Salazar v. Driver Provider Phoenix LLC

— 1 — WO — 2 — — 3 — — 4 — — 5 — — 6 — IN THE UNITED STATES DISTRICT COURT — 7 — FOR THE DISTRICT OF ARIZONA — 8 — — 9 — Kelli Salazar, et al., No. CV-19-05760-PHX-SMB — 10 — Plaintiffs, ORDER — 11 — v. — 12 — Driver Provider Phoenix LLC, et al., — 13 — Defendants. — 14 — — 15 — Before the Court is Plaintiffs’ Motion for Rule 23 Certification. (Doc. 331.) — 16 — Defendants filed a Response (Doc. 342), and Plaintiffs filed a Reply (Doc. 379). Oral — 17 — argument was held on January 11, 2023. After reviewing the parties’ arguments and the — 18 — relevant law, the Court will grant Plaintiffs’ Motion in part, and deny in part, for the reasons — 19 — set forth below. — 20 — I. BACKGROUND — 21 — Plaintiffs’ Motion seeks class certification on Count II of the Fourth Amended — 22 — Complaint—violation of the Arizona Wage Act (“AWA”), A.R.S. § 23-350, et seq.—and — 23 — Count III of the Fourth Amended Complaint—violation of the Arizona Minimum Wage — 24 — Act (“AMWA”), A.R.S. § 23-362, et seq. (See Docs. 114; 331.) Prior to ruling on this — 25 — Motion, the Court dismissed Plaintiffs’ AWA claim with leave to amend. (See Doc. — 26 — forthcoming). Therefore, the Court will deny without prejudice Plaintiffs’ Motion as to — 27 — the AWA claim, as it is currently moot. Regarding the AMWA claim, Plaintiffs allege that — 28 — Defendants previously and continuously fail to pay their employed drivers a minimum — 1 — wage under state law and fail to maintain accurate payroll records of hours worked. (Doc. — 2 — 331 at 2.) The Court will grant Plaintiffs’ Motion to certify Plaintiffs’ AMWA class — 3 — because it meets the requirements of Rule 23(a) and (b)(3). — 4 — II. LEGAL STANDARD — 5 — “Parties seeking class certification bear the burden of demonstrating that they have — 6 — met each of the four requirements of Federal Rule of Civil Procedure 23(a) and at least one — 7 — of the requirements of Rule 23(b).” Ellis v. Costco Wholesale Corp., 657 F.3d 970 , 979– — 8 — 80 (9th Cir. 2011) (citing Zinser v. Accufix Rsch. Inst., Inc., 253 F.3d 1180 , 1186 (9th Cir. — 9 — 2001)). Rule 23(a)–(b) read as follows: 10 (a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: — 11 — (1) the class is so numerous that joinder of all members is 12 impracticable; (2) there are questions of law or fact common to the class; — 13 — (3) the claims or defenses of the representative parties are typical of 14 the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the — 15 — interests of the class. 16 (b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if: — 17 — (1) prosecuting separate actions by or against individual class 18 members would create a risk of: (A) inconsistent or varying adjudications with respect to 19 individual class members that would establish incompatible 20 standards of conduct for the party opposing the class; or (B) adjudications with respect to individual class members 21 that, as a practical matter, would be dispositive of the interests 22 of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect 23 their interests; (2) the party opposing the class has acted or refused to act on grounds — 24 — that apply generally to the class, so that final injunctive relief or 25 corresponding declaratory relief is appropriate respecting the class as a whole; or — 26 — (3) the court finds that the questions of law or fact common to class 27 members predominate over any questions affecting only individual members, and that a class action is superior to other available methods — 28 — for fairly and efficiently adjudicating the controversy. The matters 1 pertinent to these findings include: (A) the class members’ interests in individually controlling the — 2 — prosecution or defense of separate actions; 3 (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; — 4 — (C) the desirability or undesirability of concentrating the 5 litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. — 6 — A plaintiff seeking class certification must “affirmatively demonstrate his — 7 — compliance