therefore, grants the Plaintiffs’ requests in part and denies them in part.
FACTUAL BACKGROUND
The Court recited this case’s facts and early procedural history in its Memorandum Opinion
and Order at 2-3, 2018 WL 6069635, at *1, filed November 20, 2018 (Doc. 190)(“MOO”). The
Court incorporates that recitation here.
Plaintiffs Lisa A. Kennicott, Lisa A. Garcia, Sue C. Phelps, and Judi Doolittle allege that Sandia Labs, “a federally-funded research and development contractor operating under contract for the Department of Energy and managed by Sandia Corporation,” First Amended Class Action Complaint ¶ 1, at 1, filed July 5, 2018 (Doc. 146)(“First Amended Complaint”), has “policies, patterns, and practices,” which result in female employees earning lower compensation and fewer promotions than “their male counterparts,” First Amended Complaint ¶ 3, at 2. According to the Plaintiffs, Sandia Labs applies uniform policies in its offices throughout the United States of America. See First Amended Complaint ¶¶ 22-23, at 5-6. The Plaintiffs allege that Sandia Labs’ employee performance evaluation process, see First Amended Complaint ¶¶ 26-30, at 6-7, initial salary calculations, see First Amended Complaint ¶¶ 31-35, at 7-8, and promotion system, see First Amended Complaint ¶¶ 36-40, at 8-9, disadvantage women, see First Amended Complaint ¶¶ 26-40, at 6-9.
MOO at 2, 2018 WL 6069635, at *1.
PROCEDURAL BACKGROUND
Kennicott, Garcia, and Phelps sue Sandia Labs on behalf of themselves and a class of those similarly situated. See Class Action Complaint, filed February 7, 2017 (Doc. 1)(“Complaint”).3 Doolittle joined Kennicott, Garcia, and Phelps as a named plaintiff when the Plaintiffs amended their Complaint. See First Amended Complaint at 1. In the First Amended Complaint, the Plaintiffs assert: (i) that Sandia Labs engages in intentional discrimination, violating Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-15 (“Title VII”); and (ii) that Sandia Labs engages in disparate impact discrimination in violation of Title VII. See Amended Complaint ¶¶ 85-99, at 21-23. Kennicott asserts individual Title VII claims against Sandia Labs for retaliation and constructive discharge. See Amended Complaint ¶¶ 100-08, at 23-24.
MOO at 2, 2018 WL 6069635, at *1. In the MOO, the Court issues an updated case schedule:
2The Court’s citations to the transcript of the hearing refer to the court reporter’s original, unedited version. Any final transcript may contain slightly different page and/or line numbers.
3The Court dismissed the Plaintiffs’ state-law claims -- the Complaint’s Counts III, IV, V, and VII -- under the federal enclave doctrine. See Order at 1, filed March 31, 2018 (Doc. 106). For the Court’s reasoning for the dismissal, see generally Memorandum Opinion, 314 F. Supp. 3d 1142, filed May 14, 2018 (Doc. 113).
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Event

Original Deadline

Stipulated discovery stay ends

November 26, 2018

Sandia [Labs] completes production of ESI, including final privilege log Pre-class certification discovery deadline Plaintiffs submit motion for class certification and expert reports Sandia [Labs] submits opposition to class certification and expert reports Plaintiffs submit reply motion and expert reports Class certification hearing

January 15, 2019 March 11, 2019 March 25, 2019 May 16, 2019 June 18, 2019 July 1, 2019

MOO at 66, 2018 WL 6069635, at *27. On December 6, 2018, the Plaintiffs filed the letter, requesting the Court’s assistance with discovery disputes so that the parties can meet the case deadlines. See Letter at 1.
1. The Letter. The Plaintiffs notify the Court of two discovery disputes. See Letter at 1. The Plaintiffs first complain that Sandia Labs refuses to produce discovery on policies and practices that postdate April, 2017. See Letter at 1. The Plaintiffs explain that, on May 1, 2017, “management of Sandia National Laboratories . . . transferred from Sandia Corporation, a subsidiary of Lockheed Martin Corporation, to National Technology and Engineering Solutions of Sandia (‘NTESS’), LLC, a subsidiary of Honeywell International, Inc.” Letter at 1-2 (citing Corporate Disclosure Statement at 1-2, filed March 17, 2017 (Doc. 16)). According to the Plaintiffs, Sandia Labs has taken the position that its policies and practices postdating the transfer are not relevant. See Letter at 2. The Plaintiffs, however, contend that their Complaint and Amended Compliant allege “ongoing violations of Title VII.” Letter at 2 (emphasis in original). The Plaintiffs request that the Court order Sandia Labs to produce the requested discovery for the period from May, 2017, through December, 2018. See Letter at 3. The Plaintiffs next aver that Sandia Labs has withheld information regarding its employees’ prior pay data. See Letter at 3. The Plaintiffs describe that they requested information on employees’ “compensation histories” in May, 2017, Letter at 3 (quoting Defendant’s Objections and Responses to Plaintiffs’ First Set of Requests for Production of Documents, Request No. 5, at 8, filed March 19, 2018 (Doc. 100-1)), and, according to the Plaintiffs,

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compensation from prior employers is “an essential component of this information” and relevant to the Plaintiffs’ claims. Letter at 3. The Plaintiffs request that the Court order that Sandia Labs produce the requested information within one week so that the Plaintiffs may analyze the information before the deadline for their class certification motion. See Letter at 4.
2. The Letter Response. Sandia Labs responds in a letter dated December 10, 2018. See Letter Response at 1-5. Sandia Labs first contends that it did not refuse to provide prior pay data; rather, according to Sandia Labs, it told the Plaintiffs that they had not requested production of such documents. See Letter Response at 2. Sandia Labs quotes the Plaintiffs’ discovery request and emphasizes that the Plaintiffs desired “prior job history within and outside of Sandia.” Letter Response at 2 (emphasis in Letter Response)(quoting Defendant’s Objections and Responses to Plaintiffs’ First Set of Requests for Production of Documents, Request No. 5, at 8). Sandia Labs explains that, in July, 2018, it provided the Plaintiffs information on its employees’ job histories, such as “prior employers, prior employment dates, and positions held,” and that the Plaintiffs did not indicate, at that time, any problems with the production. Letter Response at 3. Sandia Labs explains that, in October, 2018, the Plaintiffs requested the prior pay data about which they now complain. See Letter Response at 3. According to Sandia Labs, after it informed the Plaintiffs that they had not previously requested such information, the Plaintiffs served a request for production seeking information on: “compensation in dollar terms, whether in terms of annual salary, hourly wage, bonus compensation AND/OR any other form of compensation, previously received or requested prior to hire AND/OR offer of employment for DEFENDANT’s EMPLOYEES AND applicants.” Letter Response at 3 (quoting Plaintiffs’ Fourth Set of Requests for Production of Documents, Request No. 39, at 5, filed December 10, 2018 (Doc. 196-3)(capitalization in Plaintiffs’ Fourth Set of Requests for Production of Documents)). Sandia Labs concedes that, despite its complaints, it will produce to the Plaintiffs the requested information. See Letter at 4. Sandia Labs next contends that the Plaintiffs cannot ground their claims on policies and practices that postdate the transition from Sandia Corporation to National Technology and Engineering Solutions of Sandia (“National Technology”). See Letter at 4. Sandia Labs first avers that, because Sandia Labs primarily employed the named Plaintiffs during Sandia Corporation’s management, the Plaintiffs cannot base a class claim on later policies and practices. See Letter
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Response at 4. Second, Sandia Labs argues that, to the extent that the Plaintiffs base their claims on their starting pay, any policy or practice postdating April, 2017, is irrelevant, because Sandia Labs hired each named Plaintiff at least “thirteen years before the transition date.” Letter Response at 4 (emphasis in original). Last, Sandia Labs protests that it has already produced documentation on thousands of Sandia Labs’ employees, and so, if the Plaintiffs cannot develop a theory from that discovery, no theory exists. See Letter Response at 4-5.
3. The Letter Reply. Also on December 10, 2018, the Plaintiffs replied to the Letter Response. See Letter from Anne B. Shaver, Lieff, Cabraser, Heimann & Bernstein, LLP, to the Court (dated December 10, 2018), filed December 10, 2018 (Doc. 196)(“Letter Reply”). The Plaintiffs first consider the dispute about discovery postdating April, 2017. See Letter Reply at 1. The Plaintiffs argue that their claims do not rest solely on Sandia Labs’ policies and practices, and that three of the four named Plaintiffs continued working for Sandia Labs after the transition to National Technology. See Letter Reply at 1. Further, the Plaintiffs note that designing injunctive relief “to Sandia’s human resources practices” requires knowledge about current policies and practices. Letter Reply at 1. The Plaintiffs additionally comment that, although Sandia Labs has produced considerable discovery already, they require information about employment procedures under National Technology to determine whether Sandia Labs’ policies and practices changed. See Letter Reply at 1. The Plaintiffs concede that, because Sandia Labs agreed to produce employees’ compensation histories, the dispute regarding “prior pay data” is moot. Letter Reply at 2. The Plaintiffs conclude by noting that Sandia Labs mischaracterizes their claims. See Reply Letter at 2. According to the Plaintiffs, “Plaintiffs’ allegation regarding the role of prior pay in salary setting at hire does not represent the sum of Plaintiffs’ claims,” and the Plaintiffs argue, moreover, that “reliance on prior pay to set salaries at the time of hire may cause gender disparities in compensation for years after an employee was initially hired.” Reply Letter at 2. 4. The Hearing. At the hearing on December 11, 2018, the Court began by clarifying whether the parties had resolved their dispute about the prior pay data. See Tr. at 4:7-15 (Court). The Plaintiffs affirmed the Court’s assessment, see Tr. at 4:19-20 (Levin-Gesundheit), with the caveat that Sandia Labs produce the prior pay data “by the end of this year so we have plenty [of] opportunity
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to review it, analyze it[,] and prepare for the class certification briefing and expert report deadlines,” Tr. at 4:20-23 (Levin-Gesundheit). In response to the Court’s prompting about a possible deadline, Sandia Labs confirmed that it could produce the discovery in the requested time. See Tr. at 5:4-10 (Court, Katzenstein).
The Plaintiffs turned to the dispute about documents postdating April, 2017, and reiterated their Letter’s arguments. See Tr. at 6:5-11 (Levin-Gesundheit). The Plaintiffs requested that Sandia Labs produce updated policy documents, updated internal complaints for 2018, employee’s checks for 2018, see Tr. at 9:11-17 (Levin-Gesundheit), and “documents collected from the agreed upon custodians through the end of December 2018,” Tr. at 19-20 (Levin-Gesundheit). In response to a question from the Court regarding the April, 2017, date, the Plaintiffs explained that they did not attach much significance to the date, but, that near that date, Sandia Labs’ management changed. See Tr. at 10:7-17 (Levin-Gesundheit). According to the Plaintiffs, they filed their Complaint “a couple months prior” to the transition, Tr. at 17-18 (Levin-Gesundheit), and the Amended Complaint in July, 2018, see Tr. at 10:18-19 (Levin-Gesundheit). The Plaintiffs explained that National Technology undertook Sandia Corporations’ liabilities, see Tr. at 10:1911:5 (Levin-Gesundheit), and, according to the Plaintiffs, although some upper-level management changed in the transition, many managers retained their original positions, see Tr. at 11:5-9 (LevinGesundheit). The Plaintiffs concluded that, “at least with respect to policy” documents, Tr. at 11:22 (Levin-Gesundheit), they do not seek voluminous production, and believe that their discovery request “is proportional,” Tr. at 12:5 (Levin-Gesundheit). See id. at 11:21-12:8 (LevinGesundheit).
Sandia Labs responded by indicating that the First Amended Complaint’s core focuses on events occurring before May, 2017. See Tr. at 12:13-16:22 (Katzenstein). Sandia Labs first reiterated the arguments from its Letter Response. See Tr. at 12:21-13:17 (Katzenstein). Sandia Labs contended that the Plaintiffs cannot form a class on events after April, 2017, because the named Plaintiffs and others in the proposed class did not work long, if at all, under National Technology. See Tr. at 13:18-24 (Katzenstein). Further, according to Sandia Labs, under National Technology, new management -- unconnected to the actions of which the Plaintiffs complain -entered Sandia Labs. See Tr. at 23:19-25 (Katzenstein).
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Sandia Labs further argued that rule 23 of the Federal Rules of Civil Procedure allows limited discovery to prepare for class certification, and that the discovery relating to the five-anda-half years preceding May, 2017, should satisfy that requirement. See Tr. at 14:5-15:21 (Katzenstein). Sandia Labs asserted that, although the Plaintiffs request a small number of policy documents, the ESI requested involves thousands of documents and poses a substantial burden for Sandia Labs. See Tr. at 15:22-16:22 (Katzenstein). For the ESI, Sandia Labs must pull emails from the ESI custodians, run searches for relevant information, and review the documents recovered. See Tr. at 18:7-24 (Katzenstein).
The Court asked the Plaintiffs whether they seek ten to twelve documents or thousands of documents. See Tr. at 18:20-21 (Court). The Plaintiffs responded that they seek around twelve policy documents. See Tr. at 18:23 (Levin-Gesundheit). According to the Plaintiffs, at the core, they seek Sandia Labs’ policy documents, and the Plaintiffs noted that Sandia Labs had, for months, opposed the discovery on relevance grounds and had only just raised arguments about the discovery’s burden. See Tr. at 18:23-19:6 (Levin-Gesundheit). The Plaintiffs, however, admitted that they desire ESI discovery and believe it foundational to their case, because ESI may reveal management’s knowledge about discriminatory actions. See Tr. at 19:16-13 (Levin-Gesundheit). The Plaintiffs indicated that, to show their good faith, they would limit their ESI request to a request for information from the “vice president.” Tr. at 20:11-13 (Levin-Gesundheit). The Court asked how many documents the Plaintiffs seek from the vice president. See Tr. at 20:14-17 (Court). The Plaintiffs stated that they do not have an exact number. See Tr. at 20:18-21:1 (LevinGesundheit). The Court asked what, beyond policy documents, the Plaintiffs seek from the vicepresident, see Tr. at 21:14-21 (Court), and the Plaintiffs asserted that they desired ESI, because the vice president is “intimately involved in administering, supervising the implementation of Sandia’s human resource policies,” Tr. at 21:24-22:1 (Levin-Gesundheit). See id. at 22:4-13 (LevinGesundheit).
The Court returned to Sandia Labs to ask how many documents Sandia Labs would expect to produce in ESI limited to the vice president of human resources. See Tr. at 22:14-18 (Court). Sandia Labs could not estimate a number, and, when the Court inquired about the burden Sandia Labs’ anticipated in producing the policy documents and ESI, Sandia Labs replied that it considered any discovery to impose a burden and that it still disputed the discovery’s relevance.
