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Beltran v. Interexchange, Inc.

United States District Court, D. Colorado

March 27, 2018

JOHANA PAOLA BELTRAN, LUSAPHO HLATSHANENI, BEAUDETTE DEETLEFS, ALEXANDRA IVETTE GONZALEZ, JULIANE HARNING, NICOLE MAPLEDORAM, LAURA MEJIA JIMENEZ, and SARAH CAROLINE AZUELA RASCON, Plaintiffs,
v.
INTEREXCHANGE, INC., USAUPAIR, INC., GREATAUPAIR, LLC, EXPERT GROUP INTERNATIONAL INC., d/b/a Expert AuPair, EURAUPAIR INTERCULTURAL CHILD CARE PROGRAMS, CULTURAL HOMESTAY INTERNATIONAL, CULTURAL CARE, INC., d/b/a Cultural Care Au Pair, AUPAIRCARE INC., AU PAIR INTERNATIONAL, INC., APF GLOBAL EXCHANGE, NFP, d/b/a Au Pair Foundation, AMERICAN INSTITUTE FOR FOREIGN STUDY, d/b/a Au Pair in America, AMERICAN CULTURAL EXCHANGE, LLC, d/b/a GoAuPair, AGENT AU PAIR, A.P.EX. AMERICAN PROFESSIONAL EXCHANGE, LLC, d/b/a ProAuPair, 20/20 CARE EXCHANGE, INC., d/b/a The International Au Pair Exchange, ASSOCIATES IN CULTURAL EXCHANGE, d/b/a GoAu Pair, and GOAUPAIR OPERATIONS, LLC, Defendants.

          ORDER AFFIRMING UNITED STATES MAGISTRATE JUDGE'S ORDER ON DEFENDANTS' MOTION TO EXCLUDE EXPERT TESTIMONY

          CHRISTINE M. ARGUELLO United States District Judge

         This matter is before the Court on Defendants' Objections (Doc. # 830) to an Order issued by United States Magistrate Judge Kathleen M. Tafoya on January 24, 2018 (the “Magistrate Judge's Order”) (Doc. # 813), wherein the Magistrate Judge denied Defendants' Motion to Exclude Expert Testimony (the “Motion to Exclude”). In Defendants' Motion to Exclude, Defendants requested that the Court to exclude the testimony of Dr. William Kerr pursuant to Federal Rule of Evidence 702. (Doc. # 606.) Plaintiffs had cited Dr. Kerr's report and testimony in their Motion for Class Certification and Appointment of Class Counsel. (Doc. # 559 at 34-35.)

         For the following reasons, the Court overrules Defendants' Objections (Doc. # 830) and affirms the Magistrate Judge's Order (Doc. # 813).

         I. BACKGROUND

         The factual and procedural background of this case has been extensively detailed in the Court's previous orders and the Magistrate Judge's recommendations. See, e.g., (Doc. ## 240, 569, 828.) The matter now before the Court concerns the Court's certification of 18 classes and subclasses under Federal Rule of Civil Procedure 23. See (Doc. # 828.) Additional factual and procedural background is detailed here to the extent necessary to address Defendants' Objections.

         Plaintiffs moved to certify 20 classes and subclasses of au pairs on June 3, 2017. (Doc. ## 559, 559-1.) Relevant here, Plaintiffs argued that class certification of the national Antitrust Class and national RICO Class was appropriate under Rule 23(b)(3) because common issues of law and fact predominated; specifically, Plaintiffs alleged that these classes were harmed by a conspiracy and a common course of conduct. (Doc. # 559 at 27-35.) Plaintiffs proactively rejected any argument by Defendants that “hypothetical individualized damages issues” defeated class certification in part by proffering the testimony of their retained expert, Dr. Kerr. (Id. at 34-35.) According to Plaintiffs, Dr. Kerr's “analysis demonstrate[d] that the harm to class members [was] common, and [arose] from [Defendants'] unitary course of conduct.” (Id. at 34.)