with the Rule—that is, he must be prepared to prove that there are in fact — 8 — sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart Stores, — 9 — Inc. v. Dukes, 564 U.S. 338, 350 (2011). Likewise, when considering class certification — 10 — courts must engage in “a rigorous analysis.” Id. at 350–51 (quoting Gen. Tel. Co. of Sw. v. — 11 — Falcon, 457 U.S. 147, 161 (1982)). The Rule 23 analysis may “entail some overlap with — 12 — the merits of the plaintiff’s underlying claim,” id. at 351, but it “grants courts no license to — 13 — engage in free-ranging merits inquiries at the certification stage.” Amgen Inc. v. Conn. Ret. — 14 — Plans & Tr. Funds, 568 U.S. 455, 466 (2013). “Merits questions may be considered to the — 15 — extent—but only to the extent—that they are relevant to determining whether the Rule 23 — 16 — prerequisites for class certification are satisfied.” Id.; see also United Steel, Paper & — 17 — Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int’l Union, AFL-CIO v. — 18 — ConocoPhillips Co., 593 F.3d 802, 808 (9th Cir. 2010) (“Although certification inquiries — 19 — such as commonality, typicality, and predominance might properly call for some — 20 — substantive inquiry, the court may not go so far . . . as to judge the validity of these claims.” — 21 — (cleaned up)). In fact, “[n]either the possibility that a plaintiff will be unable to prove his — 22 — allegations, nor the possibility that the later course of the suit might unforeseeably prove — 23 — the original decision to certify the class wrong, is a basis for declining to certify a class — 24 — which apparently satisfies [Rule 23].” United Steel, 593 F.3d at 809 (quoting Blackie v. — 25 — Barrack, 524 F.2d 891, 901 (9th Cir. 1975)). — 26 — Nevertheless, “plaintiffs must prove the facts necessary to carry the burden of — 27 — establishing that the prerequisites of Rule 23 are satisfied by a preponderance of the — 28 — — 1 — evidence.” Olean Wholesale Grocery Coop., Inc., v. Bumble Bee Foods LLC, 31 F.4th 2 651, 665 (9th Cir. 2022). “Failure to meet any one of the requirements set forth in Rule 23 — 3 — precludes class certification.” Miller v. Am. Standard Ins. Co. of Wis., 759 F. Supp. 2d 4 1144, 1146 (D. Ariz. 2010). — 5 — III. DISCUSSION — 6 — A. Rule 23(a) — 7 — 1. Numerosity — 8 — Plaintiffs argue numerosity is met, and Defendants do not object. (See Docs. 331 at — 9 — 8; 342.) Under the numerosity requirement, a proposed class of at least 40 members is — 10 — typically satisfactory. See USAA Cas. Ins. Co., 266 F.R.D. 360, 365 (D. Ariz. 2009). Here, — 11 — Plaintiffs cite to Defendants’ assertions that as of May 18, 2022, there are 356 chauffeur — 12 — drivers within the limitations period for AMWA violations under A.R.S. § 23-364(H).1 — 13 — (See Doc. 331 at 8.) The Court finds the numerosity requirement satisfied. See Vega v. All — 14 — My Sons Bus. Dev. LLC, 583 F. Supp. 3d 1244 , 1264 (D. Ariz. 2022) (finding the — 15 — numerosity requirement satisfied for an Arizona unpaid wages class of potentially 200 — 16 — members); see also Juvera v. Salcido, 294 F.R.D. 516, 521 (D. Ariz. 2013) (finding — 17 — numerosity satisfied with AMWA class of “approximately 200” members). — 18 — 2. Commonality — 19 — Plaintiffs next argue commonality is met, and Defendants do not object. (See Docs. — 20 — 331 at 8–11; 342.) To prove commonality, there must be a “common contention” that is — 21 — “of such a nature that it is capable of classwide resolution—which means that — 22 — determination of its truth or falsity will resolve an issue that is central to the validity of — 23 — each one of the claims in one stroke.” Wal-Mart, 564 U.S. at 350 . A plaintiff need only — 24 — present “a single common question of law or fact that resolves a central issue.” Castillo v. — 25 — Bank of Am., NA, 980 F.3d 723, 728 (9th Cir. 2020). To satisfy the requirement, not every — 26 — issue of law and fact need to be common. Juvera, 294 F.R.D. at 521 . “The existence of — 27 — 28 1 Plaintiffs note that Defendants have not updated