Senne v. Kansas City Royals Baseball Corp., 14-cv-00608-JCS

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Decision Date10 March 2022
PartiesAARON SENNE, et al., Plaintiffs, v. KANSAS CITY ROYALS BASEBALL CORP., et al., Defendants.
Docket Number14-cv-00608-JCS

AARON SENNE, et al., Plaintiffs,


No. 14-cv-00608-JCS

United States District Court, N.D. California

March 10, 2022




Presently before the Court are the following motions: 1) Defendants’ Motion to Exclude Plaintiffs’ Expert Declarations and Testimony of J. Michael Dennis, Ph.D. (dkt. no. 969) (“Defendants’ Motion to Exclude (Dennis)”); 2) Defendants’ Motion to Exclude Plaintiffs’ Expert Declarations, Reports, and Testimony of Brian Kriegler, Ph.D. (dkt. no. 971) (“Defendants’ Motion to Exclude (Kriegler)”); 3) Plaintiffs’ Motion for Partial Judgment on the Pleadings with Respect to “Save America’s Pastime Act” Defense (dkt. no. 979) (“Plaintiffs’ SAP Act Motion”); 4) Defendants’ Motion for Partial Summary Judgment (dkt. no. 980) (“Defendants’ Partial Summary Judgment Motion”); 5) Plaintiffs’ Motion For Partial Summary Judgment (dkt. no. 986) (“Plaintiffs’ Partial Summary Judgment Motion”); 6) Defendants’ Motion to Exclude the Expert Rebuttal Report and Testimony of Erica L. Groshen, Ph.D. (dkt. no. 987) (“Defendants’ Motion to Exclude (Groshen)”); 7) Plaintiffs’ Daubert Motion to Exclude Certain Expert Testimony Disclosed by Defendants (dkt. no. 988) (“Plaintiffs’ Motion to Exclude”); and 8) Plaintiffs’ Motion to Strike Defendants’ Daubert Motions and Improper Rebuttal Report (dkt. no. 1025)


(“Plaintiffs’ Motion to Strike”). The Court’s rulings are set forth below.[1]


A. The Second Consolidated Amended Complaint

The operative complaint in this case is the Second Consolidated Amended Complaint (“SCAC”), dkt. no. 382. In it, Plaintiffs, who are minor league baseball players (“the Players”), assert claims against the Office of the Commissioner of Baseball, former Commissioner Bud Selig and 22[2] Major League Baseball (“MLB”) franchises (“the Clubs” or the “Franchise Defendants”) under the Fair Labor Standards Act (“FLSA”) for minimum wage and overtime violations (Count 1) and recordkeeping violations (Count 2) on behalf of an FLSA collective. SCAC ¶¶ 568-580. In addition, Plaintiffs assert state law wage and hour claims on behalf of Rule 23 classes under the laws of California (Counts 3-10, SCAC ¶¶ 583-620), Florida (Counts 11-12, SCAC ¶¶ 621-633), Arizona (Counts 13-15, SCAC ¶¶ 634-648), North Carolina (Counts 16-18, SCAC ¶¶ 649-666), New York (Counts 19-22, SCAC ¶¶ 667-686), Pennsylvania (Counts 23-25, SCAC ¶¶ 687-704), Maryland (Counts 26-28, SCAC ¶¶ 705-722) and Oregon (Counts 29-31, SCAC ¶¶ 723-740). Plaintiffs allege in the SCAC that they were not paid minimum wage and/or overtime for services performed during spring training, extended spring training, the Championship Season, fall instructional leagues, and for off-season training activities. SCAC 382 ¶¶ 568-740.

B. Procedural Background re Certification of FLSA Collective and Rule 23 Classes

On October 20, 2015, the Court conditionally certified an FLSA collective in this case. Dkt. no. 446. Subsequently, however, the Court denied Plaintiffs’ request for class certification under Rule 23 and decertified the FLSA collective. Dkt. no. 687 (“July 21, 2016 Order”). The Court’s ruling as to class certification under Rule 23(b)(3) was based on the conclusion that “the individualized inquiries that [would] be required to determine which class members are owed compensation, for both unpaid minimum wages and overtime, would overwhelm the litigation


because of the wide variations among class members regarding: (1) the types of activities in which they engaged (which would only be compensable if they were found to constitute work); (2) the time they spent engaged in these activities; and (3) how much each class member has been compensated, which would also require the Court to make determinations about which forms of additional compensation should be considered in determining the class members’ regular wage rate and overtime rate.” Id. at 80-81. The Court also pointed to the “myriad” choice of law issues that were likely to arise, especially as to off-season training, which can be performed by players in any state or even in multiple states. Id. at 87. The Court found that class certification under Rule 23(b)(2) was inappropriate because there were no named Plaintiffs who were current minor league players and thus, no named Plaintiff had standing to seek injunctive or declaratory relief on behalf of a (b)(2) class. Id. at 92.