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See Tr. at 23:3-24:3 (Katzenstein). The Court concluded that it could not limit discovery as Sandia Labs proposed, because the First Amended Complaint discusses Sandia Labs’ current activities. See Tr. at 24:4-14 (Court). The Court stated that it would order Sandia Labs to produce the policy documents and ESI related to the vice president of human resources, and that it would grant the Plaintiffs’ request as modified. See Tr. at 24:15-23 (Court).
LAW REGARDING DISCOVERY Rule 34 governs discovery requests for tangible objects and states: A party may serve on any other party a request within the scope of Rule 26(b):
(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party’s possession, custody, or control:
(A) any designated documents or electronically stored information -including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations -- stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or
(B) any designated tangible things; or (2) to permit entry onto designated land or other property possessed or
controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. Fed. R. Civ. P. 34(a). Discovery’s proper scope is “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case. . . .” Fed. R. Civ. P. 26(b)(1). The factors that bear upon proportionality are: “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Discovery’s scope under rule 26 is broad. See Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995); Sanchez v. Matta, 229 F.R.D. 649, 654 (D.N.M. 2004)(Browning, J.)(“The federal courts have held that the scope of discovery should be broadly and liberally construed to achieve the full disclosure of all potentially relevant information.”). The federal discovery rules reflect the courts’ and Congress’ recognition that “mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.” Hickman v. Taylor, 329 U.S. 495, 507 (1947). A district court is not, however, “required to permit plaintiff to engage
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in a ‘fishing expedition’ in the hope of supporting his claim.” McGee v. Hayes, 43 F. App’x 214,
217 (10th Cir. 2002)(unpublished)(quoting Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1169
(10th Cir. 2000)).4 “Discovery . . . is not intended to be a fishing expedition, but rather is meant
to allow the parties to flesh out allegations for which they initially have at least a modicum of
objective support.” Rivera v. DJO, LLC, No. CIV 11-1119 JB/RHS, 2012 WL 3860744, at *1
(D.N.M. Aug. 27, 2012)(Browning, J.)(internal quotation marks omitted)(quoting Tottenham v.
Trans World Gaming Corp., No. Civ. 00-7697 (WK), 2002 WL 1967023, at *2 (S.D.N.Y.
2002)(Knapp, J.)). “[B]road discovery is not without limits and the trial court is given wide
discretion in balancing the needs and rights of both plaintiff and defendant.” Gomez v. Martin
Marietta Corp., 50 F.3d at 1520 (internal quotation marks omitted)(quoting Scales v. J.C. Bradford
& Co., 925 F.2d 901, 906 (6th Cir. 1991)).
The 2000 amendments to rule 26(b)(1) began narrowing discovery’s substantive scope and
injected courts deeper into the discovery process. See Simon v. Taylor, No. CIV 12-0096
JB/WPL, 2015 WL 2225653, at *23 (D.N.M. April 30, 2015)(Browning, J.). Before the 2000
amendments, rule 26(b)(1) defined the scope of discovery as follows:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending actions, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Fed. R. Civ. P. 26(b)(1) (1996). The 2000 amendments made the following changes, shown here
with the deleted language stricken and the added material underlined:
Parties may obtain discovery regarding any matter, not privileged, that which is relevant to the subject matter involved in the pending actions, whether it relates to
4McGee v. Hayes is an unpublished Tenth Circuit opinion, but the Court can rely on an unpublished Tenth Circuit opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A) (“Unpublished opinions are not precedential, but may be cited for their persuasive value.”). The Tenth Circuit has stated: “In this circuit, unpublished orders are not binding precedent, . . . and . . . citation to unpublished opinions is not favored. . . . However, if an unpublished opinion . . . has persuasive value with respect to a material issue in a case and would assist the court in its disposition, we allow a citation to that decision.” United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court concludes that McGee v. Hayes, Nard v. City of Oklahoma City, 153 F. App’x 529, 534 n.4 (10th Cir. 2005)(unpublished), Douglas v. Norton, 167 F. App’x 698 (10th Cir. 2006), Rhoads v. Miller, 352 F. App’x 289 (10th Cir. 2009), and Hamilton v. Water Whole International Corp., 302 F. App’x 789 (10th Cir. 2008), have persuasive value with respect to material issues, and will assist the Court in its preparation of this Memorandum Opinion and Order.
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the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant The information sought need not be admissible at the trial if discovery the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Fed. R. Civ. P. 26(b)(1). Putting aside the last sentence’s changes -- which the advisory
committee’s notes make clear was a housekeeping amendment to clarify that inadmissible
evidence must still be relevant to be discoverable -- the 2000 amendments have two effects: (i) they
narrow discovery’s substantive scope in the first sentence; and (ii) they inject courts into the
process in the entirely new second sentence.
In 1978, the Committee published for comment a proposed amendment, suggested by the Section of Litigation of the American Bar Association, to refine the scope of discovery by deleting the “subject matter” language. This proposal was withdrawn, and the Committee has since then made other changes in the discovery rules to address concerns about overbroad discovery. Concerns about costs and delay of discovery have persisted nonetheless, and other bar groups have repeatedly renewed similar proposals for amendment to this subdivision to delete the “subject matter” language. Nearly one-third of the lawyers surveyed in 1997 by the Federal Judicial Center endorsed narrowing the scope of discovery as a means of reducing litigation expense without interfering with fair case resolutions. [Federal Judicial Center, Thomas Willging, John Shapard, Donna Stienstra, & Dean Miletich, Discovery and Disclosure Practice, Problems, and Proposals for Change] 44-45 (1997). The Committee has heard that in some instances, particularly cases involving large quantities of discovery, parties seek to justify discovery requests that sweep far beyond the claims and defenses of the parties on the ground that they nevertheless have a bearing on the “subject matter” involved in the action.
The amendments proposed for subdivision (b)(1) include one element of these earlier proposals but also differ from these proposals in significant ways. The similarity is that the amendments describe the scope of party-controlled discovery in terms of matter relevant to the claim or defense of any party. The court, however, retains authority to order discovery of any matter relevant to the subject matter involved in the action for good cause. The amendment is designed to involve the court more actively in regulating the breadth of sweeping or contentious discovery. The Committee has been informed repeatedly by lawyers that involvement of the court in managing discovery is an important method of controlling problems of inappropriately broad discovery. Increasing the availability of judicial officers to resolve discovery disputes and increasing court management of discovery were both strongly endorsed by the attorneys surveyed by the Federal Judicial Center. See Discovery and Disclosure Practice, supra, at 44. Under the amended provisions, if there is an objection that discovery goes beyond material relevant to the parties’ claims or defenses, the court would become involved to determine whether the discovery is relevant to the claims or defenses and, if not, whether good cause exists for authorizing it so long as it is relevant to the subject matter of the action. The good-cause standard warranting broader discovery is meant to be flexible.
The Committee intends that the parties and the court focus on the actual claims and defenses involved in the action. The dividing line between information relevant to the claims and defenses and that relevant only to the subject matter of the action cannot be defined with precision. A variety of types of information not
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directly pertinent to the incident in suit could be relevant to the claims or defenses raised in a given action. For example, other incidents of the same type, or involving the same product, could be properly discoverable under the revised standard. Information about organizational arrangements or filing systems of a party could be discoverable if likely to yield or lead to the discovery of admissible information. Similarly, information that could be used to impeach a likely witness, although not otherwise relevant to the claims or defenses, might be properly discoverable. In each instance, the determination whether such information is discoverable because it is relevant to the claims or defenses depends on the circumstances of the pending action.
The rule change signals to the court that it has the authority to confine discovery to the claims and defenses asserted in the pleadings, and signals to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings. In general, it is hoped that reasonable lawyers can cooperate to manage discovery without the need for judicial intervention. When judicial intervention is invoked, the actual scope of discovery should be determined according to the reasonable needs of the action. The court may permit broader discovery in a particular case depending on the circumstances of the case, the nature of the claims and defenses, and the scope of the discovery requested.
The amendments also modify the provision regarding discovery of information not admissible in evidence. As added in 1946, this sentence was designed to make clear that otherwise relevant material could not be withheld because it was hearsay or otherwise inadmissible. The Committee was concerned that the “reasonably calculated to lead to the discovery of admissible evidence” standard set forth in this sentence might swallow any other limitation on the scope of discovery. Accordingly, this sentence has been amended to clarify that information must be relevant to be discoverable, even though inadmissible, and that discovery of such material is permitted if reasonably calculated to lead to the discovery of admissible evidence. As used here, “relevant” means within the scope of discovery as defined in this subdivision, and it would include information relevant to the subject matter involved in the action if the court has ordered discovery to that limit based on a showing of good cause.
Finally, a sentence has been added calling attention to the limitations of subdivision (b)(2)(i), (ii), and (iii). These limitations apply to discovery that is otherwise within the scope of subdivision (b)(1). The Committee has been told repeatedly that courts have not implemented these limitations with the vigor that was contemplated. See 8 Federal Practice & Procedure § 2008.1 at 121. This otherwise redundant cross-reference has been added to emphasize the need for active judicial use of subdivision (b)(2) to control excessive discovery. Cf. Crawford-El v. Britton, [523 U.S. 574] (1998)(quoting Rule 26(b)(2)(iii) and stating that “Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly”).
Fed. R. Civ. P. 26 advisory committee’s notes.
The Court gets the impression from reading the advisory committee’s notes that the
amendment is not intended to exclude a delineable swath of material so much as it is intended to
send a signal to district judges to become more hands-on in the process of regulating -- mostly
limiting -- discovery on relevance grounds alone. The “two effects” of the 2000 amendments
might, thus, be only one effect: directing district judges to roll up their sleeves and manage
discovery, and to do so on a relevance basis. The change in substantive scope from “subject
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matter,” to “claim or defense,” would, therefore, seem to “add teeth” to the relevance standard instead of narrowing that standard. Fed. R. Civ. P. 26 advisory committee’s notes. It is not surprising that the Supreme Court of the United States and the United States Congress would want to increase judicial presence: “relevance” is a liberal concept in the context of trial. Fed. R. Evid. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”).
Of course, regardless of the Court’s musings about the rules, courts should also seek to give substantive content to amendments. Read literally, the rule does not permit parties to discover information relevant only to the claim or defense of another party; they must use discovery only to investigate their own claims and defenses. More problematically, however, the rule may prevent using the Federal Rules’ compulsory discovery process to obtain “background” information not specifically relevant to any one claim or defense -- e.g., a plaintiff naming a pharmaceutical company as a defendant and then using discovery to educate itself generally about medicine, biochemistry, and the drug industry by using the defendant’s expertise.
In In re Cooper Tire & Rubber Co., 568 F.3d 1180 (10th Cir. 2009), the United States Court of Appeals for the Tenth Circuit clarified that the 2000 Amendments to rule 26 “implemented a two-tiered discovery process; the first tier being attorney-managed discovery of information relevant to any claim or defense of a party, and the second being court-managed discovery that can include information relevant to the subject matter of the action.” 568 F.3d at 1188. The Tenth Circuit further stated that,
when a party objects that discovery goes beyond that relevant to the claims or defenses, “the court would become involved to determine whether the discovery is relevant to the claims or defenses and, if not, whether good cause exists for authorizing it so long as it is relevant to the subject matter of the action.” This good-cause standard is intended to be flexible. When the district court does intervene in discovery, it has discretion in determining what the scope of discovery should be. “[T]he actual scope of discovery should be determined according to the reasonable needs of the action. The court may permit broader discovery in a particular case depending on the circumstances of the case, the nature of the claims and defenses, and the scope of the discovery requested.” 568 F.3d at 1188-89 (quoting the advisory committee’s notes (citations and footnote omitted)(alteration in original)). The 2015 amendments to rule 26(b)(1) continued narrowing discovery’s substantive scope and injecting courts further into the discovery process. The 2015 amendment made notable deletions and additions, both of which emphasized the need to make discovery proportional to the
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needs of the case and are noted in the quotation below. See Fed. R. Civ. P. 26(b)(1). Rule 26(b)(1),
provides:
(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense including the existence, description, nature, custody, condition and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C) and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1) (alterations added).
The advisory advisory committee’s notes state that the first deletion does not make a
substantive change. Rather, the deletion was made because “[d]iscovery of such matters is so
deeply entrenched” in standard discovery that including it would be “clutter.” Fed. R. Civ. P.
26(b) advisory committee’s notes.5
On the second deletion, the advisory committee’s notes explain that the former provision
for discovery of relevant but inadmissible information that appears “reasonably calculated to lead
to the discovery of admissible evidence” is also deleted. Fed. R. Civ. P. 26(b) advisory
committee’s note.
The phrase has been used by some, incorrectly, to define the scope of discovery. As the Committee Note to the 2000 amendments observed, use of the “reasonably calculated” phrase to define the scope of discovery “might swallow any other limitation on the scope of discovery.” The 2000 amendments sought to prevent such misuse by adding the word “Relevant” at the beginning of the sentence, making clear that “‘relevant’ means within the scope of discovery as defined in this
5The Court regrets this deletion. Moving things out of the statute’s text often creates mischief, especially for courts that rely heavily on the text’s plain language. The drafters might be astonished how often the Court sees objections to interrogatories and requests that seek basic information about documents. The rule is well-established because the deleted language was in the rule; now that the language is not in the rule, the rule may be eroded or, more likely, ignored or overlooked by those who do not spend time in the advisory committee’s notes’ thicket. What the advisory comments describe as “clutter” is a simple instruction to practitioners who do not practice in federal court every day for every case. This deletion might incrementally increase unnecessary litigation rather than shorten it. Some of the amendments seem designed to help the nation’s large corporations, represented by some of the nation’s most expensive law firms, cut down expenses rather than to help courts and practitioners in more routine cases.
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subdivision. . . .” The “reasonably calculated” phrase has continued to create problems, however, and is removed by these amendments. It is replaced by the direct statement that “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Discovery of nonprivileged information not admissible in evidence remains available so long as it is otherwise within the scope of discovery.
Fed. R. Civ. P. 26 advisory committee’s note. The deletion, therefore, did not necessarily change
discovery’s scope, but clarified it.6 Accordingly, “[r]elevance is still to be ‘construed broadly to
encompass any matter that bears on, or that reasonably could lead to other matter that could bear
on’ any party’s claim or defense.” State Farm Mut. Auto. Ins. v. Fayda, No. CIV 14-9792
WHP/JCF, 2015 WL 7871037, at *2 (S.D.N.Y. Dec. 3, 2015)(Francis IV, M.J.)(quoting
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).
The most notable addition to rule 26(b) is the proportionality concept. Rule 26(b)(2)(C)(iii)
has always limited overly burdensome discovery and required proportionality. See Fed. R. Civ.
P. 26(b)(2)(C)(iii) (pre-2015 version). The proportionality requirement was relocated to 26(b)(1)
to address the “explosion”7 of information that “has been exacerbated by the advent of e-
discovery.”8 Fed. R. Civ. P. 26(b) advisory committee’s note. Describing how e-discovery is the
driving factor in the 2015 amendment, the advisory committee’s notes state:
6Arguably, older lawyers will have to learn a new vocabulary and ignore the one they have used for decades. If the changes were not made to change the scope of discovery, it is unclear what the benefit of all this change is.