these numbers since May 18, 2022, and that Plaintiffs believe the number is higher. (Doc. 331 at 8 n.3.) — 1 — shared legal issues with divergent factual predicates is sufficient, as is a common core of — 2 — salient facts coupled with disparate legal remedies within the class. Id. (quoting Meyer v. — 3 — Portfolio Recovery Assocs., LLC, 707 F.3d 1036 , 1041–42 (9th Cir. 2012)). “However, — 4 — [i]f there is no evidence that the entire class was subject to the same allegedly [illegal] — 5 — practice, there is no question common to the class.” Vega, 583 F. Supp. 3d at 1261 (quoting — 6 — Ellis, 657 F.3d at 983 ) (internal quotation marks omitted). Yet, “[a] common contention — 7 — need not be one that ‘will be answered, on the merits, in favor of the class.’” Alcantar v. — 8 — Hobart Serv., 800 F.3d 1047, 1053 (9th Cir. 2015) (quoting AmGen, 568 U.S. at 459 ). — 9 — Here, Plaintiffs argue that: 10 Whether Defendants were required to keep records under Arizona law of all hours worked, whether they failed to do so, whether Defendants failed to pay — 11 — required minimum wages . . . are common contentions . . . to each member 12 of the class such that “determination of [their] truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” — 13 — (Doc. 331 at 9) (quoting Wal-Mart, 564 U.S. at 350 .) In Vega, the court determined the — 14 — class’s common question was whether the defendants’ policies “violate state law by failing — 15 — to timely compensate helpers for overtime and by routinely requiring helpers to perform — 16 — unpaid work thereby failing to pay them minimum wage.” 583 F. Supp. 3d at 1265; see — 17 — also Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 963 (9th Cir. 2013) (finding — 18 — commonality when there was a “significant question of law” faced by the class on the — 19 — legality of defendant’s policy). Plaintiffs here share a similar common question: Under the — 20 — AMWA, whether Defendants were required to keep payroll records, and if so, failed to so, — 21 — and whether Plaintiffs are therefore owed unpaid minimum wages. If determined, it would — 22 — provide answers sought by the entire proposed class. For these reasons, the Court agrees — 23 — that commonality is satisfied. — 24 — 3. Typicality — 25 — Typicality requires that “the claims or defenses of the representative parties are — 26 — typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). These requirements — 27 — tend to merge, as “[b]oth serve as guideposts for determining whether under the particular — 28 — — 1 — circumstances maintenance of a class action is economical and whether the named — 2 — plaintiff’s claim and the class claims are so interrelated that the interests of the class — 3 — members will be fairly and adequately protected in their absence.” Falcon, 457 U.S. at 4 157 n.13. “Under the rule’s permissive standards, representative claims are ‘typical’ if — 5 — they are reasonably co-extensive with those of absent class members; they need not be — 6 — substantially identical.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). — 7 — In reviewing for typicality, courts must determine “whether other members have the same — 8 — or similar injury, whether the action is based on conduct which is not unique to the named — 9 — plaintiffs, and whether other class members have been injured by the same course of — 10 — conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). Thus, — 11 — “[t]ypicality refers to the nature of the claim or defense of the class representative, and not — 12 — to the specific facts from which it arose or the relief sought.” Id. (cleaned up). — 13 — Here, Plaintiffs argue typicality because: 14 Named Plaintiffs allege that they and members of the punitive Rule 23 Class were harmed by Defendants’ uniform policies and practices that required — 15 — them to perform untracked and unpaid work that resulted in the violations of 16 the Arizona Wage Statutes and that the Named Plaintiffs’ claims are typical of those same wage violations harming all Rule 23 Class members. — 17 — (Doc. 331 at 11.) Defendants refute typicality by contending that “there are certain facts — 18 — that are unique to the named Plaintiffs” that prevent a typicality finding. (Doc. 342 at 17.) — 19 — The four named Plaintiffs in this matter are Salazar, Carpenter, Lopez, and Hanna. — 20 — First, Defendants note that Carpenter cites no minimum wage damages. (See Docs. 342 at — 21 — 17; 332-3 at 54.) This strikes against typicality because Carpenter does not represent the — 22 — proposed class’s AMWA claim. Second, Defendants cites to one of Lopez’s depositions — 23 — by Lopez, which states that: — 24 — Nearly all my compensation was determined as a percentage of the amount 25 charged to The Driver Provider’s customers, which was usually a flat-fee, or on occasion, an hourly rate charged to the customer. The amount paid to the — 26 — Driver was based on the “level” assigned to the Driver by The Driver 27 Provider. New hires were listed as a “Level 1.” The highest level was “Level 3” with a mid-level being “Level 2.” During the time I worked at Driver — 28 — Provider, it was never explained to me, nor have I ever able to find out, how 1 The Driver Provider determined a Driver’s “level.” Yet, pay was determined, in part, on which level a Driver, including myself, was rated. — 2 — (Doc. 38-3 at 7–8 ¶ 26.) Defendants argue that Lopez conceded that he had no expectation — 3 — to be paid any way other than a percentage of the amount charged to Defendants’ — 4 — customers. However, Lopez is also claiming $2,750 in minimum wage damages. (Doc. — 5 — 332-3 at 54.) Likewise, Defendants point to Hanna’s signing an agreement to work for — 6 — commission. (Doc. 38-4 at 60–62.) But Hanna is also claiming $564 in minimum wage — 7 — damages. (Doc. 332-3 at 54.) Finally, although Defendants do not raise any concerns with — 8 — Salazar under the AMWA, the Court notes Salazar claims $1,156 in minimum wage — 9 — damages. (Id.) — 10 — It remains a question of law and fact whether the Named Plaintiffs are entitled to — 11 — their alleged minimum wage damages. Nevertheless, three out of four Named Plaintiffs — 12 — allege such damages, satisfying the requirement that their claims be “typical” of the absent — 13 — AMWA class members. Typicality is satisfied. Hanlon, 150 F.3d at 1020 . — 14 — 4. Adequacy — 15 — To determine if the class representatives will fairly and adequately represent the — 16 — interests of the class, the court must determine that the representatives have no conflicts — 17 — with the class, have a common interest with the class, and that the named plaintiffs will — 18 — prosecute the action vigorously on behalf of the class. Id.; Ellis, 657 F.3d at 985 . In — 19 — opposition, Defendants assert the same objections they raised towards typicality. (See Doc. — 20 — 342 at 17.) The Court does not find these persuasive. Of the named representatives, three — 21 — out of four allege minimum wage damages. Therefore, a majority of the class — 22 — representatives represent the proposed AMWA class. Furthermore, the Court notes that of — 23 — the eighty-one FLSA opt-in plaintiffs, all but twenty-two individuals claim unpaid — 24 — minimum wages. (See Doc. 332-3 at 54–56.) Plaintiffs have also provided evidence that — 25 — at a minimum, Defendants attest there are 356 opt-out Plaintiffs in the proposed AMWA — 26 — class as of May 18, 2022. (See Doc. 331 at 8.) — 27 — Moreover, Plaintiffs argue the named representatives have actively pursued this — 28 — — 1 — litigation for almost three years, have been deposed, and have provided written discovery. — 2 — (Id. at 11.) Plaintiffs also argue the class representatives have no interests adverse to the — 3 — class members and have actively pursued the rights of the class. (Id.) Defendants do not — 4 — dispute this, and the Court finds no evidence to the contrary. Likewise, the evidence — 5 — supports a finding that the class representatives are adequately seeking the same relief — 6 — sought by the class—unpaid minimum wages. For these reasons, the Court finds that