/raid1/www/Hosts/bankrupt/CAR_Public/220128.mbx
C L A S S A C T I O N R E P O R T E R
Friday, January 28, 2022, Vol. 24, No. 15
Headlines
183 FOOD: Class Action Settlement in Hurtado Gets Initial Nod
2:20 MARKETING: Schaffer Files TCPA Suit in D. Utah
A&D INTERESTS: Appeals Class Cert. Approval in Kibodeaux FLSA Suit
A&W CONCENTRATE: Dailey Class Cert Reply Extended to Feb. 17
A1 ABSOLUTE: Filing of Class Cert. Bid Extended to February 28
AARONS LLC: Hedges Files ADA Suit in S.D. New York
AFNI INC: Elshabba FCRA Suit Removed to D. New Jersey
ALAMEDA COUNTY, CA: Prisoners Seek to Certify Class & Subclasses
ALFAGOMMA AURORA: Admiral Files Suit in N.D. Illinois
AMERIHOME MORTGAGE: Goldberg Files Suit in E.D. Pennsylvania
ANGIES LIST: Class Cert. Filing Deadline Continued to April 14
ARIZONA: Crago Seeks to Certify Class of ADCRR Prisoners
ARROW SENIOR: FLSA Conditional Class Cert. Sought in Roberts Suit
AT&T MOBILITY: Adjustments to Case Schedule in Vianu Entered
AUTO SYSTEMS: Lee Stephens Seeks to Certify Collective Action
BACTES IMAGING: Cal. App. Affirms Judgment in Busby Class Suit
BENTLEY PROPERTIES: Seeks May 23 Deadline to File Class Cert. Bid
BOJANGLES' RESTAURANTS: Time to File Responses Extended to Feb. 28
BP EXPLORATION: 5th Cir. Partly Affirms Judgment in O'Brien's Suit
BP EXPLORATION: Court Grants Summary Judgment Bid in North Suit
CALIFORNIA STATE UNIVERSITY: Anders Seeks to Modify Sched Order
CARRINGTON MORTGAGE: 4th Cir. Partly Affirms Dismissal of Alexander
CEMEX CONSTRUCTION: Guyton FCRA Suit Removed to M.D. Florida
CENTRAL BUCKS: Joint Bid to Extend Class Cert. Deadline Filed
CHRISTIAN GUZMAN: Crichlow Suit Transferred to W.D. New York
COLECTIVO COFFEE: Hobbs Files ADA Suit in S.D. New York
COSTA SHIPPING: Bid for Partial Remand in Qauod-Pinales Suit Okayed
CREATIVE ENVIRONMENTS: Rode's Conditional Class Cert. Bid Nixed
CTH RENTALS: Bickerstaff Files Suit in W.D. Tennessee
DEATH WISH COFFEE: Hobbs Files ADA Suit in S.D. New York
EQUINOX HOLDINGS: Fodera Wants Case Hearing Continued to March 9
FANATICS RETAIL: Ward Files Suit in Cal. Super. Ct.
FEDERATION INTERNATIONALE: Class Cert. Hearing Set for Feb. 3
FIDELITY BROKERAGE: Tully Suit Removed to D. Hawaii
FINN WELLNESS: Slade Files ADA Suit in S.D. New York
FRATELLI CARLI: Hobbs Files ADA Suit in S.D. New York
FRIENDS FIRST: Schlosser Files FLSA Suit in W.D. Arkansas
GALISON PUBLISHING: Miller Files ADA Suit in S.D. New York
GLAXOSMITHKLINE LLC: Smith Files Suit in E.D. Pennsylvania
GRANITE SERVICES: Court Grants Conditional Cert. in Campo Suit
GREGORY HACKER: Werner's Class Cert. Bid Nixed w/o Prejudice
GUTSY LLC: Martinez Files ADA Suit in E.D. New York
GW PHARMACEUTICALS: Monteverde & KSF Named Lead Counsel in Ziegler
HALLWAY REAL: Abante Rooter Files TCPA Suit in N.D. California
HIBU INC: Cruz Sues Over Unpaid Minimum and Overtime Wages
HYATT CORP: Completion Date of Phase I Discovery Moved to June 2
ILLINOIS: Court Denies Bid for Class Action Status in Smith v. IDOC
KIM WORTHY: Cardello-Smith Files Suit in Mich. Cir. Ct.
LEXISNEXIS RISK: Jones FCRA Suit Transferred to E.D. Virginia
LIBERTY UNIVERSITY: Elleby Seeks More Time to Respond to Stay Bid
MANAGEMENT HEALTH: Cornwell Files Suit in Cal. Super. Ct.
MCKINSEY & COMPANY: Board of Education Suit Transferred to N.D. Cal
MCKINSEY & COMPANY: Bullitt County Suit Transferred to N.D. Cal.
MCKINSEY & COMPANY: Putnam County Suit Transferred to N.D. Cal.
METROPOLIS COLLECTIBLES: Miller Files ADA Suit in S.D. New York
MJF STUCKEY: Perry FLSA Suit Seeks to Certify Three Classes
MOSSER COMPANIES: Burgos Files Suit in Cal. Super. Ct.
NASHVILLE & DAVIDSON, TN: Cayton Has Leave to Amend FLSA Suit
NATIONAL CREDIT: Vincent Files FDCPA Suit in S.D. Mississippi
NEWORDERAUTO INC: Guerrero Files ADA Suit in S.D. New York
NEWREZ LLC: Durham Files FDCPA Suit in M.D. Florida
NORTH BROWARD: Prizer Sues Over Data Breach
OHANA MILITARY: Casey Suit Removed to D. Hawaii
PETROQUEST ENERGY: Lee Suit Transferred to E.D. Oklahoma
PHILIPS NORTH AMERICA: Snee Suit Transferred to W.D. Pennsylvania
PL DEVELOPMENTS COPIAGUE: Williams Files Suit in E.D. New York
RAMOS OIL CO: Campbell Files Suit in Cal. Super. Ct.
REDBUBBLE INC: $19K in Attys. Fees Awarded in Vinluan-Jularbal Suit
RESURGENT CAPITAL: Peak Files FDCPA Suit in D. Delaware
ROB GRAHAM: March 24 Deadline for Class Cert. Bid Filing Sought
ROOS ROAST: Hobbs Files ADA Suit in S.D. New York
ROUND ROCK: Guerrero Files ADA Suit in S.D. New York
SAFESPEED LLC: Class Cert. Response Deadline Extended to Feb. 10
SCHOOL HEALTH: Hanyzkiewicz Files ADA Suit in E.D. New York
SHAMROCK SALOON: Final Approval Order & Judgment Issued in George
SIRIUS XM: Court Affirms Arbitration Order in Parrella Class Suit
TOYS FOR SPECIAL: Hanyzkiewicz Files ADA Suit in E.D. New York
TRANSWORLD SYSTEMS: Veney Files FDCPA Suit in D. Delaware
TROWBRIDGE LAW: Cal. App. Affirms Dismissal of Ergur Class Suit
TWO RIVERS: $1.5MM Class Settlement in Paulson Suit Wins Prelim. OK
UNITED STATES: $700K in Attys. Fees & Costs Awarded in Kirwa v. DOD
UNITED STATES: Bid to Stay Class Cert. Briefing Partly Granted
URSUS BOOKS: Miller Files ADA Suit in S.D. New York
WASHINGTON: Court Denies Bid to Certify Class in Penwell v. Strange
WESTCHESTER FIRE: Mass. App. Affirms Summary Judgment in Meadows
WHEELZY LLC: Guerrero Files ADA Suit in S.D. New York
Asbestos Litigation
ASBESTOS UPDATE: FDA Eyes at Stricter Asbestos Testing in Talc
ASBESTOS UPDATE: Paddock Proposes $610M Asbestos Claims Trust
ASBESTOS UPDATE: Soriano Fined $62K for Asbestos Violations
*********
183 FOOD: Class Action Settlement in Hurtado Gets Initial Nod
--------------------------------------------------------------
In the class action lawsuit captioned as FELIPE HURTADO, on behalf
of himself and all others similarly-situated, v. 183 FOOD MARKET
CORP. d/b/a FOOD UNIVERSE, and 2358 FOOD CORP., and ROBERTO
ESPINAL, individually, and 183 MEAT CORP., and 2358 MEAT CORP., and
SERGIO FERNANDEZ, individually, Case No. 1:20-cv-07988-KPF
(S.D.N.Y.), the Hon. Judge Katherine Polk Failla entered an amended
order granting plaintiff's motion for preliminary approval of the
class action settlement.
-- Preliminary Approval
1. The settlement reached by the parties, as set forth in
both the Motion, the Supplemental Letter and in the
Amended Settlement Agreement, including the allocation
formula, attorneys' fees and costs, service awards, and
other terms, appears to be fair and reasonable to all
involved, suffers from no obvious defects, was reached
after arms-length negotiations between the parties, and
appears to constitute a reasonable compromise of the
claims and defenses in this matter.
2. The Parties are directed to perform according to the
terms of their Amended Settlement Agreement, except as
expressly indicated otherwise by this Order or other
ruling of this Court.
-- Certification of Settlement Classes
3. The Court hereby certifies, for settlement purposes
only, the settlement classes, defined as:
a. Under Fed. R. Civ. P. 23(a) and (b)(3), all
individuals employed by Defendants as non-managerial
employees, who at any time during the period of
September 25, 2017 to January 20, 2021, worked at
the Food Universe supermarkets located at 60 West
183rd Street, Bronx, New York and 2358 University
Avenue, Bronx, New York 10468 (the "New York
Class"); and
b. Under 29 U.S.C. section 216(b), all individuals
employed by Defendants as non- managerial employees,
who at any time during the period of September 25,
2017 to January 20, 2021, worked at the Food
Universe supermarkets located at 60 West 183rd
Street, Bronx, New York and 2358 University Avenue,
Bronx, New York 10468, and who timely submit a Claim
Form, thereby opting into the settlement and, in so
doing, releasing their FLSA claims (the "Federal
Class," and collectively with the New York Class,
the "Settlement Classes").
-- Notice to Settlement Class Members
4. The Parties' proposed Notice of Pendency of Class
Action Settlement, and the Claim Form are hereby
approved, are found to be a reasonable means of
providing notice to the New York Class Members under
the circumstances, and when completed, shall constitute
due and sufficient notice of the settlement to all
persons affected by and/or entitled to participate in
the settlement, in full compliance with the notice
requirements of Rule 23 of the Federal Rules of Civil
Procedure and due process of law.
5. New York Class Counsel has designated, Defendants have
consented to, and the Court hereby appoints Arden
Claims Service, LLC (the "Claims Administrator") to be
responsible for communicating with the members of the
New York, disseminating the Notice, accepting and
maintaining documents sent by the New York Class
Members, including Claim Forms, Opt-out statements,
objections, and other documents relating to claims
administration, and administering claims for
allocation, according to the formula set forth in the
Amended Settlement Agreement.
-- Joining or Opting Out of the Settlement
6. Any potential New York Class Member may opt out of the
New York Class by sending via First Class United States
Mail, postage prepaid, fax, or email, a written, signed
statement to the Claims Administrator that states that
he or she is opting out of the settlement, and that
includes his or her name, address, and telephone
number, and include a statement expressly indicating
the New York Class Member's intention to opt-out such
as: "I opt-out of the Food Universe wage and hour
settlement" to be postmarked or received by on or
before April 25, 2022, 60 days after notices are
mailed.
7. Any Class Member who does not properly and timely mail
a letter requesting to be excluded as set forth above
shall be included in the New York Class, and shall be
bound by all of the terms and provisions of the Amended
Settlement Agreement pertaining to the released claims
as defined in the Amended Settlement Agreement,
including the release of such claims, whether or not
such New York Class Member has objected to the Amended
Settlement Agreement and whether or not such New York
Class Member participates in the settlement by
submitting a Claim Form.
8. Any potential New York Class Member may object to the
settlement by sending via First Class United States
Mail, postage prepaid, a written and signed statement
to the Claims Administrator that refers to the "Food
Universe Settlement," states the name, address,
telephone number, and provides a written statement that
includes all reasons for the objection with any
supporting documentation. The written objection must be
signed before a Notary Public and must also include the
following statement: "This statement is truthful and
accurate to the best of my knowledge." Any objection
must be postmarked or received by on or before April
25, 2022, 60 days after notices are mailed.
9. Any potential New York Class Member may participate in
the settlement by returning to the Claims Administrator
his or her executed Claim Form, which must be
postmarked or received by on or before April 25, 2022,
60 days after notices are mailed.
10. Any New York Class Member who timely executes and
returns his or her Claim Form shall be included in the
New York and Federal Class and shall be bound by all of
the terms and provisions of the Amended Settlement
Agreement pertaining to the released claims as defined
therein, including the release of such claims, whether
or not such individual has objected to the Amended
Settlement Agreement, and whether or not such
individual timely negotiates his/her check.
-- Fairness Hearing and Final Approval
11. New York Class Counsel shall file Plaintiff's Motion
for Final Approval by on or before May 25, 2022 (no
sooner than 30 days after deadline for submission of
Claim Forms, opt-out statements, and/or objections.
12. The Court will hold a Fairness Hearing on the above-
referenced settlement on June 24, 2022 or about 30 days
after the Motion deadline 10:00 a.m.
13. Any New York Class Member who has not filed an Opt-out
Statement may appear at the Fairness Hearing in person
or by counsel and may be heard, either in support of or
in opposition to the fairness, reasonableness, and
adequacy of the Amended Settlement Agreement, the
settlement allocation formula, or New York Class
Counsel's request for attorneys' fees and service
awards, provided that such person, individually or
through counsel, sends his/her written objection(s) to
the Administrator, through first class mail postmarked
or received by the Claims Administrator by no later
than April 25, 2022, 60 days after the initial mailing
of Notice to the Class.
14. Any individual who wishes to appear at the hearing and
be heard through counsel must also affirmatively state
so in his/her objection, and must have his/her counsel
file a notice of appearance by no later than June 10,
2022, 14 days prior to the date of the fairness
hearing.
15. Any New York Class Member who does not make his/her
objection in the manner and by the time provided herein
shall be deemed to have waived such objection and shall
be forever foreclosed from making any objection to the
fairness or adequacy of the proposed settlement as set
forth in the Amended Settlement Agreement or to the
award of attorneys' fees to New York Class Counsel or
service awards to any Plaintiff, unless otherwise
ordered by the Court.
16. The Claims Administrator will stamp the date received
on the original and send copies of each Claim Form,
objection, and/or opt-out statement, with supporting
documents, to New York Class Counsel and Defendants
Counsel by email, to be delivered no later than April
28, 2022, three business following the 60 day
submission period.
A copy of the Court's order dated Jan. 25, 2022 is available from
PacerMonitor.com at https://bit.ly/3o3XJpw at no extra charge.[CC]
2:20 MARKETING: Schaffer Files TCPA Suit in D. Utah
---------------------------------------------------
A class action lawsuit has been filed against 2:20 Marketing Group.
The case is styled as Maria Schaffer, individually an on behalf of
all others similarly situated v. 2:20 Marketing Group doing
business as: Xurli, a Nevada limited liability company, Case No.
4:22-cv-00006-DN (D. Utah, Jan. 21, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act.
2:20 Marketing Group doing business as Xurli -- https://xurli.com/
-- is one of the nation's fastest growing digital marketing
agencies.[BN]
The Plaintiff is represented by:
Matthew J. Morrison, Esq.
MORRISON LAW OFFICE
1887 N 270 E
Orem, UT 84057
Phone: (801) 845-2581
Email: matt@oremlawoffice.com
A&D INTERESTS: Appeals Class Cert. Approval in Kibodeaux FLSA Suit
------------------------------------------------------------------
A&D Interests, Incorporated, et al., filed a petition for writ of
mandamus from a court ruling entered in the lawsuit entitled Stacey
Kibodeaux aka Illusion, individually and on behalf of all others
similarly situated v. A&D INTERESTS, INC. D/B/A HEARTBREAKERS
GENTLEMAN'S CLUB; WHITEY DOE, an individual, Case No. 3:20-CV-8, in
the U.S. District Court for the Southern District of Texas,
Galveston.
As previously reported in the Class Action Reporter, the lawsuit
which was filed on Jan. 14, 2020, seeks damages resulting from the
Defendants' practice of evading the mandatory minimum wage and
overtime provisions of the Fair Labor Standards Act and illegally
absconding with the Plaintiff's tips.
The Plaintiff alleges that she has been denied minimum wage
payments and denied overtime as part of the Defendants' scheme to
classify her and other dancers/entertainers as "independent
contractors." The Defendants failed to pay the Plaintiff minimum
wages and overtime wages for all hours worked in violation of the
FLSA, asserts the complaint.
The Defendants' conduct violates the FLSA, which requires
non-exempt employees to be compensated for their overtime work at a
rate of one and one-half times their regular rate of pay, says the
complaint. As a result of the Defendants' violations, the Plaintiff
and the FLSA Class Members seek to recover double damages for
failure to pay minimum wage, overtime liquidated damages, interest,
and attorneys' fees.
In October 2020, Magistrate Judge Andrew M. Edison conditionally
certified this collective action of exotic dancers who worked at
A&D Interests, during a three-year period beginning in October
2017. Since then, a seismic shift took place in the Fifth Circuit
regarding the certification of collective actions. See Swales v.
KLLM Transp. Servs., L.L.C., 985 F.3d 430 (5th Cir. 2021). The
Swales lawsuit did away with conditional certification altogether
and, instead, requires that district courts apply a more rigorous,
case-specific standard when considering whether the proposed class
is sufficiently similarly situated to proceed as a collective
action. As part of the new standard, district courts must consider
"all available evidence" to determine "whether and to whom notice
should be issued."
In light of Swales, Judge Edison vacated his October 2020
conditional certification order and ordered that the parties
conduct preliminary discovery on the issue of similarity.
After reviewing the motion, the parties' briefing, and the
applicable law, Judge Edison entered a new Order dated Jan. 10,
2022, granting Plaintiffs' motion for certification and issuance of
notice pursuant to Section 216(b) of the Fair Labor Standards Act.
The Defendants are taking an appeal from this ruling.
The appellate case is captioned as In re: A&D Interests,
Incorporated, doing business as Heartbreakers Gentleman's Club,
Case No. 22-40039, in the U.S. Court of Appeals for the Fifth
Circuit, filed on Jan. 24, 2022.[BN]
Defendants-Petitioners In re: A&D Interests, Incorporated, doing
business as Heartbreakers Gentleman's Club; Mike Armstrong; and
Peggy Armstrong, are represented by:
William King, Esq.
Casey T. Wallace, Esq.
WALLACE & ALLEN, L.L.P.
440 Louisiana Street
Houston, TX 77002-1652
Telephone: (713) 227-1744
E-mail: wking@wallaceallen.com
cwallace@wallaceallen.com
Plaintiff-Respondent Stacey Kibodeaux, also known as Illusion,
Individually and on behalf of all others similarly situated, is
represented by:
Jarrett L. Ellzey, Esq.
ELLZEY & ASSCIATES, P.L.L.C.
1105 Milford Street
Houston, TX 77006
Telephone: (713) 322-6387
E-mail: jarrett@hughesellzey.com
A&W CONCENTRATE: Dailey Class Cert Reply Extended to Feb. 17
------------------------------------------------------------
In the class action lawsuit captioned as STEVE DAILEY, on behalf of
himself and all others similarly situated, v. A&W CONCENTRATE
COMPANY and KEURIG DR PEPPER INC., Case No. 4:20-cv-02732-JST (N.D.
Cal.), the Hon. Judge Jon S. Tigar entered an order granting the
Plaintiff's consented administrative motion to extend the time for
plaintiff’s reply in support of motion for class certification.
The Plaintiff's reply in support of Motion for Class Certification
is extended from February 3, 2022 to February 17, 2022.
A&W manufactures and sells alcoholic beverages.
A copy of the Court's order dated Jan. 25, 2022 is available from
PacerMonitor.com at https://bit.ly/3tZ9ilD at no extra charge.[CC]
A1 ABSOLUTE: Filing of Class Cert. Bid Extended to February 28
--------------------------------------------------------------
In the class action lawsuit captioned as LAVELLE DAVIS on behalf of
herself and all those similarly situated, v. A1 ABSOLUTE BEST CARE,
LLC, ET AL., Case No. 2:21-cv-00761-JCZ-DMD (E.D. La.), the Hon.
Judge Jay C. Zainey entered an order that the deadline for all
Plaintiffs to file their motion for class certification, originally
set for January 11, 2022, is extended to Monday, February 28, 2022,
considering that Plaintiff Lavelle Davis's Motion to Compel has
been granted.
The Court assumes that this extension will be adequate. However, if
necessary, the parties may motion the Court for additional time,
Judge Zainey says.
A1 Absolute is a hospital and health care company.
A copy of the Court's order dated Jan. 25, 2022 is available from
PacerMonitor.com at https://bit.ly/3o15b4L at no extra charge.[CC]
AARONS LLC: Hedges Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Aarons, LLC. The case
is styled as Donna Hedges, on behalf of herself and all other
persons similarly situated v. Aarons, LLC, Case No. 1:22-cv-00527
(S.D.N.Y., Jan. 20, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Aaron's Company -- https://www.aarons.com/ -- is an American
lease-to-own retailer. The company focuses on leases and retail
sales of furniture, electronics, appliances, and computers.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
AFNI INC: Elshabba FCRA Suit Removed to D. New Jersey
-----------------------------------------------------
The case styled as Tariq Elshabba, on behalf of himself and those
similarly situated v. Afni, Inc., John Does 1 to 10, Case No.
ESX-L-9603 21, was removed from the Superior Court of New Jersey,
Law Division, Essex to the U.S. District Court for the District of
New Jersey on Jan. 10, 2022.
The District Court Clerk assigned Case No. 2:22-cv-00118-ES-AME to
the proceeding.
The lawsuit is brought over alleged violation of the Fair Credit
Reporting Act.
Afni, Inc. -- https://afni.com/ -- provides financial and
commercial services.[BN]
The Plaintiff is represented by:
Yongmoon Kim, Esq.
KIM LAW FIRM LLC
411 Hackensack Ave Ste 701
Hackensack, NJ 07601
Phone: (201) 273-7117
Fax: (201) 273-7117
Email: ykim@kimlf.com
The Defendant is represented by:
Sean Michael O'Brien, Esq.