         On July 17, 2017, Defendants jointly filed a Response in Opposition to Plaintiffs' Motion for Rule 23 Class Certification and Appointment of Class Counsel. (Doc. # 610.) A number of Defendants also independently filed additional briefs in opposition to class certification. (Doc. ## 599, 608, 609, 611, 612, 614.) Plaintiffs thereafter replied on August 2, 2017. (Doc. # 643.)

         Also on July 17, 2017, Defendants jointly filed their Motion to Exclude Dr. Kerr's testimony, asserting that his opinions were “not based upon reliable principles and methods.” (Doc. # 606 at 1.) Plaintiffs responded in support of Dr. Kerr's opinions on August 8, 2017 (Doc. # 650), to which Defendants replied on August 21, 2017 (Doc. # 701). The Court subsequently referred Defendants' Motion to Exclude to Magistrate Judge Tafoya. (Doc. # 766.) Magistrate Judge Tafoya heard arguments on Defendants' Motion to Exclude for nearly two hours on January 9, 2018. (Doc. # 799.)

         Magistrate Judge Tafoya denied Defendants' Motion to Exclude on January 24, 2018. (Doc. # 813.) The Magistrate Judge concluded that “Dr. Kerr's Report and Rebuttal Report [met] the criteria for consideration by the District Court at this stage of class certification analysis and that striking them on an over-technical application of Daubert is inappropriate at this time.” (Id. at 17.)

         On February 2, 2018, this Court granted in part Plaintiffs' Motion for Rule 23 Class Certification and Appointment of Class Counsel, certifying 18 classes and subclasses. (Doc. # 828.) This Court cited Dr. Kerr's opinions only once and only as a secondary explanation for its determination that common issues would predominate the issue of antitrust impact (for purposes of certifying the national Antitrust Class pursuant to Rule 23(b)(3)). (Id. at 21-22.)

         Five days after the Court granted in large part Plaintiff's Motion for Rule 23 Class Certification, on February 7, 2018, Defendants filed their Objections to Magistrate Judge Tafoya's Order on Nondispositive Matter Under Rule 72(a). (Doc. # 830.) Defendants expressly recognized that this Court had already issued a class certification order but faulted it for doing so “without awaiting these Objections, which pertain to issues intertwined with the class certification order.” (Id. at 1 n.1.) Defendants explained that they are “nonetheless filing the Objections because (a) this Court should have the opportunity to review a critical order denying a motion integrally related to the class certification order, and (b) preservation of the Objections is a necessary prerequisite to presenting the issues to which the Objections relate, if permitted, in an appeal to the Court of Appeals.”[1] (Id.) Plaintiffs responded to Defendants' Objections on February 22, 2018. (Doc. # 907.)

         II. STANDARD OF REVIEW

         Where a magistrate judge issues an order on a non-dispositive, pretrial order, “[a] party may serve and file objections to the order to the district court within 14 days after being served with a copy.” Fed. R. Civ. Pro. 72(a). The district court must modify or set aside any part of the order that “is clearly erroneous or is contrary to law.” Fed. R. Civ. Pro. 72(a); 28 U.S.C. § 636(b)(a)(A); First Union Mortg. Corp. v. Smith, 229 F.3d 992, 995 (10th Cir. 2000).

         With regard to legal matters, the district court conducts an independent, plenary review of the magistrate judge's order. In re Motor Fuel Temperature Sales Practice Litigation, 707 F.Supp.2d 1145, 1148 (D. Kan. 2010); see also 12 Charles Alan Wright, et al., Federal Practice & Procedure § 3069 (2d ed. 2017). Under the ‘contrary to law' standard, the reviewing court “set[s] aside the magistrate order only if it applied an incorrect standard, ” Dias v. City & Cty. of Denver, No. 07-cv-00722-WDM-MJW, 2007 WL 4373229, *2 (D. Colo. Dec. 7, 2007) (internal quotations omitted), or applied the ...


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