the — 7 — class representatives are adequately representing the class. Ellis, 657 F.3d at 985 ; Hanlon, — 8 — 150 F.3d at 1020 . — 9 — In conclusion, Plaintiffs have satisfied Rule 23(a). — 10 — B. Rule 23(b) — 11 — Along with satisfying Rule 23(a)’s requirements, Plaintiffs must also satisfy at least — 12 — one requirement under Rule 23(b). — 13 — 1. Rule 23(b)(1) Certification — 14 — Plaintiffs argue they satisfy Rule 23(b)(1)(A) which allows for class certification if — 15 — “prosecuting separate actions by or against individual class members would create a risk — 16 — of . . . inconsistent or varying adjudications with respect to individual class members that — 17 — would establish incompatible standards of conduct for the party opposing the class.” Fed. — 18 — R. Civ. P. 23(b)(1)(A). Specifically, they argue that certification under the rule “is — 19 — appropriate to avoid the risk that prosecution of separate actions by individual Rule 23 — 20 — Class Members could impose conflicting requirements on Defendants.” (Doc. 331 at 13.) — 21 — However, Defendants point out that certification requires more “than a risk that separate — 22 — judgments would oblige the opposing party to pay damages to some class members but not — 23 — to others or to pay them different amounts.” Zinser, 253 F.3d at 1193. Rather, the Rule — 24 — only applies if “different results in separate actions would impair the opposing party’s — 25 — ability to pursue a uniform continuing course of conduct.” Id. (cleaned up). As such, the — 26 — Ninth Circuit has repeatedly held that Rule 23(b)(1)(A) is not appropriate in actions where — 27 — plaintiffs seek to recover damages. See, e.g., id.; In re N. Dist. of Cal., Dalkon Shield IUD — 28 — Prods. Liab. Litig., 693 F.2d 847, 851 (9th Cir. 1982), as amended (July 15, 1982); Green — 1 — v. Occidental Petroleum Corp., 541 F.2d 1335 , 1340 (9th Cir. 1976); McDonnell-Douglas — 2 — Corp. v. U.S. Dist. Ct. For Cent. Dist. Cal., 523 F.2d 1083, 1086 (9th Cir. 1975). — 3 — Plaintiffs refute Defendants’ characterization that the nature of their claim’s risk is — 4 — damages rather than the “numerous daily tasks Defendants require Drivers to perform that — 5 — are neither tracked nor compensated.” (Doc. 379 at 2.) But Plaintiffs do not refute the — 6 — Ninth Circuit’s precedent establishing that Rule 23(b)(1)(A) certification is inappropriate — 7 — for classes seeking damages. Here, Plaintiffs exclusively seek minimum wage damages — 8 — under the AMWA. Thus, the Court finds Plaintiffs do not satisfy Rule 23(b)(1)(A). — 9 — 2. Rule 23(b)(2) Certification — 10 — Rule 23(b)(2) permits certification “if the party opposing the class has acted or — 11 — refused to act on grounds that apply generally to the class, so that final injunctive relief or — 12 — corresponding declaratory relief is appropriate respecting the class as a whole.” However, — 13 — neither party raises this rule because it is inapplicable here. “Rule 23(b)(2) is appropriate — 14 — only where the primary relief sought is declaratory or injunctive.” Ellis, 657 F.3d at 986 — 15 — (quoting Zinser, 253 F.3d at 1195). Although Plaintiffs request some declaratory relief, it — 16 — is not the primary relief sought. For these reasons, the Court will not engage in an analysis — 17 — under this rule. — 18 — 3. Rule 23(b)(3) Certification — 19 — Under Rule 23(b)(3), class certification is permitted if “the court finds that the — 20 — questions of law or fact common to class members predominate over any questions — 21 — affecting only individual members, and that a class action is superior to other available — 22 — methods for fairly and efficiently adjudicating the controversy.” “Rule 23(b)(3) requires a — 23 — showing that questions common to the class predominate, not that those questions will be — 24 — answered, on the merits, in favor of the class.” Amgen, 568 U.S. at 459 . Furthermore, the — 25 — predominance requirements under the rule require more than a finding of mere — 26 — commonality, but “[w]hen common questions present