for Special Action from the Superior Court in Maricopa County
No. CV2004-001777 The Honorable J. Richard Gama, Judge,
Hagens, Berman, Sobol, Shapiro, LLP, Phoenix By Robert B.
Carey, Leonard W. Aragon, Michella A. Kras Counsel for
Polsinelli, PC, Phoenix By Rebecca Lumley Counsel for Real
Party in Interest
Polsinelli, PC, Kansas City, MO By James C. Sullivan, Travis
Salmon Counsel for Real Party in Interest
Presiding Judge Diane M. Johnsen delivered the opinion of the
Court, in which Judge Patricia A. Orozco and Judge Kenton D.
challenge the superior court's order decertifying an 80,
000-member class of drivers suing Swift Transportation Co.,
Inc. For the reasons stated below, we accept jurisdiction of
the petition for special action and grant relief. On this
record, Swift has failed to show that its various affirmative
defenses render the class unmanageable; we also hold that
Arizona law applies to the drivers' claim for breach of
the duty of good faith and fair dealing.
AND PROCEDURAL BACKGROUND
Petitioner Leonel Garza was a Swift truck driver who sued the
company in 2005, alleging it systematically underpaid all of
its drivers. The superior court denied Garza's subsequent
motion for class certification. This court reversed and
remanded, but on review, our supreme court vacated our
decision, holding we lacked jurisdiction over the
interlocutory denial of a motion to certify a class.
Garza v. Swift Transp. Co., Inc., 222 Ariz. 281
(2009). On remand, the superior court certified a class of
Swift drivers pursuant to Arizona Rule of Civil Procedure
23(b)(3). As trial approached, however, the superior court
granted Swift's motion to decertify the class in July
Petitioner Garza and the drivers who were members of the
now-decertified class lack an adequate remedy on appeal.
See Garza, 222 Ariz. at 287, ¶ 27
(special action was suitable means to seek review of order
denying class certification). Cf. Ariz. Rev. Stat.
§ 12-1873(A) (2016) (creating appellate jurisdiction
over orders certifying or refusing to certify class actions
in cases filed after September 13, 2013). In addition,
Garza's petition raises questions of statewide
importance. See Perry v. Ronan, 225 Ariz. 49, 52,
¶ 6 (App. 2010). For these reasons, we accept
jurisdiction of the petition for special action.
De-Certification of the Class.
Reconsideration of certification.
Whether to certify a class is a matter within the discretion
of the superior court. Godbey v. Roosevelt Sch. Dist. No.
66 of Maricopa County, 131 Ariz. 13, 16 (App. 1981). In
granting Swift's motion to decertify, the superior court
concluded that the drivers' good-faith claim "is
unmanageable as a class action." It held that, even
assuming the claim presents common questions, Swift's
affirmative defenses "raise individual issues" that
would predominate over the common questions. Moreover, the
court held, petitioners had not shown that Swift's
choice-of-law arguments did not present "insuperable
obstacles" to class-action treatment.
Petitioners argue that, having certified the class, the
superior court lacked discretion to revisit the issue as
trial neared. They argue that absent changed circumstances, a
change in the law, the need to correct a clear error of law,
or evidence that was ...