7It is unclear to the Court whether the “explosion” of e-discovery has made discovery harder or easier. In many situations, algorithms and search engines have replaced associates and paralegals, and brought greater accuracy and efficiency to discovery. Searching warehouses of documents by reviewing papers one-by one may have been a bigger burden then today’s ediscovery.
8This relocation -- rather than substantive change -- is one reason that the Court is skeptical that the 2015 amendments will make a considerable difference in limiting discovery or cutting discovery costs. Courts were bringing common sense and proportionality to their discovery decisions long before the 2015 amendments. See Aguayo v. AMCO Ins., 59 F. Supp. 3d 1225, 1275 (D.N.M. 2014)(Browning, J.)(“[T]he Court expects that discovery and motion practice bear some proportionality to the case’s worth.”); Cabot v. Wal-Mart Stores, Inc., No. CIV 11-0260 JB, 2012 WL 592874, at *11-12 (D.N.M. Feb. 16, 2012)(Browning, J.)(limiting the scope of discovery because it was unduly burdensome in relation to the relevance and need). The real import of the rule is that it will likely lead to more “proportionality” objections and more disputes that the district courts will have to resolve, which is what the drafters apparently intended. It is unclear how more judicial involvement in discovery can be squared with a federal court docket that is at a breaking point already. It is also unclear what was wrong with the old goal of having discovery be largely self-executing. The new rules require attorneys to learn the new vocabulary of “proportionality,” delete old stock legal sections from their briefs, and rewrite new sections to use the correct language. Older lawyers must be particularly alert to read and learn the new rules, read the comments, and understand the thrust of the drafting. Finally, given that “proportionality” is a very
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The burden or expense of proposed discovery should be determined in a realistic way. This includes the burden or expense of producing electronically stored information. Computer-based methods of searching such information continue to develop, particularly for cases involving large volumes of electronically stored information. Courts and parties should be willing to consider the opportunities for reducing the burden or expense of discovery as reliable means of searching electronically stored information become available.
Fed. R. Civ. P. 26(b) advisory committee’s note.
The 2015 Year-End Report on the Federal Judiciary written by the Honorable John
Roberts, Chief Justice of the Supreme Court of the United States, indicates that the addition of
proportionality to rule 26(b) “crystalizes the concept of reasonable limits on discovery through
increased reliance on the common-sense concept of proportionality.”9 Chief Justice John Roberts,
subjective standard, it will be hard for any court to sanction any attorney for raising this objection. In sum, the rules are just as likely to increase the costs of discovery as to decrease it.
9The Rules Enabling Act, 28 U.S.C. §§ 2071-2077, empowers the federal courts to prescribe rules for the conduct of their business. See 28 U.S.C. § 2071. The Judicial Conference - the policy making body of the federal judiciary -- has overall responsibility for formulating those rules. See Chief Justice John Roberts, 2015 Year-End Report on the Federal Judiciary at 6, Supreme Court of the United States, available at https://www.supremecourt.gov/publicinfo/yearend/year-endreports.aspx (last visited Jan. 11, 2019)(“2015 Year-End Report”). The Chief Justice leads the Judicial Conference. The Judicial Conference’s Committee on Rules of Practice and Procedure, known as the Standing Committee, solicits guidance from advisory committees and conferences to draft proposed rules and amendments for the Judicial Conference’s consideration. See 2015 Year-End Report, at 5-6. Chief Justice Roberts, a former clerk for the Honorable William Rehnquist, former-Chief Justice of the Supreme Court of the United States, appointed the Honorable David Campbell, United States District Judge for the District of Arizona, also a former Justice Rehnquist clerk and President George W. Bush appointee, to chair the Civil Rules Advisory Committee. Judge Campbell and David Levi -- then-Dean of the Duke University School of Law and now President of the American Legal Institute, Professor at Duke University School of Law, and Director of the Bolch Judicial Institute; a former clerk to the Honorable Lewis Powell, formerassociate Justice of the Supreme Court of the United States, and former Chief Judge of the United States District Court for the Eastern District of California; appointed as United States Attorney by President Ronald Reagan and appointed to the Eastern District of California by President George W. Bush -- led the effort to increase proportionality and hands-on judicial case management in the 2015 amendments. See Report to the Standing Committee at 4, Advisory Committee on Civil Rules (May 8, 2013), https://www.uscourts.gov/rules-policies/archives/committeereports/advisory-committee-rules-civil-procedure-may-2013 (last visited Jan. 11, 2019). After the Judicial Conference concurred on the 2015 amendments, it sent the proposed rules and amendments to the Supreme Court, which approved them. Chief Justice Roberts submitted the proposed rules to Congress for its examination. See 2015 Year-End Report at 6. Because Congress did not intervene by December 1, the new rules took effect. See 28 U.S.C. § 2074. Some scholars have noted that the rules reflect the conservative nature of those who have participated in drafting the amendments. See generally Edward A. Purcell, Jr., From the Particular to the General: Three Federal Rules and the Jurisprudence of the Rehnquist and Roberts Courts, 162 U. Pa. L. Rev. 1731 (2014); Corey Ciocchetti, The Constitution, The Roberts Court, and Business: The Significant Business Impact of the 2011-2012 Supreme Court Term, 4 Wm. & Mary Bus. L. Rev. 385 (2013). In particular, the New Mexico Trial Lawyer published an article asserting that the amendments favored corporate defendants, which was partially the result of Chief Justice Roberts’ appointment of “corporate-minded judges to the Rules Advisory Committee that drafted the amendments.” Ned Miltenberg & Stuart Ollanik, The Chief Umpire is Changing the Strike Zone at 1, The New Mexico Trial Lawyer (Jan./Feb. 2016). The Court shares some of the concerns with
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2015 Year-End Report on the Federal Judiciary at 6, Supreme Court of the United States, available at https://www.supremecourt.gov/publicinfo/year-end/year-endreports.aspx (last visited Jan. 11, 2019)(“2015 Year-End Report”) He states that the proportionality concept seeks to “eliminate unnecessary or wasteful discovery,” and to impose “careful and realistic assessment of actual need.” 2015 Year-End Report at 7. This assessment may, as a practical matter, require “judges to be more aggressive in identifying and discouraging discovery overuse by emphasizing the need to analyze proportionality before ordering production of relevant information.” State Farm Mut. Auto. Ins. v. Fayda, 2015 WL 7871037, at *2 (internal quotation marks omitted)(quoting Fed. R. Civ. P. 26(b)(1) advisory committee’s notes). The burden of demonstrating relevance remains on the party seeking discovery, and the newly revised rule “does not place on the party seeking discovery the burden of addressing all proportionality considerations.” Fed. R. Civ. P. 26(b)(1) advisory committee’s notes. See Dao v. Liberty Life Assurance Co. of Boston, No. CIV 14-4749SI (EDL), 2016 WL 796095, at *3 (N.D. Cal. Feb. 23, 2016)(LaPorte, M.J.)(observing that the 2015 amendment “reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery requests, responses or objections”); Williams v. U.S. Envtl. Servs., LLC, Civil Action No. 15-0168-RLB, 2016 WL 617447, at *1 n.2 (M.D. La. Feb. 16, 2016)(Bourgeois, M.J.). In general, “the parties’ responsibilities . . . remain the same” as they were under the rule’s earlier iteration so that the party resisting discovery has the burden of showing undue burden or expense. Fed. R. Civ. P. 26(b)(1) advisory committee’s notes. See Dao v. Liberty Life Assurance Co. of Boston, 2016 WL 796095, at *3 (noting that, “while the language of the Rule has changed, the amended rule does not actually place a greater burden on the parties with respect to their discovery obligations”).
Like with the 2000 amendments, it is unsurprising that the drafters are unable to articulate precise language narrowing the discovery’s substantive scope. Instead of being Aristotelian and trying to draft rules, the drafters largely opted to make federal judges Plato’s enlightened guardians. They have decided that no single general rule can adequately take into account the infinite number of possible permutations of different claims, defenses, parties, attorneys, resources of parties and attorneys, information asymmetries, amounts in controversy, availabilities of
the new amendments being pro-business and giving corporations new tools to limit plaintiffs’ discovery.
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information by other means, and other factors. They have dropped all discovery disputes into judges’ laps. The drafters have decided that this determination requires the individualized judgment of someone on the scene, and that presence is what the rulemakers want when they: (i) encourage district judges to take a firmer grasp on the discovery’s scope; and (ii) put their thumbs on the scale in favor of narrower discovery in the rule’s definition of the scope of discovery.
Rule 34 allows a party to serve requests to produce certain items “on any other party . . . in the responding party’s possession, custody, or control.” Fed. R. Civ. P. 34(a)(1) (emphasis added). See Hickman v. Taylor, 329 U.S. at 504 (explaining that rule 34 “is limited to parties to the proceeding, thereby excluding their counsel or agents”). Applying this standard, courts have found that corporations control documents in their subsidiaries’ hands, clients control case files in their attorneys’ hands, and patients control health records in their healthcare providers’ hands. See Simon v. Taylor, No. CIV 12-0096 JB/WPL, 2014 WL 6633917, at *35 (D.N.M. Nov. 18, 2014)(Browning, J.)(citing United States v. Stein, 488 F. Supp. 2d 350, 360-62 (S.D.N.Y. 2007)(Kaplan, J.)); CSI Inv. Partners II, L.P. v. Cendant Corp., No. CIV. 00-1422 (DAB) (DF), 2006 WL 617983, at *6 (S.D.N.Y. March 13, 2006)(Eaton, M.J.)(compelling a client’s attorney to disclose documents in the attorney’s possession regarding the attorney’s representation of that particular client, but only insofar as the documents were relevant)). An employee’s or corporation’s ability to access the documents in the normal course of business weighs in favor of finding control. See, e.g., Gerling Int’l Ins. v. Comm’r of Internal Revenue, 839 F.2d 131, 1441 (3d Cir. 1988)(stating that where “agent-subsidiary can secure documents of the principal-parent to meet its own business needs . . . the courts will not permit the agent-subsidiary to deny control for purposes of discovery”); Camden Iron & Metal v. Marubeni Am. Corp., 138 F.R.D. 438, 442 (D.N.J. 1991)(Simandle, M.J.)(including “demonstrated access to documents in the ordinary course of business” in list of factors to be considered in determining control). Applying that standard, the Court, in Simon v. Taylor, determined that a racing commission had legal control over test samples from horses, because the commission “has the legal right to have those horses’ samples tested upon demand.” 2014 WL 6633917, at *35. In another case, the Court concluded that an oil company had control over the payroll records a third-party payroll company possessed, because the oil company had the practical ability to request that payroll company, with which it
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contracted, to produce those payroll records on demand. See Landry v. Swire Oilfield Servs. LLC, 323 F.R.D. 360, 397 (D.N.M. 2018)(Browning, J.).
Courts have specifically considered whether clients control information in their attorneys’ hands. Because a client has the right “to obtain copies of documents gathered or created by its attorneys pursuant to their representation of that client, such documents are clearly within the client’s control.” Am. Soc’y For Prevention of Cruelty to Animals v. Ringling Bros. and Barnum & Bailey Circus, 233 F.R.D. 209, 212 (D.D.C. 2006)(Facciola, M.J.). See Poppino v. Jones Store Co., 1 F.R.D. 215, 219 (W.D. Mo. 1940)(Otis, J.)(“It is quite true that if an attorney for a party comes into possession of a document as attorney for that party his possession of the document is the possession of the party.” (emphasis in original)). Consequently, a party may be required to produce a document that it has given to its attorney when the document relates to the attorney’s representation of that client on a specific matter. See Ruppert v. Repper (In re Ruppert), 309 F.2d 97, 98 (6th Cir. 1962)(per curiam); Hanson v. Garland S.S. Co., 34 F.R.D. 493, 495-96 (N.D. Ohio 1964)(Connell, J.)(concluding that witness statements taken by a party’s attorney in preparation of the case were within the party’s control and subject to production under rule 34 on a proper showing); Kane v. News Syndicate Co., 1 F.R.D. 738, 738-39 (S.D.N.Y. 1941)(Mandelbaum, J.)(determining that a plaintiff in an action for copyright infringement could require the defendants’ attorneys to produce a document from which the plaintiff hoped to ascertain whether material had been obtained from his copyrighted works).
The mere fact, however, that the attorney for a party has possession of a document does not make his possession of the document the possession of the party. The paper may be one of his private papers which he had before the relation of attorney and client was established. It is inconceivable that he should be required to produce such a paper for the inspection of his client’s adversary. The paper which he has in his possession may be the property of some other client. It is inconceivable that he should be compelled to produce the document belonging to another client because the adversary of one of his clients demands it. Poppino v. Jones Store Co., 1 F.R.D. at 219. See Hobley v. Burge, 433 F.3d 946, 949-52 (7th Cir. 2006)(observing that a party may not have had control over its former attorney’s documents); Ontario Inc. v. Auto Enters., Inc., 205 F.R.D. 195 (E.D. Mich. 2000)(Duggan, J.). Simply put, if a person, corporation, or a person’s attorney or agent can pick up a telephone and secure the document, that individual or entity controls it. See Simon v. Taylor, 2014 WL 6633917, at *34 (“Control is defined as the legal right to obtain documents upon demand.”).
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LAW REGARDING RULE 12(b)(6) Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). The Complaint’s sufficiency is a question of law, and, when considering a rule 12(b)(6) motion, a court must accept as true all well-pled factual allegations in the complaint, view those allegations in the light most favorable to the nonmoving party, and draw all reasonable inferences in the plaintiff’s favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)(“[O]nly if a reasonable person could not draw . . . an inference [of plausibility] from the alleged facts would the defendant prevail on a MTD [(motion to dismiss)].”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006))). A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678. “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. at 555. To survive a motion to dismiss, a plaintiff’s complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient;
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the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)(emphasis omitted). The Tenth Circuit has stated:
“[P]lausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(citations omitted)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570). See Gallegos v. Bernalillo Cty. Bd. of Cty. Comm’rs, 278 F. Supp. 3d 1245, 1259 (D.N.M. 2017)(Browning, J.). “When a party presents matters outside of the pleadings for consideration, as a general rule ‘the court must either exclude the material or treat the motion as one for summary judgment.’” Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir. 2017)(quoting Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th Cir. 2004)). There are three limited exceptions to this general principle: (i) documents that the complaint incorporates by reference, see Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322; (ii) ”documents referred to in the complaint if the documents are central to the plaintiff’s claim and the parties do not dispute the documents’ authenticity,” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002); and (iii) “matters of which a court may take judicial notice,” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322. See Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d at 1103 (holding that the district court did not err by reviewing a seminar recording and a television episode on a rule 12(b)(6) motion, which were “attached to or referenced in the amended complaint,” central to the plaintiff’s claim, and “undisputed as to their accuracy and authenticity”). “[T]he court is permitted to take judicial notice of its own files and records, as well as facts which are a matter of public record.” Van Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000), abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001). In Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010), the defendants “supported their motion with numerous documents, and the district court cited portions of those motions in granting the [motion to dismiss].” 627 F.3d at 1186. The Tenth Circuit held that “[s]uch reliance was improper” and that, even if “the district court did not err initially in reviewing the materials, the
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court improperly relied on them to refute Mr. Gee’s factual assertions and effectively convert the motion to one for summary judgment.” 627 F.3d at 1186-87. In other cases, the Tenth Circuit has emphasized that, “[b]ecause the district court considered facts outside of the complaint . . . it is clear that the district court dismissed the claim under Rule 56(c) and not Rule 12(b)(6).” Nard v. City of Okla. City, 153 F. App’x 529, 534 n.4 (10th Cir. 2005)(unpublished). In Douglas v. Norton, 167 F. App’x 698 (10th Cir. 2006)(unpublished), the Tenth Circuit addressed an untimely filed charge with the Equal Employment Opportunity Commission -- which the Tenth Circuit analogized to a statute of limitations -- and concluded that, because the requirement was not jurisdictional, the district court should have analyzed the question under rule 12(b)(6), and “because the district court considered evidentiary materials outside of Douglas’ complaint, it should have treated Norton’s motion as a motion for summary judgment.” 167 F. App’x at 70405.