In the July 21, 2016 Order, the Court further found that the FLSA’s “similarly situated” requirement for certification was not satisfied for reasons similar to those that precluded class certification under Rule 23(b)(3). In particular, it found that there were “wide variations among the players as to the types of activities in which they engaged and the circumstances under which they engaged in them, which [would] give rise to a plethora of individualized inquiries relating to the determination of the amount of compensable work Plaintiffs performed.” Id. at 95. The Court also found that “[a]djudication of Plaintiffs’ FLSA claims [would] . . . involve numerous individualized inquiries regarding the amount of compensation received by class members and the applicability of various defenses, including the amusement exemption and the creative professional[ ] exemption.” Id.

The Court rejected Plaintiffs’ argument that they could satisfy the requirements of Rule 23(b)(3) and the FLSA by offering common proof in the form of survey results to be obtained by their expert, Dr. J. Michael Dennis, who had conducted a Pilot Survey of minor league players and who intended to conduct a more detailed survey to determine the amount of time minor league players engaged in various types of activities. Id. at 97-103. The Court found that “both the methodology and the results of the Pilot Survey [were] unreliable and that any future survey that applie[d] a similar methodology [was] likely to yield unreliable results as well[.]” Id. It therefore


excluded under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 590 U.S. 579 (1993) (“Daubert”) the declaration and testimony of Dr. Dennis offered by Plaintiffs, as well as the declaration and testimony of Dr. Brian Kriegler, Plaintiffs’ damages expert, to the extent that it relied on Dr. Dennis’s testimony and the Pilot Survey. Id. Plaintiffs brought a motion for reconsideration of the July 21, 2016 Order, dkt. no. 720 (“Motion for Reconsideration”), and extensive briefing ensued. In the Motion for

Reconsideration, Plaintiffs proposed narrower classes, dropping their request for certification as to off-season training work and instead proposing certification of a California class as to claims for work performed during the Championship Season in the California League, and Arizona and Florida classes for claims based on work performed in those states during spring training, extended spring training and instructional leagues. Motion for Reconsideration at i-ii, 3-10. They narrowed the definition of the proposed FLSA collective in the same manner. Id. They argued that the more “streamlined” classes would eliminate the individual inquiries cited by the Court in the July 21, 2016 Order, including those associated with choice-of-law, because the Court could simply apply the laws of California, Arizona and Florida to the claims of the three proposed classes. Id. Plaintiffs also argued that the Court should reconsider its conclusions as to the admissibility of Dr. Dennis’s survey evidence, pointing to the results of the now-completed final survey (“Main Survey”), which they asserted addressed the shortcomings the Court had identified with respect to the Pilot Survey. Id. at 10-17. In support of the Motion for Reconsideration, Plaintiffs filed a new declaration by Dr. Dennis in which he responded to the concerns expressed by the Court in its July 21, 2016 Order and described the findings, methodology and results of the Main Survey. Dkt. no. 696.

Defendants opposed the modified proposed class and collective definitions, arguing that the problem of individualized issues persisted and that even if the results of the Main Survey were admissible, they did not provide common proof of the amount of work performed by putative class members. Dkt. no. 740 (“Opposition to Motion for Reconsideration”). They also brought a motion to exclude the new Dennis declaration and the Main Survey results under Rule 702 and


Daubert, dkt. no. 724, supported by a declaration from their own expert, Dr. Eugene Ericksen, dkt. no. 726. In addition, they argued that the four new proposed plaintiffs should not be permitted to intervene to represent the proposed (b)(2) classes. Opposition to Motion for Reconsideration at 19-20.

On March 7, 2017, the Court granted in part and denied in part the Motion for Reconsideration, certifying a California class under Rule 23(b)(3) and a similar FLSA collective, but declining to certify the proposed Arizona and Florida classes due to its continued concern about individualized choice of law questions. Dkt. no. 782 (“March 7, 2017 Order”). After conducting a full Daubert analysis, the Court found that the Main Survey was admissible, denying Defendants’ motion to exclude it, and concluded that in combination with other evidence, it was sufficient to show that Rule 23(b)(3)’s predominance requirement was met as to the proposed California class. Id. at 56-57. The Court also found that as to all of the proposed classes, Rule 23(a)’s numerosity, commonality and typicality requirements were met. Id. at 49. The Court found, however, that with respect to the Florida and Arizona classes, the adequacy requirement of Rule 23(a) and the predominance...

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