a significant aspect of the case and — 27 — they can be resolved for all members of the class in a single adjudication, there is clear — 28 — justification for handling the dispute on a representative rather than on an individual basis.” — 1 — Vega, 583 F. Supp. 3d at 1263 (quoting LaCross v. Knight Transp. Inc., No. CV-15-009902 PHX-JJT, 2022 WL 101196 , at *4 (D. Ariz. Jan. 11, 2022)). — 3 — Lastly, before Rule 23(b)(3) certification can occur, the court must consider the — 4 — superiority factors which include: 5 (A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation — 6 — concerning the controversy already begun by or against class members; (C) 7 the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) and the likely difficulties in managing a class — 8 — action. — 9 — (quoting Fed. R. Civ. P. 23(b)). See LaCross, 2022 WL 101196 , at *6 (“A consideration — 10 — of these factors requires the court to focus on the efficiency and economy elements of the — 11 — class action so that cases allowed under subdivision (b)(3) are those that can be adjudicated — 12 — most profitably on a representative basis.” (quoting 7A Charles Alan Wright, Arthur R. — 13 — Miller & Mary Kay Kane, Federal Practice and Procedure § 1780 at 562 (2d ed. 1986))). — 14 — a. Predominance — 15 — Plaintiffs argue class certification is appropriate under Rule 23(b)(3) because the — 16 — common questions of law and fact predominate for the class. However, Defendants argue — 17 — that even if Plaintiffs succeed in proving a common policy that led to Plaintiffs’ alleged — 18 — minimum wage damages, individual liability issues exist and predominate. (Doc. 342 at — 19 — 6.) Defendants cite Pryor v. Aerotek Sci. to argue this case is predominated by a question — 20 — of individual liability. 278 F.R.D. 516, 532 (C.D. Cal. 2011). Specifically, Defendants — 21 — cite to Pryor’s discussion that: 22 Once the factfinder determines what Aerotek’s policies are, that does not answer the ultimate question in the case—whether Aerotek’s time reporting — 23 — policies resulted in the under-compensation of and failure to pay overtime to 24 putative class members. This is not merely a question of damages, it is a question of liability. — 25 — Id. Defendants further urge this Court to follow Pryor because not every class member is — 26 — asserting minimum wage damages, so proof of a common policy will not prove liability — 27 — owed to the entire class. Defendants support this argument with two cases where many — 28 — class members asserted no damages. See Owen v. Regence Bluecross Blueshield of Utah, — 1 — 388 F. Supp. 2d 1318, 1334 (D. Utah 2005) (“[T]he proposed definition of the class is — 2 — overbroad because many of the proposed class members have suffered no damages.”); — 3 — Moriarty v. Am. Gen. Life Ins. Co., No. 3:17-cv-1709-BTM-WVG, 2022 WL 6584150 , at — 4 — *4 (S.D. Cal. Sept. 27, 2022) (“It would be misguided to certify a damages class where — 5 — most class members have no damages.”). — 6 — In contrast, Plaintiffs argue the Supreme Court has found that there are often — 7 — elements of individual inquiry in any class, particularly when it comes to damages, but that — 8 — does not equate to individual inquiries predominating over the class. See Tyson Foods, — 9 — Inc., v. Bouaphakeo, 577 U.S. 442 , 452–53 (2016) (“When one or more of the central issues — 10 — in the action are common to the class and can be said to predominate, the action may be — 11 — considered proper under Rule 23(b)(3) even though other important matters will have to be — 12 — tried separately, such as damages or some affirmative defenses peculiar to some individual — 13 — class members.”). — 14 — Moreover, Plaintiffs argue that in Vaquero, the Ninth Circuit affirmed the — 15 — predominance requirement in a wage and hour class action alleging violations of state law, — 16 — and noted that wage and hour actions are well suited to satisfy this requirement regardless — 17 — of the individuality of damage because: 18 In a wage and hour case, unlike in an antitrust class action, the employerdefendant’s actions necessarily caused the class members’ injury. — 19 — Defendants either paid or did not pay their sales associates for work 20 performed. No other factor could have contributed to the alleged injury. Therefore, even if the measure of damages proposed here is imperfect, it — 21 — cannot be disputed that the damages (if any are proved) stemmed from 22 Defendants’ actions. 