The Court has previously ruled that, when a plaintiff references and summarizes defendants’ statements in a complaint, the Court cannot rely on documents containing those statements that the defendants attach in their briefing. See Mocek v. City of Albuquerque, No. CIV 11-1009 JB/KBM, 2013 WL 312881, at *50-51 (D.N.M. Jan. 14, 2013)(Browning, J.). The Court reasoned that the statements were neither incorporated by reference nor central to the plaintiff’s allegations in the complaint, because the plaintiff cited the statements only to attack the defendant’s reliability and truthfulness. See 2013 WL 312881, at *50-51. The Court has also previously ruled that, when determining whether to toll a statute of limitations in an action alleging fraud and seeking subrogation from a defendant, the Court may not use interviews and letters attached to a motion to dismiss, which show that a plaintiff was aware of the defendant’s alleged fraud before the statutory period expired. See Great Am. Co. v. Crabtree, No. CIV 11-1129 JB/KBM, 2012 WL 3656500, at *3, *22-23 (D.N.M. Aug. 23, 2012)(Browning, J.)(“Crabtree”). The Court in Crabtree determined that the documents did not fall within any of the Tenth Circuit’s exceptions to the general rule that a complaint must rest on the sufficiency of its contents alone, as the complaint did not incorporate the documents by reference or refer to the documents. See 2012 WL 3656500, at *22-23; Mocek v. City of Albuquerque, 2013 WL 312881, at *50 (refusing to consider statements that were not “central to [the plaintiff’s] claims”).
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On the other hand, in a securities class action, the Court has ruled that a defendant’s operating certification, to which plaintiffs refer in their complaint, and which was central to whether the plaintiffs adequately alleged a loss, falls within an exception to the general rule, so the Court may consider the operating certification when ruling on the defendant’s motion to dismiss without converting the motion into one for summary judgment. See Genesee Cty. Emps.’ Ret. Sys. v. Thornburg Mortg. Secs. Tr. 2006-3, 825 F. Supp. 2d 1082, 1150-51 (D.N.M. 2011)(Browning, J.). See also Sec. & Exch. Comm’n v. Goldstone, 952 F. Supp. 2d 1060, 121718 (D.N.M. 2013)(Browning, J.)(considering, on a motion to dismiss, electronic mail transmissions referenced in the complaint as “documents referred to in the complaint,” which are “central to the plaintiff’s claim” and whose authenticity the plaintiff did not challenge); Mata v. Anderson, 760 F. Supp. 2d 1068, 1101 (D.N.M. 2009)(Browning, J.)(relying on documents outside of the complaint because they were “documents that a court can appropriately view as either part of the public record, or as documents upon which the Complaint relies, and the authenticity of which is not in dispute”).
LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The movant bears the initial burden of ‘show[ing] that there is an absence of evidence to support the nonmoving party’s case.’” Herrera v. Santa Fe Pub. Sch., 956 F. Supp. 2d 1191, 1221 (D.N.M. 2013)(Browning, J.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(“Celotex”). Before the court can rule on a party’s motion for summary judgment, the moving party must satisfy its burden of production in one of two ways: by putting evidence into the record that affirmatively disproves an element of the nonmoving party’s case, or by directing the court’s attention to the fact that the non-moving party lacks evidence on an element of its claim, “since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323-25. On those issues for which it bears the burden of proof at trial, the nonmovant “must go beyond the pleadings and designate specific facts to make a showing sufficient to establish the existence of an element essential to his case in order to survive summary judgment.” Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007). Plustwik v. Voss of Nor. ASA, No. CIV 11-0757 DS, 2013 WL 1945082, at *1 (D. Utah May 9, 2013)(Sam, J.). “If the moving party will bear the burden of persuasion at trial, that party must
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support its motion with credible evidence -- using any of the materials specified in Rule 56(c) -that would entitle it to a directed verdict if not controverted at trial.” Celotex, 477 U.S. at 331 (Brennan, J., dissenting)(emphasis in original).10 Once the movant meets this burden, rule 56 requires the nonmoving party to designate specific facts showing that there is a genuine issue for trial. See Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)(“Liberty Lobby”). In American Mechanical Solutions, LLC v. Northland Process Piping, Inc., 184 F. Supp. 3d 1030 (D.N.M. 2016)(Browning, J.), the Court confronted a situation in which the movant did not offer evidence disproving the nonmovant’s allegations, but, rather, argued, under the second option in Celotex, that the nonmovant lacked evidence to establish an element of its claim. See 184 F. Supp. 3d at 1075. The Court granted summary judgment for the movant, because the nonmovant -- the plaintiff -- did not offer expert evidence supporting causation or proximate causation for its breach-of-contract or breach-of-the-implied-warranty-ofmerchantability claims as New Mexico law required for those elements. 184 F. Supp. 3d at 1075. The Court concluded that Celotex applied to the situation, and that, without the requisite evidence, the nonmovant failed to prove “an essential element of the . . . case.” 184 F. Supp. 3d at 1075 (quoting Plustwik v. Voss of Nor. ASA, 2013 WL 1945082, at *1).
The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993)(“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” (internal quotation marks omitted)(quoting Applied Genetics Int’l, Inc. v. First Affiliated Secs., Inc., 912 F.2d at 1241)). Rule 56(c)(1) provides: “A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations
10Although the Honorable William J. Brennan, Jr., Associate Justice of the Supreme Court of the United States, dissented in Celotex, this sentence is widely understood to be an accurate statement of the law. See 10A Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 2727, at 470 (3d ed. 1998)(“Although the Court issued a five-to-four decision, the majority and dissent both agreed as to how the summary-judgment burden of proof operates; they disagreed as to how the standard was applied to the facts of the case.”).
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(including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his pleadings.” Liberty Lobby, 477 U.S. at 256. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980)(“[O]nce a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.” (internal quotation marks omitted)(quoting Coleman v. Darden, 595 F.2d, 533, 536 (10th Cir. 1979)).
Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat’l Ins. v. Omer, No. CIV 07-2123 JAR, 2008 WL 2309005, at *1 (D. Kan. June 2, 2008)(Robinson, J.)(citing Fed. R. Civ. P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’” Colony Nat’l Ins. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).
To deny a motion for summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Liberty Lobby, 477 U.S. at 250. A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Liberty Lobby, 477 U.S. at 248). Rather, there must be sufficient evidence on which the fact finder could reasonably find for the nonmoving party. See Liberty Lobby, 477 U.S. at 251 (citing Vitkus v. Beatrice Co., 11 F.3d at 1539; Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)). “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable . . . or is not significantly probative, . . . summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249 (citations omitted)(citing First Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968); Dombrowski v. Eastland, 387 U.S. 82, 87 (1967)). Where a rational trier of fact, considering the record as a
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whole, cannot find for the nonmoving party, there is no genuine issue for trial. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
When reviewing a motion for summary judgment, the court should keep in mind certain
principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue
whether a genuine issue exists as to material facts requiring a trial. See Liberty Lobby, 477 U.S.
at 249. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary
judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind
the actual quantum and quality of proof necessary to support liability.” Liberty Lobby, 477 U.S.
at 254. Third, the court must resolve all reasonable inferences and doubts in the nonmoving party’s
favor, and construe all evidence in the light most favorable to the nonmoving party. See Liberty
Lobby, 477 U.S. at 255 (“The evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.”); Hunt v. Cromartie, 526 U.S. 541, 550-55 (1999). Fourth,
the court cannot decide any issues of credibility. See Liberty Lobby, 477 U.S. at 255.
There are, however, limited circumstances in which the court may disregard a party’s
version of the facts. This doctrine developed most robustly in the qualified immunity arena. In
Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court concluded that summary judgment is
appropriate where video evidence “quite clearly contradicted” the plaintiff’s version of the facts.
550 U.S. at 378-81. The Supreme Court explained:
At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus[.] Co. v. Zenith Radio Corp., 475 U.S. [at] 586-587 . . . (footnote omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. [at] 247-248 . . . . When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.
Scott v. Harris, 550 U.S. at 380-81 (emphasis in original).
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The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir. 2009), and explained:
[B]ecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiff’s version of the facts must find support in the record: more specifically, “[a]s with any motion for summary judgment, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts.” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)(quoting Scott[ v. Harris], 550 U.S. at 380); see also Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1258 (10th Cir. 2008). Thomson v. Salt Lake Cty., 584 F.3d at 1312 (brackets omitted). “The Tenth Circuit, in Rhoads v. Miller, 352 F. App’x 289 [, 291] (10th Cir. 2009) . . . [(unpublished),] explained that the blatant contradictions of the record must be supported by more than other witnesses’ testimony[.]” Lymon v. Aramark Corp., 728 F. Supp. 2d 1222, 1249 (D.N.M. 2010)(Browning, J.), aff’d, 499 F. App’x 771 (10th Cir. 2012).
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 plaintiff11 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
11Technically, it is the party seeking certification, i.e., the movant, who bears the burden of proof, and defendants may also move for class certification. See William B. Rubenstein, Newberg on Class Actions § 7:20 (5th ed. 2017)(“Newberg”). As a practical matter, however, motions for class certification are made almost exclusively by plaintiffs.
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independently find the relevant facts by a preponderance of the evidence.12 See Rutstein v. Avis
Rent-A-Car Sys., Inc., 211 F.3d at 1234 (“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 at 799. See Vallario v. Vandehey, 554 F.3d at 1267 (“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[, 457 U.S. 147 (1982)] 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.
12As the Court has previously noted, Tenth Circuit precedent suggests that the Court must show some level of deference to the Complaint’s factual allegations when ruling on a rule 23 motion: “The Court must accept a plaintiff’s substantive allegations as true,” but it “need not blindly rely on conclusory allegations which parrot Rule 23,” and “may consider the legal and factual issues presented by plaintiff’s complaints.” In re Thornburg Mortg., Inc. Sec. Litig., 912 F. Supp. 2d 1178, 1120 (D.N.M. 2012)(Browning, J.)(citing Shook v. El Paso Cty., 386 F.3d 963, 968 (10th Cir. 2004); J.B. v. Valdez, 186 F.3d 1280, 1290 n.7 (10th Cir. 1999); Eisen v. Carlisle & Jacquelin, 417 U.S. at 178). Since the Court’s statement in In re Thornburg Mortgage, Inc. Securities Litigation, however, the Tenth Circuit issued an opinion stating that district courts should apply a “strict burden of proof” to class certification issues. Wallace B. Roderick Revocable Living Tr. v. XTO Energy, Inc., 725 F.3d 1213, 1218 (10th Cir. 2013). This request is consistent with the general trend in the federal judiciary toward using an ordinary preponderance standard to find facts at the class certification stage. See, e.g., Teamsters Local 445 Freight Div. Pension Fund v. Bombardier, Inc., 546 F.3d 196, 202 (2d Cir. 2008); In re Hydrogen Peroxide Litig., 552 F.3d 305, 318-20 (3d Cir. 2008); Newberg § 7.21 (tracing the shift in the case law from deferring to plaintiffs’ representations to adopting an ordinary preponderance standard, and disclaiming the Court’s statement from In re Thornburg Mortgage, Inc. Securities Litigation -- a statement that earlier versions of the treatise espoused). Thus, although the Tenth Circuit has not yet explicitly adopted the preponderance standard for fact-finding in class certification analyses, it most likely will, and the Court will employ that standard here.
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Wal-Mart, 564 U.S. at 350-52 (citations omitted). 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)(citations omitted). 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 Courts of Appeals 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 Tr. v. WPX Energy Prod. LLC, 306 F.R.D. 312, 378 n.39 (D.N.M. 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.
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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 Sw. v. Falcon, 457 U.S. at 161, and 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).
Rule 23(a)(2) requires that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). 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)(citing In re Am. Med. Sys., Inc., 75 F.3d 1069, 1080 (6th Cir. 1996); Adamson v. Bowen, 855 F.2d at 676)). 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.).
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
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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,” [Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. at 157]. 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.
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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, the Honorable Antonin Scalia, former Associate Justice of the Supreme Court
of the United States, 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
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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 controversy. The matters pertinent to these findings include:
(A) the putative class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against putative class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b). “Only one of rule 23(b)’s subdivisions must be satisfied to meet the class-
action requirements.” Gonzales v. City of Albuquerque, No. CIV 09-0520 JB/RLP, 2010 WL
4053947, at *11 (D.N.M. Aug. 21, 2010)(Browning, J.)(citing Carpenter v. Boeing, Co., 456 F.3d
1183, 1187 (10th Cir. 2006)(stating that the district court must determine whether a suit “falls
within one of the categories of actions maintainable as class actions”)).
The three categories of class actions -- really four, as rule 23(b)(1) contains two
subcategories, known as (b)(1)(A) and (b)(1)(B) class actions -- are not of equal utility. Class
actions under (b)(1) can be certified only in very particular circumstances. Class actions under
(b)(2) are broadly available, but are only capable of seeking injunctive or declaratory relief, and
not damages. Far and away the most controversial class action category, (b)(3), can be brought
for class-wide damages, injunctive relief, declaratory relief, or any combination thereof. Class
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actions under (b)(3) always require notice to all proposed class members of certification of the
class, and those individuals must be given the opportunity to opt out if they so desire. See Fed. R.
Civ. P. 23(c)(2)(B); Phillips Petrol. Co. v. Shutts, 472 U.S. 797, 812 (1985)(“[W]e hold that due
process requires at a minimum that an absent plaintiff be provided with an opportunity to remove
himself from the class by executing and returning an ‘opt out’ or ‘request for exclusion’ form to
the court.”). The other class action categories, however, are ordinarily mandatory, and neither
notice nor opportunity to opt out needs to be given. See Fed. R. Civ. P. 23(c)(2)(B); Phillips Petrol.