LIPPES MATHIAS LLP
50 Fountain Plaza, Suite 1700
Buffalo, NY 14202
Phone: (518) 669-0813
Email: sobrien@lippes.com
ALAMEDA COUNTY, CA: Prisoners Seek to Certify Class & Subclasses
----------------------------------------------------------------
In the class action lawsuit captioned as ALAMEDA COUNTY MALE
PRISONERS And Former Prisoners, DANIEL GONZALEZ, et al. on behalf
of themselves and others similarly situated, as a Class, and
Subclass, v. ALAMEDA COUNTY SHERIFF'S OFFICE, et al., Case No.
3:19-cv-07423-JSC (N.D. Cal.), the Plaintiffs ask the Court to
enter an order:
1. Certifying that this action is maintainable as a class
action under Federal Rules of Civil Procedure 23(a) and
23(b)(2) as to each of Plaintiffs' causes of action;
2. Certifying a class of:
"All adults who have been incarcerated anytime between
November 19, 2017 and the final resolution of this
lawsuit, in Santa Rita Jail;"
3. Certifying a subclass (Subclass A) of:
"All inmates in Santa Rita Jail who contracted covid-19,
while in the custody at Santa Rita jail between November
19, 2017 and the final resolution of this lawsuit;"
4. Certifying a subclass (Subclass B) of:
"all inmates who have been housed, for any duration of
time in the Out Patient Housing Unit or any other medical
isolation cell between November 19, 2017 and the final
resolution of this lawsuit;"
5. Certifying a subclass (Subclass C) of:
"all inmates who received retaliation or punishment in
violation of their First Amendment rights because they
filed one or more grievances or spoke out regarding
conditions of confinement while incarcerated in Santa Rita
jail in the period between November 19, 2017 and the final
resolution of this lawsuit;"
6. Certifying as representatives of the Inmate Class: David
Misch; Randy Harris; Daniel Gonzalez, Jaclyn Mohrbacher.
7. Certifying Daniel Gonzalez, and Cedric Henry as the
representative of the sub-class of prisoners who have
suffered denial of necessary or appropriate medical
attention and services;
8. Certifying Cedric Henry as representatives of the sub-
class of inmates who have been housed for any duration of
time in the Out Patient Housing Unit, or any other medical
quarantine unit while in custody at Santa Rita Jail; and
9. Certifying Lawrence Gerrans as the representative of the
sub-class of inmates who were 26 subjected to retaliation
for exercising their First Amendment rights because they
filed one or more grievances with the jail or articulated
complaints about conditions of confinement at any time
between November 19, 2017 and the final resolution of this
lawsuit.
The Alameda County Sheriff's Office (ACSO) is a law enforcement
agency serving Alameda County, California.
A copy of the Plaintiffs' motion to certify class dated Jan. 24,
2022 is available from PacerMonitor.com at https://bit.ly/3o0Lt9f
at no extra charge.[CC]
The Plaintiffs are represented by:
Yolanda Huang, Esq.
LAW OFFICES OF YOLANDA HUANG
528 Grand Avenue
Oakland, CA 94610
Telephone: (510) 329-2140
Facsimile: (510) 580-9410
E-mail: yhuang.law@gmail.com
- and -
Dennis Cunningham, Esq.
DENNIS CUNNINGHAM LAW
115A Bartlett St.
San Francisco, CA 94110
Telephone: (415) 285-8091
Facsimile: (415) 285-8092
E-mail: denniscunninghamlaw@gmail.com
ALFAGOMMA AURORA: Admiral Files Suit in N.D. Illinois
-----------------------------------------------------
A class action lawsuit has been filed against Alfagomma Aurora TF
LLC, et al. The case is styled as Admiral Insurance Company v.
Alfagomma Aurora TF LLC, Michael Pfotenhauer, individually and on
behalf of all others similarly situated, Case No. 1:22-cv-00146
(N.D. Ill., Jan. 10, 2022).
The nature of suit is stated as Insurance Contract for Declaratory
Judgement.
ALFAGOMMA -- https://www.alfagomma.com/en/ -- designs manufactures
and distributes a complete range of hydraulic and industrial top
quality products all over the world.[BN]
The Plaintiff is represented by:
Brian M. Reid, Esq.
LITCHFIELD CAVO
303 West Madison Street, Suite 300
Chicago, IL 60606
Phone: (312) 781-6677
Email: reid@litchfieldcavo.com
AMERIHOME MORTGAGE: Goldberg Files Suit in E.D. Pennsylvania
------------------------------------------------------------
A class action lawsuit has been filed against Amerihome Mortgage
Company, LLC. The case is styled as Benjamin Goldberg, Mikhaila
Goldberg, individually and on behalf of all others similarly
situated v. Amerihome Mortgage Company, LLC, Case No.
2:22-cv-00105-GJP (E.D. Pa., Jan. 10, 2022).
The nature of suit is stated as Personal Property: Truth in
Lending.
Amerihome Mortgage Company, LLC -- https://www.amerihome.com/ --
provides mortgage financial services.[BN]
The Plaintiff is represented by:
Nicholas J. Guiliano, Esq.
THE GUILIANO LAW GROUP PC
1700 Market St Suite 1005
Philadelphia, Pa 19102
Phone: (215) 413-8223
Fax: (215) 413-8225
Email: nick@nicholasguiliano.com
ANGIES LIST: Class Cert. Filing Deadline Continued to April 14
--------------------------------------------------------------
In the class action lawsuit captioned as Pro Water Solutions, Inc.
v. Angies List, Inc. et al., Case No. 2:19-cv-08704-ODW-SS (C.D.
Cal.), the Hon. Judge Otis D. Wright entered an order granting in
part the Plaintiff's ex parte application and continuing class
certifiction motion filing deadline to April 14, 2022.
The Court is satisfied that, given the nature of this case and the
type of class-wide relief sought, this date gives the Plaintiff
ample time to prepare a motion for class certification, provided
the Plaintiff appropriately focuses class discovery effort.
Accordingly, this deadline will not be further continued. Moreover,
the gist of the briefing schedule remains the same, the Court
says.
Pro Water sells, installs, and services water treatment systems
throughout Los Angeles.
Angie's List provides Internet information and content.
A copy of the Court's order dated Jan. 24, 2022 is available from
PacerMonitor.com at https://bit.ly/3o1bXr1 at no extra charge.[CC]
ARIZONA: Crago Seeks to Certify Class of ADCRR Prisoners
--------------------------------------------------------
In the class action lawsuit captioned as Earl F. Crago v. David
Shinn, et al., Case No. 4:21-cv-00423-JAS (D. Ariz.), the Plaintiff
asks the Court to enter an order certifying Count Two as a class
action.
Count Two alleges that all of Arizona Department of Corrections,
Rehabilitation and Reentry (ADCRR) is operating with systematic
deficiencies in staffing which leaves inmates in two-man cells and
in dormitories out of sight and hearing of correction officers for
prolonged periods of time which allows inmates opportunities to
plan and carry out rape, assault, murder, and escapes without
intervention by officers.
The Plaintiff ask the Court to certify all prisoners, current and
future, confined in the ADCRR as the Class for Count Two of the
complaint.
A copy of the Plaintiff's motion dated Jan. 25, 2022 is available
from PacerMonitor.com at https://bit.ly/3H7ZEkd at no extra
charge.
The Plaintiff appears pro se.[CC]
ARROW SENIOR: FLSA Conditional Class Cert. Sought in Roberts Suit
-----------------------------------------------------------------
In the class action lawsuit captioned as DEBORAH ROBERTS, et al.,
on behalf of themselves and others similarly situated, v. ARROW
SENIOR LIVING MANAGEMENT, LLC, Case No. 4:21-cv-01370-HEA (E.D.
Mo.), the Parties file a joint motion for an order approving
stipulation of conditional certification as follows:
1. The Parties stipulate that the following class may be
conditionally certified pursuant to section 216(b) of the
Fair Labor Standards Act (FLSA):
"All current and former hourly, non-exempt employees of
Defendant who worked at any non-Ohio Arrow facility who
worked at least 40 hours in any workweek and 1) had a meal
deduction taken from their compensable hours worked,
and/or 2) received nondiscretionary bonus payments, such
as a retention bonus 2 or a shift pick up bonus for
working extra shifts or hours beyond what the employee was
scheduled to work from November 19, 2018 to present."
2. The Parties request that the Court issue an Order that
conditionally certifies a class of all persons that fit
the definition of Collective Class Members.
3. The Parties agree to the form and substance of the Notice
of FLSA Lawsuit and request that the Court issue an Order
approving the form and substance of the Notice.
4. The Parties agree to the form and substance of the Consent
to Join and request that the Court issue and Order
approving the form and substance of the Consent to Join.
5. The Parties agree that Defendant will provide a list of
all Collective Class Members as defined in (2) above,
including their name, dates of employment, last known
mailing address.
Arrow Senior manages a collection of communities that offer varying
levels of care including independent living, assisted living, and
memory care.
A copy of the Parties' motion dated Jan. 24, 2022 is available from
PacerMonitor.com at https://bit.ly/345fJsj at no extra charge.[CC]
The Plaintiffs are represented by:
Shannon M. Draher, Esq.
NILGES DRAHER LLC
7034 Braucher St NW, Suite B
North Canton, OH 44720
Telephone: (330) 470-4428
Facsimile: (330) 754-1430
E-mail: sdraher@ohlaborlaw.com
- and -
Matthew J.P. Coffman, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Road, Suite 126
Columbus, OH 43220
Telephone:(614) 949-1181
Facsimile: (614) 386-9964
E-mail: mcoffman@coffmanlegal.com
The Defendant is represented by:
Rebecca J. Bennett, Esq.
Monica L. Lacks, Esq.
OGLETREE, DEAKINS, NASH
SMOAK & STEWART, P.C.
Key Tower
127 Public Square, Suite 4100
Cleveland, OH 44114
Telephone: (216) 241-6100
Facsimile: (216) 357-4733
E-mail: rebecca.bennett@ogletree.com
Monica.lacks@ogletree.com
AT&T MOBILITY: Adjustments to Case Schedule in Vianu Entered
------------------------------------------------------------
In the class action lawsuit captioned as IAN VIANU, ELIZABETH BLUM,
and DOMINIC GUTIERREZ, on behalf of themselves and all others
similarly situated, v. AT&T MOBILITY LLC, Case No. 3:19-cv-03602-LB
(N.D. Cal.), the Hon. Judge Laurel Beeler entered an order granting
Parties' stipulation on briefing and hearing schedule for
Plaintiffs' class certification motion as follows
Case Event Current Proposed
Deadline New Deadline
-- Mediation N/A Feb 17, 2022
-- Four deferred fact January 2022 Scheduled between
witness depositions Feb. 28, 2022 to
March 10, 2022
-- Last date to file Feb. 23, 2022 March 23, 2022
motion for class
certification
-- Opposition to motion May 13, 2022 June 10, 2022
for class
certification
-- Reply in support of June 27, 2022 July 28, 2022
motion for class
certification
-- Hearing on motion for July 14, 2022 Aug. 11, 2022
class certification
/Further Case
Management Conference
AT&T is an American telecommunications company.
A copy of the Court's order dated Jan. 25, 2022 is available from
PacerMonitor.com at https://bit.ly/3rPMdiB at no extra charge.[CC]
The Plaintiffs are represented by:
Roger N. Heller, Esq.
Michael W. Sobol, Esq.
Roger N. Heller, Esq.
Daniel E. Seltz, Esq.
Avery S. Halfon, Esq.
LIEFF CABRASER HEIMANN
& BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
- and -
Daniel M. Hattis, Esq.
Paul Karl Lukacs, Esq.
HATTIS & LUKACS
400 108th Ave NE, Ste. 500
Bellevue, WA 98004
Telephone: (425) 233-8650
Facsimile: (425) 412-7171
The Defendant is represented by:
Sean A. Commons, Esq.
Alycia A. Degen, Esq.
Rara Kang, Esq.
Alexandria V. Ruiz, Esq.
Angela C. Zambrano, Esq.
Penny P. Reid, Esq.
SIDLEY AUSTIN LLP
555 West Fifth Street, Suite 4000
Los Angeles, CA 90013
Telephone: (213) 896-6000
Facsimile: (213) 896-6600
- and -
Peter D. Marketos, Esq.
REESE MARKETOS LLP
750 N. Saint Paul Street, Suite 600
Dallas, TX 75201
Telephone: (214) 382-9810
Facsimile: (214) 501-0731
AUTO SYSTEMS: Lee Stephens Seeks to Certify Collective Action
-------------------------------------------------------------
In the class action lawsuit captioned as LEE STEPHENS, on behalf of
himself and others similarly situated, v. AUTO SYSTEMS CENTERS,
INC. d/b/a MIDAS, Case No. : 2:21-cv-05131-CMV (S.D. Ohio), the
Parties jointly stipulate to conditionally certify a collective
action pursuant to 29 U.S.C. section 216(b) and move the Court to
approve Notice and Consent Form to be sent to the putative class
members who are defined as:
"All current and former hourly non-exempt service center
employees 2 of Defendant at any of its facilities and were
paid for 40 or more hours in any workweek during the three
years preceding the filing of this Motion and continuing
through the final disposition of this case."
The parties also ask the Court to enter an order that:
1. The Defendant shall provide to Named Plaintiff's Counsel a
list (in Microsoft Office Excel format) containing the
names, last known addresses (including zip code) and
personal email addresses of the following putative class
members;
2. The Named Plaintiff's Counsel will mail and email to the
Putative Collective Class Members via First Class U.S.
Mail within 14 days of receiving the list; and
3. The Putative Collective Class Members shall have 90 days
from the date the Notice Packet is mailed and emailed to
return their Consent to Join form and opt-in to this case.
Auto Systems offers automobile repair and service.
A copy of the Parties' motion dated Jan. 25, 2022 is available from
PacerMonitor.com at https://bit.ly/3u1B80t at no extra charge.[CC]
The Plaintiff is represented by:
Matthew J.P. Coffman, Esq.
Adam C. Gedling, Esq.
Kelsie N. Hendren, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Road, Suite 126
Columbus, OH 43220
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
E-mail: mcoffman@mcoffmanlegal.com
agedling@mcoffmanlegal.com
khendren@mcoffmanlegal.com
The Defendant is represented by:
Patrick Kasson, Esq.
Sunshine J. Thomas, Esq.
REMINGER CO., L.P.A.
200 Civic Center Drive, Suite 800
Columbus, OH 43215
Telephone: (614) 228-1311
Facsimile: (614) 232-2491
E-mail: pkasson@reminger.com
sthomas@reminger.com
BACTES IMAGING: Cal. App. Affirms Judgment in Busby Class Suit
--------------------------------------------------------------
In the case, SPENCER S. BUSBY, APLC, Plaintiff and Appellant v.
BACTES IMAGING SOLUTIONS, LLC, Defendant and Respondent, Case No.
D078204 (Cal. App.), the Court of Appeals of California, Fourth
District, Division One, affirmed the trial court's judgment in
favor of BACTES.
I. Background
BACTES is a release of information (ROI) vendor that contracts with
health care providers including medical practices and hospital
networks. As an ROI vendor, BACTES assists health care providers in
responding to requests for patient information, including requests
from patients seeking their own medical records, requests from
doctors seeking other doctors' treatment records, and—of
relevance here—requests from attorneys seeking their clients'
medical records in anticipation of potential litigation. Client
medical records assist plaintiff-side attorneys in evaluating their
clients' claims and pursuing early dispute resolution.
BACTES enters into two agreements with health care providers
relating to ROI services—a service agreement and a HIPAA business
associate agreement. The service agreement requires BACTES to
respond to requests for patient information on behalf of the health
care providers. Importantly, it does not require BACTES to
photocopy responsive records or provide photocopies of such records
to the requesting parties. The HIPAA business associate agreement
grants BACTES access to patients' medical records.
After BACTES receives an attorney's request, BACTES identifies the
responsive medical records, reviews the records and other
documentation for regulatory compliance, and notifies the attorney
about options by which she may inspect or obtain photocopies of the
records. One option available to the attorney, among others, is to
hire and pay BACTES to provide photocopies of the records.
Spencer S. Busby, APLC, a professional law corporation specializing
in personal injury lawsuits, is the class representative for a
class of 9,691 attorneys who hired BACTES to provide photocopies of
their clients' medical records. Busby sued BACTES, claiming it
charged photocopying rates exceeding the rates permitted by
Evidence Code section 1158.2 Section 1158 sets maximum rates health
care providers may charge attorneys for pre-litigation photocopies
of their clients' medical records.
Plaintiff Busby alleged BACTES violated section 1158 by charging
rates above the statute's reasonable cost limitations. Busby
asserted a claim for violations of section 1158 and a derivative
claim for violations of the unlawful prong of the Unfair
Competition Law.
After a three-day bench trial, the court determined BACTES did not
violate section 1158, and entered judgment in BACTES's favor. The
court found BACTES acted as the agent of the health care providers
when it responded to the attorneys' section 1158 requests. However,
the court found BACTES acted as the agent of the attorneys when it
photocopied the patient records and provided those photocopied
records to the attorneys. Because the court found BACTES provided
its photocopying services while acting as an agent of the
attorneys-- not the health care providers -- the court concluded
BACTES was not required to comply with the reasonable cost
provisions of section 1158. The court entered judgment in favor of
BACTES accordingly.
II. Analysis
1.
Relying on Thornburg v. Superior Court (2006) 138 Cal.App.4th 43,
Busby argues the trial court erred in finding that BACTES was not
liable for violations of section 1158. According to Busby, BACTES
violated section 1158 because it charged rates above the reasonable
cost limitations in section 1158, subdivision (e), and both
Thornburg requirements were satisfied: (1) BACTES "assumed the duty
of responding to section 1158 requests," and (2) BACTES "acted for
its own advantage and benefit as well as the interests" of the
health care providers.
The Court of Appeals disagrees with Busby's argument, which
overlooks material differences between the present case and the
facts that were alleged in Thornburg. It cannot find fault with the
trial court's legal analysis. In short, the contracts between
BACTES and the health care providers did not envisage that BACTES
would photocopy and transmit patient records to requesting
attorneys. Thus, to the extent BACTES engaged in such acts, those
acts fell outside the scope of the limited agency relationships
that existed between BACTES (the agent) and the health care
providers (the principals). In this respect, the facts that were
proven at trial are materially different from the facts alleged in
Thornburg.
By contrast, the Court of Appeals finds that the agreements between
BACTES and the attorneys provided that the attorneys were hiring
BACTES for the express purpose of photocopying the requested
patient records and providing those photocopied records to the
attorneys. Therefore, BACTES's practice of photocopying records and
delivering them to the attorneys fell squarely within the scope of
the defined agency relationships that existed between BACTES (the
agent) and the attorneys (the principals). Once more, these facts
distinguish the case from Thornburg, where there were no
allegations of a principal-agent relationship between the
requesting attorney and BACTES.
Because BACTES indisputably acted on behalf of the requesting
attorneys -- not on behalf of the health care providers -- when it
photocopied the patient records and transmitted them to the
attorneys, the Court of Appeals holds that the trial court
correctly found that BACTES did not violate section 1158.
2.
Plaintiff Busby contends BACTES's practices are irreconcilable with
the legislative goals of section 1158, in addition to being
irreconcilable with the Thornburg decision. Section 1158 does not
include a statement of legislative purpose, "but its apparent goal
is to permit a patient to evaluate the treatment he or she received
before determining whether to bring an action against the medical
provider. Section 1158 also enables the patient to seek freely
advice concerning the adequacy of medical care and to create a
medical history file for the patient's information or subsequent
use. It operates to prevent a medical provider from maintaining
secret notes which can be obtained by the patient only through
litigation and potentially protracted discovery proceedings."
The Court of Appeals rules that these legislative goals are
furthered, not undermined, by BACTES's practices. By reviewing a
patient's records and release authorization forms for regulatory
compliance, compiling the patient's records in one location, and
advising the requesting attorney she may inspect her client's
records at the health care facility or retain a copy service to
make photocopies, BACTES ensures that the patient, through her
attorney, receives access to her own medical files. BACTES does not
compel the attorney to retain BACTES or pay for its photocopying
services; the attorney can inspect the medical files personally or
through a representative without paying any photocopying costs at
all. Alternatively, she can retain a third-party photocopier that
may charge lower photocopying rates than BACTES. Regardless of
which option the attorney selects, the attorney is given access to
the medical files necessary for the attorney and her client to make
an informed decision regarding the costs and benefits of proceeding
with litigation.
3.
Finally, Busby argues the agency contracts between BACTES and the
requesting attorneys are unenforceable because they violate Civil
Code section 1668. That statute provides as follows: "All contracts
which have for their object, directly or indirectly, to exempt
anyone from responsibility for his own fraud, or willful injury to
the person or property of another, or violation of law, whether
willful or negligent, are against the policy of the law."
"Ordinarily, the statute invalidates contracts that purport to
exempt an individual or entity from liability for future
intentional wrongs and gross negligence. Furthermore, the statute
prohibits contractual releases of future liability for ordinary
negligence when 'the "public interest" is involved or a statute
expressly forbids it.'"
The Court of Appeals has difficulty comprehending the relevance of
Busby's argument. As best it can discern, Busby has never asserted
that BACTES's practice of entering into unenforceable agency
contracts with requesting attorneys itself violates the UCL. Thus,
even if it were to agree with Busby that the agency contracts were
invalid, that fact alone would not establish a UCL violation under
the theories of liability asserted by Busby.
To be sure, the agency contracts were used as evidence in the trial
court to establish the existence of an agency relationship between
BACTES and the requesting attorneys. However, as previously noted,
Busby has expressly disavowed any intention of challenging the
court's factual findings, including its finding that BACTES acted
as an agent of the requesting attorneys when it copied and
transmitted the patient records at issue. Because Busby does not
challenge any of the court's factual findings on appeal, Busby's
argument concerning the validity (or alleged invalidity) of the
agency contracts is immaterial to the disposition of this appeal.
Even if Busby's argument was relevant, the Court of Appeals finds
that the agency contracts did not violate Civil Code section 1668.
They did not purport to exculpate BACTES for violations of section
1158 or any other law. Rather, they established new principal-agent
relationships that fell outside the scope of section 1158
altogether.
