FILED

NOT FOR PUBLICATION

OCT 4 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: AUTOZONE, INC., WAGE AND No. 17-17533

HOUR EMPLOYMENT PRACTICES

LITIGATION, D.C. Nos. 3:10-md-02159-CRB ______________________________ 3:06-cv-07522-CRB

JIMMY ELLISON,

MEMORANDUM*

Plaintiff-Appellant,

v.

AUTOZONE INC,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding

MARSHA DOLAND, successor in interest No. 18-55273 to William Doland; individually and on behalf of all others similarly situated and D.C. No. on behalf of the general public, 8:09-cv-01138-AG-MLG

Plaintiff-Appellant,

v.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. AUTOZONE INC; DOES, 1-25, inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding

Argued and Submitted August 6, 2019 San Francisco, California

Before: O’SCANNLAIN, SILER,** and NGUYEN, Circuit Judges.

Plaintiffs Jimmy Ellison and Marsha Doland1 appeal the district court’s denial

of class certification, its orders on summary judgment, and its denial of leave to

amend the complaint in this class action lawsuit alleging wage and hour violations by

AutoZone Inc. (“AutoZone”). Because the facts are known to the parties, we repeat

them only as necessary to explain our decision.

I

As an initial matter, AutoZone contends that we lack jurisdiction over this

appeal because Ellison and Doland settled their individual claims against AutoZone.

But a class representative who voluntarily settles his individual claims may appeal the

** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 1 Marsha Doland is the successor in interest to William Doland, a former AutoZone employee. 2 denial of class certification so long as he retains a sufficient personal stake in the class

litigation. Narouz v. Charter Commc’ns, LLC, 591 F.3d 1261, 1264–65 (9th Cir.

2010). Because the parties’ settlement agreements expressly reserved claims for

attorney’s fees and costs relating to class certification, Ellison and Doland

“maintain[ed] a sufficient personal stake in the class litigation to appeal the district

court’s denial of class certification.” Id. at 1265.

AutoZone argues in the alternative that even if we can review the district court’s

denial of class certification, we lack jurisdiction over Ellison’s and Doland’s appeal

of the court’s summary judgment orders, which were not specifically mentioned in the

parties’ settlement agreements. The language of the agreements, however, does not

purport to limit the issues available on appeal, so AutoZone’s reliance on the

agreements is misplaced. Because the district court entered final judgment, the court’s

summary judgment orders are subject to appellate review. See Evon v. Law Offices

of Sidney Mickell, 688 F.3d 1015, 1020–23 (9th Cir. 2012).

II

We reject Ellison’s and Doland’s first contention on appeal—namely, that the

district court abused its discretion by decertifying the rest break subclass. Under

Federal Rule of Civil Procedure 23(b)(3), a class may not be certified unless “the court

finds that the questions of law or fact common to class members predominate over any

3 questions affecting only individual members.” In this case, the district court

concluded that Ellison and Doland had failed to show the existence of a uniform

policy denying class members rest breaks. Specifically, the court highlighted

evidence submitted by AutoZone, including (1) statements in AutoZone’s 2005 and

2006 employee handbooks that “[rest] breaks are scheduled in accordance with

California law”; (2) declarations stating that California’s rest break law was posted in

AutoZone’s stores throughout the class period; (3) a 2011 PowerPoint presentation

informing employees of California’s rest break requirements; (4) a declaration

describing AutoZone’s practice of encouraging employees to take breaks every two

hours; and (5) declarations by putative class members attesting that they knew they

were permitted to take their breaks in accordance with California law. All told, this

evidence called into question the existence of a uniform policy that was consistently

applied during the class period. Without substantial evidence of such a policy, the

district court correctly concluded that it would become necessary to determine in each

individual case why a given employee missed a rest break, and that therefore

individual, rather than common, questions would predominate. See In re Wells Fargo

Home Mortg. Overtime Pay Litig., 571 F.3d 953, 959 (9th Cir. 2009); Brinker

4 Restaurant Corp. v. Superior Court, 273 P.3d 513, 532, 544 (Cal. 2012). The district

court did not abuse its discretion by decertifying the rest break subclass.2

III

Nor did the court abuse its discretion in denying certification of the meal break

and off-the-clock subclasses on predominance grounds. With respect to the meal

break subclass, Ellison and Doland presented no evidence of a uniform policy of

requiring employees to work through their meal periods. Without such evidence, the

district court’s task would have consisted of making individualized determinations

regarding why any given employee missed a meal period. See Brinker, 273 P.3d at

544.

Similarly, with respect to the off-the-clock subclass, because AutoZone had a

written policy prohibiting off-the-clock work during the class period, a determination

of why some employees were under-compensated would have entailed an employee-

by-employee analysis. See id. The district court therefore did not abuse its discretion

in concluding that Ellison and Doland failed to show the existence of predominant

common questions and properly denied certification of the two subclasses.

2 For a similar reason, we also reject Ellison’s and Doland’s argument that the district court should have redefined the class period to run from 2008 to 2012 instead of decertifying the class. Because AutoZone’s evidence strongly suggested that there was no uniform policy in place between 2008 and 2012, redefining the class period would not have resolved the predominance issues identified by the district court. 5 IV

Ellison and Doland next argue that the district court erred by denying their

motion for partial summary judgment on the rest break claim. They claim that they

were entitled to judgment as a matter of law on the question whether AutoZone had

a uniform policy during the class period. But as explained above in part II,

AutoZone’s evidence suggested the absence of any uniform rest break policy during

the class period. Viewed in the light most favorable to AutoZone, the non-moving

party, such evidence created a genuine issue of material fact regarding the existence

of a uniform policy. The district court therefore properly denied the motion for partial

summary judgment.

V

Ellison’s and Doland’s remaining challenges on appeal pertain to claims under

California’s Private Attorneys General Act (“PAGA”), Cal. Labor Code § 2698 et

seq., which “authorizes an employee to bring an action for civil penalties on behalf of

the state against his or her employer for Labor Code violations committed against the

employee and fellow employees.” Iskanian v. CLS Transp. L.A., 327 P.3d 129, 133

(Cal. 2014).

First, they contend that the district court abused its discretion by denying leave

to amend the complaint to reassert a cause of action for PAGA penalties. But leave

6 to amend “need not be granted where the amendment of the complaint would cause

the opposing party undue prejudice . . . or creates undue delay.” Janicki Logging Co.

v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994) (internal quotation marks omitted).

Although the First Amended Complaint, filed in 2007, alleged a standalone PAGA

cause of action, the Second Amended Complaint deleted such claim two months later.

About five years after that, Ellison and Doland sought leave to amend the complaint

to reassert their PAGA claim. The district court reasonably concluded that the

requested amendment would create both undue delay and undue prejudice to

AutoZone, who had been operating with the understanding that only the rest break

class claims remained at issue. The court therefore did not abuse its discretion by

denying the request.

Because Ellison and Doland dropped their PAGA claim in the Second Amended

Complaint, AutoZone was entitled to judgment as a matter of law on the question of

PAGA penalties. We therefore reject Ellison’s and Doland’s second argument that

the district court erred by granting summary judgment in favor of AutoZone.

AFFIRMED.

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