Co. v. Shutts, 472 U.S. at 811 n.3 (limiting the constitutional requirement of an opt-out notice “to
those class actions which seek to bind known plaintiffs concerning claims wholly or predominately
for money judgments”). The Court will focus on the most important form of class action, the
(b)(3) damages class action.13
13The Court will briefly address the other class-action types. Rule 23(b)(1) contains two subcategories of class action, (b)(1)(A) actions and (b)(1)(B) actions; a class need satisfy the requirements of only one to be certified. See Fed. R. Civ. P. 23(b)(1). Class actions under (b)(1)(A) are designed to avoid the situation in which a defendant subject to suit by multiple plaintiffs is ordered to undertake incompatible courses of conduct as a result of the non-centralized nature of the adjudication. See Fed. R. Civ. P. 23(b)(1)(A). “Incompatible” means more than simply inconsistent. A situation in which, for example, a defendant was ordered to pay ten thousand dollars to a plaintiff in one case, was ordered to pay ten million dollars to another plaintiff in an identical or similar case, and was found to not be at fault at all in yet another case, may be inconsistent, but it does not create “incompatible standards of conduct for the party opposing the class.” Fed. R. Civ. P. 23(b)(1)(A). Such alleged inconsistency is a normal and expected part of the system of individualized adjudication used by the judiciary to apply a uniform set of laws to varied factual settings. What (b)(1)(A) is designed to avoid is injunctive or declaratory “whipsawing,” in which, e.g., one court orders a school district to close an underperforming innercity school and bus its students to suburban schools, and another court orders the district to keep the school open and bus suburban students in to the school. Class actions under (b)(1)(B) serve a similar role, but apply when varying adjudications would result in practically -- rather than legally -- incompatible judgments. See Fed. R. Civ. P. 23(b)(1)(B). Rule 23(b)(1)(B) applies when the defendant has possession or control of a res -- a pot of money or thing that constitutes the relief that the proposed class seeks -- and the relief sought by all the individual members of the proposed class would more than exhaust the res. For example, if a Ponzi scheme operator took ten billion dollars of investors’ money, and, upon law enforcement’s discovery of the scheme, had only six billion dollars remaining, then the individual investors’ claims to recover their rightful share would add up to four billion dollars more than existed in the res. Thus, the court might certify a (b)(1)(B) class action to ensure that the custodian of the res does not pay out the entire res to the first investors to file suit, but, instead, distributes the res fairly among all investors.
The two subcategories of (b)(1) class action have other things in common as well. Both exist, in a sense, for the benefit of the defendant -- at least relative to (b)(2) and (b)(3) class actions -- and are rarely brought, in part because plaintiffs have little incentive to bring them. In the (b)(1)(B) example, each investor hopes to recover the full value of his or her investment, not a sixty-percent value, and thus is incentivized to file as an individual. In the (b)(1)(A) example, the plaintiff seeking to close down the school (i) does not care about the inconsistent obligations of the school district, and (ii) would rather not be joined in a class action with plaintiffs who want to keep the school open. Last, (b)(1) class actions, along with (b)(2) class actions, are mandatory: if certified, no person covered under the class definition may opt out of it or pursue his or her own individual claim. As such, no notice needs to be given to the class members that they are part of
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ongoing litigation, although the certifying court may elect to direct notice in appropriate circumstances. See Fed. R. Civ. P. 23(c)(2)(A). Class actions under (b)(2) provide for injunctive or declaratory relief when a defendant has “acted or refused to act on grounds that apply generally to the class.” Fed. R. Civ. P. 23(b)(2).
The key to the (b)(2) class is “the indivisible nature of the injunctive or declaratory remedy warranted -- the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Nagareda, supra, at 132. In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.
Wal-Mart, 564 U.S. at 360-61 (emphasis in original). The (b)(2) class action was invented for the purpose of facilitating civil rights suits, and much of its use is in that field today. See Newberg § 4:26. The (b)(2) class action allows civil rights litigants to advocate on behalf of all similarly situated individuals, such as a disenfranchised black voter representing a class of all black voters within an unconstitutionally drawn district or a jail inmate representing all inmates in an overcrowding case. Anyone familiar with the nation’s seminal civil rights cases, however, knows that many of them are not brought as class actions, which raises a question:
[W]hy would anyone ever bring one? . . . Th[is] inquiry is generated because if an individual litigant pursues an individual case for injunctive relief and prevails, she can generally get all of the remedy that she needs without going through the hurdles of certifying a class. For example, to return to Brown v. Board of Education, once Linda Brown prevailed on her race discrimination claim, her remedy -- a desegregated school -- was hers to pursue. Although that remedy would affect many other persons not a part of her litigation, hence making class certification appropriate, there is no requirement that to secure that remedy, she had to file a class action.
Nonetheless, social change advocates tend to pursue class certification under Rule 23(b)(2) for several reasons. First, and perhaps most importantly, Linda Brown will likely graduate from school long before her case ends; if hers is simply an individual action, it will become moot and risk dismissal. Class certification, however, constitutes an exception to the mootness doctrine in certain circumstances. Second, the scope of the plaintiff’s relief is likely augmented by certifying a class. It is arguable that all that Linda Brown would have been able to secure as a remedy for her individual claim was a desegregated school for herself, not for students throughout the entire school district; there is some relationship between the scope of the class and the scale of the remedy. Third, it is often the case that the attorneys pursuing civil rights actions are doing so as public interest lawyers paid by an organization like the NAACP Legal Defense Fund or the American Civil Liberties Union (ACLU); they may therefore have a financial incentive to pursue a class’s case rather than a series of individual cases as they have limited resources, and the economies of scale may argue for a class action suit. Most generally, many civil rights cases are brought as class suits because the attorneys and clients pursuing them conceptualize their efforts in group, not individual, terms. Thus, while an individual civil rights plaintiff might be able to secure the relief that she seeks without a (b)(2) class, a series of factors may encourage the pursuit of one.
Newberg § 4:26 (footnotes omitted). Like (b)(1) class actions, (b)(2) class actions are mandatory -- individuals covered under the class definition may not opt out -- and do not require notice to be given to the class. See Fed. R. Civ. P. 23(c)(2)(A).
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To satisfy rule 23(b)(3), the court must find “that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3). Rule 23(b)(3) provides that “[t]he matters pertinent to these findings include”: (i) the class members’ interest in individually controlling the prosecution or defense of separate actions; (ii) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (iii) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (iv) the difficulties likely to be encountered in the management of a class action. Fed. R. Civ. P. 23(b)(3)(A)-(D).
Rule 23(b)(3)’s first requirement is that questions common to the class predominate over those that are individualized. See Fed. R. Civ. P. 23(b)(3). A question is common when “the same evidence will suffice for each member to make a prima facie showing,” Blades v. Monsanto Co., 400 F.3d 562, 566 (8th Cir. 2005)(citing In re Visa Check/MasterMoney Antitrust Litig., 208 F.3d 124, 136-40 (2d Cir. 2001)), or when the issue is “susceptible to generalized, class-wide proof,” In re Nassau Cty. Strip Search Cases, 461 F.3d 219, 227 (2d Cir. 2006). A question is individual when “the members of a proposed class will need to present evidence that varies from member to member.” Blades v. Monsanto Co., 400 F.3d at 566. Although a case need not present only common questions to merit certification, and the presence of some individual questions does not destroy predominance, the rule 23(b)(3) predominance requirement is much stricter than the rule 23(a)(1) commonality requirement: the latter requires only that a common question or questions exist; the former requires that the common question or questions predominate over the individual ones. See Amchem Prods., Inc. v. Windsor, 521 U.S. at 623-24; In re Thornburg Mortg., Inc. Sec. Litig., 912 F. Supp. 2d 1178, 1225 (D.N.M. 2012)(Browning, J.)(“The predominance criterion of rule 23(b)(3) is ‘far more demanding’ than rule 23(a)(2)’s commonality requirement.”). As the Tenth Circuit, addressing a Title VII claim, put it:
The myriad discriminatory acts that Plaintiffs allege (e.g., failure to promote, failure to train, unequal pay, disrespectful treatment, etc.) each require independent legal analysis, and similarly challenge the predominance requirement of Rule 23(b)(3) if not also the commonality requirement of Rule 23(a). . . . .
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Although we do not rest our decision upon Rule 23(a), cases that interpret . . . the commonality requirement of Rule 23(a) illustrate the instant Plaintiffs’ inability to satisfy Rule 23(b)(3)’s “far more demanding” requirement that common issues predominate. Monreal v. Potter, 367 F.3d 1224, 1237 (10th Cir. 2004)(footnote omitted). The predominance question applies to both macro damages -- the total class damages -and to micro damages -- the individual damages. In Comcast Corp. v. Behrend, 569 U.S. 27 (2013), the Supreme Court held that it could not accept the regression model which the plaintiffs’ expert had developed as evidence that damages were susceptible of measurement across an entire class -- as rule 23(b)(3) requires. The plaintiffs argued four theories of antitrust violations; one theory was that Comcast Corp.’s activities had an antitrust impact, because Comcast Corp.’s activities reduced the level of competition from “overbuilders,” companies that build competing cable networks in areas where an incumbent cable company already operates. 569 U.S. at 31. The district court found, among other things, that the damages resulting “from overbuilder-deterrence impact could be calculated on a classwide basis.” 569 U.S. at 31-32. To establish such damages, [the plaintiffs relied] solely on the testimony of Dr. James McClave. Dr. McClave designed a regression model comparing actual cable prices in the Philadelphia [Designated Market Area] with hypothetical prices that would have prevailed but for [Comcast Corp.’s] allegedly anticompetitive activities. The model calculated damages of $875,576,662.00 for the entire class. As Dr. McClave acknowledged, however, the model did not isolate damages resulting from any one theory of antitrust impact. The district court nonetheless certified the class. 569 U.S. at 31-32 (citations omitted). The United States Court of Appeals for the Third Circuit affirmed the district court decision. The Third Circuit concluded that the plaintiffs “provided a method to measure and quantify damages on a classwide basis,” finding it unnecessary to decide “whether the methodology was a just and reasonable inference or speculation.” 569 U.S. at 32 (quoting 655 F.3d 182, 206 (3d Cir. 2011)). The Supreme Court granted certiorari on the question of “[w]hether a district court may certify a class action without resolving whether the plaintiff class had introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” 569 U.S. at 39. Justice Scalia criticized the Third Circuit’s reluctance to entertain arguments against the plaintiffs’ damages model “simply because those arguments would also be pertinent to the merits determination.” 569 U.S. at 34. Justice Scalia said that
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it is clear that, under the proper standard for evaluating certification, respondents’ model falls far short of establishing that damages are capable of measurement on a classwide basis. Without presenting another methodology, respondents cannot show Rule 23(b)(3) predominance: Questions of individual damage calculations will inevitably overwhelm questions common to the class. 569 U.S. at 34. Justice Scalia stated that, under the Third Circuit’s logic, “at the class-certification stage, any method of measurement is acceptable so long as it can be applied classwide, no matter how arbitrary the measurements may be. Such a proposition would reduce rule 23(b)(3)’s predominance requirement to a nullity.” 569 U.S. at 35 (emphasis in original). It is clear that Comcast Corp. v. Behrend applies to classwide damages. It is less clear that Comcast Corp. v. Behrend’s language applies to the determination of individual damages. There are three ways that the Court could deal with Comcast Corp. v. Behrend and the determination of individual damage awards. First, the Court could decide that Comcast Corp. v. Behrend applies only to classwide damages and is not controlling at all in the determination of individual damages. Second, the Court could decide that everything that Justice Scalia said about classwide damages also applies to the determination of individual damages. Third, the Court could decide that Justice Scalia said some things relating to the determination of individual damages, but not the same things that apply to classwide damages. As to the first option, while much could be said of limiting Justice Scalia’s opinion to classwide damages -- even from the language of the opinion and from the wording of the question presented -- the Court is reluctant to say that it has nothing to say that might be relevant to the determination of individual damages awards. Some of Justice Scalia’s concerns about admissible evidence to determine damages -- whether classwide or individual damage awards -- still seem relevant to whether damages are classwide or individual. While Justice Scalia was not addressing the determination of individual damage awards, some of what he said -- and how he said it -- causes the Court to be cautious in determining a methodology for calculating individual damage awards. On the other hand, the Court is not convinced that it should or even can apply Comcast Corp. v. Behrend’s language to the individual determination of damages as it does to classwide damages. The dissent stated that “[r]ecognition that individual damages calculations do not preclude class certification under Rule 23(b)(3) is well nigh universal.” 569 U.S. at 42 (Ginsburg, J., dissenting). Justice Scalia did not refute this proposition, and the Court has no reason to think the dissent’s statement -- which is accurate -- does not remain good law. Accordingly, just because each plaintiff and class member may get a different amount
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and there has to be a separate calculation of each plaintiff’s damages does not defeat class certification.
What the Court thinks that Comcast Corp. v. Behrend says that is relevant to the individual determination of damages is threefold. First, at the class certification stage, the Court cannot ignore how individual damages, if any are appropriate, are to be decided. In other words, the Court cannot ignore the possible complexities of the individual damages determinations in making the predominance calculation. A class can have individual damage calculations, but the Court has to look at the issues of individual damages calculations at the class certification stage. Second, the methodology for all class members needs to be common or, if there are different methodologies for some plaintiffs and class members, the Court must take these differences into account at the class certification stage in the predominance analysis. In other words, if the Court is going to use different methodologies for different class members, it must decide: (i) whether these differences create questions affecting only individual members; and (ii) whether these individual questions predominate over the questions of law or fact common to the class. Third, even if the methodology is common to the class, the Court must decide whether it will operate in a consistent way for each individual class member. The law and methodology may be the same, but when applied to the class, they may create issues for one class member or group of class members that they do not create for other class members or groups. The predominance analysis must identify precisely the common issues and uncommon issues that application of the class methodology or methodologies raise, and then determine whether, in the total issue mix, the common issues predominate over the individual ones.
A defendant’s desire to assert individual counterclaims14 does not typically defeat predominance. See Phillips Petrol. Co. v. Shutts, 472 U.S. at 810; Allapattah Servs., Inc. v. Exxon Corp., 333 F.3d 1248, 1260 (11th Cir. 2003). A defendant’s desire to assert individual affirmative defenses also often does not defeat predominance, see Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 39 (1st Cir. 2003)(“Courts traditionally have been reluctant to deny class action status
14Generally speaking, counterclaims, even common ones, are not permitted against absent class members at all. See Fager v. CenturyLink Commc’ns, LLC, 854 F.3d 1167, 1172 (10th Cir. 2016)(“[A]bsent plaintiff class members . . . are almost never subject to counterclaims or crossclaims . . . .” (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. at 810)).