23 Vaquero v. Ashley Furniture Indus., Inc., 824 F.3d 1150, 1155 (9th Cir. 2016); see also 24 Leyva v. Medline Indus. Inc., 716 F.3d 510 , 513–14 (9th Cir. 2013) (asserting that “[i]n 25 [the Ninth Circuit] . . . damage calculations alone cannot defeat certification.” (quoting 26 Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087, 1094 (9th Cir. 2010)). 27 The Court finds Defendants’ arguments unpersuasive. First, calculating damages 28 for individual class members is not the predominating questions here—it is whether — 1 — Defendants had a duty to maintain a payroll record, whether they failed to do so under the — 2 — law, and whether Plaintiffs are owed the alleged minimum wage damages. The fact that — 3 — there may be individual damages calculations is not dispositive for the predominance — 4 — factor. See Tyson Foods, 577 U.S. at 452 . And as previously stated, the Court finds — 5 — Defendants’ arguments here, that a high proportion of the class assert no minimum wage — 6 — damages, unsupported by the evidence — 7 — Finally, Plaintiffs note that Defendants offer no arguments against certification — 8 — regarding Plaintiffs’ claim for failing to maintain records, see A.R.S. § 23-364(D), under — 9 — the AMWA. (Doc. 379 at 6.) Defendants merely argue that the claim is not “cognizable,” — 10 — but make no attempt to refute that it is a predominate question amongst the class. The — 11 — Court agrees with Plaintiffs that the question of Defendants’ record keeping duties and — 12 — actions under the law are predominate, as anyone whose records were not maintained are — 13 — entitled to up $1,000 under A.R.S. § 23-364(F). The Court also finds the claim cognizable, — 14 — as other courts have awarded damages under the statute. See Senne v. Kansas City Royals — 15 — Baseball Corp., No. 14-00608, 2022 WL 783941 , at *89 (N.D. Cal. Mar. 15, 2022) (finding — 16 — damages under A.R.S. § 23-364(F) “for every Arizona class member whose payroll records — 17 — were not maintained by Defendants”). — 18 — For these reasons, the Court finds the class predominately shares the same common — 19 — questions for their asserted claims under the AMWA. — 20 — b. Superiority Factors — 21 — Under the first factor, the Court must weigh the interest of the class members in — 22 — “individually controlling the prosecution or defense of separate actions. Fed. R. Civ. P. — 23 — 23(b)(3)(A). Here, there are at least 356 drivers who have chosen not to opt-out of the — 24 — AMWA class. Therefore, the Court finds that the class members do not wish to — 25 — individually control the prosecution of separate actions for their AMWA claims. — 26 — Second is “the extent and nature of any litigation concerning the controversy already — 27 — commenced by or against members of the class.” Fed. R. Civ. P. 23(b)(3)(B). At present, — 28 — this Court is not aware of any duplicative lawsuits. This factor thus weighs in favor of — 1 — certifying the class. — 2 — Third is “the desirability or undesirability of concentrating the litigation of the — 3 — claims in the particular forum.” Fed. R. Civ. P. 23(b)(3)(C). The Court has already — 4 — conditionally certified Plaintiffs’ Fair Labor Standards Act (“FLSA”) class (Doc. 91), and — 5 — this case has been before the Court for over three years. (See Doc. 1.) Considering judicial — 6 — economy, the extensive litigation and resources both parties have expended, and the — 7 — familiarity the Court has with the case, there is desirability to maintain the litigation in the — 8 — present forum. — 9 — Lastly is “the difficulties likely to be encountered in the management