FILED
UNITED STATES COURT OF APPEALS MAR 07 2014
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
JOSEPH PEREZ, on behalf of himself and No. 12-55657
others similarly situated,
D.C. No. 2:10-CV-08653-RGK-
Plaintiff - Appellant, FFM
Central District of California,
v. Los Angeles
SAFELITE GROUP INC,
ORDER AMENDNG
Defendant - Appellee. MEMORANDUM DISPOSITION
AND DENYING PETITION FOR
REHEARING AND
REHEARING EN BANC
Before: D.W. NELSON, WARDLAW, and RAWLINSON, Circuit Judges.
The Memorandum Disposition filed January 21, 2014, is amended as
follows:
At page two, the first sentence of the second paragraph is deleted and the following
is inserted in its place:
The district court’s denial of Perez’s extension of time requests as
well as its failure to set an initial scheduling conference effectively denied
Perez the opportunity to engage in precertification discovery, which
constitutes an abuse of discretion.
“First,” the beginning word of the second sentence of the same paragraph is
deleted, and the sentence now begins with:
The
At page three, the first word of the first full sentence, “Second,” is deleted and
replaced with:
Further
With these amendments, the members of the panel that decided this case
voted unanimously to deny the petition for rehearing. Judges Wardlaw and
Rawlinson voted to deny the petition for rehearing en banc. Judge Nelson
recommended denial of the petition for rehearing en banc.
The full court has been advised of the petition for rehearing en banc and no
judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P.
35.
The petition for rehearing, and the petition for rehearing en banc, are
DENIED.
No further petitions shall be entertained.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 07 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOSEPH PEREZ, on behalf of himself and No. 12-55657
others similarly situated,
D.C. No. 2:10-CV-08653-RGK-
Plaintiff - Appellant, FFM
v.
AMENDED MEMORANDUM*
SAFELITE GROUP INC,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted December 5, 2013
Pasadena, California
Before: D.W. NELSON, WARDLAW, and RAWLINSON, Circuit Judges.
Joseph Perez appeals from the district court’s denial of his class certification
motion. We have jurisdiction under 28 U.S.C. § 1291, and we vacate the denial of
class certification and remand for further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Perez, wishing to engage in discovery prior to class certification, stipulated
with Safelite to extend the class certification deadline. The district court denied the
stipulation without reasoning. Perez then moved to continue the class certification
deadline in order to engage in precertification discovery. The district court denied
the motion without reasoning. Perez then filed a timely motion to certify the class,
and again stated that precertification discovery was appropriate. The district court
denied the class certification motion because there was insufficient evidence to
establish the job duties performed by class members other than Perez. The district
court did not address the need for precertification discovery.
The district court’s denial of Perez’s extension of time requests as well as its
failure to set an initial scheduling conference effectively denied Perez the
opportunity to engage in precertification discovery, which constitutes an abuse of
discretion. The plaintiff in a class action “bears the burden of . . . showing that . . .
discovery is likely to produce substantiation of the class allegations.” Mantolete v.
Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985). Once this showing is made, it is an
abuse of discretion to deny precertification discovery. Id. (citing Doninger v. Pac.
Nw. Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977)). Perez submitted
documentation and testimony concerning his employment with Safelite, and has
met his burden to show that discovery is likely to substantiate the class allegations
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by showing that Perez’s experiences are common to those of other employees with
the same job title. Further, failing to allow precertification discovery where it is
necessary to determine the existence of a class is an abuse of discretion. Kamm v.
Cal. City Dev. Co., 509 F.2d 205, 210 (9th Cir. 1975). The district court denied
class certification because Perez did not have evidence about other employees with
his job title, which shows that discovery is necessary to determine the existence of
a class in this case. Perez is therefore entitled to precertification discovery on
remand.
Perez’s challenge to Central District of California Local Rule 23-3 is without
merit because the timing of class certification is committed to the discretion of the
district judge and Rule 23-3 allows extension of the 90-day certification deadline
by order of the court. See Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1092-94
(9th Cir. 2011).
VACATED and REMANDED.
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