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under Rule 23(b)(3) simply because affirmative defenses may be available against individual
members.”), but this statement is less true after Wal-Mart.15 Other recurring individual issues
present more serious challenges to predominance, such as: (i) the prima facie element of reliance
or due diligence in common-law fraud and other cases;16 (ii) differences in the applicable law in a
15Limitations defenses are an especially common breed of affirmative defense. Limitations defenses generally present common questions, rather than individual ones, because a limitations defense’s merits rest on two facts: (i) the date on which the claim accrued; and (ii) the date on which the action was filed. Fact (ii) is a common issue in virtually every class action, because the entire class gets credit for the filing date of the class action complaint. Fact (i) may not be truly common, but it might be, if, for example, the discovery rule delays accrual of a claim until the cause of action is discovered, and all class members’ causes of action are discovered at the same time, or if a single act by the defendant breached contracts with all class members at once. Even if the question is individual -- for example, if a class is defined as only encompassing preexisting filed claims, or if the discovery rule might delay the accrual of the claim for some class members but not others -- it still typically does not defeat predominance.
Although a necessity for individualized statute-of-limitations determinations invariably weighs against class certification under Rule 23(b)(3), we reject any per se rule that treats the presence of such issues as an automatic disqualifier. In other words, the mere fact that such concerns may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones. As long as a sufficient constellation of common issues binds class members together, variations in the sources and application of statutes of limitations will not automatically foreclose class certification under Rule 23(b)(3). Predominance under Rule 23(b)(3) cannot be reduced to a mechanical, single-issue test.
Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir. 2000)(citing 5 James W. Moore et al., Moore’s Federal Practice ¶ 23.46[3] (3d ed. 1999)). See Newberg § 4:57 (confirming that the above passage “reflects the law in most circuits” (footnote omitted)).
16The advisory committee’s notes to rule 23 state that
a fraud perpetrated on numerous persons by the use of similar misrepresentations may be an appealing situation for a class action, and it may remain so despite the need, if liability is found, for separate determination of the damages suffered by individuals within the class. On the other hand, although having some common core, a fraud case may be unsuited for treatment as a class action if there was material variation in the representations made or in the kinds or degrees of reliance by the persons to whom they were addressed.
Fed. R. Civ. P. 23 advisory committee’s notes (citing Miller v. Nat’l City Bank of N.Y., 166 F.2d 723 (2d Cir. 1948); Oppenheimer v. F. J. Young & Co., Inc., 144 F.2d 387 (2d Cir. 1944)).
Despite the generalized concern about the individual nature of the misrepresentations and/or reliance inquiry in fraud cases, there are at least three recurring situations in which courts have found common issues predominant in fraud cases: (1) those in which reliance is common across the class; (2) those in which courts have excused a showing of individual reliance; and (3) those in which the underlying law does not require a showing of individual reliance.
Newberg § 4:58. Reliance may be a common issue when the same misrepresentation is made to the entire class; some Courts of Appeals have held that written misrepresentations may be common issues while oral misrepresentations are presumed to be individualized. See, e.g., Moore v. PaineWebber, Inc., 306 F.3d 1247, 1253 (2d Cir. 2002)(“[T]he Third, Fourth, Fifth, Sixth, and
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multi-state, state-law-based class actions,17 see Castano v. Am. Tobacco Co., 84 F.3d 734, 741
(5th Cir. 1996); and (iii) the need to determine individual personal injury damages, which presents
Seventh Circuits . . . have held that oral misrepresentations are presumptively individualized.”); In re Prudential Ins. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 319 (3d Cir. 1998)(certifying class where alleged misrepresentations were written and uniform); Spencer v. Hartford Fin. Servs. Grp., Inc., 256 F.R.D. 284, 297 (D. Conn. 2009)(Hall, J.)(certifying class where class definition was narrowed to include only those who had received written communications from defendant). The requirement that plaintiffs show reliance is most often presumed or excused in so-called fraud-on-the-market securities cases, in which class members -investors in the defendant company -- are presumed to be rational, fully informed actors who use all of the information available to the general public, but are also presumed to not possess insider information.
We have found a rebuttable presumption of reliance in two different circumstances. First, if there is an omission of a material fact by one with a duty to disclose, the investor to whom the duty was owed need not provide specific proof of reliance. Second, under the fraud-on-the-market doctrine, reliance is presumed when the statements at issue become public. The public information is reflected in the market price of the security. Then it can be assumed that an investor who buys or sells stock at the market price relies upon the statement.
Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, 552 U.S. 148, 159 (2008)(citing Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 153 (1972); Basic Inc. v. Levinson, 485 U.S. 224, 245 (1988)).
17In In re Bridgestone/Firestone, Inc., 288 F.3d 1012 (7th Cir. 2002), the Honorable Frank H. Easterbrook, United States Circuit Judge for the Seventh Circuit, in an opinion that predates Wal-Mart and Comcast, stated:
No class action is proper unless all litigants are governed by the same legal rules. Otherwise the class cannot satisfy the commonality and superiority requirements of Fed. R. Civ. P. 23(a), (b)(3). Yet state laws about theories such as those presented by our plaintiffs differ, and such differences have led us to hold that other warranty, fraud, or products-liability suits may not proceed as nationwide classes
288 F.3d at 1015. Judge Easterbrook then discussed how variations in tires defeat class treatment:
Because these claims must be adjudicated under the law of so many jurisdictions, a single nationwide class is not manageable. Lest we soon see a Rule 23(f) petition to review the certification of 50 state classes, we add that this litigation is not manageable as a class action even on a statewide basis. About 20% of the Ford Explorers were shipped without Firestone tires. The Firestone tires supplied with the majority of the vehicles were recalled at different times; they may well have differed in their propensity to fail, and this would require sub-subclassing among those owners of Ford Explorers with Firestone tires. Some of the vehicles were resold and others have not been; the resales may have reflected different discounts that could require vehicle-specific litigation. Plaintiffs contend that many of the failures occurred because Ford and Firestone advised the owners to underinflate their tires, leading them to overheat. Other factors also affect heating; the failure rate (and hence the discount) may have been higher in Arizona than in Alaska. Of those vehicles that have not yet been resold, some will be resold in the future (by which time the tire replacements may have alleviated or eliminated any discount) and some never will be resold. Owners who wring the last possible mile out of their vehicles receive everything they paid for and have claims that differ from owners who sold their Explorers to the second-hand market during the height of the publicity in 2000. Some owners drove their SUVs off the road over rugged
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such a challenge to predominance that class certification of mass tort claims is now exceedingly
rare, see Amchem Prods., Inc. v. Windsor, 521 U.S. at 625. There is little uniform guidance on
how to assess when common issues predominate over individual ones, and the Court’s statements
to this point have, obviously, done more to disavow various tempting but fallacious rules than they
have to set forth a usable standard.
There is currently a split of authority between the United States Courts of Appeals over the
proper way to analyze predominance. The Honorable Richard A. Posner, former United States
Circuit Judge for the United States Court of Appeals for the Seventh Circuit, concluded that the
predominance inquiry boils down to “a question of efficiency.” Butler v. Sears, Roebuck & Co.,
702 F.3d 359, 362 (7th Cir. 2012), vacated, 569 U.S. 1015 (2013). Judge Posner poses the
terrain, while others never used the “sport” or “utility” features; these differences also affect resale prices.
Firestone’s tires likewise exhibit variability; that’s why fewer than half of those included in the tire class were recalled. The tire class includes many buyers who used Firestone tires on vehicles other than Ford Explorers, and who therefore were not advised to underinflate their tires.
. . . .
When courts think of efficiency, they should think of market models rather than central-planning models.
Our decision in Rhone-Poulenc Rorer made this point, and it is worth reiterating: only “a decentralized process of multiple trials, involving different juries, and different standards of liability, in different jurisdictions” (51 F.3d at 1299) will yield the information needed for accurate evaluation of mass tort claims.
. . . .
No matter what one makes of the decentralized approach as an original matter, it is hard to adopt the central-planner model without violence not only to Rule 23 but also to principles of federalism. Differences across states may be costly for courts and litigants alike, but they are a fundamental aspect of our federal republic and must not be overridden in a quest to clear the queue in court. See BMW v. Gore, 517 U.S. [559, 568-73 (1996)]; Szabo[v. Bridgeport Machs., Inc., 249 F.3d 672 (7th Cir. 2001)](reversing a nationwide warranty class certification); Spence v. Glock, Ges.m.b.H., 227 F.3d 308 (5th Cir. 2000)(reversing a nationwide tort class certification); Larry Kramer, Choice of Law in Complex Litigation, 71 N.Y.U. L. Rev. 547, 579 (1996); Linda S. Mullenix, Mass Tort Litigation and the Dilemma of Federalization, 44 DePaul L. Rev. 755, 781 (1995); Robert A. Sedler, The Complex Litigation Project’s Proposal for FederallyMandated Choice of Law in Mass Torts Cases: Another Assault on State Sovereignty, 54 La. L .Rev. 1085 (1994). Tempting as it is to alter doctrine in order to facilitate class treatment, judges must resist so that all parties’ legal rights may be respected.
In re Bridgestone/Firestone, Inc., 288 F.3d at 1018-20.
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predominance question as: “Is it more efficient, in terms both of economy of judicial resources
and of the expense of litigation to the parties, to decide some issues on a class basis or all issues in
separate trials?” Butler v. Sears, Roebuck & Co., 702 F.3d at 362. In Butler v. Sears, Roebuck &
Co., the Seventh Circuit reversed a district court’s denial of certification of a class of washing-
machine owners who alleged that Sears’ washing machines were prone to cultivate mold and
affirmed the district court’s certification of the same class to pursue a claim that the machines’
control units were defective. See 702 F.3d at 360-61. The Seventh Circuit denied certification of
the class -- which spanned six states -- to pursue its mold claim under state breach-of-warranty
law:
A class action is the more efficient procedure for determining liability and damages in a case such as this, involving a defect that may have imposed costs on tens of thousands of consumers yet not a cost to any one of them large enough to justify the expense of an individual suit. If necessary a determination of liability could be followed by individual hearings to determine the damages sustained by each class member (probably capped at the cost of replacing a defective washing machine -there doesn’t seem to be a claim that the odors caused an illness that might support a claim for products liability as distinct from one for breach of warranty). But probably the parties would agree on a schedule of damages based on the cost of fixing or replacing class members’ mold-contaminated washing machines. The class action procedure would be efficient not only in cost, but also in efficacy, if we are right that the stakes in an individual case would be too small to justify the expense of suing, in which event denial of class certification would preclude any relief.
. . . .
[T]he district court will want to consider whether to create different subclasses of the control unit class for the different states. That should depend on whether there are big enough differences among the relevant laws of those states to make it impossible to draft a single, coherent set of jury instructions should the case ever go to trial before a jury.
Butler v. Sears, Roebuck & Co., 702 F.3d at 362. Along with numerous other class actions pending
appeal before the Supreme Court, the Supreme Court vacated Butler v. Sears, Roebuck & Co., and
remanded it to the Seventh Circuit “for reconsideration in light of Comcast Corp. v. Behrend.”
Butler v. Sears, Roebuck & Co., 727 F.3d 796, 797 (7th Cir. 2013). On reconsideration, the
Seventh Circuit reaffirmed its prior decision, again in an opinion that Judge Posner wrote:
Sears thinks that predominance is determined simply by counting noses: that is, determining whether there are more common issues or more individual issues, regardless of relative importance. That’s incorrect. An issue “central to the validity of each one of the claims” in a class action, if it can be resolved “in one stroke,” can justify class treatment. [Wal-Mart, 564 U.S. at 338]. That was said in the context of Rule 23(a)(2), the rule that provides that class actions are permissible only when there are issues common to the members of the class (as of course there are in this case). But predominance requires a qualitative assessment too; it is not bean counting. In Amgen Inc. v. Connecticut Retirement Plans & Trust Funds,
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[568 U.S. at 468], the Court said that the requirement of predominance is not satisfied if “individual questions . . . overwhelm questions common to the class,” and in Amchem Products, Inc. v. Windsor, 521 U.S. . . . [at] 623 . . . , it said that the “predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” And in In re Inter-Op Hip Prosthesis Liability Litigation, 204 F.R.D. 330, 345 (N.D. Ohio 2001), we read that “common issues need only predominate, not outnumber individual issues.” . . .
As we noted in Carnegie v. Household Int’l., Inc., 376 F.3d 656, 661 (7th Cir. 2004), “the more claimants there are, the more likely a class action is to yield substantial economies in litigation. It would hardly be an improvement to have in lieu of this single class 17 million suits each seeking damages of $15 to $30. . . . The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30” (emphasis in original). The present case is less extreme: tens of thousands of class members, each seeking damages of a few hundred dollars. But few members of such a class, considering the costs and distraction of litigation, would think so meager a prospect made suing worthwhile.
There is a single, central, common issue of liability: whether the Sears washing machine was defective. Two separate defects are alleged, but remember that this class action is really two class actions. In one the defect alleged involves mold, in the other the control unit. Each defect is central to liability. Complications arise from the design changes and from separate state warranty laws, but can be handled by the creation of subclasses. See, e.g., Johnson v. Meriter Health Services Employee Retirement Plan, 702 F.3d [364,] 365[ 7th Cir. 2012] (10 subclasses).
Butler v. Sears, Roebuck & Co., 727 F.3d at 801-02 (emphasis in original).18
18In addition to articulating the Seventh Circuit’s construction of the predominance inquiry, Judge Posner addressed Comcast Corp. v. Behrend’s impact on the Seventh Circuit’s case:
So how does the Supreme Court’s Comcast decision bear on the rulings . . . in our first decision?
Comcast holds that a damages suit cannot be certified to proceed as a class action unless the damages sought are the result of the class-wide injury that the suit alleges. Comcast was an antitrust suit, and the Court said that “if [the plaintiffs] prevail on their claims, they would be entitled only to damages resulting from reduced overbuilder competition, since that is the only theory of antitrust impact accepted for class-action treatment by the District Court. It follows that a model purporting to serve as evidence of damages in this class action must measure only those damages attributable to that theory. If the model does not even attempt to do that, it cannot possibly establish that damages are susceptible of measurement across the entire class for purposes of Rule 23(b)(3).” “[A] methodology that identifies damages that are not the result of the wrong” is an impermissible basis for calculating class-wide damages. [569 U.S. at 37](emphasis added). “For all we know, cable subscribers in Gloucester County may have been overcharged because of petitioners’ alleged elimination of satellite competition (a theory of liability that is not capable of classwide proof).” And on the next page of its opinion the Court quotes approvingly from Federal Judicial Center, Reference Manual on Scientific Evidence 432 (3d ed. 2011), that “the first step in a damages study is the translation of the legal theory of the harmful event into an analysis of the economic impact of that event.” (emphasis the [Supreme] Court’s). None of the parties had even challenged the district court’s ruling that class certification required “that the damages resulting from . . . [the antitrust violation] were measurable ‘on a classwide basis’ through use of a ‘common methodology.’”