III. Disposition
The Court of Appeals affirmed the judgment. BACTES is entitled to
its costs on appeal.
A full-text copy of the Court's Jan. 19, 2022 Order is available at
https://tinyurl.com/52tdedjw from Leagle.com.
Law Offices of Robert A. Waller, Jr., and Robert A. Waller --
robert@robertwallerlaw.com; Williams Iagmin --
robert@robertwallerlaw.com -- and Jon R. Williams on behalf of the
Plaintiff and Appellant.
Delmore Greene, Daniel W. Towson -- dtowson@delmoregreene.com --
and Cassandra F. Bolten -- cbolten@delmoregreene.com -- on behalf
of the Defendant and Respondent.
BENTLEY PROPERTIES: Seeks May 23 Deadline to File Class Cert. Bid
-----------------------------------------------------------------
In the class action lawsuit captioned as KALEE DEARDORFF v. BENTLEY
PROPERTIES LTD, Case No. 3:21-cv-05620-BJR (W.D. Wash.), the
Parties stipulate and jointly request that the Court extend the
deadline for Plaintiff's filing of its Motion for Class
Certification by 90 days to May 23, 2022.
On August 26, 2021, the Plaintiff filed this putative class action
alleging violations of the Telephone Consumer Protection Act
("TCPA").
On October 21, 2021, the parties engaged in a Fed. R. Civ. P. 26(f)
Conference. On November 8, 2021, the Court entered its Order
Setting Trial Dates and Related Dates, which contains, among
others, a deadline for completion of discovery of May 18, 2022 and
a dispositive motions deadline of June 17, 2022.
The Order did not contain a deadline for class certification, and
pursuant to LCR 23(i)(3), the Plaintiff's motion for class
certification is currently due February 22, 2022, which is 180 from
the date of the filing of the Complaint.
On October 22, 2021, the Plaintiff served discovery requests on
Defendant, with responses due on November 22, 2021. The Defendant
requested, and Plaintiff consented to, an extension of 14 days. On
December 6, 2021, Defendant served its discovery responses and
objections.
A copy of the Parties' motion dated Jan. 24, 2022 is available from
PacerMonitor.com at https://bit.ly/35hP7ot at no extra charge.[CC]
The Plaintiff is represented by:
Ignacio J. Hiraldo, Esq.
IJH LAW
Washington D.C. Bar No. 485610
1200 Brickell Ave. Ste. 1950
Miami, FL 33131
Telephone: (786) 496-4469
E-mail: ijhiraldo@ijhlaw.com
- and -
Manuel Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Blvd., Suite 1400
Fort Lauderdale, FL 33301
Telephone: (954) 400-4713
E-mail: MHiraldo@Hiraldolaw.com
- and -
Kira M. Rubel, Esq.
HARBOR LAW GROUP
3615 Harborview Drive, Suite C
Gig Harbor WA 98332
Telephone: (253) 251-2955
E-mail: kira@theharborlawgroup.com
The Defendant is represented by:
Justin D. Park, Esq.
Matthew Coughlan, Esq.
ROMERO PARK P.S.
155-108th Avenue NE, Suite 202
Bellevue, WA 98004
Telephone: (425) 450-5000
Facsimile: (425) 450-0728
E-mail: jpark@romeropark.com
mcoughlan@romeropark.com
BOJANGLES' RESTAURANTS: Time to File Responses Extended to Feb. 28
------------------------------------------------------------------
In the class action lawsuit captioned as Stafford v. Bojangles'
Restaurants, Inc., Case No. 3:20-cv-00266 (W.D.N.C.), the Hon.
Judge Max O. Cogburn, Jr. entered an order granting Defendant's
motion for extension of time to file responses to Plaintiff's
motion for Leave to File Second Amended Complaint and Plaintiff's
Motion to Certify Rule 23 Class, Appoint Class Representatives and
Appoint Class Counsel.
Responses is due by Feb. 28, 2022.
The nature of suit states civil rights -- Job Discrimination
(Employment).
Bojangles is an American regional chain of fast food restaurants
that specializes in cajun-seasoned fried chicken and buttermilk
biscuits that primarily serves the Southeastern United States.[CC]
BP EXPLORATION: 5th Cir. Partly Affirms Judgment in O'Brien's Suit
------------------------------------------------------------------
In the case, O'Brien's Response Management, L.L.C.; National
Response Corporation, Plaintiffs-Appellees v. BP Exploration &
Production, Incorporated; BP America Production Company,
Defendants-Third Party Plaintiffs-Appellants v. Navigators
Insurance Company, Third Party Defendant-Appellee, Case No.
20-30364 (5th Cir.), the U.S. Court of Appeals for the Fifth
Circuit affirmed in part and reversed in part the district court's
order denying BP's motion for judgment on the pleadings.
I. Introduction
The latest installment of litigation spilling out of the Deepwater
Horizon offshore explosion and fire centers on who should pay for
personal injury claims brought by employees of two companies hired
by BP Exploration & Production Inc. and BP America Production
Company ("BP") to clean up the oil spill. Specifically, BP claims
to be an "additional insured" under two policies obtained by
O'Brien's Response Management, L.L.C. BP also seeks indemnification
by O'Brien's and/or National Response Corp. ("NRC," together
"Responders") under its contract with each Plaintiff.
The issues require interpretation of BP's contracts with each of
the Responders and the related insurance policies in light of
sometimes sparse case law.
II. Background
BP retained the Responders for nearly $2 billion to assist with
clean-up efforts in the aftermath of the April 2010 Deepwater
Horizon oil spill. BP and O'Brien's executed a Bridge Agreement in
2010 that incorporated, with modifications, a Master Consulting
Services Contract they originally entered into in 2004 (the
"BP-O'Brien's Contract"). BP also entered into an Agreement for the
Provision of Response Resources with NRC in 2003 (the BP-NRC
Agreement).
The Responders and their respective subcontractors employed
thousands of workers as part of their clean-up efforts. Thousands
among these workers then filed personal injury lawsuits against BP,
which were consolidated with the multidistrict litigation ("MDL")
arising from the disaster. The district court organized the MDL
cases into various "pleading bundles."
Relevant in the present case, the B3 bundle included "all claims
for personal injury and/or medical monitoring for exposure or other
injury occurring after the explosion and fire of April 20, 2010."
On the court's instruction, the Plaintiffs' Steering Committee
("PSC") filed a B3 Master Complaint in December 2010 that the
Plaintiffs could join by filing a short form joinder. In April
2012, BP settled the B3 claims ("Medical Settlement") with the PSC
and a defined settlement class. The opt-out deadline closed in
October 2012.
Importantly, the Medical Settlement created a new type of claim for
latent injuries—the BELO claims -- so long as settlement class
members followed certain procedures. BP calls these claims
"creatures of the Medical Settlement." Although BP emphasizes that
the Responders were aware of the settlement before the district
court approved it in January 2013, BP does not dispute that neither
O'Brien's nor NRC had control over the negotiations, nor did either
approve the settlement.
After the settlement, the Plaintiffs could bring two relevant types
of claims: (1) opt-out B3 claims if they did not participate in the
settlement, and (2) BELO claims if they were class members who
alleged latent injuries and followed the approved process per the
Medical Settlement.
In March 2017, BP notified O'Brien's about a BELO suit filed by an
O'Brien's employee and sought indemnification under their Contract
for the first time. BP subsequently sought indemnification for
approximately 1,800 BELO claims by O'Brien's employees and 200 such
claims by NRC employees, as well as a smaller number of opt-out B3
claims against each Responder. The Responders refused to indemnify
BP under their respective contracts. Instead, they sued for a
declaration that they need not indemnify BP for any BELO or opt-out
B3 claims. BP counterclaimed for breach of contract, a declaration
in favor of its indemnification rights, and unjust enrichment.
O'Brien's is a named insured on two pertinent policies: (1) a
Primary Bumbershoot Liability policy issued by Navigators Insurance
Co. providing marine umbrella insurance with an aggregate limit of
$10 million; and (2) an Excess Bumbershoot Liability policy (the
"First Excess Bumbershoot" policy) issued by Navigators and other
insurers, which incorporates the Primary Bumbershoot's policy terms
and provides excess coverage up to $90 million.
O'Brien's also maintained marine general liability coverage under a
policy issued by Starr Indemnity & Liability Co. and a contractor's
operations and professional services environmental insurance
("COPS") policy that covered liabilities excluded by the Starr
policy. Both policies had coverage limits of $1 million per
occurrence and $2 million in aggregate and have been exhausted.
In June 2019, O'Brien's notified BP that it was an additional
insured under the Primary and First Excess Bumbershoot policies.
Navigators, however, refused BP's demands for coverage, prompting
BP to amend its counterclaim against the Responders and file a
third-party claim against Navigators on its bumbershoot policies.
Navigators, BP, and O'Brien's and NRC filed cross-motions for
judgment on the pleadings. The district court ruled against BP on
each issue, concluding that (1) BP was not an additional insured
under the relevant insurance policies; (2) O'Brien's was not
required to indemnify BP because BP violated the consent-to-settle,
notice, and control-of-defense provisions of the BP-O'Brien's
Contract; and (3) NRC was not required to indemnify BP under their
contract because NRC "had no liability under 'Responder Immunity
Law.'" The district court also determined that O'Brien's did not
breach its contractual obligation to acquire insurance coverage for
BP. BP timely appealed.
III. Discussion
The Fifth Circuit reviews Rule 12(c) judgments on the pleadings de
novo. It accepts well-pleaded facts as true and construes them in
the light most favorable to the non-moving party. The parties agree
that Texas law applies. As already stated, the appeal turns on
whether BP is an additional insured under the Primary and First
Excess Bumbershoot policies and on the interpretation of the
indemnification provisions of BP's separate contracts with
O'Brien's and NRC.
A. Additional Insured Status
BP seeks coverage as an "additional insured" under the Primary and
Excess Bumbershoot policies covering O'Brien's. The Primary
Bumbershoot policy defined an "assured" to include "any person,
organization, trustee or estate to whom the Named Assured is
obligated by virtue of a written contract or agreement to provide
insurance as is afforded by this policy." And the First Excess
Bumbershoot policy was subject to the primary policy's terms,
definitions, exclusions, and conditions. BP is thus an additional
insured under the two bumbershoot policies to the extent required
by the BP-O'Brien's Contract, the Fifth Circuit finds. The
BP-O'Brien's Contract confirms BP's status with regard to at least
some of O'Brien's insurance coverage.
Navigators challenges BP's claim to be an additional insured on the
bumbershoot policies for two primary reasons. First, Navigators
distinguishes its bumbershoot policies from the CGL coverage
referenced in Section 12.01.03 and argues that O'Brien's fulfilled
its contractual obligations by naming BP as an additional assured
on its Starr and COPS policies that provided GCL-type coverage.
Second, once O'Brien's fulfilled its obligations with respect to
CGL coverage, Navigators insists that its bumbershoot policies did
not provide additional assured coverage to BP. Alternatively,
Navigators argues that if BP is entitled to additional assured
coverage under its bumbershoot policies, then that coverage is
limited to the $2 million minimum required by Section 12.01.03.
The Fifth Circuit holds that Navigators' first two arguments do not
withstand analysis, but the coverage amount argument must be
closely examined.
1. CGL Coverage
To begin, Navigators concedes that the Starr policy provides
"standard primary CGL insurance, modified slightly to cover marine
operations." It also agrees that BP is an additional assured under
the Starr and COPS policies, and that its Primary Bumbershoot
policy provides excess coverage that "expressly includes the Starr
Policy and the COPS policy by name." Finally, Navigators describes
the First Excess Bumbershoot policy as "follow-form" of its primary
policy. To state these facts is to conclude that the bumbershoot
policies afford CGL-type coverage as described in the BP-O'Brien's
Contract.
The Fifth Circuit finds that Navigators resists the obvious,
emphasizing general differences between CGL and bumbershoot
policies writ large. It says, general distinctions are
unpersuasive. Undoubtedly, bumbershoot policies can differ from
standard CGL policies. But the specific coverage overlap of
Navigators' bumbershoot policies with the Starr policy (which was
modified to cover marine operations, after all), together with the
bumbershoot policies' direct reference to the Starr and COPS
policies, refutes any meaningful distinction here. Therefore, the
specific coverage provided by the policies is the relevant
inquiry.8 The bumbershoot policies provide CGL-type coverage, so
they are best understood as CGL policies under the BP-O'Brien's
Contract, and BP is an additional assured.
Navigators also asserts that the BP-O'Brien's Contract limits BP's
assured status to "primary CGL insurance, not bumbershoot, umbrella
or excess insurance." But the word "primary" is nowhere in the text
of the Contract, which requires only that O'Brien's "maintain" CGL
insurance with a certain minimum limit.
2. Contractual Minimum Coverage
The next question is how much coverage BP is entitled to as an
additional assured on the bumbershoot policies. BP contends it is
entitled to the full $100 million under these policies
notwithstanding that Section 12.01.03 required O'Brien's to
purchase CGL with "minimum limits" of $2 million per occurrence.
The Fifth Circuit concludes that the BP-O'Brien's Contract, read in
full, adopts the $2 million minimum CGL coverage as the maximum
required to be furnished by each party for the benefit of the other
and that Navigators' bumbershoot policies incorporated the limit of
the contractual obligation. BP fails to explain how the CGL's
minimum coverage limits are not included in the "all policies"
language of Section 12.02.
3. The Starr and COPS Policies Do Not Satisfy the Minimum
Although the district court correctly concluded that BP was only an
additional insured with respect to the $2 million obligated by the
BP-O'Brien's Contract, it erred in concluding that amount was fully
satisfied by the Starr and COPS policies (each bearing $1 million
coverage limits per occurrence), the Fifth Circuit holds. It says,
BP is entitled to $2 million of coverage. The Starr and COPS
policies cannot be combined to meet the minimum CGL coverage
requirement. Together, they only constitute $1 million of the $2
million required by the BP-O'Brien's Contract because they are
mutually reinforcing policies designed to satisfy the same
obligation by filling in each other's gaps.
B. Indemnification Obligations
Notwithstanding the contractual mutual indemnity obligations
between the Responders and BP, the district court concluded that BP
was not entitled to indemnification under either contract for any
of the claims. Regarding O'Brien's, the district court concluded BP
violated the BP-O'Brien's Contract's notice, consent-to-settle, and
control-of-defense prerequisites to indemnification. With respect
to NRC, it concluded that no indemnification obligations arose
under the contract with respect to any claims because NRC was
immune pursuant to applicable federal responder immunity laws.
1. BP-O'Brien's Contract BELO claims
Article 11 of the BP-O'Brien's Contract holds each party to mutual
indemnity obligations with regard to injuries to persons within
their control. Section 11.02 states that this duty is "subject to
the other provisions of this Article 11." Section 11.04 then
articulates notice, control-of-defense, and consent-to-settle
requirements for indemnification.
The Fifth Circuit finds that the district court correctly concluded
that BP materially breached the BP-O'Brien's Contract regarding the
BELO claims. Those are the claims that BP agreed with the PSC to
litigate, if the Plaintiffs followed certain procedures for claims
that arose following the Medical Settlement. Invoking a prior
material breach to justify non-performance is an affirmative
defense on which O'Brien's bears the burden of proof. By entering
the Medical Settlement without O'Brien's consent, BP breached the
control-of-defense and consent-to-settle provisions of the
indemnity clause.
For these reasons, the Fifth Circuit holds that the Medical
Settlement unambiguously compromised the defense of BELO claims in
some respects; BP therefore breached the consent-to-settle
provision with respect to the BELO claims. BP's strategy defeated
the underlying purpose of the indemnity provisions: To ensure the
indemnitor knew about a claim, led the defense, and agreed to all
settlements or any compromise of the claims. Because BP's breach
was material, O'Brien's is not required to indemnify the BELO
claims.
2. BP-O'Brien's Contract Opt-Out B3 Claims
The Fifth Circuit disagrees, however, with the district court's
conclusion that BP materially breached the notice and
control-of-defense provisions of the BP-O'Brien's indemnity
agreement for opt-out B3 claims at this stage. Opt-out B3 claims
are those that were not settled by the Medical Settlement and
therefore remained for individual plaintiffs to litigate against
BP. The district court's reasoning rested almost entirely on the
length of time -- over six years -- between the opt-out deadline
and the tendering of claims to O'Brien's. Contrary to the court's
reasoning, it is far from clear that BP breached the notice
provision for all of the opt-out B3 claims, and even less obvious
that any such breach was material.
Accordingly, the Fifth Circuit cannot conclude that opt-out B3
claims were materially compromised by the purported delay in
notice. O'Brien's concedes that "these claims and proceedings were
initially stayed against BP and then further sorted out by Pretrial
Order 63 and 66." And, as the district court recognized, this
multi-faceted litigation has implicated numerous claims, including
B3 claims that "were asserted directly against the Responders."
Whether O'Brien's was prejudiced, pursuant to Texas law, with
respect to a given claim due to delayed notice is a fact-bound
question. Developing the factual record is a task for the district
court in the first instance.
3. Claims Relating to the BP-NRC Agreement
In relevant part, the NRC-BP Agreement requires NRC to indemnify BP
only to the extent a claim is "caused by the gross negligence or
willful misconduct of NRC," and for which NRC was not entitled to
the protection of "Responder Immunity Law." This Agreement lacks
notice, control-of-defense, or consent-to-settle provisions, the
Fifth Circuit rules.
Under the circumstances presented in the case, the opt-out B3 and
BELO claims implicating the BP-NRC Agreement must be evaluated on a
claim-by-claim basis. The Fifth Circuit agrees with BP that the
district court erred by relying on its 2016 orders to conclude that
"under no circumstances is BP entitled to indemnity from NRC." The
fact that one set of B3 plaintiffs failed to raise a genuine issue
regarding whether NRC had disobeyed federal instructions does not
mean no plaintiff ever will. Whether a given claim falls within the
BP-NRC Agreement's indemnification provision is a claim-specific,
factual inquiry best resolved by the district court in the first
instance.
Alternatively, because the BP-NRC Agreement did not contain notice,
control-of-defense, or consent-to-settle provisions, it is unclear
whether NRC's indemnification obligations precisely track the
material breach analysis under the BP-O'Brien's Contract. The
district court must carefully reassess the BELO claims under the
BP-NRC Agreement pursuant to Texas law.
IV. Conclusion
Ultimately, the Fifth Circuit concludes that BP was an additional
insured up to the minimum amount required by its contract with
O'Brien's; the two insurance policies maintained by O'Brien's
cannot be combined to satisfy the minimum amount; O'Brien's is not
required to indemnify BP because BP materially breached its
indemnification provision with respect to the Back-End Litigation
Option ("BELO") claims brought by O'Brien's employees; and a
claim-by-claim analysis is required to determine the materiality of
any breach regarding the remaining indemnity claims against both
O'Brien's and NRC.
For the foregoing reasons, the Fifth Circuit affirmed the judgment
as follows: (1) BP is an additional insured under the relevant
policies only to the extent required to meet the BP-O'Brien's
Contract's $2 million CGL insurance requirement; and (2) BP
materially breached the indemnity provisions under the BP-O'Brien's
Contract with respect to BELO claims, excusing O'Brien's from
performing its indemnification obligations under the contract for
those claims.
The Fifth Circuit reversed the judgment as follows: (1) The Starr
and COPS policies cannot be combined to satisfy the BP-O'Brien's
Contract's $2 million CGL insurance requirement; together they
constitute $1 million in CGL-type coverage; (2) Determining whether
BP materially breached its obligations under the BP-O'Brien's
Contract with respect to opt-out B3 claims requires factual
development on a claim-by-claim basis; (3) Similarly, the district
court must evaluate NRC's indemnification obligations for opt-out
B3 and BELO claims under the BP-NRC Agreement on a claim-by-claim
basis.
The case is remanded to the district court for further proceedings
consistent with the Fifth Circuit's Opinion.
A full-text copy of the Court's Jan. 19, 2022 Opinion is available
at https://tinyurl.com/4ker2uax from Leagle.com.
BP EXPLORATION: Court Grants Summary Judgment Bid in North Suit
---------------------------------------------------------------
In the case, LAWRENCE ANDREW NORTH, Plaintiff v. BP EXPLORATION &
PRODUCTION INC., et al., Defendants, Civil No. 1:19cv209-HSO-RHWR
(S.D. Miss.), Judge Halil Suleyman Ozerden of the U.S. District
Court for the Southern District of Mississippi, Southern Division,
granted the Motion for Summary Judgment filed by Defendants BP
Exploration & Production, Inc., and BP America Production Co., on
Dec. 15, 2021.
I. Background
On Nov. 5, 2018, Plaintiff North filed a complaint against BP
Exploration & Production, Inc., and BP America Production Company
for personal injuries arising out of his work as a Cleanup Worker
in the aftermath of the Deepwater Horizon oil spill in June and
July 2010. He claims that he was exposed to "oil, dispersants, and
other harmful chemicals" while working as a Cleanup Worker, which
caused him to develop Atopic Dermatitis.
The case was transferred to the Court on April 2, 2019. After the
Court entered a Case Management Order, the parties began to conduct
discovery, with the Plaintiff's initial expert designation deadline
set for Sept. 1, 2020, and Defendants' deadline set for Nov. 2,
2020. A full three months after the Plaintiff's expert deadline had
passed, on Dec. 3, 2020, the Plaintiff moved to modify the Case
Management Order, seeking additional time for him to designate a
new expert. Ultimately, the Court accommodated his request, and he
was given until June 7, 2021, to designate his experts.
Instead of finally designating his experts on that date, the
Plaintiff's counsel filed a Motion to Withdraw as Attorney, stating
that he had been unable to contact Mr. North for weeks. He also
filed a Motion to Stay Proceedings and a Motion to Stay Discovery,
asking that the case be stayed for 45 days or until the Plaintiff
could secure new counsel, whichever was sooner.
On Aug. 16, 2021, the Magistrate Judge entered an Order granting
the counsel's Motion to Withdraw and denying the Plaintiff's Motion
and Amended Motion to Stay Discovery. The Order gave a clear
deadline of Sept. 7, 2021, for Mr. North to either employ new
counsel or inform the Court that he would be proceeding pro se.
