                                                                                                  06/02/2020


                                            DA 19-0524
                                                                                              Case Number: DA 19-0524

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2020 MT 144N



NISSA ASCENCIO AND ALL OTHERS
SIMILARLY SITUATED,

              Plaintiffs and Appellants,

         v.

ORION INTERNATIONAL CORP.,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DV 15-1000
                        Honorable Leslie Halligan, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                        Christopher W. Froines, Froines Law Office, Inc., Missoula, Montana

                For Appellee:

                        Bradley J. Luck, Tessa A. Keller, Garlington, Lohn & Robinson, PLLP,
                        Missoula, Montana



                                                    Submitted on Briefs: April 15, 2020

                                                                Decided: June 2, 2020


Filed:
                                  q3,,---,6mal•-.— 4(
                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Nissa Ascencio (“Ascencio”) appeals from an order of the Fourth Judicial District

Court, Missoula County, denying with prejudice her second motion to certify class.

Ascencio asserts the District Court abused its discretion in denying certification of a class

action based on her failure to establish the elements of superiority and predominance

pursuant to M. R. Civ. P. 23(b)(3). Alternatively, Ascencio requests remand for further

discovery. We affirm.

¶3     We adopt the factual and procedural history of this case that has been previously

narrated by this Court in Ascencio v. Orion Int’l Corp., 2018 MT 121, ¶¶ 3-9, 391 Mont.

336, 417 P.3d 1094 (Ascencio I). Since our 2018 decision, three events have occurred

that are relevant to Ascencio’s second motion to certify.

¶4     First, Ascencio deposed Kyle Whitney, who testified that he was employed by

Orion and handled “day to day operations” beginning in 2014. He also testified that his

parents were the owners of Orion and his father “was always the manager.” Whitney

testified that Orion ceased doing business in April 2016 and his parents moved out of

Montana to Florida.     Second, the District Court denied Orion’s Motion for Partial


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Summary Judgment seeking a ruling that, as a matter of law, its inclusion of obsolete

adverse information in Ascencio’s background report was negligent and not willful. The

District Court concluded that the issue must be resolved by the trier of fact. Third,

discovery closed.

¶5     On May 3, 2019, the District Court postponed a settlement conference to allow

Ascencio to move to re-open discovery. The District Court had given Ascencio specific

instructions in a separate order on April 1, 2019, detailing its requirements in the event of

a motion to re-open discovery. The Order warned Ascencio that she must comply with

express instructions, including “proposals for deadlines for the remaining case

milestones, including the exchange of final witness and exhibit lists, final pretrial

motions, and the final pretrial order,” or risk summary denial. The District Court gave

Ascencio the opportunity to extend discovery, but her subsequent motion did not comply

with the District Court’s express, substantive instructions regarding the request. On July

8, 2019, the District Court denied Ascencio’s motion for additional discovery.

¶6     The District Court again denied Ascencio’s motion to certify class on the grounds

that she failed to establish the necessary criteria of predominance and superiority

pursuant to Rule 23(b)(3). The predominance element requires that “the questions of law

or fact common to the class members predominate over any questions affecting only

individual members.” M. R. Civ. P. 23(b)(3). The District Court held that there are

individualized factual disputes not common to all potential class members and that the

following two questions were dispositive: (1) the existence of a factual dispute over

whether Orion willfully or negligently included obsolete information in her background

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report; and (2) a factual dispute over how Ascencio was damaged by the inclusion of that

information. The District Court held that the first question would determine whether the

person is entitled to pursue exemplary damages, and that, even if this question could be

resolved in a single ruling applicable to every potential plaintiff, the second question of

individual damages would overwhelmingly dominate the proceedings.

¶7     The District Court also found that Ascencio failed to satisfy the superiority

requirement of Rule 23(b)(3). Ascencio was required to demonstrate that “a class action

is superior to other available methods for fairly and efficiently adjudicating the

controversy.” M. R. Civ. P. 23(b)(3). While Ascencio argued that the evidence that

Orion had closed shop and its principals had moved out of state substantially changes our

previous analysis on this issue, see Ascencio I, ¶ 21, the District Court disagreed finding

that the calculations of each of the potential plaintiffs’ damages would be particularly

difficult in a class action case.

¶8     We review a district court’s decision on a motion for class certification for an

abuse of discretion. Sangwin v. State, 2013 MT 373, ¶ 10, 373 Mont. 131, 315 P.3d 279.

In our review, we afford the trial court the broadest discretion because it “is in the best

position to consider the most fair and efficient procedure for conducting any given

litigation.” Sangwin, ¶ 10.

¶9     A party seeking class certification must satisfy the four prerequisites of

Rule 23(a)—numerosity, commonality, typicality, and adequate representation and the

two criteria of predominance and superiority under Rule 23(b)(3). Where a party fails to

make a sufficient showing regarding one prong of the test, there is no need to address the

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other prong. Ascencio I, ¶ 15. Ascencio has not satisfied the superiority criteria in this

case.

¶10     Regarding the superiority criteria, a class action will generally meet this element

in instances where each putative member is limited to “small recoveries,” since such

recoveries “do not provide the incentive for any individual to bring a solo action

prosecuting his or her rights.” Amchem Prods. v. Windsor, 521 U.S. 591, 617, 117 S. Ct.

2231, 2246 (1997) (citation omitted); see also Worledge v. Riverstone Residential Grp.,

LLC, 2015 MT 142, ¶¶ 43, 48, 379 Mont. 265, 350 P.3d 39.

¶11     Ascencio fails to argue any new substantive facts related to the superiority element

that would change our previous holding. She again argues that a class action is superior

because “other litigation methods are unavailable to the class members” since their

claims would result in only small recoveries and “pooling their resources is the only

practical way to pursue these claims.” Ascencio fails to explain with record evidence

why a class action would be superior to other methods since, based on her own claim

seeking significant monetary damages, it is unlikely that other putative class members

would be limited to small recoveries. See Ascencio I, ¶¶ 18-20. Ascencio has failed to

support her allegations with evidence and demonstrate why prosecuting this case as a

class action is superior to individual actions.

¶12     Finally, Ascencio’s request for remand for further discovery fails. A trial court is

allowed broad discretion in enforcing its own rules. State v. Schwictenberg, 237 Mont.

213, 218, 772 P.2d 853, 857 (1989). Discovery had already closed in this case at the time

Ascencio motioned to re-open discovery.               The District Court’s April 1, 2019 order

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specifically warned Ascencio that she must comply with its express instructions

regarding a motion to re-open discovery. Ascencio failed to comply with the District

Court’s instructions.     Accordingly, we decline to disturb the District Court’s

interpretation of its own requirements for motions to re-open discovery after it had

closed.

¶13    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. This appeal

presents no constitutional issues, no issues of first impression, and does not establish new

precedent or modify existing precedent.

¶14    Affirmed.


                                                 /S/ MIKE McGRATH


We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR




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