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The United States Court of Appeals for the Sixth Circuit handled essentially the same case
-- a class action against Sears for defective washing machines -- in In re Whirlpool Corp. Front-
Loading Washing Products Liability Litigation, 678 F.3d 409 (6th Cir. 2012), and also elected to
certify the mold-based claim.19
[W]e have no difficulty affirming the district court’s finding that common questions predominate over individual ones and that the class action mechanism is the superior method to resolve these claims fairly and efficiently. This is especially true since class members are not likely to file individual actions because the cost of litigation would dwarf any potential recovery. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997)(finding that in drafting Rule 23(b)(3), “the Advisory Committee had dominantly in mind vindication of ‘the rights of groups of people who individually would be without effective strength to bring their opponents into court at all’”). Further, [as] the district court observed, any class member who wishes to control his or her own litigation may opt out of the class under Rule 23(b)(3)(A).
Unlike the situation in Comcast, there is no possibility in this case that damages could be attributed to acts of the defendants that are not challenged on a class-wide basis; all members of the mold class attribute their damages to mold and all members of the control-unit class to a defect in the control unit.
Sears argues that Comcast rejects the notion that efficiency is a proper basis for class certification, and thus rejects our statement that “predominance” of issues common to the entire class, a requirement of a damages class action under Rule 23(b)(3), “is a question of efficiency.” But in support of its argument Sears cites only the statement in the dissenting opinion in Comcast that “economies of time and expense” favor class certification, -- a statement that the majority opinion does not contradict. Sears is wrong to think that anything a dissenting opinion approves of the majority must disapprove of.
Sears compares the design changes that may have affected the severity of the mold problem to the different antitrust liability theories in Comcast. But it was not the existence of multiple theories in that case that precluded class certification; it was the plaintiffs’ failure to base all the damages they sought on the antitrust impact -- the injury -- of which the plaintiffs were complaining. In contrast, any buyer of a Kenmore washing machine who experienced a mold problem was harmed by a breach of warranty alleged in the complaint.
Furthermore and fundamentally, the district court in our case, unlike Comcast, neither was asked to decide nor did decide whether to determine damages on a class-wide basis. As we explained in McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 491-92 (7th Cir. 2012), a class action limited to determining liability on a class-wide basis, with separate hearings to determine - if liability is established -- the damages of individual class members, or homogeneous groups of class members, is permitted by Rule 23(c)(4) and will often be the sensible way to proceed.
Butler v. Sears, Roebuck & Co., 727 F.3d at 799-800 (emphasis in Butler v. Sears, Roebuck & Co. but not Comcast Corp. v. Behrend, except as noted)(citations omitted).
19The Sixth Circuit’s class “did not involve the other claim in [the Seventh Circuit’s] case, the control unit claim.” Butler v. Sears, Roebuck & Co., 727 F.3d at 802.
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In re Whirlpool Corp. Front-Loading Washing Prods. Liab. Litig., 678 F.3d at 421 (citation
omitted). That case was also vacated after Comcast Corp. v. Behrend, and, like the Seventh
Circuit, the Sixth Circuit reaffirmed its prior decision, fleshing out the predominance inquiry in
more detail than it had done in its prior opinion:
Whirlpool does not point to any “fatal dissimilarity” among the members of the certified class that would render the class action mechanism unfair or inefficient for decision-making. Instead, Whirlpool points to “a fatal similarity -- [an alleged] failure of proof as to an element of the plaintiffs’ cause of action.” That contention, the Supreme Court instructs, “is properly addressed at trial or in a ruling on a summary-judgment motion. The allegation should not be resolved in deciding whether to certify a proposed class.” Tracking the Supreme Court’s reasoning, we conclude here that common questions predominate over any individual ones. Simply put, this case comports with the “focus of the predominance inquiry” -- it is “sufficiently cohesive to warrant adjudication by representation.”
In re Whirlpool Corp. Front-Loading Washing Prods. Liab. Litig., 722 F.3d 838, 859 (7th Cir.
2013)(citations omitted). The Seventh Circuit and Sixth Circuit, thus, define predominance in
much the same way: if the district court can design a mechanism for trying the case that is fair to
the defendants and more efficient than individual litigation of the same dispute, then predominance
is satisfied. See Butler v. Sears, Roebuck & Co., 727 F.3d at 802. This styling of the predominance
inquiry is in keeping with that given, many years earlier, by a leading class-action treatise:
[A] court addressing predominance must determine whether the evidence about the putative class representative’s circumstances and the opposing evidence from the defense will enable a jury to make across-the-board “yes” or “no” factual determinations that fairly resolve the claims of the entire class. Where the right to recover for each class member would “turn . . . on facts particular to each individual plaintiff,” class treatment makes little sense. If the resolution of the common issues devolves into an unmanageable variety of individual issues, then the lack of increased efficiency will prohibit certification of the class.
The predominance and efficiency criteria are of course intertwined. When there are predominant issues of law or fact, resolution of those issues in one proceeding efficiently resolves those issues with regard to all claimants in the class. When there are no predominant issues of law or fact, however -- as in the instant case -- class treatment would be either singularly inefficient, as one court attempts to resolve diverse claims from around the country in its own courtroom, or unjust, as the various factual and legal nuances of particular claims are lost in the press to clear the lone court’s docket.
McLaughlin on Class Actions § 5:23 (11th ed. 2016)(omission in original)(footnotes omitted).
Although the Seventh Circuit and the Sixth Circuit may agree about the definition of
predominance, the Third Circuit, Tenth Circuit, and United States Court of Appeals for the
Eleventh Circuit stake out a different test.
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“Whether an issue predominates can only be determined after considering what value the resolution of the class-wide issue will have in each class member’s underlying cause of action.” Common issues of fact and law predominate if they “‘ha[ve] a direct impact on every class member’s effort to establish liability’ that is more substantial than the impact of individualized issues in resolving the claim or claims of each class member.” If “after adjudication of the classwide issues, plaintiffs must still introduce a great deal of individualized proof or argue a number of individualized legal points to establish most or all of the elements of their individual claims, [their] claims are not suitable for class certification under Rule 23(b)(3).”
Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Serv., Inc., 601 F.3d 1159, 1170
(11th Cir. 2010)(emphasis in original)(citations omitted).20 The Eleventh Circuit, however,
20The Eleventh Circuit first adopted this test -- relying on district court decisions -- in 2004 in Klay v. Humana, Inc., 382 F.3d 1241 (11th Cir. 2004), and gave renewed articulations of the test in 2009 in Vega v. T-Mobile USA, Inc., 564 F.3d 1256 (11th Cir. 2009), and in 2010, in Sacred Heart Health Systems, Inc. v. Humana Healthcare Services, Inc. In each case, the Eleventh Circuit made some reference to additionally adopting a United States Court of Appeals for the Fifth Circuit rule-of-thumb test:
An alternate formulation of this test was offered in Alabama v. Blue Bird Body Co., 573 F.2d 309 (5th Cir. 1978). In that case, we observed that if common issues truly predominate over individualized issues in a lawsuit, then “the addition or subtraction of any of the plaintiffs to or from the class [should not] have a substantial effect on the substance or quantity of evidence offered.” Put simply, if the addition of more plaintiffs to a class requires the presentation of significant amounts of new evidence, that strongly suggests that individual issues (made relevant only through the inclusion of these new class members) are important. Alabama v. Blue Bird Body Co., 573 F.2d at 322 (“If such addition or subtraction of plaintiffs does affect the substance or quantity of evidence offered, then the necessary common question might not be present.”). If, on the other hand, the addition of more plaintiffs leaves the quantum of evidence introduced by the plaintiffs as a whole relatively undisturbed, then common issues are likely to predominate.
Klay v. Humana, Inc., 382 F.3d at 1255. See Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Serv., Inc., 601 F.3d at 1170 (“In practical terms, while ‘[i]t is not necessary that all questions of fact or law be common,’ ‘the addition or subtraction of any of the plaintiffs to or from the class [should not] have a substantial effect on the substance or quantity of evidence offered.’”); Vega v. T-Mobile USA, Inc., 564 F.3d at 1270 (quoting the above portion of Klay v. Humana, Inc.).
The Fifth Circuit, however, was not setting forth a test for when predominance is satisfied so much as a test for when an issue is common versus individualized. The Fifth Circuit’s full quote -- without the Eleventh Circuit’s alterations -- is:
We only point out that in a situation wherein one seeks to represent a nationwide class in order to obtain redress for harm done from a nationwide conspiracy consideration should be given to whether the addition or subtraction of any of the plaintiffs to or from the class will have a substantial effect on the substance or quantity of evidence offered. If such addition or subtraction of plaintiffs does affect the substance or quantity of evidence offered, then the necessary common question might not be present.
Alabama v. Blue Bird Body Co., 573 F.2d at 322 (footnote omitted).
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imposes a different, more rigorous, second step: the district court’s trial plan must spend more time
adjudicating the common questions than it does adjudicating the individual questions. The
Eleventh Circuit’s test may not be the greatest -- the Court sees little reason why negative-value
cases that can be fairly and efficiently adjudicated via class action should not be certified21 -- but
21In fairness to the Eleventh Circuit, Judge Posner’s test merges the predominance and superiority inquiries -- effectively reading out predominance -- in negative-value cases. Thus, the Eleventh Circuit’s test is truer to rule 23’s text than Judge Posner’s. “Predominate,” the word that rule 23 uses, means “[t]o be of greater quantity or importance; preponderate.” Predominate, The American Heritage Dictionary of the English Language, (5th ed. 2019), https://www.ahdictionary.com/word/search.html?q=predominate (last visited January 22, 2019). Rule 23’s text thus arguably suggests a direct comparison of common and individual issues, and not -- as Judge Posner suggests -- an indirect comparison that decides the predominance question on the basis of a fancy economic analysis. There are, however, two other rule 23 provisions whose impact on predominance is not often discussed: (i) the issue class-action clause, see Fed. R. Civ. P. 23(c)(4) (“When appropriate, an action may be brought or maintained as a class action with respect to particular issues.”); and (ii) the subclassification clause, see Fed. R. Civ. P. 23(c)(5) (“When appropriate, a class may be divided into subclasses that are each treated as a class under this rule.”). These provisions are unfortunate for those who wish to read rule 23 as containing the seeds of its own destruction. Rule 23(c)(4) allows for adjudication of common issues, even if these issues do not add up to a common claim. Rule 23(c)(5) allows for collective adjudication, even if it falls short of being completely “classwide” adjudication. Judge Posner’s test explicitly admits of subclasses and issue classes. Even if it had not allowed for these classes, their impact in Judge Posner’s analysis would be obvious: the district court uses the tools of subclassification and issue classification -- along with other management tools, such as polyfurcation -- to design a classaction management plan, and then decide whether the plan is more or less efficient than separate trials.
The impact that these provisions have on the Eleventh Circuit’s approach is less clear. The Eleventh Circuit’s best discussion of subclasses comes from Sacred Heart Health Systems, Inc. v. Humana Military Healthcare Services, Inc.:
[W]e cannot accept the district court’s proposal to use subclasses corresponding to the hospitals’ six categories of payment clauses. We recognize the long and venerated practice of creating subclasses as a device to manage complex class actions, but the six subclasses proposed here mask a staggering contractual variety. The sixth proposed subclass -- a miscellaneous residue of numerous payment clauses that are insusceptible of ready classification -- alone is fatal to predominance. When this “potpourri” subclass, as Humana has termed it, is broken down into its disparate component parts, the illusion of uniformity gives way to nearly thirty subclasses.
Common sense tells us that “[t]he necessity of a large number of subclasses may indicate that common questions do not predominate,” Manual for Complex Litigation § 21.23 (4th ed. 2004); see also Harding v. Tambrands Inc., 165 F.R.D. 623, 630 (D. Kan. 1996)[(Theis, J.)](“The potential for numerous different subclasses weighs against a finding of predominance of common issues.”). Here, the necessary recourse to a “miscellaneous” subclass readily indicates the lack of a predominant question.
Ultimately, after examining the many individualized payment clauses contained in the network agreements, we perceive a “distinct possibility that there was a breach of contract with some class members, but not with other class members.” Subclasses are no answer to this problem, meaning that the efficiency of a class action will be lost entirely unless the hospitals are allowed “to stitch together the strongest contract case based on language from various [contracts], with no necessary connection to their own contract rights. The hospitals, however,
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may not lawfully “amalgamate” their disparate claims in the name of convenience. The Rules Enabling Act, 28 U.S.C. § 2072 -- and due process -- prevents the use of class actions from abridging the substantive rights of any party. Yet, from the record before us, an abridgment of the defendant’s rights seems the most likely result of class treatment. By glossing over the striking differences in the material terms of the agreements, the district court created an “unnecessarily high risk,” of such unlawful results, and thereby abused its discretion.
Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Servs., Inc., 601 F.3d at 1176 (citations omitted). These statements imply that, but for the sixth “category” of payment clauses -- really a catchall for all contracts that did not fit into one of the five real categories -- the class would be certifiable. The only “abridgement of the defendant’s rights” that the district court’s plan would produce would be the “amalgamat[ion]” of different contractual language into a single category -- the sixth category. 601 F.3d at 1176 (internal quotation marks ommitted). That case, thus, leaves open the question whether subclassification and issue certification can aid in satisfying predominance, or if these techniques are separate from the predominance inquiry.
The Fifth Circuit staked out a clear answer to this question in its much-discussed Castano v. American Tobacco Company, 84 F.3d 734 (5th Cir. 1996), case, deciding the issue in a way one might expect:
Severing the defendants’ conduct from reliance under rule 23(c)(4) does not save the class action. A district court cannot manufacture predominance through the nimble use of subdivision (c)(4). The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial. Reading rule 23(c)(4) as allowing a court to sever issues until the remaining common issue predominates over the remaining individual issues would eviscerate the predominance requirement of rule 23(b)(3); the result would be automatic certification in every case where there is a common issue, a result that could not have been intended.