When that deadline passed, the Defendants filed a Motion to Dismiss
for Lack of Prosecution. They argued that the Plaintiff's failure
to follow the Court's Order amounted to a failure to prosecute, and
that the Court should enforce its warning that "if the Plaintiff
fails to timely comply, the case will be subject to dismissal." On
Oct. 28, 2021, the Plaintiff filed an untimely Response to the
Defendants' Motion to Dismiss, along with a Notice that he would
proceed pro se.
In light of Mr. North's pro se status, the Court denied the
Defendants' Motion to Dismiss, following which the Defendants filed
the present Motion for Summary Judgment. They also filed a Motion
to Exclude the Testimony and Opinions of Plaintiff's expert,
Patricia Williams, Ph.D. The Defendants argue that Mr. North has
produced no admissible expert testimony that sufficiently shows
legal causation, which is fatal to his claim.
Mr. North's Response was due on Jan. 3, 2022. When that date passed
without a response from Mr. North, and again in light of his pro se
status, the Court sua sponte extended his deadline to respond until
Jan. 11, 2022, warning that "if no response is filed by the
deadline, the Court will proceed to rule on the Motion without the
benefit of a response." Despite the Court's repeated emphasis on
deadlines and extensions, Mr. North has not filed a Response.
II. Analysis
After the Deepwater Horizon oil spill, BP entered into a settlement
agreement with the members of a class action, and part of that
settlement agreement provided a Back-End Litigation Option ("BELO")
as a remedy for class members whose injuries were diagnosed after
April 16, 2012. In a BELO lawsuit, the plaintiff must prove that
his or her injuries were caused from exposure to the oil spill.
The Defendants assert that they are entitled to summary judgment on
grounds that Mr. North cannot meet the requirement that he prove
causation through admissible expert testimony. They contend that
Mr. North's expert witness, Dr. Patricia Williams, has failed to
satisfy the requirements set forth in Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579 (1993), and that because her report is
inadmissible, Mr. North "is unable to meet his burden of proof on
legal causation."
For a plaintiff to establish causation, "scientific knowledge of
the harmful level of exposure to a chemical, plus knowledge that
the plaintiff was exposed to such quantities, are minimal facts
necessary to sustain a plaintiff's burden in a toxic tort case."
Even though Mr. North has not carried his burden as the nonmovant
to point the Court to evidence in the record creating a triable
issue of fact, given his pro se status, Judge Ozerden does note
that Mr. North designated Dr. Williams, among others, as an expert.
On Jan. 10, 2022, the Court received a Notice that Dr. Williams is
not currently retained as an expert by the Plaintiff and has no
intention of testifying or offering opinions in the case.
Dr. Williams was previously retained by Mr. North's former counsel,
but former counsel terminated their relationship on Dec. 31, 2020.
Furthermore, Mr. North did not subsequently retain Dr. Williams as
an expert after his former counsel withdrew from the action. Dr.
Williams' discontinued role in the lawsuit renders the Defendants'
Motion to Exclude her Testimony moot, and the Plaintiff cannot rely
on her opinion to show causation.
Mr. North must establish causation by providing either medical
testimony, or a Rule 26(a)(2)(B) expert report. Judge Ozerden finds
that Mr. North has neither to support his claim against the
Defendants. Without any admissible evidence to prove causation, Mr.
North's claim cannot withstand summary judgment.
Viewing the facts and drawing all reasonable inferences in favor of
Mr. North as the nonmoving party, he has not produced evidence
sufficient to establish a triable issue of fact on the issue of
causation, an essential element of his claim. The Defendants are
therefore entitled to summary judgment.
III. Conclusion
Judge Ozerden granted Defendants BP Exploration & Production, Inc.,
and BP America Production Co.'s Motion for Summary Judgment.
Plaintiff North's claims against Defendants BP Exploration &
Production, Inc., and BP America Production Co., are dismissed with
prejudice. A separate final judgment will be entered pursuant to
Federal Rule of Civil Procedure 58.
A full-text copy of the Court's Jan. 18, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/52revbm6 from
Leagle.com.
CALIFORNIA STATE UNIVERSITY: Anders Seeks to Modify Sched Order
---------------------------------------------------------------
In the class action lawsuit captioned as TAYLOR ANDERS, ET AL., v.
CALIFORNIA STATE UNIVERSITY, FRESNO, ET AL., Case No.
1:21-cv-00179-AWI-BAM (E.D. Cal..), the Plaintiff asks the Court to
enter an order that the Preliminary Scheduling Order, be modified
to extend the class certification briefing schedule as follows.
1. Class Certification Motion Filing Deadline: February 25,
2022 (from February 4, 2022)
2. Class Certification Opposition: April 27, 2022 (from April
6, 2022)
3. Class Certification Reply: May 9, 2022 (from May 6, 2022)
4. Class Certification Motion Hearing May 16, 2022, at 1:30
p.m. (unchanged).
The California State University is a public university system in
California.
A copy of the Plaintiffs' motion dated Jan. 25, 2022 is available
from PacerMonitor.com at https://bit.ly/3KMB62w at no extra
charge.[CC]
The Plaintiff is represented by:
Lori Bullock, Esq.
Arthur H. Bryant, Esq.
BAILEY & GLASSER, LLP
1999 Harrison Street, Suite 660
Oakland, CA 94612
Telephone: (510) 272-8000
Facsimile: (510) 436-0291
E-mail: abryant@baileyglasser.com
- and -
Lori Bullock, Esq.
Cary Joshi, Esq.
Joshua I. Hammack, Esq.
Nicole L. Ballante, Esq.
BAILEY & GLASSER LLP
1055 Thomas Jefferson Street NW, Suite 540
Washington, DC 20007
Telephone: (202) 463-2101
Facsimile: (202) 463-2103
E-mail: lbullock@baileyglasser.com
cjoshi@baileyglasser.com
jhammack@baileyglasser.com
nballante@baileyglasser.com
- and -
Michael A. Caddell, Esq.
Cynthia B. Chapman, Esq.
Amy E. Tabor, Esq.
CADDELL & CHAPMAN
P.O. Box 1311
Monterey, CA 93942
Telephone: (713) 751-0400
Facsimile: (713) 751-0906
E-mail: mac@caddellchapman.com
cbc@caddellchapman.com
aet@caddellchapman.com
CARRINGTON MORTGAGE: 4th Cir. Partly Affirms Dismissal of Alexander
-------------------------------------------------------------------
In the case, ASHLY ALEXANDER; CEDRIC BISHOP, On behalf of
themselves individually and similarly situated persons,
Plaintiffs-Appellants v. CARRINGTON MORTGAGE SERVICES, LLC,
Defendant-Appellee, Case No. 20-2359 (4th Cir.), the U.S. Court of
Appeals for the Fourth Circuit affirmed in part, reversed in part,
and vacated in part the district court's dismissal of the
Plaintiffs' claims.
I. Background
Plaintiffs Ashly Alexander and Cedric Bishop brought the case as a
class action against Carrington. They alleged that Carrington
violated the Maryland Consumer Debt Collection Act and the Maryland
Consumer Protection Act by charging $5 convenience fees to
borrowers who paid monthly mortgage bills online or by phone.
In 2005, Ashly Alexander took out a residential mortgage loan to
purchase her property in Baltimore, Maryland. The Note evidencing
her loan required her to "make all payments under this Note in the
form of cash, check or money order" at a P.O. Box in Dallas, Texas
"or at a different place if required by the Note Holder." In 2017,
Carrington was retained to service and collect on Alexander's
loan.
In 2010, Cedric Bishop took out a residential mortgage loan to
refinance his property in Gaithersburg, Maryland. Bishop's Note
stated that "[p]ayment will be made" at an address in Irvine,
California "or at such other place as Lender may designate in
writing by notice to Borrower."In 2018, Carrington was retained to
service and collect on Bishop's loan.
Carrington gave Alexander and Bishop, in addition to the free
pay-by-mail option specified in the initial mortgage documents, the
choice to make payments online or by phone if they paid a $5
convenience fee. Borrowers opting to pay their bills online pressed
an "I agree" button after reviewing Carrington's terms and
conditions (thereby entering into a clickwrap agreement) and then
selected "Continue" after manually inputting their payment amount
and seeing the convenience fee displayed. Both Alexander and Bishop
paid their mortgages online, and they each incurred the $5 fee at
least nine times in 2018 or 2019.
Alexander filed a class-action complaint in Maryland court
challenging Carrington's convenience fees; Carrington promptly
removed the action to federal court under 28 U.S.C. Section
1332(d). Alexander then filed an amended complaint which added
Bishop as a plaintiff. Count I of that complaint, at issue here,
alleged two violations of the Maryland Consumer Debt Collection Act
(MCDCA): Engaging in conduct that violates the Fair Debt Collection
Practices Act (FDCPA), Md. Code Ann., Com. Law Section 14-202(11),
and attempting to enforce a right with knowledge that the right
does not exist. It also alleged two violations of the Maryland
Consumer Protection Act (MCPA): A standalone
unfair-and-deceptive-trade-practices claim and a derivative claim
based on the MCDCA violations.
Carrington moved to dismiss the Plaintiffs' complaint, and the
district court granted Carrington's motion. The district court
first held that in charging the convenience fees, Carrington was
not a "collector" for either MCDCA claim. As to the Section
14-202(11) claim, the district court further held that Carrington
was not a "debt collector" under the FDCPA, that the Plaintiffs'
choice to use the online-payment option was "permitted by law," and
that Carrington's convenience fees were not "incidental" to the
Plaintiffs' mortgage debt. As to the Section 14-202(8) claim, the
district court held that Carrington had the "right" to collect the
convenience fees, since none of the mortgage documents expressly
prohibited the fees and the Plaintiffs voluntarily chose to make
payments online.
Because the district court found that the Plaintiffs' MCDCA claims
failed, it also dismissed their derivative MCPA claim. On the
standalone MCPA claim, the district court found no unfair practice
or misrepresentation upon which the Plaintiffs relied. As a result,
it dismissed all of the Plaintiffs' claims with prejudice.
The Fourth Circuit reviews de novo the district court's dismissal
of the Plaintiffs' claims.
II. Discussion
The MCDCA and the MCPA are, as noted, remedial consumer protection
statutes. As such, they "must be liberally construed, in order to
effectuate their broad remedial purpose." In fact, Maryland's high
court has expressly warned against construing these statutes in a
"narrow or grudging" manner so as to "exemplify and perpetuate the
very evils to be remedied." Relatedly, "exemptions from remedial
legislation must be narrowly construed." So the Fourth Circuit must
not "read additional exemptions into a remedial statute"; it
instead defer to the legislature's judgments.
Keeping these principles in mind, the Fourth Circuit turns to the
Plaintiffs' central claim under the MCDCA: That, by charging its
convenience fees, Carrington engaged in conduct violating the
FDCPA. It holds that Carrington is a "collector" who charged an
"amount" that was not "expressly authorized by the agreement
creating the debt or permitted by law" in violation of the FDCPA.
As a result, it reverses the district court's dismissal of the
Plaintiffs' Section 14-202(11) claim.
A.
The Fourth Circuit first finds that Carrington is a "collector"
under the MCDCA. The MCDCA broadly defines a "collector" as "a
person collecting or attempting to collect an alleged debt arising
out of a consumer transaction." In the case, there is no dispute
that Carrington is a person, as the MCDCA defines "person" to
include "an individual, corporation, business trust, statutory
trust, estate, trust, partnership, association, two or more persons
having a joint or common interest, or any other legal or commercial
entity." Nor is there any dispute that the Plaintiffs' debt arose
out of a consumer transaction, which the statute defines as "any
transaction involving a person seeking or acquiring real or
personal property, services, money, or credit for personal, family,
or household purposes." And it is plain that, by collecting
borrowers' monthly mortgage payments, Carrington is collecting a
debt. Each piece of the statutory puzzle thus fits together:
Carrington counts as a "collector" under the MCDCA.
B.
The Fourth Circuit next holds that Carrington's convenience fees
qualify as an "amount" under the FDCPA. It explains that the FDCPA
prohibits "the collection of any amount (including any interest,
fee, charge or expense incidental to the principal obligation)
unless such amount is expressly authorized by the agreement
creating the debt or permitted by law." Carrington claims that the
FDCPA only prohibits fees that are "incidental" to the mortgage
debt. But this misreads the statute.
The FDCPA's far-reaching language straightforwardly applies to the
collection of "any amount." While convenience fees are not
explicitly enumerated, Congress certainly did not want debt
collectors to skirt statutory prohibitions through linguistic
sophistry. So the Fourth Circuit has no trouble in concluding that
convenience fees are an "amount" under the FDCPA.
C.
The Fourth Circuit now turns to the final component of the
Plaintiffs' Section 14-202(11) claim and holds that Carrington's
convenience fees were not "permitted by law." Once more, the FDCPA
prohibits "the collection of any amount unless such amount is
expressly authorized by the agreement creating the debt or
permitted by law." While Carrington concedes that the agreements
creating the debt do not expressly authorize the convenience fees,
the parties vigorously dispute whether those fees are "permitted by
law." The Plaintiffs argue that "permitted by law" requires express
sanction or approval; Carrington thinks that the phrase indicates
only a lack of express prohibition. In the Fourth Circuit's view,
the Plaintiffs' interpretation aligns best with the statute: In the
case, "permitted by law" requires affirmative sanction or approval,
typically (though not always) from a statute.
Because Carrington is a collector who charged an amount that was
not expressly authorized by the agreement creating the debt or
permitted by law, it violated the MCDCA. The Fourth Circuit thus
reverses the district court's dismissal of the Plaintiffs' Section
14-202(11) claim.
D.
As to the remaining claims of the Plaintiffs, first, the Fourth
Circuit opines that because it holds that Carrington has violated
the MCDCA by engaging in conduct violating the FDCPA, the
Plaintiffs' derivative MCPA claim can also proceed, and the
district court's dismissal of that claim must also be reversed.
Second, it vacates the dismissal of Plaintiffs' Section 14-202(8)
claim, and remands it to allow the district court's further
consideration of that claim consistent with the Opinion. Third and
finally, the Plaintiffs' standalone MCPA claim alleging "unfair,
abusive, or deceptive trade practices" cannot proceed. While the
Plaintiffs perfunctorily allege that they "reasonably relied upon
the direct and indirect material acts and actions of Carrington,"
this looks more like a "threadbare recital of the elements of a
cause of action" than a "plausible claim for relief." The Fourth
Circuit thus affirms the district court's dismissal of this claim.
III. Disposition
The Fourth Circuit does not know if disallowing the fees is a wise
policy choice. But it is the choice that Maryland has made, and the
Fourth Circuit's role is simply to respect it. For the foregoing
reasons, it affirmed in part, reversed in part, vacated in part,
and remanded for further proceedings consistent with its Opinion.
A full-text copy of the Court's Jan. 19, 2022 Opinion is available
at https://tinyurl.com/3ny72jep from Leagle.com.
ARGUED: Hassan A. Zavareei, TYCKO & ZAVAREEI LLP, in Washington,
D.C., for the Appellants.
Fredrick S. Levin -- flevin@buckleyfirm.com -- BUCKLEY LLP, in
Santa Monica, California, for the Appellee.
ON BRIEF: Phillip R. Robinson -- phillip@marylandconsumer.com --
CONSUMER LAW CENTER, LLC, in Silver Spring, Maryland; Dia
Rasinariu, TYCKO & ZAVAREEI LLP, in Washington, D.C.; Patricia M.
Kipnis, BAILEY GLASSER LLP, in Cherry Hill, New Jersey, for the
Appellants.
Sarah B. Meehan -- smeehan@buckleyfirm.com -- BUCKLEY LLP, in
Washington, D.C., for the Appellee.
CEMEX CONSTRUCTION: Guyton FCRA Suit Removed to M.D. Florida
------------------------------------------------------------
The case styled as Ricardo Guyton, on behalf of himself and all
others similarly situated v. Cemex Construction Materials Florida,
LLC, Cemex, Inc., Case No. 21-CA-009653, was removed from the
Hillsborough County to the U.S. District Court for the Middle
District of Florida on Jan. 12, 2022.
The District Court Clerk assigned Case No. 8:22-cv-00099-CEH-AEP to
the proceeding.
The lawsuit is brought over alleged violation of the Fair Credit
Reporting Act.
Amazon Services LLC -- https://www.amazon.com/ -- offers many of
the Web service platforms that are Amazon offers.[BN]
The Plaintiff appears pro se.
Marc Reed Edelman, Esq.
MORGAN & MORGAN, PA
One Tampa City Center Ste 700
201 N Franklin Street
Tampa, FL 33602-5157
Phone: (813) 223-5505
Fax: (813) 257-0572
Email: MEdelman@forthepeople.com
The Defendants are represented by:
Marisol Ruiz, Esq.
Christine E. Howard, Esq.
FISHER & PHILLIPS LLP
101 E. Kennedy Blvd., Suite 2350
Tampa, FL 33602
Phone: (813) 244-0735
Fax: (813) 769-7501
Email: mruiz@fisherphillips.com
choward@fisherphillips.com
CENTRAL BUCKS: Joint Bid to Extend Class Cert. Deadline Filed
-------------------------------------------------------------
In the two class action lawsuits against Central Bucks School
District, the Plaintiffs Rebecca Cartee-Haring and Dawn Marinello,
and the Defendant filed a joint motion to extend the deadline for
motions for class certification and/or collective action.
On December 14, 2021, based on a proposed scheduling order of the
Parties, this Court issued an Amended Scheduling Order in the
above-captioned consolidated cases establishing January 31, 2022,
as the deadline for motions for class certification and/or
collective actions.
Due to scheduling issues, Rule 30(b)(6) depositions were conducted
in these cases on January 19 and 20, 2022. The Parties are still
awaiting the transcripts of those depositions.
Additionally, the District was unable to produce additional
documents in these cases until January 14, 2022.
The Parties believe that an extension of time until February 28,
2022, for the filing of class certification and/or collective
action motions will be in the interest of justice in that they will
then have the benefit of the Rule 30(b)(6) deposition transcripts
and additional documents which will better inform the Court as to
the merits of class certification and/or collective action status.
The two class action lawsuits are captioned as:
"REBECCA CARTEE-HARING v. CENTRAL BUCKS SCHOOL DISTRICT,
Case No. . 2:20-cv-01995-MMB (E.D. Pa.);"
- and -
DAWN MARINELLO, individually and on behalf of similarly
situated female employees, v. CENTRAL BUCKS SCHOOL DISTRICT,
Case No. 2:21-cv-02587-MMB (E.D. Pa.)."
The Central Bucks School District or CBSD is located in the
Commonwealth of Pennsylvania, and is the third largest school
district in Pennsylvania.
A copy of the Parties' motion dated Jan. 25, 2022 is available from
PacerMonitor.com at https://bit.ly/3rQxWSB at no extra charge.[CC]
The Plaintiffs are represented by:
Edward Mazurek, Esq.
THE MAZUREK LAW FIRM, LLC
717 South Columbus Blvd., Suite 516
Philadelphia, PA 19147
E-mail: emazurek@mazureklawfirm.com
The Defendant is represented by:
Michael I. Levin, Esq.
David W. Brown, Esq.
LEVIN LEGAL GROUP, P.C.
1800 Byberry Road, Suite 1301
Huntingdon Valley, PA 19006
E-mail: mlevin@levinlegalgroup.com
dbrown@levinlegalgroup.com
CHRISTIAN GUZMAN: Crichlow Suit Transferred to W.D. New York
------------------------------------------------------------
The case styled as Kevin Damion Crichlow, individually, on behalf
of many John Does, on behalf of all others similarly situated v.
Dr. Guzman, Lake, Meineke, McGill, M. Jr., Dinello, Sandez,
Perrottia; John Doe #1, Corrections Officer; Andola, Sherhand,
Zwece, Morrow, Cadrette, Travis, Robinson, Lilley; John Doe, Deputy
Superintendent of Security; Henre, John Doe #2, Corrections
Sergeant; Case No. 9:21-cv-00692, was transferred from the U.S.
District Court for the Northern District of New York, to the U.S.
District Court for the Western District of New York on Jan. 21,
2022.
The District Court Clerk assigned Case No. 6:22-cv-06031-EAW to the
proceeding.
The nature of suit is stated as Prisoner Civil Rights.
Dr. Christian Guzman is a New York Plastic Surgeon serving the
greater Westchester and Manhattan areas.[BN]
The Plaintiff appears pro se.
COLECTIVO COFFEE: Hobbs Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Colectivo Coffee
Roasters, Inc. The case is styled as Alexandra Hobbs, on behalf of
herself and all other persons similarly situated v. Colectivo
Coffee Roasters, Inc., Case No. 1:22-cv-00543 (S.D.N.Y., Jan. 20,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Colectivo Coffee Roasters -- https://colectivocoffee.com/ -- is a
specialty coffee roaster based in Milwaukee, Wisconsin.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
COSTA SHIPPING: Bid for Partial Remand in Qauod-Pinales Suit Okayed
-------------------------------------------------------------------
In the case, WILLIAM QAUOD-PINALES, on behalf of himself and all
others similarly situated, Plaintiff v. COSTA SHIPPING & DELIVERY,
INC., Defendant, Case No. 4:21-CV-216 RLW (E.D. Mo.), Judge Ronnie
L. White of the U.S. District Court for the Eastern District of
Missouri, Eastern Division, granted the parties' Joint Motion for
Partial Remand.
Plaintiff Qauod-Pinales filed his Collective and Class Action
Petition against the Defendant in Missouri state court alleging
violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C.
Section 201, et seq., (Count I); Missouri's Wage and Hour laws, Mo.
Rev. Stat. Sections 290.500, et seq. (Count II); for Quantum Meruit
under Missouri common law (Count III); for Unjust Enrichment under
Missouri common law (Count IV); and under Missouri's Workers'
Compensation Act, Mo. Rev. Stat. Section 287.780, for Workers'
Compensation Retaliation (Count V).
The Defendant removed the action to the Court on the basis of
federal question jurisdiction pursuant to 28 U.S.C. Sections 1331,
1441, 1446, and 1453. In its Notice of Removal, Defendant maintains
the Court has original federal question jurisdiction, pursuant to
28 U.S.C. Section 1331, over Count I, and supplemental
jurisdiction, pursuant to 28 U.S.C. Section 1367, over Counts II,
III, and IV. The Defendant states in its Notice of Removal that the
Plaintiff's state-law workers' compensation retaliation claim is a
nonremovable claim under 28 U.S.C. Section 1445(c).
