                                                                             FILED
                             NOT FOR PUBLICATION                                 DEC 30 2011

                                                                          MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



DANIEL SEPULVEDA; ANITA PEREZ;                    No. 06-56090
ANTONIO PRANGNER, individually and
on behalf of all similarly situated               D.C. No. CV-04-01003-DSF
individuals,

            Plaintiffs - Appellants,              MEMORANDUM *

  v.

WAL-MART STORES, INC.,

            Defendant - Appellee.



                     Appeal from the United States District Court
                        for the Central District of California
                      Dale S. Fischer, District Judge, Presiding

                         Argued and Submitted March 6, 2008
                                Pasadena, California

Before: SCHROEDER, WARDLAW, and TALLMAN, Circuit Judges.

       Plaintiffs, current and former Assistant Managers of Defendant, Wal-Mart

Stores, Inc., appeal the district court’s order denying their motion for class


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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certification. We previously reversed in part and affirmed in part the denial of

class certification. See Sepulveda v. Wal-Mart Stores, Inc., 275 Fed. Appx. 672

(9th Cir. 2008). Wal-Mart filed a petition for rehearing and petition for rehearing

en banc. Decision on the petitions was stayed pending the United States Supreme

Court’s decision in Wal-Mart Stores, Inc. v. Dukes, __ U.S. __, 131 S. Ct. 2541

(2011). Having requested, received, and reviewed supplemental briefs from the

parties post-Dukes, we now grant the petition for rehearing and vacate our previous

disposition.

      We previously held that the district court abused its discretion by denying

class certification under Federal Rule of Civil Procedure 23(b)(2) because it relied

on the non-incidental test not followed by our circuit as of that time. See

Sepulveda, 275 Fed. Appx. at 672. In Dukes the Court explicitly adopted the “not

incidental” test for certification under Rule 23(b)(2). Dukes, 131 S. Ct. at 2557

(“We now hold that [claims for monetary relief] may not [be certified under Rule

23(b)(2)], at least where (as here) the monetary relief is not incidental to the

injunctive or declaratory relief.”). The Court further clarified that Rule 23(b)(2)

“does not authorize class certification when each class member would be entitled

to an individualized award of monetary damages.” Id.




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      Here, the district court found that the damages plaintiffs sought would

“require highly individualized proof of the duties each [Assistant Manager]

performed, the hours spent on those duties, and the overtime hours actually

worked.” Sepulveda v. Wal-Mart Stores, Inc., 237 F.R.D. 229, 246 (C.D. Cal.

2006). The court also found that fewer than half the putative class members could

benefit from injunctive relief. Furthermore, both the Seventh and Eighth causes of

action link monetary relief—in the form of an accounting and payment of overtime

compensation allegedly wrongfully withheld—to the request for injunctive relief.

Thus, it was not an abuse of discretion for the district court here to find that the

monetary relief sought was not incidental to the injunctive relief sought. We

affirm denial of class certification under Rule 23(b)(2).

      In our previous order we instructed the district court to reconsider, in the

alternative, using Rule 23(c)(4) “to certify specific issues under the Rule 23(b)(2)

standard.” Sepulveda, 275 Fed. Appx. at 672. Because we now affirm denial of

class certification under Rule 23(b)(2) it is no longer necessary or possible for the

district court to consider severing particular issues for class treatment, and we

affirm the district court’s denial of class certification for limited purposes under

Rule 23(c)(4).




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      We previously held that the district court did not abuse its discretion in

denying class certification under Rule 23(b)(3) and we reaffirm that decision. The

parties do not contest this holding and thus we do not disturb it.

      AFFIRMED.




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