84 F.3d at 745 n.21 (citations omitted). This logic is hardly unassailable. Namely, the result of reading rules 23(c)(4) and (c)(5) as bearing on the predominance inquiry would not be “automatic certification in every case where there is a common issue,” because superiority must still be satisfied. Castano v. Am. Tobacco Co., 84 F.3d at 745 n.21. If a proposed class action is superior -- e.g., if it lacks the value to be brought on an individual basis -- and individual issues can be pared away via rules 23(c)(4) and (c)(5) then it is not clear why certification “could not have been intended” by the rule. Castano v. Am. Tobacco Co., 84 F.3d at 745 n.21. Moreover, it is a poor reading of the rule’s text. Presumably, even if rules 23(c)(4) and (c)(5) are mere “housekeeping rule[s],” they would still alleviate “likely difficulties in managing a class action.” Castano v. Am. Tobacco Co., 84 F.3d at 745 n.21; Fed. R. Civ. P. 23(b)(3)(D). Because rule 23 directs that “[t]he matters pertinent to these findings [predominance and superiority] include: . . . the likely difficulties in managing a class action,” the Court, if it were writing on a clear slate would think that rules 23(c)(4) and (c)(5) would play a part in the predominance determination, Fed. R. Civ. P. 23(b)(3), and that this result thus “could not have been intended.” Castano v. Am. Tobacco Co., 84 F.3d at 745 n.21. The Fifth Circuit’s approach attracted the adherence of a revered jurist on the Fourth Circuit -- although not the Fourth Circuit itself. The Honorable Paul V. Niemeyer, United States Circuit Judge for the Fourth Circuit, endorsed the Fifth Circuit’s view in an opinion concurring in part and dissenting in part from an opinion in which the Fourth Circuit adopted the opposing view:
Despite the overwhelming predominance of these individualized issues and claims over the common issue that the majority now certifies for class treatment, the majority has adopted an inventive approach to Rule 23 that allows certification of a class where the predominance requirement of Rule 23(b)(3) is admittedly unmet in the context of the case as a whole. According to the majority, to require the certified issue in this case to predominate over the individualized issues in the
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action as a whole ignores Rule 23(c)(4)(A), which it appears to view as a fourth avenue for class certification, on equal footing with Rules 23(b)(1), 23(b)(2), and 23(b)(3). In doing so, the majority glorifies Rule 23(c)(4)(A) -- a housekeeping rule that authorizes a court to certify for class treatment “particular issues” in a case that otherwise satisfies Rule 23(a) and 23(b) -- with the effect of materially rewriting Rule 23 such that Rule 23(b)(3)’s requirements no longer need be applied to “[a]n action,” see Fed. R. Civ. P. 23(b), but rather to any single issue, no matter how small.
Not only does the majority’s approach expand Rule 23 beyond its intended reach, but it also creates a direct conflict with the Fifth Circuit which has held:
A district court cannot manufacture predominance through the nimble use of subdivision (c)(4). The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) in that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.
Castano v. Am. Tobacco Co., 84 F.3d [at ]745 n.21 . . . .
Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 446-47 (4th Cir. 2003)(Niemeyer, J., concurring in part and dissenting in part). Despite Judge Niemeyer’s concern with creating a split among the Courts of Appeals, the United States Court of Appeals for the Second Circuit, the United States Court of Appeals for the Ninth Circuit, and, of course, the Seventh Circuit have all held that subclasses can be used to satisfy predominance concerns since at least 2001, two years before Gunnells v. Healthplan Services, Inc. See Zinser v. Accufix Research Inst., Inc. 253 F.3d 1180, 1189-90, 1192 n.8 (9th Cir. 2001). See Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 167-69 (2d Cir. 2001); Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 898 (7th Cir. 1999).
The Eleventh Circuit has refrained from taking a side on this question:
Some have been critical of the piecemeal certification of class action status for claims within a case. See Gunnells v. Healthplan Servs., Inc., 348 F.3d . . . 44647 . . . (arguing that the predominance requirement in Fed. R. Civ. P. 23(b) applies to the action as a whole, not to individual subclasses or claims); Castano v. Am. Tobacco Co., 84 F.3d . . . 745 n.21 . . . (“The proper interpretation of the interaction between [Fed. R. Civ. P. 23] subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.”). We did not directly address the propriety of such partial certification in Klay.
Borrero v. United Healthcare of N.Y., Inc., 610 F.3d 1296, 1310 n.5 (11th Cir. 2010)(alterations in original). The Tenth Circuit also appears to have refrained from taking a side:
Plaintiffs urge us to consider a “hybrid” certification whereby the liability stage might be certified for class treatment under Rule 23(b)(2) even if the damages stage does not qualify for such treatment. See Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 167-69 (2d Cir. 2001). Compare Lemon v. Int’l Union of Operating Engr’s, Local No. 139, AFL-CIO, 216 F.3d 577, 581 (7th Cir. 2000), and Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 898 (7th Cir. 1999), with Allison v. Citgo Petroleum Corp., 151 F.3d 402, 420-22 (5th Cir. 1998). We do not need to rule on a hybrid possibility because in the instant case, the liability stage does not satisfy either Rules 23(b)(2) or 23(b)(3). The district court’s ruling that plaintiffs did not allege a sufficient policy, practice or pattern of discrimination to warrant class treatment for liability determination is not an abuse of discretion.
Monreal v. Potter, 367 F.3d at 1237 n.12.
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it is commendable in that it is a test that district courts can use, rather than yet another meaningless
recitation, see CGC Holding Co. v. Broad & Cassel, 773 F.3d 1076, 1087 (10th Cir. 2014)(“[T]he
predominance prong ‘asks whether the common, aggregation-enabling, issues in the case are more
prevalent or important than the non-common, aggregation defeating, individual issues.’” (quoting
William B. Rubenstein, Newberg on Class Actions § 4:49 (5th ed. 2017)(“Newberg”))), circular
axiom, see, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. at 623 (“The Rule 23(b)(3)
predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant
adjudication by representation.”), obvious guidepost, see Reed v. Bowen, 849 F.2d at 1309 (“Each
case must be decided on its own facts, on the basis of ‘practicalities and prudential
considerations.’”), self-evident comparison, see Monreal v. Potter, 367 F.3d at 1237 (“[T]he
predominance criterion of Rule 23(b)(3) [i]s ‘far more demanding’ tha[n] the Rule 23(a)
commonality requirement.” (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. at 623-24)), or
worthless slogan, see Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 600 (3d Cir.
2012)(exhorting district courts to examine claims “‘through the prism’ of Rule 23(b)(3)” (quoting
In re DVI, Inc. Sec. Litig., 639 F.3d 623, 630 (3d Cir. 2011)).
The Tenth Circuit followed the Eleventh Circuit’s approach in CGC Holding Co., LLC v.
Broad and Cassel.
Predominance regularly presents the greatest obstacle to class certification, especially in fraud cases. Accordingly, the issues disputed in this case are not unusual. And given our obligation to ensure that the district court did not err in conducting its rigorous analysis, we must characterize the issues in the case as common or not, and then weigh which issues predominate. Here, that task requires us to survey the elements of the class’s RICO claims to consider (1) which of those elements are susceptible to generalized proof, and (2) whether those that are so susceptible predominate over those that are not. Stated another way, consideration of how the class intends to answer factual and legal questions to prove its claim -and the extent to which the evidence needed to do so is common or individual -will frequently entail some discussion of the claim itself.
In this context, it is worth reiterating that our review on appeal is limited. For the purposes of class certification, our primary function is to ensure that the requirements of Rule 23 are satisfied, not to make a determination on the merits of the putative class’s claims. But it is impractical to construct “an impermeable wall” that will prevent the merits from bleeding into the class certification decision to some degree. So, although class certification does not depend on the merits of the suit, “[e]valuation of many of the questions entering into determination of class action questions is intimately involved with the merits of the claims.”
With these legal principles in mind, “[c]onsidering whether ‘questions of law or fact common to class members predominate’ begins, of course, with the elements of the underlying cause of action.” For this limited purpose, we consider the proposed class’s claim for a RICO conspiracy.
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CGC Holding Co., LLC v. Broad and Cassel, 773 F.3d at 1087-88. ANALYSIS
The Court will grant the requests in the Plaintiffs’ Letter in part and deny them in part. The parties indicated that they have resolved the dispute about the prior pay data, and so the Court will not order that Sandia Labs produce such information. See Tr. at 4:19-23 (Levin-Gesundheit); id. at 5:4-10 (Court, Katzenstein). Rule 26 limits discovery’s scope to “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case. . . .” Fed. R. Civ. P. 26(b)(1). The Court will order Sandia Labs to produce policy documents from 2018 and ESI related to the vice president of human resources, because the discovery is relevant and proportional. Fed. R. Civ. P. 26(b)(1).
The Court first concludes that discovery post-dating April, 2017, is relevant. Before a class certification decision, a party generally may seek “controlled discovery into the ‘merits,’ limited to those aspects relevant to making the certification decision on an informed basis.” Rule 23 (c)(1)(A) advisory committee’s notes. As the First Amended Complaint evidences, the Plaintiffs bring claims against Sandia Labs’ current practices. See, e.g., First Amended Complaint ¶¶ 2040, at 5-9. Throughout the First Amended Complaint, the Plaintiffs write their allegations in the present tense, which suggests that the discriminatory activities did not cease at the transition. See, e.g., First Amended Complaint ¶ 26, at 6 (“Sandia uses common procedures for evaluating employee performance that apply to all employees in all Divisions.”); id. ¶ 34, at 8 (“Sandia assigns merit increases and bonuses within centrally-prescribed ranges based on uniform criteria that fail to credit performance and disadvantage women. Sandia thus gives male employees larger merit increases and bonuses than similarly-situated female employees . . . .”); id. ¶ 38, at 8 (“Employee cannot apply for a level promotion. Instead, an employee’s manager must nominate him or her for a promotion. The promotion must then be affirmatively approved by the employee’s Group Senior Manager, Center Director, and Division Vice President.”). The Plaintiffs similarly describe their grounds for relief in the present tense. See, e.g., First Amended Complaint ¶ 95, at 23 (“Sandia’s reliance on illegitimate and unvalidated systems and criteria to set compensation, select individuals for promotion, and determine other terms and conditions of employment, have an adverse impact on female employees in violation of Title VII and are not, and cannot be, justified by business necessity.”). Moreover, the Plaintiffs seek to enjoin the ongoing
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discrimination of which they complain. See First Amended Complaint ¶ 108(d), at 25. As an injunction cannot affect past and terminated practices, the demand illustrates the Plaintiffs’ foci on current and continuing practices. Because the Plaintiffs allege ongoing discrimination, Sandia Labs’ current policies and practices relate to and are relevant to the Plaintiffs’ claims. See State Farm Mut. Auto. Ins. v. Fayda, 2015 WL 7871037, at *2 (“Relevance is still to be ‘construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on’ any party’s claim or defense.” (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. at 351)).
Sandia Labs’ arguments for the discovery’s irrelevancy do not convince the Court. See Tr. at 23:5-7 (Katzenstein). Sandia Labs contends that the named Plaintiffs did not work long, if at all, under National Technology, and that other women from “2014 forward,” Tr. at 13:12 (Katzenstein) -- the dates by which the Plaintiffs define their class22 -- never worked under National Technology. See Tr. at 12:21-15:15 (Katzenstein). These facts trouble Sandia Labs, because it contends that National Technology’s management lacked connections to the alleged discriminatory actions. See Tr. at 23:19-25 (Katzenstein). In Sandia Labs’ view, the Plaintiffs cannot draw connections between employment under Sandia Corporation and under National Technology. See Tr. at 13:18-24 (Katzenstein). Three of the named Plaintiffs, however, worked for some time under National Technology, and the Plaintiffs attack Sandia Labs’ practice of using prior pay data to set initial salaries -- a practice which continues to effect individuals throughout their careers. See Reply at 1-2. Moreover, in their pursuit to define a class -- particularly a class seeking injunctive relief, the Plaintiffs likely need to identify whether Sandia Labs’ discriminatory activities continue under National Technology. See Reply at 1. The Court concludes, therefore, that Sandia Labs’ current policies and practices are relevant to the Plaintiffs’ allegations.
Second, the Court addresses whether the discovery is proportional. Sandia Labs contends that the Plaintiffs seek burdensome discovery. See Tr. at 15:22-16:22 (Katzenstein). The Court, however, concludes that the solution developed at the hearing does not disproportionately burden Sandia Labs. Rule 26(b)(1) advises courts to consider in determining discovery’s proportionality:
22The Plaintiffs describe the class as “all female employees employed by Sandia in the United States at any time from February 20, 2014 through the resolution of this action.” See First Amended Class Action Complaint ¶ 41, at 9.
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“[(i)] the importance of the issues at stake in the action, [(ii)] the amount in controversy, [(iii)] the parties’ relative access to relevant information, [(iv)] the parties’ resources, [(v)] the importance of the discovery in resolving the issues, and [(vi)] whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Here, first, the Plaintiffs complain about widespread discrimination in Sandia Labs, and, second, the Plaintiffs demand injunctive relief and damages for the class. See First Amended Complaint ¶¶ 108(a)-(o), at 24-26. Such complaints and damages requests are significant and will effect many people and practices within Sandia Labs. Third, the Plaintiffs seek information to which they otherwise have no access. Fourth, the desired information may be necessary to determine Sandia Labs’ current policies and practices. Fifth, Sandia Labs, a corporation, likely has access to the resources to complete the discovery. Sixth, the discovery’s burden will likely not outweigh the importance of obtaining accurate information here or the above-mentioned benefits to the Plaintiffs. Producing ten to twelve policy documents should not significantly burden Sandia Labs. See Tr. at 18:23 (LevinGesundheit). Sandia Labs did not describe as burdensome the ESI discovery related to the vice president, see Tr. at 23:3-8 (Katzenstein), and the Court does not believe that this more limited discovery should disproportionately burden Sandia Labs. Accordingly, the Court will grant the Plaintiffs’ requests in part and deny them in part. The Court will order Sandia Labs to produce policy documents from 2018 and ESI related to the vice president of human resources.
IT IS ORDERED that: (i) the requests in Plaintiffs’ Letter from Anne B. Shaver, Lieff, Cabraser, Heimann & Bernstein, LLP, to the Court (dated December 6, 2018), filed December 6, 2018 (Doc. 194), are granted in part and denied in part; and (ii) Defendant Sandia Corporation d/b/a Sandia National Laboratories will produce policy documents from 2018 and electronically stored information related to the vice president of human resources.

Counsel:
Gretchen Mary Elsner Elsner Law & Policy, LLC Santa Fe, New Mexico
--and--
Rachel Bien

________________________________ UNITED STATES DISTRICT JUDGE

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Outten & Golden LLP San Francisco, California
--and--
Adam T. Klein Cheryl-Lyn D. Bentley Elizabeth V. Stork Outten & Golden LLP New York, New York
--and--
David Lopez Outten & Golden LLP Washington, D.C.
--and--
Kelly Maureen Dermody Anne Brackett Shaver Lin Yee Chan Tiseme Gabriella Zegeye Michael Ian Levin-Gesundheit Shira J. Tevah Lieff Cabraser Heimann & Bernstein, LLP San Francisco, California
Attorneys for the Plaintiffs
Justin E. Poore Cindy Jean Lovato-Farmer Sandia Corporation Albuquerque, New Mexico
--and--
Grace E. Speights Michael S. Burkhardt Krissy A. Katzenstein Morgan, Lewis & Bockius LLP Washington, D.C.
--and--
Scott D. Gordon Theresa W. Parrish Jeffrey L. Lowry Paola Jaime Saenz Stephanie L. Latimer Rodey, Dickason, Sloan, Akin & Robb, P.A. Albuquerque, New Mexico
Attorneys for the Defendant
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