The parties now request that the Court retains jurisdiction over
Counts I-IV and sever the Plaintiff's workers' compensation
retaliation claim and remand it to state court pursuant to 28
U.S.C. Section 1441(c).
Judge White explains that the Plaintiff's wage and hour claim
brought under the FLSA is clearly a federal claim. Related claims
not within the federal court's original jurisdiction may still be
heard in federal court, so long as the district court has
supplemental jurisdiction over the claims. But some state law
claims are non-removable under 28 U.S.C. Section 1445.
Under Section 1445(c), "a civil action in any State court arising
under the workmen's compensation laws of such State may not be
removed to any district court of the United States." Judge White
holds that the Plaintiff's workers' compensation retaliation claim
arises under the workmen's compensation laws of Missouri within the
meaning of Section 1445(c) and, therefore, is nonremovable.
The presence of a non-removable claim, however, does not
necessarily defeat removal. In cases such as the present one, where
there are claims over which the district court has jurisdiction
pursuant to Sections 1331 and 1367, in addition to a claim "made
nonremovable by statute," the case may still be removed from state
court "if the action would be removable without the inclusion of"
the nonremovable claim. Section 1441(c)(2) instructs that in such a
case, the district court should sever from the action all
non-removable claims and "remand the severed claims to the State
court from which the action was removed." Therefore, Judge White
will sever and remand the Plaintiff's nonremovable workers'
compensation retaliation claim, Count V, pursuant to Sections
1441(c) and 1445(c).
Accordingly, Judge White granted the parties' Joint Motion for
Partial Remand. The Plaintiff's claim for Workers' Compensation
Retaliation under Missouri's Workers' Compensation Act, Mo. Rev.
Stat. Section 287.780, is severed from the case and remanded to the
Twenty-First Judicial Circuit Court for St. Louis County, Missouri,
from which it was removed. The Court retains jurisdiction over the
remaining claims in the action.
A full-text copy of the Court's Jan. 18, 2022 Memorandum & Order is
available at https://tinyurl.com/5y4hznm8 from Leagle.com.
CREATIVE ENVIRONMENTS: Rode's Conditional Class Cert. Bid Nixed
---------------------------------------------------------------
In the class action lawsuit captioned as Hunter Rode v. Creative
Environments Design & Landscape Incorporated, et al., Case No.
2:21-cv-01656-ESW (D. Ariz.), the Hon. Eileen S. Willett Judge
entered an order denying the Plaintiff's "Motion for Conditional
Class Certification."
The Court said, "The Plaintiff has not submitted any declarations,
whether it be his own declaration or declarations by potential
class members. Further, as Defendants recount, the Plaintiff's
Verified Complaint merely alleges that Plaintiff "is personally
aware that other employees were not paid the time worked in the
yard or for the travel time to and from the job site, regular, or
overtime." "A standard requiring no more than mere allegations
would render conditional certification not only lenient but
virtually automatic." Silverman v. SmithKline Beecham Corp., Case
No. CV-06-7272 DSF CTX,(C.D. Cal., Oct. 15, 2007). The Court finds
that Plaintiff has not provided sufficient information to support
his assertion that he is similarly situated to other individuals
employed by Defendants. The Plaintiff's Motion will be denied."
On September 25, 2021, Hunter Rode filed a "Verified Collective
Action Complaint for Compensation under 29 U.S.C. section 201"
against Creative Environments Design & Landscape, Inc. and Daniel
Waters for the alleged unlawful failure to pay regular and overtime
wages in violation of the Fair Labor Standards Act (the "FLSA").
Creative Environments is a highly regarded landscape design company
in Phoenix, Arizona providing custom swimming pools, patios, AND
outdoor kitchens.
A copy of the Court's order dated Jan. 25, 2022 is available from
PacerMonitor.com at https://bit.ly/3onS9yv at no extra charge.[CC]
CTH RENTALS: Bickerstaff Files Suit in W.D. Tennessee
-----------------------------------------------------
A class action lawsuit has been filed against CTH Rentals. The case
is styled as Alton Bickerstaff, individually and on behalf of all
others similarly situated v. CTH Rentals, Case No. 2:22-cv-02037
(W.D. Tenn., Jan. 25, 2022).
The nature of suit is stated as Other P.I. for Personal Injury.
CTH Rentals, LLC is located in Halls, Tennessee and is part of the
Commercial and Industrial Machinery and Equipment Rental and
Leasing Industry.[BN]
The Plaintiff is represented by:
John Tate Spragens, Esq.
SPRAGENS LAW PLC
311 22nd Ave. N.
Nashville, TN 37203
Phone: (615) 983-8900
Email: john@spragenslaw.com
DEATH WISH COFFEE: Hobbs Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Death Wish Coffee
Company LLC. The case is styled as Alexandra Hobbs, on behalf of
herself and all other persons similarly situated v. Death Wish
Coffee Company LLC, Case No. 1:22-cv-00544 (S.D.N.Y., Jan. 20,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Death Wish Coffee -- https://www.deathwishcoffee.com/ -- is a
coffee brand based in the United States. Their coffee is primarily
sold online, but can also be found in grocery stores across the
United States.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
EQUINOX HOLDINGS: Fodera Wants Case Hearing Continued to March 9
----------------------------------------------------------------
In the class action lawsuit captioned as FRANK J. FODERA, JR. and
MICHAEL M. BONELLA, individually and on behalf of all others
similarly situated, v. EQUINOX HOLDINGS, INC., a Delaware
corporation; and DOES 1-50, inclusive, Case No. 3:19-cv-05072-WHO
(N.D. Cal.), the Plaintiffs ask the Court to enter an order
granting their unopposed administrative motion and continuing the
hearing on Plaintiffs' Motion for Leave to File Fourth Amended
Complaint from the current hearing date of Wednesday, February 9,
2022 to Wednesday, March 9, 2022, such that Plaintiffs' Motion for
Leave will be heard along with Plaintiffs' concurrently filed
Motion to Certify Class.
This motion is made on the ground that Plaintiffs filed the Motion
for Leave to modify their class definitions to those proposed in
the Motion for Class Certification, and if Plaintiffs' motions are
granted or denied, they are intimately tied to one another. A
continuance of the hearing on the Motion for Leave is in the
interests of judicial economy and will save the parties and the
Court the unnecessary time and expense of two separate hearings on
these intertwined motions, the Plaintiffs contend.
On January 5, 2022, the Plaintiffs filed a Motion for Class
Certification for hearing on February 9, 2022. Concurrently,
Plaintiffs filed their Motion for Leave, requesting leave to file
an amended complaint conforming Plaintiffs' class definitions to
those they were requesting the Court certify.
On January 11, 2022, the Defendant filed a Motion to Change Time to
Respond to Motion for Class Certification requesting additional
time to file its opposition and moving the hearing date of
Plaintiffs' Motion for Class Certification. The Court granted that
motion, in part, moving the Motion for Class Certification hearing
date to March 9, 2022, at 2:00 p.m..
However, the Court did not change the hearing date for Plaintiff's
concurrently filed Motion for Leave. The Plaintiffs' counsel
attempted to obtain a stipulation to the relief sought in this
administrative motion. In response, the Defendant's counsel stated
that they would not oppose Plaintiffs' request, the Plaintiffs
add.
Equinox is an American luxury fitness company which operates
several lifestyle brands: Equinox, Equinox Hotels, Precision Run,
Project by Equinox, Equinox Explore, Equinox Media, Furthermore,
PURE Yoga, Blink Fitness, and SoulCycle.
A copy of the Plaintiffs' motion dated Jan. 24, 2022 is available
from PacerMonitor.com at https://bit.ly/3qYNnc5 at no extra
charge.[CC]
The Plaintiffs are represented by:
Ronald W. Makarem, Esq.
Samuel D. Almon, Esq.
MAKAREM & ASSOCIATES APLC
11601 Wilshire Boulevard, Suite 2440
Los Angeles, CA 90025-1760
Telephone: (310) 312-0299
Facsimile: (310) 312-0296
E-mail: makarem@law-rm.com
almon@law-rm.com
FANATICS RETAIL: Ward Files Suit in Cal. Super. Ct.
---------------------------------------------------
A class action lawsuit has been filed against Fanatics Retail Group
Concessions, LLC, et al. The case is styled as Clexton Ward,
individually and on behalf of all, others similarly situated v.
Fanatics Retail Group Concessions, LLC, Does 1 through 20,
Inclusive, Case No. CGC22597616 (Cal. Super. Ct., San Francisco
Cty., Jan. 13, 2022).
The case type is stated as "Other Non-Exempt Complaint."
Fanatics Retail Group Concessions LLC is located in Jacksonville,
Florida and is part of the Other Miscellaneous Store Retailers
Industry.[BN]
The Plaintiff is represented by:
Jessica L. Campbell, Esq.
AEGIS LAW FIRM
9811 Irvine Center Dr., Ste. 100
Irvine, CA 92618
Phone: 949-379-6250
FEDERATION INTERNATIONALE: Class Cert. Hearing Set for Feb. 3
-------------------------------------------------------------
In the class action lawsuit captioned as THOMAS A. SHIELDS, et al.,
v. FEDERATION INTERNATIONALE DE NATATION, Case No.
3:18-cv-07393-JSC (N.D. Cal.), the Hon. Judge Jacqueline Scott
Corley entered an order regarding class certification hearing.
The Court will hear argument on Plaintiffs' motion for class
certification, on February 3, 2022 at 9:00 a.m. by Zoom
videoconference. The parties' experts need not appear.
If, following argument, the Court concludes that hearing directly
from the experts would be helpful, it will set a further hearing.
FINA is the international federation recognised by the
International Olympic Committee for administering international
competitions in water sports.
A copy of the Court's order dated Jan. 24, 2022 is available from
PacerMonitor.com at https://bit.ly/3IzQVrt at no extra charge.[CC]
FIDELITY BROKERAGE: Tully Suit Removed to D. Hawaii
---------------------------------------------------
The case styled as Greg B. Tully, individually and on behalf of all
others similarly situated v. Fidelity Brokerage Services LLC, Case
No. 1CCV-21-0001399, was removed from the Circuit Court of the
First Circuit, State of Hawai, to the U.S. District Court for the
District of Hawaii on Jan. 20, 2022.
The District Court Clerk assigned Case No. 1:22-cv-00032-LEK-WRP to
the proceeding.
The nature of suit is stated as Negotiable Instrument.
Fidelity Brokerage Services LLC -- http://www.fidelity.com/--
provides financial brokerage services.[BN]
The Plaintiff is represented by:
Brandee J. Faria, Esq.
LAW OFFICES OF BRANDEE J.K. FARIA
1164 Bishop St Ste 933
Honolulu, HI 96813
Phone: (808) 523-2300
Fax: (808) 697-5304
Email: brandee@farialawfirm.com
The Defendant is represented by:
Jesse W. Schiel, Esq.
Nicholas R. Monlux, Esq.
Ryan David Louie, Esq.
David M. Louie, Esq.
KOBAYASHI SUGITA & GODA
First Hawaiian Center
999 Bishop St Ste 2600
Honolulu, HI 96813-3889
Phone: (808) 539-8700
Email: jws@ksglaw.com
nrm@ksglaw.com
rdl@ksglaw.com
dml@ksglaw.com
FINN WELLNESS: Slade Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Finn Wellness, LLC.
The case is styled as Linda Slade, individually and as the
representative of a class of similarly situated persons v. Finn
Wellness, LLC, Case No. 1:22-cv-00608 (S.D.N.Y., Jan. 24, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Finn -- https://www.petfinn.com/ -- is a modern pet wellness
company that provides pets with everything they need to live their
healthiest, happiest lives.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
FRATELLI CARLI: Hobbs Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Fratelli Carli USA
Inc. The case is styled as Alexandra Hobbs, on behalf of herself
and all other persons similarly situated v. Fratelli Carli USA
Inc., Case No. 1:22-cv-00545 (S.D.N.Y., Jan. 20, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Fratelli Carli --
https://www.oliocarli.us/fratelli-carli/chi-siamo.html -- is a
historical olive oil company founded in 1911.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
FRIENDS FIRST: Schlosser Files FLSA Suit in W.D. Arkansas
---------------------------------------------------------
A class action lawsuit has been filed against Friends First, LLC.
The case is styled as Shell M. Schlosser, individually and on
behalf of all others similarly situated v. Friends First, LLC, Case
No. 6:22-cv-06016-RTD (W.D. Ark., Jan. 24, 2022).
The lawsuit is brought over alleged violation of the Fair Labor
Standards Act for Denial of Overtime Compensation.
Friends First LLC is located in North Little Rock, Arkansas and is
part of the Restaurants and Other Eating Places Industry.[BN]
The Plaintiff is represented by:
Josh Sanford, Esq.
SANFORD LAW FIRM
10800 Financial Centre Parkway
Little Rock, AR 72211
Phone: (501) 904-1649
Fax: (888) 787-2040
Email: josh@sanfordlawfirm.com
GALISON PUBLISHING: Miller Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Galison Publishing
LLC. The case is styled as Kimberly Miller, on behalf of herself
and all other persons similarly situated v. Galison Publishing LLC,
Case No. 1:22-cv-00660 (S.D.N.Y., Jan. 25, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Galison -- https://www.galison.com/ -- strive to bring art into
everyday life by collaborating with known and unknown artists to
create unique designs and art.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: nyjg@aol.com
michael@gottlieb.legal
GLAXOSMITHKLINE LLC: Smith Files Suit in E.D. Pennsylvania
----------------------------------------------------------
A class action lawsuit has been filed against Glaxosmithkline, LLC.
The case is styled as Tammy Smith, on behalf of themselves and all
other similarly situated v. Glaxosmithkline, LLC, Case No.
2:22-cv-00316-MAK (E.D. Pa., Jan. 24, 2022).
The nature of suit is stated as P.I.: Health Care/Pharmaceutical
Personal Injury Product Liability.
GlaxoSmithKline LLC -- https://us.gsk.com/en-us/home/ -- produces
and distributes pharmaceutical products.[BN]
The Plaintiff is represented by:
Lynn A. Ellenberger
FEGAN SCOTT LLC
500 Grant St., Suite 2900
Pittsburgh, PA 15219
Phone: (412) 515-1529
Fax: (412) 785-2400
Email: lynn@feganscott.com
GRANITE SERVICES: Court Grants Conditional Cert. in Campo Suit
--------------------------------------------------------------
In the class action lawsuit captioned as EMILIO CAMPO, individually
and on behalf of those similarly situated, v. GRANITE SERVICES
INTERNATIONAL, INC.; and FIELDCORE SERVICES SOLUTIONS, LLC, Case
No. 1:21-cv-00223-AT (N.D. Ga.), the Hon. Judge entered an order
granting in part the Plaintiff's motion to conditionally certify
collective action and facilitate notice to potential class
members.
The Court conditionally certifies a collective action consisting
of:
"All employees of Granite Services and FieldCore paid under
the Retainer B pay plan (excluding EHS employees who worked
in Texas) who in the past three years were paid 'straight
time for overtime.'"
The Court directs the parties to meet and confer for the purpose of
preparing a joint proposed notice to potential collective members.
The Defendants are further directed to run a list of potential
collective members and the full contact information available for
such members. This will facilitate counsel's practical assessment
of any adjustments required in the notice plan. The further Court
orders the parties to submit a joint proposed notice and proposed
method of delivery by no later than February 14, 2022. If there are
minor disagreements, the parties should note those disagreements
and their respective suggested language alternatives on the
proposal, using the "track changes" editing feature. If counsel are
unable to reach an agreement in substance, each party is directed
to submit its own version of the proposed notice and proposed
method of delivery to the Court by no later than February 15,
2022.
Plaintiff Emilio Campo alleges that he worked for Defendants as an
Environment, Health, and Safety (EHS) Advisor from August 2019 to
February 2020.
In the Amended Complaint, Campo alleges that Defendants violated
the Fair Labor Standards Act ("FLSA"),by paying him at the same
hourly rate for all hours that he worked, including "straight time"
pay for overtime hours.
The Defendants moved to dismiss the Amended Complaint on March 11,
2021, and the Court denied that motion on January 21, 2022.
The Defendants Granite Services and FieldCore Services provide
field, technical, and support services for the power generation and
oil and gas industries.
A copy of the Court's order dated Jan. 24, 2022 is available from
PacerMonitor.com at https://bit.ly/3rTbgkP at no extra charge.[CC]
GREGORY HACKER: Werner's Class Cert. Bid Nixed w/o Prejudice
------------------------------------------------------------
In the class action lawsuit captioned as DARRELL K. WERNER v.
GREGORY HACKER, Case No. 3:21-cv-01431-MAB (S.D. Ill.), the Hon.
Judge Mark A. Beatty entered an order:
1. denying without prejudice Plaintiff's motion to certify
class;
2. granting Plaintiff's Notice of Withdrawal of Motion to
Remand, which is construed as a motion and his motion to
remand is accordingly withdrawn;
3. mooting in part and denying in part the Defendant's Motion
to Stay Response Deadlines;
4. setting Defendant's response to Plaintiff's motion for
preliminary injunction due on or before February 24, 2022;
and
5. mooting in part and denying in part the Plaintiff's Motion
for Default, or in the Alternative, for a Definitive
Response.
The Court said, "The Plaintiff followed the dictate of Damasco v.
Clearwire Corp,, 662 F.3d 891 (7th Cir. 2011) and filed a
"placeholder" class certification motion immediately after filing
this lawsuit in order to protect the putative class from an attempt
by Defendant to buy off the named Plaintiff and moot the claims and
end the case. The motion was not intended for an immediate ruling,
and Plaintiff asked that briefing and ruling on the motion be
delayed until all class-related discovery is complete. The Court
notes that Damasco has been overruled and it appears that
Plaintiff's placeholder motion is now unnecessary. Accordingly, the
Plaintiff's motion to certify class is denied without prejudice. A
schedule regarding class discovery and class certification will be
entered in due course."
A copy of the Court's order dated Jan. 25, 2022 is available from
PacerMonitor.com at https://bit.ly/3rR3AiZ at no extra charge.[CC]
GUTSY LLC: Martinez Files ADA Suit in E.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Gutsy LLC. The case
is styled as Pedro Martinez, individually and as the representative
of a class of similarly situated persons v. Gutsy LLC doing
business as: Culture Pop, Case No. 1:22-cv-00409 (E.D.N.Y., Jan.
25, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Gutsy LLC doing business as culture POP --
https://drinkculturepop.com/ -- is a probiotic soda made with real
organic fruit juice and organic spices.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
GW PHARMACEUTICALS: Monteverde & KSF Named Lead Counsel in Ziegler
------------------------------------------------------------------
Judge Cynthia Bashant of the U.S. District Court for the Southern
District of California appointed Ziegler and Brady as the Lead
Plaintiff, and Monteverde & Associates PC and Kahn Swick & Foti LLC
as the Lead Counsel in the case, KURT ZIEGLER, Plaintiff v. GW
PHARMACEUTICALS, PLC, et al., Defendants, Case No.
21-cv-01019-BAS-MSB (S.D. Cal.).
I. Introduction
The lawsuit is a federal securities class action pertaining to
allegedly false and misleading statements made by Defendant GW and
its officers, regarding a merger agreement between GW and Jazz
Pharmaceuticals, PLC, which closed on May 5, 2021. Pending before
the Court is a motion for appointment of Lead Plaintiff and Lead
Counsel in the litigation.
II. Discussion
A. Appointment of Lead Plaintiff
Pursuant to the Private Securities Litigation Reform Act of 1995
("PSLRA"), the district court "shall appoint as lead plaintiff the
member or members of the purported class that the court determines
to be the most capable of adequately representing the interest of
the class members." "A 'group of persons' can collectively serve as
a lead plaintiff."
The PSLRA creates a rebuttable presumption that the most adequate
plaintiff should be the plaintiff who: (1) has filed the complaint
or brought the motion for appointment of lead counsel in response
to the publication of notice, (2) has the "largest financial
interest" in the relief sought by the class, and (3) otherwise
satisfies the requirements of Federal Rule of Civil Procedure 23.
The presumption may be rebutted only upon proof that the
presumptive lead plaintiff: (1) will not fairly and adequately
protect the interests of the class or (2) is subject to "unique
defenses" that render such plaintiff incapable of adequately
representing the class.
By its terms, the PSLRA "provides a simple three-step process for
identifying the lead plaintiff" in a private securities class
action litigation. "The first step consists of publicizing the
pendency of the action, the claims made and the purported class
period." At the second step, "the district court must consider the
losses allegedly suffered by the various plaintiffs," and select as
the "presumptively most adequate plaintiff the one who has the
largest financial interest in the relief sought by the class and
otherwise satisfies the requirements of Rule 23 of the Federal
Rules of Civil Procedure." Finally, at the third step, the district
court "gives other plaintiffs an opportunity to rebut the
presumptive lead plaintiff's showing that it satisfies Rule 23's
typicality and adequacy requirements."
1. Preliminary Procedural Requirements
Pursuant to the PSLRA, a plaintiff who files a securities
litigation class action must provide notice to class members via
publication in a widely-circulated national business-oriented
publication or wire service within 20 days of filing the complaint.
The notice must: (1) advise class members of the pendency of the
action, the claims asserted therein, and the purported class
period; and (2) inform potential class members that, within 60 days
of the date on which notice was published, any members of the
purported class may move the court to serve as lead plaintiff in
the purported class.
The action was filed in the District on May 27, 2021. Notice was
published in PRNewswire on June 4, 2021, by the law firm Monteverde
& Associates PC. The notice was timely published within 20 days
after the filing of the complaint, it lists the claims and the
class period, and it advises putative class members that they had
60 days from the date of the notice to file a motion to seek
appointment as lead plaintiff in the lawsuit. Ziegler and Brady
filed a motion for appointment as lead plaintiff within the
allotted period. Thus, notice in the action is proper and the
movants have satisfied the statutory procedural requirements for
moving to be appointed as the Lead Plaintiff.
2. Financial Interest
The PSLRA mandates that the district "court will consider any
motion made by a purported class member in response to the notice
and will appoint as lead plaintiff the member or members of the
purported plaintiff class that the court determines to be most
capable of adequately representing the interest of class members."
