NISSA ASCENCIO AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs and Appellants,
ORION INTERNATIONAL CORP., Defendant, Appellee and Cross-Appellant.
Submitted on Briefs: February 14, 2018
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.
Appellants:Christopher W. Froines, Froines Law Office, Inc.,
Appellee: Bradley J. Luck, Tessa A. Keller, Garlington, Lohn
& Robinson, PLLP, Missoula, Montana
JEREMIAH SHEA JUSTICE.
Plaintiff Nissa Ascencio ("Ascencio") appeals the
denial of class certification by the Fourth Judicial District
Court, Missoula County. We restate the issue on appeal as
Whether the District Court abused its discretion by
denying class certification on the basis that Ascencio failed
to satisfy the M. R. Civ. P. 23(b)(3) element of
We affirm in part and remand to the District Court for
further proceedings consistent with this Opinion.
AND FACTUAL BACKGROUND
Defendant Orion International Corporation ("Orion")
was a small, family-owned Montana business that performed
background checks on prospective employees at the request of
employers. Orion's principals were Donald and Patricia
Whitney. Their son Kyle Whitney handled daily business
In 2012, Ascencio applied for a job with St. Luke's
Hospital in Polson. St. Luke's retained Orion to perform
a background check of Ascencio. The background check Orion
provided to St. Luke's included "obsolete
information, " the inclusion of which was prohibited by
§ 31-3-112, MCA. The obsolete information consisted of
Ascencio's criminal history that reflected a 1997 arrest
for forgery that resulted in two misdemeanor convictions in
1998. St. Luke's hired Ascencio, and she worked there for
approximately two years.
In 2015, Ascencio applied for a job with Missoula Bone and
Joint. On May 20, 2015, Missoula Bone and Joint hired
Ascencio, then retained Orion to perform a background check
on her the following day. Again, the background check Orion
provided to Ascencio's employer contained prohibited
obsolete information, including the two 1998-misdemeanor
forgery convictions as well as a Chapter 7 bankruptcy filing
that was discharged in 2000. Ascencio called Orion to ask why
it would be releasing illegal background checks to a
prospective employer in violation of § 31-3-112, MCA,
that prohibits the disclosure of such obsolete information by
reporting agencies. Kyle Whitney, the Orion employee with
whom Ascencio spoke, responded that he would contact
Orion's attorney. On June 9, 2015, Orion issued a
corrected background check of Ascencio to Missoula Bone and
Joint that included the following disclaimer:
As mandated by Montana State Law, Orion International
Corporation may not report Obsolete Information in any
consumer report. Obsolete Information is defined as:
Bankruptcy from more than 14 years of the most recent
bankruptcy; judgments or suits from the longer of more than 7
years of the date of entry, or after the statute of
limitations expiration; paid tax liens from more than 7 years
of the date of payment; collections or accounts placed to
profit and loss from more than 7 years ago; records of
arrest, indictment, or conviction of a crime for more than 7
years of the disposition, release, or parole; or any adverse
information from more than 7 years ago. Mont. Code. Ann.
Missoula Bone and Joint terminated Ascencio at the conclusion
of her six-month probationary period, noting concerns with
her background check and credit report, as well as requests
for time off, not reporting when she left work early, and
personality conflicts with a co-worker.
On September 23, 2015, Ascencio filed suit against Orion,
asserting claims in her individual capacity, as well as a
claim for class action. On October 29, 2015, Orion filed a
Motion to Dismiss. On December 13, 2016, the District Court
denied Orion's Motion to Dismiss. On January 25, 2017,
Orion responded to Ascencio's first discovery requests,
which included a list of individuals for whom Orion prepared
background checks or other consumer reports. Ascencio
identified at least 360 instances on this list in which
Orion's reports contained obsolete information in
violation of § 31-3-112, MCA.
On February 1, 2017, Ascencio moved to certify the class.
Ascencio attached Orion's list with 360 ...