of the class — 10 — action.” Fed. R. Civ. P. 23(b)(3)(D). As previously noted, the Court has conditionally — 11 — certified Plaintiffs’ FLSA claim. At present, Defendants have filed a motion to decertify — 12 — the FLSA class, and Plaintiffs filed for supplemental FLSA conditional certification—both — 13 — of which are not ripe for review. Nevertheless, the Court does not currently perceive — 14 — barriers preventing Plaintiffs from managing this class. — 15 — With both predominance and the superiority factors weighing in favor of — 16 — certification, the Court finds Rule 23(b)(3) satisfied. — 17 — C. Class Counsel Certification — 18 — Under Rule 23(g)(1), once a Court certifies a class, it must also appoint class — 19 — counsel. In doing so, the Court must consider: 20 “(i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other — 21 — complex litigation, and the types of claims asserted in the action; (iii) 22 counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class.” — 23 — The Court finds that Martin & Bonnett, P.L.L.C. has the necessary experience in — 24 — employment, wage and hour, and class action litigation to represent this class, has — 25 — committed the necessary resources to this litigation, and has sufficiently demonstrated their — 26 — capability to understand the law and claims at hand. The Court thus certifies Martin & — 27 — Bonnett, P.L.L.C. as Class Counsel. — 28 — — 1 — V. CONCLUSION — 2 — Accordingly, — 3 — IT IS ORDERED that Plaintiffs’ Motion for Rule 23 Class Certification is granted — 4 — on Claim III of the Fourth Amended Complaint, violation of the AMWA, and denied — 5 — without prejudice as moot on Claim II of the Fourth Amended Complaint, violation of the — 6 — AWA. (Doc. 331.) — 7 — IT IS FURTHER ORDERED: — 8 — (a) The Rule 23 Count III Claim is hereby certified as a class action pursuant to Fed. — 9 — R. Civ. P. 23(b)(1) with respect to the following class: 10 All current and former employees of The Driver Provider who performed chauffeur services in Arizona at any time from December 6, 2016 to the — 11 — present. Excluded from the class are all owners, managers, supervisors, 12 dispatchers, or other employees whose primary job responsibilities were not the provision of chauffeur services. — 13 — (b) The named Plaintiffs are appointed class representatives for purposes of the Rule — 14 — 23 Class claims alleged in Count III of the Fourth Amended Complaint. (Doc. — 15 — 114.) — 16 — (c) The law firm of Martin & Bonnett, P.L.L.C. is appointed Class Counsel for — 17 — purposes of the Rule 23 Class claims alleged in Count III of the Fourth Amended — 18 — Complaint. (Doc. 114.) — 19 — (d) Within fourteen (14) days after entry of this Order, Defendants shall provide — 20 — Plaintiff’s Counsel with a list of all current and former employees and workers — 21 — as described by Paragraph (a) that includes the names, position(s) held, — 22 — employment dates, employment location(s), the entity for whom the employee — 23 — worked or works, the last known address, e-mail address, telephone number(s) — 24 — (home and cell, if applicable), date of birth, and social security number (the — 25 — “Rule 23 List”). The Rule 23 List should be transmitted to Class Counsel in — 26 — searchable Microsoft Excel File format. Class Counsel is authorized to verify — 27 — mailing addresses and contact information through the USPS NCOA database. — 28 — ! (e) The parties shall confer on and file a joint proposed notice to the Rule 23 Class 2 within ten (10) days of this Order. If the parties are unable to agree on a notice, 3 the parties are directed to file separate proposed notices within fourteen (14) 4 days of this Order. > (f) Within twenty-one (21) days after entry of this Order, Defendants shall produce 6 to Plaintiffs complete trip data, pay records, and time records for all members of the Rule 23 Class. Dated this 30th day of January, 2023. 10 —_—_— ose 12 onorable Susan M, Brnovich B United States District Judge — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — -15-