Mr. Ziegler is the one who has filed the Complaint, and Ziegler and
Brady together move for appointment of lead plaintiff and lead
counsel. Ziegler submits that he held 100 American Depositary
Shares ("ADS") of GW before the merger, and Brady submits that he
held 250 ADS of GW during the relevant period. No one else has
filed a competing motion for appointment of lead plaintiff. Where,
as in the case, the movants "are the sole parties seeking to be
appointed as Lead Plaintiffs," they are "entitled to the
presumption that they hold the largest financial interest."
Accordingly, Judge Bashant concludes that Ziegler and Brady are
members of the purported class who are most capable of adequately
representing the interest of class members.
3. Typicality and Adequacy Requirements
In addition to possessing the largest financial interest, the PSLRA
requires a proposed lead plaintiff to satisfy the requirements of
Rule 23. Once a court determines which plaintiff has the largest
financial interest, generally "the court must appoint that
plaintiff as lead, unless it finds that plaintiff does not satisfy
the typicality or adequacy requirements" of Rule 23(a). The movant
"need only make a prima facie showing of its typicality and
adequacy."
Ziegler and Brady satisfy both requirements, Judge Bashant finds.
First, Ziegler and Brady's claims are typical of the class and
those of the absent class members. Second, Ziegler and Brady's
interests in prosecuting the case are aligned with those of the
class because they seek to recover for the Defendants' allegedly
false and misleading statements about GW's proxy statements. Their
losses, tied to the ownership of GW's ADS shares, demonstrate to
the Court that they have a "sufficient interest in the outcome of
the case to ensure vigorous advocacy." In addition, the firms
proposed to serve as Ziegler and Brady's proposed counsel,
Monteverde & Associates PC and Kahn Swick & Foti LLC ("KSF"), are
experienced and qualified to prosecute securities class action
litigation.
Accordingly, Ziegler and Brady are entitled to the PSLRA's
presumption that they are the most adequate plaintiffs, and that
presumption has not been rebutted by any member of the proposed
plaintiff class. Therefore, Judge Bashant appoints Ziegler and
Brady as the Lead Plaintiff in the case.
B. Approval of Selection of Lead Counsel
Once the court has appointed a lead plaintiff, the lead plaintiff
"shall, subject to the approval of the court, select and retain
counsel to represent the class." A court generally accepts the
appointed lead plaintiff's choice of counsel unless it appears
necessary to appoint different counsel to "protect the interests of
the class."
Ziegler and Brady have selected Monteverde and KSF as the Lead
Counsel. Because they have made a "reasonable choice of counsel,"
Judge Bashant "defers to that choice."
III. Conclusion
Judge Bashant appointed Ziegler and Brady as the Lead Plaintiff,
and Monteverde & Associates PC and Kahn Swick & Foti LLC as the
Lead Counsel in the action.
A full-text copy of the Court's Jan. 18, 2022 Order is available at
https://tinyurl.com/ych32w35 from Leagle.com.
HALLWAY REAL: Abante Rooter Files TCPA Suit in N.D. California
--------------------------------------------------------------
A class action lawsuit has been filed against Hallway Real Estate
Inc. The case is styled as Abante Rooter and Plumbing Inc.,
Individually, and on behalf of all others similarly situated v.
Hallway Real Estate Inc. doing business as: Lionhart Lending, Case
No. 3:22-cv-00409 (N.D. Cal., Jan. 21, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Hallway Real Estate Inc. doing business as Lionhart Lending --
https://www.lionhartlending.com/ -- is a full-service mortgage
company based in Temecula, California.[BN]
The Plaintiff is represented by:
Todd Michael Friedman, Esq.
Adrian R. Bacon, Esq.
Meghan Elisabeth George, Esq.
Thomas Edward Wheeler, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21031 Ventura Blvd., Suite 340
Woodland Hills, CA 91364
Phone: (323) 306-4234
Fax: (866) 633-0228
Email: tfriedman@toddflaw.com
abacon@toddflaw.com
mgeorge@toddflaw.com
twheeler@toddflaw.com
HIBU INC: Cruz Sues Over Unpaid Minimum and Overtime Wages
----------------------------------------------------------
Lori Cruz, an individual, on behalf of herself and all others
similarly situated v. HIBU, INC., a Delaware Corporation; and DOES
1 TO 50, Case No. 34-2022-00313807 (Cal. Super. Ct., Sacramento
Cty., Jan. 12, 2022), is brought against the Defendants' violations
of California's laws by failing to pay minimum and overtime wages.
The Plaintiff brings this action on behalf of herself and the Class
Members, as a class action, against Defendants for: failure to pay
all overtime wages, failure to provide rest periods and pay missed
rest period premiums, failure to provide meal periods and pay
missed meal period premiums, failure to maintain accurate
employment records, failure to pay wages timely during employment,
failure to fiimish accurate itemized wage statements, and
violations of Califomia's Unfair Competition Law, says the
complaint.
The Plaintiff was employed by the Defendants within the State of
California.
The Defendants were authorized to and doing business in Sacramento
County and is and/or was the legal employer of Plaintiff and the
other Class Members during the applicable statutory periods.[BN]
The Plaintiff is represented by:
Jonathan Melmed, Esq.
Megan E. Ross, Esq.
MELMED LAW GROUP P.C.
1801 Century Park East, Suite 850
Los Angeles, California 90067
Phone: (310) 824-3828
Fax: (310) 862-6851
Email: jm@melmedlaw.com
megan@melmedlaw.com
HYATT CORP: Completion Date of Phase I Discovery Moved to June 2
----------------------------------------------------------------
In the case, JANICE INSIXIENGMAY, individually and on behalf of all
others similarly situated, Plaintiff v. HYATT CORPORATION, a
Delaware Corporation; HYATT CORPORATION DBA HYATT REGENCY
SACRAMENTO, an unknown association; and DOES 1 to 100, inclusive,
Defendants, Case No. 2:18-cv-02993-TLN-DB (E.D. Cal.), Judge Troy
L. Nunley of the U.S. District Court for the Eastern District of
California continued the deadline to complete Phase I discovery
regarding facts that are relevant to whether the action should be
certified as a class action to June 2, 2022.
The Court entered an Amended Pretrial Scheduling Order on Aug. 3,
2020 providing that Phase I discovery regarding facts that are
relevant to whether the action should be certified as a class
action will be completed within 240 days (i.e., March 31, 2021).
As a result of a prior informal discovery conference on Feb. 19,
2021, with Hon. Deborah Barnes, the Court suggested a stipulation
and order to continue the factual discovery deadline, which was
granted on Feb. 26, 2021, continuing the deadline to June 1, 2021.
The Court further amended the Amended Pretrial Scheduling Order on
May 25, 2021 to continue the Phase I discovery deadline to Aug. 2,
2021 to provide the Defendant with additional time to produce
electronic copies of time and pay records for a sample of employees
the parties agreed to, as Defendant encountered difficulties in
obtaining the requested data in electronic form.
Thereafter, the Defendant continued to attempt to obtain and
produce the data in electronic form but encountered additional
difficulties. On July 15, 2021, the Defendant's counsel informed
the Plaintiff's counsel that the Defendant now intends to produce
time and pay records from its hard copies because it was ultimately
unable to obtain complete electronic data.
Thereafter, because the Defendant needed additional time, the
parties submitted a stipulation and order to continue the Phase I
discovery deadline, which was granted and continued Nov. 2, 2021.
Thereafter because the Defendant needed additional time, the
parties submitted a stipulation and order to continue the Phase I
discovery deadline, which was granted and continued to Feb. 2,
2022.
The Parties met and conferred on Jan. 4, 2022 and determined that
Defendant requires more time to produce these documents due to
unexpected absences from the Defendant's counsel's staff due to
Covid, a death in the family, and the volume of the documents to be
produced.
On Jan. 18, 2022, the Defendant produced the time and pay records.
The Plaintiff will need an opportunity to review these records
prior to taking depositions and preparing a motion for class
certification.
The Parties agree the depositions of the Plaintiff and Rule
30(b)(6) designees of the Defendant should take place after the
time and pay records are produced. They are meeting and conferring
to set dates for these depositions. The Defendant will also wish to
depose any putative class members who provide declarations.
On Oct. 26, 2021, the Plaintiff filed a Notice of Related Action
(Christine Crump v. Hyatt Corporation Case No. 4:20-cv-00295-HSG,
United States District Court Northern District of California). The
Plaintiff has learned that the Defendant has agreed to a settlement
in the related action. She is unaware of the terms of the
settlement agreement and believes it could affect some of her
claims. The Defendant's counsel has represented he is unaware of
the terms of the settlement agreement.
According to a joint statement filed in the related action, the
counsel in the related action anticipate filing a motion for
preliminary approval of settlement by the end of January 2022.
To allow the Plaintiff time to determine the terms of the
settlement agreement in the related case and for the Parties to
continue to work cooperatively through the discovery issues without
requiring formal discovery orders on motions to compel, the Parties
believe additional time is necessary to complete Phase I discovery
and agree there is good cause to continue the deadline for Phase I
discovery approximately 120
Therefore, the Parties, subject to the approval of the Court,
stipulated that the Court's Amended Pretrial Scheduling Order will
be further amended to continue the deadline to complete Phase I
discovery regarding facts that are relevant to whether the action
should be certified as a class action to June 2, 2022.
Having considered the stipulation and finding good cause, Judge
Nunley further amended the Court's Amended Pretrial Scheduling
Order to continue the deadline to complete Phase I discovery
regarding facts that are relevant to whether the action should be
certified as a class action to June 2, 2022. The Amended Pretrial
Scheduling Order will remain in effect in all other respects.
A full-text copy of the Court's Jan. 18, 2022 Order is available at
https://tinyurl.com/4bttpnwp from Leagle.com.
Galen T. Shimoda, Justin P. Rodriguez, Brittany V. Berzin, Shimoda
Law Corp., in Elk Grove, California, Attorneys for Plaintiff JANICE
INSIXIENGMAY, on behalf of herself and similarly situated
employees
Joseph W. Ozmer II, J. Scott Carr -- scarr@kcozlaw.com -- KABAT
CHAPMAN & OZMER LLP, in Los Angeles, California, Attorneys for
Defendants HYATT CORPORATION d/b/a HYATT REGENCY SACRAMENTO
(erroneously sued as both "Hyatt Corporation" and "Hyatt
Corporation dba Hyatt Regency Sacramento)
ILLINOIS: Court Denies Bid for Class Action Status in Smith v. IDOC
-------------------------------------------------------------------
In the case, MATTHEW J. SMITH, Plaintiff v. MENARD CORRECTIONAL
CENTER, JOHN DOE #1, and JOHN DOE #2, Defendants, Case No.
21-cv-567-NJR (S.D. Ill.), Judge Nancy J. Rosenstengel of the U.S.
District Court for the Southern District of Illinois denied the
Plaintiff's motion for class action status and the appointment of
counsel.
I. Introduction
Plaintiff Matthew J. Smith, an inmate of the Illinois Department of
Corrections ("IDOC") who is currently incarcerated at Menard
Correctional Center, brings the action for deprivations of his
constitutional rights pursuant to 42 U.S.C. Section 1983. In his
Complaint, Smith alleges the Defendants failed to protect him from
an attack by his former gang and were deliberately indifferent to
the injuries he suffered from the attack, all in violation of the
Eighth Amendment. Smith seeks monetary damages and injunctive
relief.
The case is now before the Court for preliminary review of the
Complaint pursuant to 28 U.S.C. Section 1915A. Under Section 1915A,
the Court is required to screen prisoner complaints to filter out
non-meritorious claims. ny portion of a complaint that is legally
frivolous, malicious, fails to state a claim upon which relief may
be granted, or asks for money damages from a defendant who by law
is immune from such relief must be dismissed.
II. Background
Smith makes the following allegations in the Complaint: On Aug. 1,
2019, Smith signed into protective custody after being kicked out
of his gang. While in protective custody, he was sent to
segregation on two occasions for disciplinary violations. The first
time was because of hooch and tattoos. The second time because he
made and hid three shanks prior to his entry into protective
custody (Id.). Because he was sent to segregation, his protective
custody status was revoked. Smith maintains his protective custody
should not have been revoked for an incident that occurred prior to
his protective custody placement.
During his second time in segregation, on Nov. 18, 2019, he was
attacked by a member of his old gang resulting in a broken nose and
gashes on his nose. Smith alleges the assault would not have
happened if he had not been placed in a general population bullpen.
Smith maintains that someone at Menard, the person who created the
policy regarding the revocation of protective custody status, was
responsible for failing to protect him from his former gang. He
identifies John Doe #1 as the protective custody supervisor
After the attack, he was seen by a nurse who recommended x-rays of
his nose. Those x-rays were delayed for several weeks. When Smith
finally obtained an x-ray of his nose, the nose was healed. Due to
the delay in receiving an x-ray, Smith maintains that his nose was
not properly set and is now crooked. He was also told by nurse
practitioner Zimmer that his x-rays showed a stable nose, but Smith
believes this finding was a lie because his nose was swollen after
the attack He does not know who was responsible for his delay in
medical treatment but identifies John Doe #2 as the medical
director at Menard.
III. Discussion
Based on the allegations in the Complaint, Judge Rosenstengel finds
it convenient to divide the pro se action into the following two
counts: (i) Count 1: Eighth Amendment failure to protect claim
against John Doe #1 (supervisor of protective custody), in his
individual and official capacity, for implementing a policy
requiring Smith to be removed from protective custody status while
in segregation; and (ii) Count 2: Eighth Amendment deliberate
indifference claim against John Doe #2 (medical director) for
delaying Smith's x-ray and lying about the x-ray results.
The parties and the Court will use these designations in all future
pleadings and orders, unless otherwise directed by a judicial
officer of the Court. Any other claim that is mentioned in the
Complaint but not addressed in the Order should be considered
dismissed without prejudice as inadequately pled under the Twombly
pleading standard.
Judge Rosenstengel holds that at this stage, Smith states a viable
failure to protect claim against John Doe #1 in both his individual
and official capacity for the policy requiring Smith to be removed
from protective custody while in disciplinary segregation. Smith
alleges there was an express policy of removing protective custody
inmates from protective custody when placed in disciplinary
segregation. He also seeks injunctive relief for his claim. Thus,
Count 1 will proceed. To help identify John Doe #1 protective
custody supervisor, Judge Rosenstengel Anthony Wills (official
capacity only) to the case for the sole purpose of responding to
discovery aimed at identifying John Doe #1.
As to Count 2, Judge Rosenstengel holds that Smith fails to
identify any individual who actually caused the delay in his
treatment. He does not indicate that John Doe #2 medical director
delayed his treatment. He identifies Zimmer as the individual who
lied about his broken nose, but he does not name him as a defendant
nor does he allege Zimmer caused any delay in his treatment.
Because Smith fails to identify anyone, either by name or John Doe
status, that was responsible for the delay, he fails to state a
claim in Count 2. John Doe #2 medical director is dismissed without
prejudice.
To the extent Smith identifies Menard Correctional Center as a
defendant, it is a division of the Illinois Department of
Corrections, which is a state government agency, and is not subject
to suit under Section 1983. Menard Correctional Center is dismissed
with prejudice.
Smith has filed a motion for class action status and the
appointment of counsel. But Smith's Complaint focuses solely on
John Doe #1's failure to protect him. His Complaint fails to raise
any allegations which would be suitable for a class action, and his
requests for relief are related to his own protective custody. He
has also not properly defined a potential class other than to say
every inmate in protective custody. Thus, he has not met the
standard for certifying a claim and his motion for class action is
denied.
As to his request for counsel, Smith has not identified any
attempts to contact counsel on his own, only indicating that if the
case proceeds as a class action, he will need counsel. Because
Smith has not sought counsel on his own, Judge Rosenstengel denies
his motion. Should he choose to move for recruitment of counsel at
a later date, she directs Smith to (1) contact at least three
attorneys regarding representation in the case prior to filing
another motion, (2) include in the motion the name and addresses of
at least three attorneys he has contacted, and (3) if available,
attach the letters from the attorneys who declined representation.
IV. Disposition
For the reasons Judge Rosenstengel stated, Count 1 will proceed
against John Doe #1. Count 2 and John Doe #2 are dismissed without
prejudice. Menard Correctional Center is dismissed with prejudice.
Anthony Wills (official capacity only) is added to the case for the
sole purpose of responding to discovery to identify John Doe #1.
Smith's motion for merit review is denied as moot.
The Clerk of Court will prepare for Defendant Wills (official
capacity only): (1) Form 5 (Notice of a Lawsuit and Request to
Waive Service of a Summons), and (2) Form 6 (Waiver of Service of
Summons). The Clerk is DIRECTED to mail these forms, a copy of the
Complaint, and the Memorandum and Order to the defendant's place of
employment as identified by Smith. If the Defendant fails to sign
and return the Waiver of Service of Summons (Form 6) to the Clerk
within 30 days from the date the forms were sent, the Clerk will
take appropriate steps to effect formal service on him, and the
Court will require the Defendant to pay the full costs of formal
service, to the extent authorized by the Federal Rules of Civil
Procedure.
If the Defendant can no longer be found at the work address
provided by Smith, the employer will furnish the Clerk with the
Defendant's current work address, or, if not known, the Defendant's
last-known address. This information will be used only for sending
the forms as directed or for formally effecting service. Any
documentation of the address will be retained only by the Clerk.
Address information will not be maintained in the court file or
disclosed by the Clerk.
As Wills is only in the case for purposes of identifying John Doe
#1, he does not need to file a formal Answer. Once he enters the
case, he will receive further instructions from the Court on
responding to discovery aimed at identifying John Doe #1.
If judgment is rendered against Smith, and the judgment includes
the payment of costs under Section 1915, Smith will be required to
pay the full amount of the costs, regardless of whether his
application to proceed in forma pauperis is granted.
Finally, Smith is advised that he is under a continuing obligation
to keep the Clerk of Court and each opposing party informed of any
change in his address; the Court will not independently investigate
his whereabouts. This will be done in writing and not later than
seven days after a transfer or other change in address occurs.
Failure to comply with the Order will cause a delay in the
transmission of court documents and may result in dismissal of the
action for want of prosecution.
A full-text copy of the Court's Jan. 18, 2022 Memorandum & Order is
available at https://tinyurl.com/2p8369vn from Leagle.com.
KIM WORTHY: Cardello-Smith Files Suit in Mich. Cir. Ct.
-------------------------------------------------------
A class action lawsuit has been filed against Kim L. Worthy, et al.
The case is styled as Derrick Lee Lee, Cardello-Smith # 267009, all
37,000 prisoners that are currently/ similarly situated, Petitioner
v. Kim L. Worthy, Michigan Assigned Probable Cause Conference State
Officer, Michigan Probable Cause Conference Court Appointee,
Probable Cause Conference Director For The State Of Michigan, James
Schiebner, Heidi Washington, Respondents, Case No. 22-000961-AH
(Mich. Cir. Ct., Wayne Cty., Jan. 25, 2022).
The case type is stated as "Habeas Corpus."
Kim Loren Worthy (born December 5, 1956) is the current prosecutor
of Wayne County, Michigan, home to the city of Detroit.[BN]
The Petitioner appears pro se.
LEXISNEXIS RISK: Jones FCRA Suit Transferred to E.D. Virginia
-------------------------------------------------------------
The case styled as Yolanda Jones, individually and on behalf of all
persons similarly situated v. Lexisnexis Risk Solutions, Inc.,
Kroll Factual Data, Inc., Factual Data, Inc., Case No.
2:20-cv-06263, was transferred from the U.S. District Court for the
Southern District of Ohio, to the U.S. District Court for the
Eastern District of Virginia on Jan. 24, 2022.
The District Court Clerk assigned Case No. 3:22-cv-00036-JAG to the
proceeding.
The lawsuit is brought over alleged violation of the Fair Credit
Reporting Act.
LexisNexis Risk Solutions -- https://risk.lexisnexis.com/ -- is a
global data and analytics company that provides data and technology
services, analytics, predictive insights and fraud prevention for a
wide range of industries.[BN]
The Plaintiff is represented by:
Matthew Anderson Dooley, Esq.
O'TOOLE MCLAUGHLIN DOOLEY & PECORA CO LPA
5455 Detroit Rd
Sheffield Village, OH 44054
Phone: (440) 930-4017
Fax: (440) 934-7208
Email: mdooley@omdplaw.com
- and -
Craig Carley Marchiando, Esq.
Leonard Anthony Bennett, Esq.
CONSUMER LITIGATION ASSOCIATES
763 J Clyde Morris Boulevard, Suite 1A
Newport News, VA 23601
Phone: (757) 930-3660
Fax: (757) 930-3662
Email: craig@clalegal.com
lenbennett@clalegal.com
- and -
Eleanor Michelle Drake, Esq.
John G. Albanese, Esq.
BERGER MONTAGUE PC
1229 Tyler Street NE, Suite 205
Minneapolis, MN 55413
Phone: (612) 594-5933
Fax: (612) 584-4470
Email: emdrake@bm.net
jalbanese@bm.net
- and -
Sarah R Schalman-Bergen, Esq.
BERGER MONTAGUE, PC (PA-NA)
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Phone: (215) 875-3000
Fax: (215) 875-4604
Email: sschalman-bergen@bm.net
The Defendants are represented by:
Ronald I. Raether, Jr., Esq.
TROUTMAN PEPPER HAMILTON SANDERS LLP
5 Park Plaza, Suite 1400
Irvine, CA 92614
Phone: (949) 622-2722
Fax: (949) 622-2739
Email: ronald.raether@troutman.com
- and -
Michael G. Connelly, Esq.
Ralph C. Surman, Jr., Esq.
TROUTMAN PEPPER HAMILTON SANDERS LLP
501 Grant Street, Suite 300
Union Trust Building
Pittsburgh, PA 15219
Phone: (412) 454-5025
Email: michael.connelly@troutman.com
ralph.surman@troutman.com
- and -
Jason A. Spak, Esq.
FISHERBROYLES, LLP
P.O. Box 5262
Pittsburgh, PA 15206
Phone: (412) 230-8555
Fax: (412) 774-2382
Email: jason.spak@fisherbroyles.com
- and -
David Graham Kern, Esq.
