Richey v. Matanuska-Susitna Borough

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UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
Andrea Richey, et al., )
)
Plaintiffs, ) 3:14-cv-00170 JWS
)
vs. ) ORDER AND OPINION
)
Matanuska-Susitna Borough, ) [Re: Motion at Docket 53]
)
Defendant. )
)
I. MOTION PRESENTED
At docket 53 plaintiffs Andrea Richey, et al. (collectively, “plaintiffs”) move
pursuant to District of Alaska Local Civil Rule (“Local Rule”) 59.11 for reconsideration of
the court’s order at docket 49 denying their motion for class certification. The court has
not asked defendant Matanuska-Susitna Borough (“the Borough”) to respond to
plaintiffs’ motion.
1Plaintiffs also cite Ninth Circuit Rule 27-10, but that rule applies only to cases before
the Ninth Circuit. See Fed. R. App. P. 1; Circuit Rule 1-2.
Case 3:14-cv-00170-JWS Document 56 Filed 04/30/15 Page 1 of 5

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II. STANDARD OF REVIEW
“A federal district court has inherent power over interlocutory orders and may
modify, vacate, or set aside these orders ‘when it is consonant with justice to do so.’”2
“Because of the interest in finality, however, courts should grant motions for
reconsideration sparingly.”3 Pursuant to Local Rule 59.1, a party may move the court to
reconsider its non-appealable orders. Local Rule 59.1 does not prov ide criteria for
when reconsideration is appropriate, but case law from within the Ninth Circuit does.
According to that case law, reconsideration should be granted in three circumstances:
First, upon the discovery of material facts that were previously unavailable or
undiscoverable through reasonable diligence4; second, if the court overlooked material
facts that were presented to it before it made its decision5; and third, if there is a change
in the law after the court’s decision.6 A motion will not be granted if it simply repeats
arguments that were made, or could have been made, when the court reached its
original decision.7
2Rottmund v. Cont’l Assur. Co., 813 F.Supp. 1104, 1107 (E.D. Pa. 1992) (quoting
United States v. Jerry, 487 F.2d 600, 605 (3d Cir.1973)).
3Id.
4Motorola, Inc. v. J.B. Rodgers Mech. Contractors, Inc., 215 F.R.D. 581, 586 (D. Ariz.
2003).
5Id.
6Id.
7Wade v. Ilisagvik Coll., No. A05-86CV(JWS), 2005 WL 2704979, at *1 (D. Alaska
Oct. 11, 2005). See also 11 C. Wright & A. Miller, Federal Practice and Procedure § 2810.1 (3d
ed. 2004).
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III. DISCUSSION
A. Plaintiffs Have Not Demonstrated The Existence of an Ascertainable Class
The primary reason why the court denied plaintiffs’ class certification motion was
because plaintiffs had not demonstrated that identifying class members would be
administratively feasible. The court ruled that the seven-part class definition that
plaintiffs proposed is unwieldy and does not definitively identify the class. The court
also ruled that plaintiffs’ alternative class definition—all Borough employees “who have
worked [or are working] the requisite number hours, pursuant to AS 39.35.680(32) and
(33) and the Borough’s Participation Agreement”8—lacks sufficient definitiveness
because plaintiffs did not explain how the court might determine, under
AS 39.35.680(32) and (33), which Borough employees “regularly” worked either 15 or
30 hours per week without performing individualized inquiries.9
Plaintiffs now assert that PERS eligibility is based exclusively on whether an
employee’s “average weekly hours” exceeded either 15 or 30, in which case they
necessarily qualified as either a permanent full-time or permanent part-time employee
under AS 39.35.680(32) and (33), respectively. Determining an employee’s average
weekly hours, plaintiffs correctly assert, is as simple as dividing the employee’s annual
hours by 52 weeks. Therefore, according to plaintiffs, all employees who work more
than 780 hours annually qualify as permanent part-time employees, and all employees
who work more than 1,560 hours annually qualify as permanent full-time employees.10
This argument in unavailing because it is one that plaintiffs could have asserted
in their original briefing, but did not. Even if this were not true, plaintiffs’ interpretation of
AS 39.35.680(32) and (33) is unpersuasive. Plaintiffs cite no authority to support their
8Doc. 41 at 1 (emphasis added).
9Doc. 49 at 6-7.
10Doc. 53 at 1 n.2. (“A.S. 39.35.680(32) [and] (33), uses [sic] ‘average weekly hours.’
To simplify, Plaintiffs have used annual hours of 780 or 1560; [15hrs X 52wks=780hrs/yr; or
30hrs X 52wks=1560hrs/yr], to trigger PERS-eligibility.”).
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claim that an employee qualifies as a permanent part-time or full-time employee under
AS 39.35.680(32) and (33) based solely on his average weekly hours. To the contrary,
the statute states that an employee qualifies as a “permanent full-time” employee if she
“is occupying a permanent position that regularly requires working 30 or more hours a
week”11 and as a “permanent part-time” employee if she “is occupying a permanent
position that regularly requires working at least 15 hours but less than 30 hours a
week.”12 Regular is not synonymous with average. Just because an employee works
780 or 1,560 hours annually does not necessarily mean he occupies a permanent
position that regularly requires working a certain number of hours weekly.
To illustrate, take two employees who worked 1,560 hours last year. Employee
Number 1 worked 30 hours every week and therefore qualified as a “permanent full-
time” employee under AS 39.35.680(32). But Employee Number 2 worked 10-hour
shifts, 6 days per week, for 6 months and then was unemployed the remaining 6
months.13 Both employees worked the same number of annual hours, but there were
just as many weeks where Employee Number 2 worked 0 hours as there were where
she worked more than 30. It is unclear whether such an employee “regularly” worked
more than 30 hours a week.
Using annual hours as a proxy for “regular” weekly hours is even more dubious
with respect to part-time employees. Under the same example above, Employee
Number 2’s annual hours would equal 780 even if she only worked 13 weeks out of the
year. Plaintiffs would have the court treat her position as one that “regularly requires
working at least 15 hours but less than 30 hours a week” despite the fact that there was
not a single week where she worked between 15 and 30 hours.
11AS 39.35.680(32).
12AS 39.35.680(33).
13This hypothetical does not appear to be far-fetched. Plaintiff Andrea Richey states
that she commonly worked as many as 60 hours per week. Doc. 26 at 15 ¶ 5.
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In sum, plaintiffs have not shown that their new method for determining class
membership—based solely on annual hours worked—is a consistently reliable method
for identifying the class members.14
IV. CONCLUSION
Based on the preceding discussion, plaintiffs’ motion for reconsideration is
DENIED.
DATED this 30th day of April 2015.
/s/ JOHN W. SEDWICK
SENIOR UNITED STATES DISTRICT JUDGE
14Relatedly, although the Borough does not contest plaintiffs’ assertion that numerosity
is satisfied, this does not relieve the court of its duty to determine whether certification is
appropriate. See Newberg on Class Actions § 7:3 (5th ed. 2014).
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