FILED
NOT FOR PUBLICATION OCT 26 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DANIEL FORRAND, on behalf of No. 09-55543
himself, and all others similarly situated;
YVETTE GREEN, on behalf of D.C. No. 2:08-cv-01360-DSF-PJW
themselves and all others similarly
situated; EUGENE COLON, on behalf of
themselves and all others similarly MEMORANDUM *
situated,
Plaintiffs - Appellants,
and
ARA KARAMIAN,
Plaintiff,
v.
FEDERAL EXPRESS CORPORATION,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted October 6, 2010
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Pasadena, California
Before: HALL, FISHER and BYBEE, Circuit Judges.
Plaintiffs-Appellants Daniel Forrand, Yvette Green, and Eugene Colon
appeal the district court’s denial of their motion for class certification. Because the
facts are familiar to the parties, we will not recite them here. Upon consideration of
the law, arguments, and record, we affirm in part, stay in part, reverse in part, and
remand in part.
1. Proper Class Representatives
We reverse the district court’s decision to the extent it excluded Yvette
Green as a proper class representative on the basis that Green had worked as a
“handler” and “couriers/handlers” are excluded from the proposed class. Because
handler and courier/handler are the titles of two discrete positions at Federal
Express Corporation (“FedEx”), as conceded by Defendant-Appellee in its
briefing, the district court clearly erred in determining Green was not a proper class
representative for this reason.
We affirm, however, the district court’s decision as to the exclusion of
Forrand and Colon as class representatives. The Plaintiffs-Appellants did not raise
the issue of Forrand’s and Colon’s exclusions in their opening brief on appeal, and
we do not conclude the district court abused its discretion in finding them improper
class representatives. See Eberle v. City of Anaheim, 901 F.2d 814, 817-18 (9th
Cir. 1990). Therefore, the proposed mechanic subclass is without a proper
representative, and we affirm the district court’s denial of certification as to the
proposed mechanic subclass.
2. The “Meal and Rest Break” Claims
The Plaintiffs-Appellants argued on appeal that the district court abused its
discretion in not staying the case pending the California Supreme Court’s
resolution of Brinker Restaurant Corp. v. Superior Court, 80 Cal. Rptr. 3d 781
(Cal. Ct. App. 2008). We agree that the resolution of Brinker may dictate what
California law requires employers must do to comply with California state labor
laws regulating employee meal and rest breaks. Therefore, we now stay the
resolution of the issues raised by the Plaintiffs-Appellants potentially affected by
Brinker, namely the Plaintiffs-Appellants’ “meal and rest break” claims.
Notwithstanding this partial stay, the district court has discretion to proceed
on the claims not potentially affected by Brinker. During oral argument, the parties
agreed the Brinker claims were severable.
3. The “Pay for All Hours Worked” Claims
We reverse and remand the district court’s decision as to the Plaintiffs-
Appellants’ motion for class certification of their “pay for all hours worked” claims
(i.e., the on-the-clock/off-shift issue). The district court’s decision failed to
articulate and apply the proper standard for determining when employee time
should be compensated as “hours worked” under California law. See Rutti v.
Lojack Corp., Inc., 596 F.3d 1046, 1061-62 (9th Cir. 2010) (separate opinion by
Silverman, J.). As enunciated in Rutti, “Under California law it is the level of the
employer’s control over its employees that is determinative.” Id. at 1062 (internal
quotation marks removed); see also Morillion v. Royal Packing Co., 22 Cal. 4th
575, 578 (2000) (interpreting DLSE’s “hours worked” definition and holding that
employee can be under an employer’s control even when the employee is not
“suffered or permitted to work”); Bono Enters., Inc. v. Bradshaw, 32 Cal. App. 4th
968, 975 (1995) (determining that “[w]hen an employer directs, commands or
restrains an employee from leaving the work place during his or her lunch hour and
thus prevents the employee from using the time effectively for his or her own
purposes, that employee remains subject to the employer’s control”), disapproved
on other grounds by Tidewater Marine W., Inc. v. Bradshaw, 14 Cal. 4th 557
(1996).
Upon remand, the district court must apply this standard to determine
whether the level of FedEx’s control over employees within the proposed general
class when they are on-the-clock but off-shift is sufficient to render the on-the-
clock but off-shift time compensable under California law.
4. The Foster Data
Insofar as the district court’s decision relied upon the court’s conclusion that
the Plaintiffs-Appellants’ case is “fundamental[ly] flaw[ed]” because their
arguments “rel[ied]” on data “composed of records giving information about”
shifts worked by employees excluded from the proposed general class, Forrand v.
Fed. Express Corp., No. CV08-1360, 2009 WL 648966, at *4 n.7 (C.D. Cal. Feb.
18, 2009) (internal quotation marks omitted), we reverse the decision. Although it
is unclear from the district court’s statement what shift data the district court was
referring to, it appears from the Plaintiffs-Appellants’ reply brief that the district
court believed the Plaintiffs-Appellants had proposed the damages be calculated by
using the data compiled for Foster v. FedEx, BC 282300 (L.A. Sup. Ct. Nov. 30,
2006), a previous class action case involving occupations excluded from the
present suit. We credit the Plaintiffs-Appellants’ argument that the existence of the
Foster data is relevant merely because it is evidence that FedEx has access to the
kind of data at issue in this case. Reply Br. 13.
In light of this clarification, the district court’s conclusion that FedEx would
be required to use the Foster data to calculate the damages in this case was
mistaken. Accordingly, the district court erred in relying upon this mistaken
conclusion to deny class certification.
AFFIRMED in part, STAYED in part, REVERSED in part, REMANDED in
part. The parties shall bear their own costs on appeal.