FISHERBROYLES, LLP
201 East Fifth Street, Suite 1900
Cincinnati, OH 45202
Phone: (513) 340-4719
Email: david.kern@fisherbroyles.com
LIBERTY UNIVERSITY: Elleby Seeks More Time to Respond to Stay Bid
-----------------------------------------------------------------
In the class action lawsuit captioned as JOERELLA ELLEBY, on behalf
of herself and others similarly situated, v. LIBERTY UNIVERSITY,
INC., Case No. 5:21-cv-00093-KDB-DCK (W.D.N.C.), the Plaintiff asks
the Court to enter an order granting a three week extension of time
within which to respond to Defendant's motion for summary judgment
and Defendant's motion to stay.
On January 13, 2022, Defendant filed its motion for summary
judgment and motion to stay. Accordingly, the Plaintiff's responses
in opposition were due to be filed on January 27, 2022.
Due to the complexity of the legal and factual issues relating to
the motions, the Plaintiff said this requires additional time
beyond that provided in the Local Rules and requests a three week
extension of time, or until February 17, 2022, to file her
responses. The Defendant does not oppose Plaintiff's request.
No party will be prejudiced by the requested extension, and
granting the extension to file Plaintiff's responses will not
require an extension of any other deadline in the action, says the
complaint.
Accordingly, Plaintiff requests that the Court extend the deadline
to respond to Defendant's motion for summary judgment and motion to
stay up to and including February 17, 2022.
Liberty University is a private Evangelical university in
Lynchburg, Virginia.
A copy of the Plaintiff's motion dated Jan. 25, 2022 is available
from PacerMonitor.com at https://bit.ly/3o3VIJI at no extra
charge.[CC]
The Plaintiff is represented by:
Avi R. Kaufman, Esq.
KAUFMAN P.A.
400 NW 26 th Street
Miami, FL 33127
Telephone: (305) 469-5881
E-mail: kaufman@kaufmanpa.com
- and -
Ted Lewis Johnson, Esq.
TED LEWIS JOHNSON
PO Box 5272
Greensboro, NC 27435
Telephone: (336) 252-8596
E-mail: tedlewisjohnson@tedlewisjohnson.com
MANAGEMENT HEALTH: Cornwell Files Suit in Cal. Super. Ct.
---------------------------------------------------------
A class action lawsuit has been filed against Management Health
Systems, LLC, et al. The case is styled as Michelle Cornwell,
individually and on behalf of all, others similarly situated v.
Management Health Systems, LLC, Dignity Health Care Network LLC,
Does 1-10, Inclusive, Case No. CGC22597638 (Cal. Super. Ct., San
Francisco Cty., Jan. 13, 2022).
The case type is stated as "Other Non-Exempt Complaint."
Management Health Systems, LLC doing business as MedPro --
https://www.medprointernational.com/ -- is a Joint Commission
certified, leading provider of contract staffing services including
travel nursing and allied health to facilities throughout the
U.S.[BN]
The Plaintiff is represented by:
Sarah McCracken, Esq.
SCHNEIDER WALLACE COTTRELL KONECKY LLP
2000 Powell St., Ste. 1400
Emeryville, CA 94608-1863
Phone: 415-421-7100
Fax: 415-421-7105
Email: smccracken@schneiderwallace.com
MCKINSEY & COMPANY: Board of Education Suit Transferred to N.D. Cal
-------------------------------------------------------------------
The case styled as Board of Education of Boardman Local Schools,
Board of Education of Liberty Local Schools, individually and on
behalf of all others similarly situated v. McKinsey & Company,
Inc., McKinsey Holdings, Inc., McKinsey & Company Inc. United
States, McKinsey & Company Inc. Washington D.C., Case No.
4:21-cv-02346, was transferred from the U.S. District Court for the
Northern District of Ohio, to the U.S. District Court for the
Northern District of California on Jan. 24, 2022.
The District Court Clerk assigned Case No. 3:22-cv-00446-CRB to the
proceeding.
The nature of suit is stated as Personal Injury: Health
Care/Pharmaceutical Personal Injury Product Liability for the
Racketeering (RICO) Act.
McKinsey & Company -- https://www.mckinsey.com/ -- is a management
consulting firm, founded in 1926 by University of Chicago professor
James O. McKinsey, that advises on strategic management to
corporations, governments, and other organizations.[BN]
The Plaintiffs are represented by:
Allison Cross, Esq.
HENRICHSEN LAW
655 15th Street NW, Ste. 800
Washington, DC 20005
Phone: (202) 423-3649
- and -
C. Ezra Bronstein, Esq.
MEHRI & SKALET, PLLC
2000 K Street NW. Suite 325
Washington, DC 20006
Phone: (202) 822-5100
- and -
Cyrus Mehri, Esq.
MEHRI & SKALET PLLC
1300 19th Street, N.W., Suite 400
Washington, DC 20036
Phone: (202) 822-5100
Fax: (202) 822-4997
Email: cmehri@findjustice.com
- and -
John Wayne Hogan, Esq.
Leslie A. Goller, Esq.
TERRELL HOGAN
233 East Bay Street, 8th Floor
Jacksonville, FL 32202
Phone: (904) 632-2424
Email: hogan@terrellhogan.com
lgoller@terrellhogan.com
- and -
Joshua Karsh, Esq.
Matthew J. Piers, Esq.
HUGHES PIERS RESNICK & DYM, LTD.
Three First National Plaza
70 West Madison Street, Suite 4000
Chicago, IL 60602
Phone: (312) 580-0100
Fax: (312) 580-1994
Email: jkarsh@findjustice.com
mpiers@hsplegal.com
- and -
Margaret E. Truesdale, Esq.
EIMER STAHL
224 South Michigan Avenue, Ste. 1100
Chicago, IL 60604
Fax: (312) 692-1718
Email: mtruesdale@eimerstahl.com
- and -
Neil L Henrichsen, Esq.
HENRICHSEN LAW GROUP, P.L.L.C.
301 W. Bay Street, Suite 1400
Jacksonville, FL 32202
Phone: (904) 381-8183
Fax: (904) 212-2800
Email: nhenrichsen@hslawyers.com
- and -
Marc P. Gertz, Esq.
GERTZ & TSARNAS
11 South Forge Street
Akron, OH 44304
Phone: (330) 255-0727
Email: mpgertz@gertzrosen.com
MCKINSEY & COMPANY: Bullitt County Suit Transferred to N.D. Cal.
----------------------------------------------------------------
The case styled as Bullitt County Board of Education, Larue County
Board of Education, Fayette County Board of Education, Breathitt
County Board of Education, Estill County Board of Education, Martin
County Board of Education, individually and on behalf of all others
similarly situated v. McKinsey & Company, Inc., McKinsey Holdings,
Inc., McKinsey & Company Inc. United States, McKinsey & Company
Inc. Washington D.C., Case No. 3:21-cv-00734, was transferred from
the U.S. District Court for the Western District of Kentucky, to
the U.S. District Court for the Northern District of California on
Jan. 24, 2022.
The District Court Clerk assigned Case No. 3:22-cv-00444-CRB to the
proceeding.
The nature of suit is stated as Personal Injury: Health
Care/Pharmaceutical Personal Injury Product Liability for the
Racketeering (RICO) Act.
McKinsey & Company -- https://www.mckinsey.com/ -- is a management
consulting firm, founded in 1926 by University of Chicago professor
James O. McKinsey, that advises on strategic management to
corporations, governments, and other organizations.[BN]
The Plaintiffs are represented by:
C. Ezra Bronstein, Esq.
MEHRI & SKALET, PLLC
2000 K Street NW. Suite 325
Washington, DC 20006
Phone: (202) 822-5100
- and -
Cyrus Mehri, Esq.
MEHRI & SKALET PLLC
1300 19th Street, N.W., Suite 400
Washington, DC 20036
Phone: (202) 822-5100
Fax: (202) 822-4997
Email: cmehri@findjustice.com
- and -
John Wayne Hogan, Esq.
Leslie A. Goller, Esq.
TERRELL HOGAN
233 East Bay Street, 8th Floor
Jacksonville, FL 32202
Phone: (904) 632-2424
Email: hogan@terrellhogan.com
lgoller@terrellhogan.com
- and -
Ronald E. Johnson , Jr., Esq.
Sarah N. Emery, Esq.
HENDY JOHNSON VAUGHN EMERY
101 North Seventh Street, Suite 210
Louisville, KY 40202
Phone: (859) 578-4444
Fax: (859) 578-4440
Email: rjohnson@justicestartshere.com
semary@justicestartshere.com
- and -
Neil L Henrichsen, Esq.
HENRICHSEN LAW GROUP, P.L.L.C.
301 W. Bay Street, Suite 1400
Jacksonville, FL 32202
Phone: (904) 381-8183
Fax: (904) 212-2800
Email: nhenrichsen@hslawyers.com
The Defendants are represented by:
Kara M. Stewart, Esq.
250 W. Main Street, Suite 1400
Lexington, KY 40507
Phone: (859) 425-1000
Fax: (859) 425-1099
Email: kara.stewart@dinsmore.com
- and -
Amanda M. Lockaby, Esq.
DINSMORE & SHOHL LLP
100 West Main Street, Suite 900
Lexington, KY 40507
Phone: (859) 425-1000
Fax: (859) 425-1099
Email: amanda.lockaby@dinsmore.com
MCKINSEY & COMPANY: Putnam County Suit Transferred to N.D. Cal.
---------------------------------------------------------------
The case styled as Putnam County School Board, individually, and on
behalf of all others similarly situated v. McKinsey & Company Inc.
United States, McKinsey & Company, Inc., McKinsey Holdings, Inc.,
McKinsey & Company Inc. Washington D.C., Case No. 3:21-cv-01289,
was transferred from the U.S. District Court for the Middle
District of Florida, to the U.S. District Court for the Northern
District of California on Jan. 24, 2022.
The District Court Clerk assigned Case No. 3:22-cv-00442-CRB to the
proceeding.
The nature of suit is stated as Personal Injury: Health
Care/Pharmaceutical Personal Injury Product Liability for the
Racketeering (RICO) Act.
McKinsey & Company -- https://www.mckinsey.com/ -- is a management
consulting firm, founded in 1926 by University of Chicago professor
James O. McKinsey, that advises on strategic management to
corporations, governments, and other organizations.[BN]
The Plaintiffs are represented by:
C. Ezra Bronstein, Esq.
MEHRI & SKALET, PLLC
2000 K Street NW. Suite 325
Washington, DC 20006
Phone: (202) 822-5100
- and -
Cyrus Mehri, Esq.
MEHRI & SKALET PLLC
1300 19th Street, N.W., Suite 400
Washington, DC 20036
Phone: (202) 822-5100
Fax: (202) 822-4997
Email: cmehri@findjustice.com
- and -
John Wayne Hogan, Esq.
Leslie A. Goller, Esq.
TERRELL HOGAN
233 East Bay Street, 8th Floor
Jacksonville, FL 32202
Phone: (904) 632-2424
Email: hogan@terrellhogan.com
lgoller@terrellhogan.com
- and -
Joshua Karsh, Esq.
Margaret E. Truesdale, Esq.
Matthew J. Piers, Esq.
HUGHES PIERS RESNICK & DYM, LTD.
Three First National Plaza
70 West Madison Street, Suite 4000
Chicago, IL 60602
Phone: (312) 580-0100
Fax: (312) 580-1994
Email: jkarsh@findjustice.com
mtruesdale@eimerstahl.com
mpiers@hsplegal.com
- and -
Neil L Henrichsen, Esq.
HENRICHSEN LAW GROUP, P.L.L.C.
301 W. Bay Street, Suite 1400
Jacksonville, FL 32202
Phone: (904) 381-8183
Fax: (904) 212-2800
Email: nhenrichsen@hslawyers.com
METROPOLIS COLLECTIBLES: Miller Files ADA Suit in S.D. New York
---------------------------------------------------------------
A class action lawsuit has been filed against Metropolis
Collectibles Inc. The case is styled as Kimberly Miller, on behalf
of herself and all other persons similarly situated v. Metropolis
Collectibles Inc., Case No. 1:22-cv-00661 (S.D.N.Y., Jan. 25,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Metropolis Collectibles -- https://www.metropoliscomics.com/ -- is
a famous rare comic book dealer of vintage American comics,
primarily known for its large collection of comic books originally
published in the 1930s, 1940s, 1950s, 1960s and 1970s.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: nyjg@aol.com
michael@gottlieb.legal
MJF STUCKEY: Perry FLSA Suit Seeks to Certify Three Classes
-----------------------------------------------------------
In the class action lawsuit captioned as JAMORRIS PERRY, v. MJF
STUCKEY CONSTRUCTION, INC. AND EARL STUCKEY, Case No.
5:21-cv-00162-AW-MJF (N.D. Fla.), the Plaintiff asks the Court to
enter an order conditionally certifying the following three classes
of similarly situated individuals:
(1) Unpaid Travel Time Class, which consists of persons who
were or are current or former employees of Defendants
from 2019 to the present and who the Defendants refused
to pay for travel time to and from its main office to
worksites and/or between worksites during weeks where
they worked overtime, resulting in a failure to pay them
overtime for all hours worked in excess of 40 per week;
(2) Automatic Break Deduction Class, which consists of
persons who were or are current or former employees of
the Defendants from 2019 to the present and from whose
shifts the Defendants automatically deducted a lunch
break during weeks where they worked overtime, despite
the fact that they were required to work during said
break, resulting in a failure to pay them overtime for
all hours worked in excess of 40 per week; and the
(3) Unlawful Deduction Class, which consists of persons who
were or are current or former employees of Defendants
from 2019 to the present, who worked in excess of 40
hours per week, and from whose pay the Defendants
deducted funds for cleaning of their uniforms during
weeks when they worked overtime, despite the fact that
they cleaned their own uniforms, resulting in a failure
to pay them overtime for all hours worked in excess of 40
per week.
Though it is quite likely that the persons who comprise these
classes may significantly overlap, the Plaintiff believes that it
will aid the Court and streamline this process by delineating the
two separate classes.
The Plaintiff also requests that the Court authorize notice of this
collective action to potential members of the FLSA Collective
Classes and approve the proposed notice and consent form.
The Plaintiff, Jamorris Perry, on behalf of himself and all other
similarly situated individuals, respectfully submit this Motion to
Conditionally Certify Collective Action Classes and Facilitate
Notice Under 29 U.S.C.sectiin 216(b).
The Plaintiffs have filed a Collective Action Complaint, asserting
collective action claims on behalf of themselves and a proposed
collective class seeking unpaid overtime wages that Stuckey
Construction and Earl Stuckey, owed to them under the Fair Labor
Standards Act (FLSA), but declined to pay to them in direct
violation of that Act.
As a result of Defendant's unlawful policies and practices,
Plaintiff has filed this Motion pursuant to Section 16 of the FLSA
- its collective action provision - in order to provide workers
similarly situated to Plaintiff a reasonable opportunity to
collectively litigate their claims.
A copy of the Plaintiff's motion to certify classes dated Jan. 24,
2022 is available from PacerMonitor.com at https://bit.ly/32wNLp3
at no extra charge.[CC]
The Plaintiff is represented by:
Mary Bubbett Jackson, Esq.
JACKSON + JACKSON
1992 Lewis Turner Blvd., Suite 1023
Fort Walton Beach, FL 32547
Telephone: (850) 200-4594
Facsimile: (888) 988-6499
E-mail: mjackson@jackson-law.net
MOSSER COMPANIES: Burgos Files Suit in Cal. Super. Ct.
------------------------------------------------------
A class action lawsuit has been filed against The Mosser Companies,
Inc., et al. The case is styled as Felipe Jesus Burgos,
individually, and on behalf, of all others similarly situated v.
The Mosser Companies, Inc., a California, corporation; Does 1
through 100, inclusive; Case No. CGC22597576 (Cal. Super. Ct.,
Sacramento Cty., Jan. 12, 2022).
The case type is stated as "Other Non-Exempt Complaints."
Mosser -- https://www.mosserliving.com/ -- is a collection of
historic and beautifully renovated apartments in lively and vibrant
neighborhoods throughout California.[BN]
The Plaintiff is represented by:
Kane Moon, Esq.
MOON & YANG, APC
1055 W 7th St., Ste. 1880
Los Angeles, CA 90017-2529
Phone: 213-232-3128
Fax: 213-232-3125
Email: kane.moon@moonyanglaw.com
NASHVILLE & DAVIDSON, TN: Cayton Has Leave to Amend FLSA Suit
-------------------------------------------------------------
In the case, JAMES CAYTON, on behalf of himself and all others
similarly situated, Plaintiff v. METROPOLITAN GOVERNMENT OF
NASHVILLE & DAVIDSON COUNTY, acting by and through THE ELECTRIC
POWER BOARD d/b/a NASHVILLE ELECTRIC SERVICE, Defendant, Case No.
3:20-cv-00859 (M.D. Tenn.), Magistrate Judge Alistair E. Newbern of
the U.S. District Court for the Middle District of Tennessee,
Nashville Division, issued a Memorandum Opinion and Order:
a. granting in part and denying in part Nashville Electric
Service's motion for leave to file a sur-reply; and
b. granting the Plaintiffs' motion for leave to file an
amended complaint.
I. Introduction
Plaintiff Cayton brings the conditionally certified collective
action on behalf of himself and others similarly situated under the
Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. Sections
201-219. Cayton alleges claims against Defendant the Metropolitan
Government of Nashville and Davidson County, by the through the
Electric Power Board, doing business as Nashville Electric Service
(Nashville Electric Service). Cayton and 57 opt-in Plaintiffs have
filed a motion for leave to file an amended collective and class
action complaint. Nashville Electric Service has responded in
opposition, and the Plaintiffs have filed a reply. Nashville
Electric Service has moved for leave to file a sur-reply, which the
Plaintiffs oppose.
II. Background
Mr. Cayton, who works for Nashville Electric Service as an
underground supervisor, alleges that Nashville Electric Service
pays its first-line supervisors on an hourly basis but does not
compensate them for the first five hours that they work over 40
hours in a given workweek, which it categorizes as "professional
time." Cayton seeks to recover unpaid overtime compensation under
the FLSA on behalf of himself and other Nashville Electric Service
first-line supervisors (Count I).
The Court has conditionally certified a collective action of: All
current and former first-line Operations Supervisors who recorded
Professional Time, defined as hours worked between 40 and 45 each
workweek at any time since [three years from date of certification.
First-line Operations Supervisors include: Meter Maintenance
Supervisors, Revenue Support Supervisors, Work Center Office
Supervisors, Engineering Supervisors, Underground Supervisors,
Substation Supervisors, Maintenance Shop Supervisors, Carpenter
Supervisors, Excavation Supervisors, Line Supervisors, Pole
Supervisors, and Vegetation Management Supervisors.
By the parties' agreement, the collective action definition was
modified to include: All current and former First-Line Supervisors
who recorded Professional Time, defined as hours worked between 40
and 45 each workweek at any time since three years from date of
certification.
The Plaintiffs have now filed a motion for leave to file an amended
complaint that: (1) reflects the modified definition of the
collective; (2) adds a second FLSA claim alleging that, if
Nashville Electric Service paid its first-line supervisors on a
salary basis, those employees were entitled to overtime
compensation because their total compensation was not reasonably
related to their guaranteed minimum amount of pay (Count II); (3)
adds a claim for unjust enrichment under Tennessee law to be
asserted on a collective basis (Count III); and (4) adds a claim
for unjust enrichment under Tennessee law to be asserted as a class
action under Federal Rule of Civil Procedure 23 (Count IV). The
Plaintiffs also seek to add a jury demand for the unjust enrichment
claims.
Nashville Electric Service responds in opposition that allowing the
amended complaint would be futile because the Plaintiffs' proposed
Counts II, III, and IV could not survive a motion to dismiss under
Rule 12(b)(6). It argues that: (1) the Plaintiffs have not alleged
sufficient additional factual matter to support Count II, and that
the claim is "merely a sub-argument for Count I;" (2) there is no
legal basis for asserting a claim for common law unjust enrichment
under the FLSA or through the FLSA's collective action mechanism as
pleaded in Count III; and (3) the claim for unjust enrichment
pleaded in Count IV is "either preempted by the FLSA or precluded
by an adequate remedy at law." Nashville Electric Service also
asserts that, "were the Court to allow Plaintiff Cayton to move
forward with his unjust enrichment claim," that claim would be
subject to the FLSA's statute of limitations and Cayton must pursue
it "as an individual and not as an alleged class."
The Plaintiffs reply that: (1) they have pleaded sufficient factual
matter to support Count II, which is not duplicative of Count I
because it is an "alternative theory of recovery under a different
provision of the FLSA;" (2) opt-in plaintiffs in a FLSA collective
action may pursue common law unjust enrichment claims under the
Court's supplemental jurisdiction; (3) the unjust enrichment claims
asserted in Count IV are not preempted by the FLSA because they are
"an entirely separate and alternative theory of recovery;" and (4)
class treatment of the proposed unjust enrichment claims is
permissible under Rule 23.
Nashville Electric Service seeks leave to file a sur-reply, which
the Plaintiffs oppose. In its proposed sur-reply, Nashville
Electric Service reiterates its arguments that: (1) Count II is not
a discrete claim under the FLSA; (2) the FLSA's collective action
mechanism cannot be used to assert a common law unjust enrichment
claim; and (3) the Court should decline to exercise supplemental
jurisdiction over the Plaintiffs' unjust enrichment claims.
III. Analysis
The standard for granting leave to file a surreply is whether the
party making the motion would be unable to contest matters
presented to the court for the first time in the opposing party's
reply." Nashville Electric Service has not identified any specific
matters that were raised for the first time in the Plaintiffs'
reply brief, but argues generally that the Plaintiffs' reply brief
"introduces new arguments, new case law, and misrepresents the
Defendant's positions."
While this general statement is not sufficient to carry Nashville
Electric Service's burden of showing that a sur-reply is warranted,
its proposed sur-reply does address the implications of Lynch v.
GCA Services Group, Inc., No. 3:16-CV-02624, 2017 WL 11477229 (M.D.
Tenn. Sept. 19, 2017), a case that the Plaintiffs cited for the
first time in their reply brief. Because Lynch has important
implications for the resolution of the Plaintiffs' motion to amend,
Judge Newbern will consider the portions of Nashville Electric
Service's sur-reply that discuss the relevance of Lynch to the
case. He will not consider the portions of the sur-reply that
reiterate the arguments in Nashville Electric Service's response or
are not directed at arguments raised for the first time in the
Plaintiffs' reply.
