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Gutierrez v. Johnson & Johnson

October 8, 2010

NILDA GUTIERREZ, ET AL., PLAINTIFFS,
v.
JOHNSON & JOHNSON DEFENDANTS.



The opinion of the court was delivered by: Walls, Senior District Judge

FOR PUBLICATION

AMENDED OPINION

Plaintiffs have moved this Court to make additional findings and holdings to supplement the July 30, 2010 opinion, which denied plaintiffs' renewed motion for class certification. See Gutierrez v. Johnson & Johnson, Civ. No. 01-5302, 2010 WL 2990589 (D.N.J. July 30, 2010) (the "July Opinion"). The motion is decided without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1.

Plaintiffs argue that in resolving their renewed motion for class certification, the Court overlooked two practices that plaintiffs allege are common to the proposed class:

(1) Johnson & Johnson's failure to monitor its performance appraisal system, and (2) Johnson & Johnson's failure to post job vacancies in a uniform manner. Plaintiffs' lengthy moving papers suggest that plaintiffs did not themselves consider either argument worthy of emphasis. The failure to monitor argument is buried within a protracted expert report.*fn1 Plaintiffs raised the failure to post argument for the first time at oral argument.

This Court carefully considered each of the arguments raised by plaintiffs and defendants, including these two, which it explored at oral argument. It is remarkable that plaintiffs would have the Court painstakingly scrutinize arguments that plaintiffs found barely worthy of mention. Judicial resources are not so vast. The motion is denied.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case are set out at length in the July Opinion and need not be repeated here. A brief recitation of the procedural history, however, is in order.

Plaintiffs first moved for class certification on September 27, 2004.*fn2 The motion was denied on December 19, 2006 because plaintiffs failed to satisfy the requirements of Federal Rule of Civil Procedure 23(a). In particular, plaintiffs failed to identify a Johnson & Johnson employment practice that was common to the putative class members and excessively subjective. Gutierrez v. Johnson & Johnson, 467 F. Supp. 2d 403, 411 (D.N.J. 2006) ("In short, Plaintiffs . . . made no showing that the established employment policies permitted excessive subjectivity in compensation, evaluation, or promotion. . . . Plaintiffs have not demonstrated the required nexus between their statistical analyses and a policy or practice."). The Court further observed that "the very diversity of the putative class also undermines Plaintiffs' allegations of commonality." Gutierrez v. Johnson & Johnson, 467 F. Supp. 2d 403, 412 (D.N.J. 2006).

Plaintiffs renewed their motion and this Court heard oral argument on July 8, 2010. Again, this Court denied the motion for class certification, finding that the newly proposed class, although reduced in number from the first proposed class, remained too diverse with respect to the occupations and professions of the proposed class members. This occupational-professional diversity "undermined plaintiffs' allegations of commonality," and "render[ed] the case unmanageable." Gutierrez v. Johnson & Johnson, Civ. No. 01-5302, 2010 WL 2990589, at *7 (D.N.J. July 30, 2010) (emphasis in original). The Court also found that none of the allegedly common practices identified by plaintiffs were entirely subjective as required by Falcon, and so could not justify a finding of commonality. Id. at 6-7; see Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).

Plaintiffs made this motion for additional findings and holdings on August 9, 2010. Defendants opposed the motion on August 23, 2010.

LEGAL STANDARD AND DISCUSSION

Plaintiffs have moved for additional findings under Federal Rules of Civil Procedure 52(b) and 60(a).

Rule 52(b) states: "On a party's motion filed no later than 28 days after the entry of judgment, the court may amend its findings -- or make additional findings -- and may amend the judgment accordingly. The motion may accompany a motion for a new trial under Rule 59." Fed. R. Civ. P. 52(b). The Third Circuit has described this rule as "allow[ing] the court to correct plain errors of law or fact, or, in limited situations, allows the parties to present newly discovered evidence." Moss v. Potter, No. 07-2779, 2007 WL 2900551, at *2 n.2 (3d Cir. 2007); Gutierrez v. Gonzales, 125 Fed. Appx. 406 (3d Cir. 2005). Plaintiffs do not contend that the Court committed plain error of law or fact, and do not offer any newly discovered evidence. Even if ...


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