Nashville Electric Service has not stated its opposition to the
Plaintiffs' jury demand or the proposed amendments that modify his
original FLSA claim (Count I) to reflect the collective action
definition as modified by the parties' agreement. Those proposed
amendments are deemed to be unopposed. Judge Newbern addresses the
other proposed amendments, which Nashville Electric Service
opposes.
A. Proposed Count II
In the initial complaint and Count I of the proposed amended
complaint, the Plaintiffs claim that they are not exempt from the
FLSA's overtime requirements because they are paid on an hourly
basis. In Count II of the proposed amended complaint, they make an
alternative claim that, if Nashville Electric Service is found to
pay them a guaranteed salary plus additional hourly compensation
for hours worked over 45 per workweek, there is not a reasonable
relationship between the guaranteed amount and the amount the
Plaintiffs actually earn. Nashville Electric Service argues that
the Plaintiffs have not alleged sufficient facts to support that
claim and that "Count II is not a separate cause of action under
the FLSA," but "is merely a sub-argument for Count I of the
Plaintiffs' original Complaint."
Judge Newbern opines that Nashville Electric Service is correct
that Counts I and II both assert claims under the FLSA's overtime
provision, 29 U.S.C. Section 207, but the claims are based on
different legal theories. Federal Rule of Civil Procedure 8(d)
allows a party to "set out 2 or more statements of a claim or
defense alternatively or hypothetically, either in a single count
or defense or in separate ones." Under this Rule, "a party may
state as many separate claims or defenses as it has, regardless of
consistency." Hence, the Plaintiffs have appropriately pleaded
alternative theories of recovery under the FLSA.
The Plaintiffs allege in the amended complaint that Nashville
Electric Service "claims that it provides the First-Line
Supervisors with a guaranteed minimum amount of pay for the first
45 hours of work in each workweek" and "claims that this purported
guarantee is a salary." They further allege that Nashville Electric
Service "pays them extra compensation by the hour for hours worked
over 45 recorded hours in each workweek," that "the total amount
that Nashville Electric Service pays its First-Line Supervisors is
not reasonably related to the compensation Nashville Electric
Service guarantees to its First-Line Supervisors," and, therefore,
that the "First-Line Supervisors' total compensation is not
reasonably related to their purported guaranteed minimum amount of
pay because of the amounts of hours that Nashville Electric Service
requires them to work."
These allegations are sufficient to support the
reasonable-relationship claim that the Plaintiffs assert in Count
II, Judge Newbern holds. He says, while the Plaintiffs may not
recover twice for the same violation, they are entitled to assert
alternative theories of recovery at the pleading stage.
Accordingly, they may amend their complaint to add Count II as an
alternative theory of recovery under the FLSA.
B. Proposed Counts III and IV
Plaintiffs also seek leave to amend their complaint to plead claims
for unjust enrichment under Tennessee law, either as supplemental
to their FLSA claims (Count III) or as a class action under Federal
Rule of Civil Procedure 23 (Count IV). Nashville Electric Service
argues that opt-in plaintiffs are not permitted to bring
supplemental common law claims as part of a FLSA collective action
and, even if Plaintiffs attempt to pursue their unjust enrichment
claims under Rule 23, those claims "are either preempted by the
FLSA or precluded by an adequate remedy at law."
1. FLSA Preemption
Nashville Electric Service argues that the Sixth Circuit's more
recent decision in Torres v. Vitale, 954 F.3d 866, 873 (6th Cir.
2020), establishes "'that the FLSA is the sole vehicle through
which a plaintiff can remedy its own substantive guarantees'" and
therefore preempts state-law claims. The Sixth Circuit in Torres
found that the FLSA is a "precisely drawn, detailed statute" that
"gives two substantive guarantees: a federal minimum wage and a
maximum-hour work week." Conversely, the court found that "RICO has
a 'virtually unlimited sweep,' providing a remedy for the broad
range of wrongdoing that fits within its scope" of (again broadly
defined) racketeering activity. Noting that "courts have held that
the FLSA may not preclude more general remedies when the claims are
not 'directly covered by the FLSA,'" it held that "the FLSA
precludes claims brought under RICO only to the extent they seek a
remedy that is explicitly covered by the FLSA, that is, claims
seeking damages for wage and hour violations."
According to Judge Newbern, that holding does not require the Court
to depart from its earlier decisions finding that "'state unjust
enrichment claims that are independent of FLSA claims are not
preempted.'" The Plaintiffs' FLSA claim requires the Court to apply
a different test for liability, and thus consider different
factors, from the unjust enrichment claim. The Plaintiffs will have
to demonstrate that the "fruits of the FLSA Class's labor" that
they allege Nashville Electric Service has unjustly enjoyed
encompass more than the damages addressed by their wage and hour
claims and are truly independent from their FLSA claims. At this
stage, the Plaintiffs may plead that claim in the alternative and
develop the necessary proof to show that the unjust enrichment
claim offers a remedy other than that provided by the FLSA.
2. Preclusion By an Adequate Remedy at Law
Nashville Electric Service also argues that the Plaintiffs' unjust
enrichment claims are precluded by the FLSA because unjust
enrichment is an equitable claim that is unavailable if a plaintiff
has adequate remedies at law. Echoing its arguments in support of
preemption, Nashville Electric Service asserts that "there is no
possible relief under the Plaintiffs' unjust enrichment claims that
is not already available to them under the unambiguous terms of the
FLSA."
Again, the Plaintiffs are not entitled to a double recovery for the
unpaid wages and overtime they seek under the FLSA. Nashville
Electric Service has not shown that the damages the Plaintiffs seek
under an unjust enrichment theory fully overlap with the statutory
remedies available under the FLSA such that the Plaintiffs may not
assert the equitable claim.
3. Statute of Limitations
Through their unjust enrichment claims, the Plaintiffs seek to
recover for violations that occurred outside the FLSA's statute of
limitations. Suits under the FLSA must be brought "within two years
after the cause of action accrued, except that a cause of action
arising out of a willful violation may be commenced within three
years after the cause of action accrued." Nashville Electric
Service argues that the gravamen of the Plaintiffs' complaint is
the FLSA, "which carries -- at most -- a three-year limitations
period." Therefore, the gravamen of the Plaintiffs' unjust
enrichment claims sounds in contract and is governed by Tennessee's
six-year statute of limitations for breach of contract claims.
Judge Newbern holds that the Plaintiffs may not use Tennessee law
to circumvent the shorter statute of limitations applicable to
claims for unpaid minimum wages or overtime compensation under the
FLSA. Any claims for overtime compensation guaranteed by the FLSA
are subject to its statute of limitations. However, to the extent
the Plaintiffs' unjust enrichment claim addresses other damages,
those claims are governed by Tennessee's six-year statute of
limitations for breach of contract claims.
4. Supplemental Claims to a FLSA Collective Action
In Count III, the Plaintiffs seek to bring unjust enrichment claims
as members of a FLSA collective action. Nashville Electric Service
argues that Count III is futile because the FLSA itself "does not
provide the basis for an unjust enrichment claim" and because "the
collective action mechanism of the FLSA is contemplated only for
use in recovering FLSA damages." The Plaintiffs reply that, under
O'Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d 567 (2016),
abrogated on other grounds by Campbell-Ewald Co. v. Gomez, 577 U.S.
153 (2016), all opt-in employees are party plaintiffs to the action
and, as such, may bring supplemental unjust enrichment claims
against Nashville Electric Service.
Judge Newbern explains that the supplemental jurisdiction statute,
28 U.S.C. Section 1367(a), provides that "the district courts will
have supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction
that they form part of the same case or controversy under Article
III of the United States Constitution." In the case, supplemental
jurisdiction is proper because the Plaintiffs' FLSA and unjust
enrichment claims share a common factual basis. Adjudicating the
claims in a single action will avoid the "significant risk of
inconsistent results" if the Plaintiffs are forced to bring their
unjust enrichment claims in separate state-court actions.
5. Rule 23 Class Action
Nashville Electric Service's final argument against amendment is
that, "were the Court to allow Plaintiff Cayton to move forward
with his unjust enrichment claim, he must do so as an individual
and not as an alleged class" because "'class-wide adjudication is
generally not appropriate for unjust enrichment claims.'" However,
Judge Newbern finds that Nashville Electric Service has not
identified any individual issues raised in the pleadings that show
class treatment of the unjust enrichment claims to be
inappropriate. The Plaintiffs therefore may include Rule 23 class
allegations in their amended complaint.
IV. Conclusion
For the foregoing reasons, Judge Newbern granted in part and denied
in part Nashville Electric Service's motion for leave to file a
sur-reply. He granted the Plaintiffs' motion for leave to file an
amended complaint. The Clerk of Court is directed to file the
Plaintiffs' proposed amended collective and class action complaint
as a separate docket entry.
A full-text copy of the Court's Jan. 19, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/bddytutv from
Leagle.com.
NATIONAL CREDIT: Vincent Files FDCPA Suit in S.D. Mississippi
-------------------------------------------------------------
A class action lawsuit has been filed against National Credit
Systems, Inc., et al. The case is styled as Victorya Vincent,
individually and on Behalf of those similarly situated v. National
Credit Systems, Inc., Law Office of Brett M. Borland, P.C.,
TransUnion, LLC, Equifax Information Services, LLC, Experian
Information Solutions, LLC, Case No. 1:22-cv-00014-HSO-RHWR (S.D.
Miss., Jan. 21, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
National Credit Systems, Inc. --
https://www.nationalcreditsystems.com/ -- provides debt recovery
services.[BN]
The Plaintiff is represented by:
Michael T. Ramsey, Esq.
SHEEHAN LAW FIRM, PLLC - Ocean Springs
429 Porter Avenue
Ocean Springs, MS 39564
Phone: (228) 875-0572
Email: mike@sheehanramsey.com
NEWORDERAUTO INC: Guerrero Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Neworderauto Inc. The
case is styled as Edelmira Guerrero, individually and on behalf of
all others similarly situated v. Neworderauto Inc., Case No.
1:22-cv-00524 (S.D.N.Y., Jan. 20, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Neworderauto Inc. doing business as Tred -- https://www.tred.com/
-- is the most trusted peer to peer used car marketplace.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: jmizrahi@mizrahikroub.com
NEWREZ LLC: Durham Files FDCPA Suit in M.D. Florida
---------------------------------------------------
A class action lawsuit has been filed against Newrez, LLC. The case
is styled as Courtney D. Durham, individually, and on behalf of
those similarly situated v. Newrez, LLC doing business as:
Shellpoint Mortgage Servicing, a Florida registered Fictions Name
entity solely registered to do business in Duval, Case No.
3:22-cv-00089-HLA-MCR (M.D. Fla., Jan. 25, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Newrez LLC (Newrez) -- https://www.newrez.com/ -- is a leading
nationwide mortgage lender and servicer.[BN]
The Plaintiff appears pro se.
NORTH BROWARD: Prizer Sues Over Data Breach
-------------------------------------------
Alix Prizer, and Jason Sims, individually and on behalf of all
others similarly situated v. NORTH BROWARD HOSPITAL DISTRICT d/b/a
BROWARD HEALTH, Case No. CACE-22-000537 (Fla. 17th Judicial Dist.
Ct., Broward Cty., Jan. 11, 2022), is brought against the Defendant
by failing to protect the sensitive information it was entrusted to
safeguard.
On January 1, 2022, the Defendant disclosed that it was the subject
of a massive data breach whereby hackers gained unauthorized access
to its networks between October 15 and October 19, 2021 (the "Data
Breach"). The hackers were able to access and exfiltrate
highly-sensitive information stored on Broward Health's servers,
including patients' and employees' full names, dates of birth,
addresses, phone numbers, financial and bank account information,
Social Security numbers, insurance information, account numbers,
medical information including history, condition, treatment and
diagnoses, medical record numbers, driver's license numbers and
email addresses.
The Data Breach occurred because Broward Health failed to implement
reasonable security procedures and practices, failed to disclose
material facts surrounding its deficient data security protocols,
and failed to timely notify the victims of the Data Breach. As a
result of Broward Health's failure to protect the sensitive
information it was entrusted to safeguard, Plaintiff and class
members did not receive the benefit of their bargain with Broward
Health and now face a significant risk of medical-related identity
theft and fraud, financial fraud, and other identity-related fraud
now and into the indefinite future, says the complaint.
The Plaintiffs are current and former healthcare patients of
Broward Health who are a victim of the Data Breach.
Broward Health is a Florida-based healthcare system that operates
more than 30 healthcare locations in Broward County, Florida.[BN]
The Plaintiffs are represented by:
Julie Braman Kane, Esq.
COLSON HICKS EIDSON
255 Alhambra Circle - Penthouse
Coral Gables, Florida 33134
Phone: (305) 476-7400
Facsimile: (305) 476-7444
Email: julie@colson.com
- and -
Norman E. Siegel, Esq.
J. Austin Moore, Esq.
STUEVE SIEGEL HANSON LLP
460 Nichols Road, Suite 200
Kansas City, Missouri 64112
Phone: (816) 714-7100
Email: siegel@stuevesiegel.com
moore@stuevesiegel.com
OHANA MILITARY: Casey Suit Removed to D. Hawaii
-----------------------------------------------
The case styled as Michael Casey, Payton Lamb, Jamie Williams, on
behalf of themselves and all similarly situated v. Ohana Military
Communities, LLC, Hunt MH Property Management, LLC, Island Palm
Communities, LLC, Hickam Communities, LLC, Doe Defendants 1-10,
Case No. 1CCV-21-0001618 was removed from the Circuit Court of the
First Circuit to the U.S. District Court for the District of Hawaii
on Jan. 24, 2022.
The District Court Clerk assigned Case No. 1:22-cv-00039-HG-RT to
the proceeding.
The nature of suit is stated as Other Contract.
Ohana Military Communities, LLC --
https://www.ohananavycommunities.com/ -- provides real estate
services.[BN]
The Plaintiffs are represented by:
Terrance M. Revere, Esq.
James William Rooney, Esq.
REVERE & ASSOCIATES, LLLC
970 North Kalaheo Avenue, Suite A-301
Kailua, HI 96734
Phone: (808) 791-9550
Fax: (808) 791-9551
Email: terry@revereandassociates.com
James@revereandassociates.com
- and -
Michael Jay Green, Esq.
841 Bishop Street, Suite 2201
Honolulu, Hi 96813
Phone: 521-3336
Email: michael@michaeljaygreen.com
- and -
Patrick Kyle Smith, Esq.
LAW OFFICES OF KYLE SMITH
604 Ilimano Street
Honolulu, HI 96734
Phone: (808) 799-5175
Email: kyle@ianmattoch.com
The Defendants are represented by:
Joachim P. Cox, Esq.
Kamala S. Haake, Esq.
Randall C. Whattoff, Esq.
COX FRICKE A LIMITED LIABILITY LAW PARTNERSHIP LLP
800 Bethel Street, Suite 600
Honolulu, HI 96813
Phone: (808) 585-9440
Email: jcox@cfhawaii.com
khaake@cfhawaii.com
rwhattoff@cfhawaii.com
- and -
Bruce D. Voss, Esq.
Jai W. Keep-Barnes, Esq.
Matthew C. Shannon, Esq.
BAYS LUNG ROSE & VOSS
Topa Financial Center
700 Bishop St Ste 900
Honolulu, HI 96813
Phone: (808) 523-9000
Fax: (808) 533-4184
Email: bvoss@legalhawaii.com
jkeep-barnes@legalhawaii.com
mshannon@legalhawaii.com
PETROQUEST ENERGY: Lee Suit Transferred to E.D. Oklahoma
--------------------------------------------------------
The case styled as Philip Lee, on behalf of himself and on behalf
of all others similarly situated v. PetroQuest Energy LLC, Case No.
5:22-mc-00001, was transferred from the U.S. District Court for the
Western District of Oklahoma, to the U.S. District Court for the
Eastern District of Oklahoma on Jan. 24, 2022.
The District Court Clerk assigned Case No. 6:22-mc-00001-RAW to the
proceeding.
The nature of suit is stated as Contract Dispute.
PetroQuest Energy, Inc. -- https://www.petroquest.com/ -- is an
independent energy company engaged in the exploration, development,
acquisition and production of oil and natural gas reserves in East
Texas and Central Louisiana.[BN]
The Plaintiff is represented by:
Reagan E. Bradford, Esq.
Ryan K. Wilson, Esq.
BRADFORD & WILSON, PLLC
431 W Main St, Ste D
Oklahoma City, OK 73102
Phone: (405) 698-2770
Fax: (405) 234-5506
Email: reagan@bradwil.com
ryan@bradwil.com
PHILIPS NORTH AMERICA: Snee Suit Transferred to W.D. Pennsylvania
-----------------------------------------------------------------
The case styled as Thomas Snee, individually and on behalf of all
others similarly situated v. Philips North America, LLC, Philips
Healthcare Informatics, Inc., Philips RS North America LLC formerly
known as: Respironics, Inc., Koninklijke Philips Electronics N.V.,
Case No. 1:22-cv-10011, was transferred from the U.S. District
Court for the District of Massachusetts, to the U.S. District Court
for the Western District of Pennsylvania on Jan. 20, 2022.
The District Court Clerk assigned Case No. 2:22-cv-00119-JFC to the
proceeding.
The nature of suit is stated as Personal Injury: Health
Care/Pharmaceutical Personal Injury Product Liability.
Philips -- https://www.usa.philips.com/ -- is a health technology
company improving people's health and well-being through meaningful
innovation.[BN]
The Plaintiff is represented by:
David Pastor, Esq.
PASTOR LAW OFFICE, LLP
63 Atlantic Avenue, 3rd Floor
Boston, MA 02110
Phone: (617) 742-9700
Fax: (617) 742-9701
Email: dpastor@pastorlawoffice.com
PL DEVELOPMENTS COPIAGUE: Williams Files Suit in E.D. New York
--------------------------------------------------------------
A class action lawsuit has been filed against PL Developments
Copiague, LLC. The case is styled as Demetrius Williams,
individually and on behalf of all others similarly situated v. PL
Developments Copiague, LLC, Case No. 2:22-cv-00383 (E.D.N.Y., Jan.
21, 2022).
The nature of suit is stated as Fraud or Truth-In-Lending.
PL Developments Copiague, LLC -- http://www.pldevelopments.com/--
operates as a specialty pharma company. The Company specializes in
manufacturing, packaging, and distribution of pharmaceutical
products, as well as consumer healthcare goods.[BN]
The Plaintiff is represented by:
Spencer I. Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Road, Ste. 409
Great Neck, NY 11021
Phone: (516) 260-7080
Fax: (516) 234-7800
Email: spencer@spencersheehan.com
RAMOS OIL CO: Campbell Files Suit in Cal. Super. Ct.
----------------------------------------------------
A class action lawsuit has been filed against Ramos Oil Co., Inc.,
et al. The case is styled as Rickie Campbell, and on behalf of
other members of the general public similarly situated v. Ramos Oil
Co., Inc., Does 1-100, Case No. 34-2022-00313726-CU-OE-GDS (Cal.
Super. Ct., Sacramento Cty., Jan. 11, 2022).
The case type is stated as "Unlimited Civil Other Employment."
The Ramos Oil Company -- https://www.ramosoil.com/ -- has become
one of the largest petroleum distributors in the nation.[BN]
The Plaintiff is represented by:
Edwin Aiwazian, Esq.
LAWYERS FOR JUSTICE, PC
410 Arden Avenue, Suite 203
Glendale, CA 91203
Phone: 818-265-1020
Fax: 818-265-1021
REDBUBBLE INC: $19K in Attys. Fees Awarded in Vinluan-Jularbal Suit
-------------------------------------------------------------------
In the case, KAMILLE FAY VINLUAN-JULARBAL, Plaintiff v. REDBUBBLE,
INC., Defendant, Case No. 2:21-cv-00573-JAM-JDP (E.D. Cal.),
Magistrate Judge Jeremy D. Peterson of the U.S. District Court for
the Eastern District of California granted the Plaintiff's
reasonable expenses in the amount of $19,125.
I. Introduction
The Plaintiff's motion to compel included a request for reasonable
expenses associated with bringing the motion if she should prevail.
The Defendant opposed that motion, including specifically the
expense request and the Plaintiff replied.
On Oct. 28, 2021, the Court held a hearing and indicated that the
Plaintiff's motion to compel would be granted but that supplemental
briefing on attorneys' fees and costs would be necessary. The
Plaintiff submitted supplemental briefing, and the Defendant
objected. The matter of the Plaintiff's reasonable expenses is now
ripe for review.
II. Discussion
Judge Peterson explains that Rule 37(a)(5) requires, upon a party's
successful motion to compel discovery, that the court orders the
party or deponent whose conduct necessitated the motion, the party
or attorney advising that conduct, or both to pay the movant's
reasonable expenses incurred in making the motion, including
attorney's fees." Accordingly, he will award reasonable expenses
for the Plaintiff.
By the time the Plaintiff brought the motion to compel, the parties
had engaged in months of meeting and conferring and had
participated in three informal conferences with the court. The
Court authorized the motion only after the Defendant's counsel
refused to provide any class discovery, effectively staying class
discovery unilaterally and without court authorization. The
Plaintiff seeks $51,075 in attorney's fees and expenses, arising
from 91 hours of attorney work performed by Matthew L. Venezia and
Keith J. Wesley of O'Brien Annaguey & Ellis LLP at an hourly rate
of $450, and 27 hours of expert work performed by Keven Cohen of
Harbor Simply Smart eDiscovery at an hourly rate of $375.
As an initial matter, the Defendant argues that the discovery
requested by the Plaintiff was far-reaching and burdensome such
that the Defendant has substantial justification under Rule
37(a)(5)(A)(ii) to avoid any payment of expenses. Although some of
the requests may have been overbroad, Judge Peterson finds that the
Plaintiff offered to narrow such requests. Instead of reaching a
compromise position or producing some discovery, the Defendant
produced nothing for months, even after being told in informal
conferences that Judge Peterson would not allow the Defendant to
unilaterally stay class discovery. The Defendant's position does
not meet the substantial justification exception to the
expense-paying mandate of Rule 37. Thus, it is appropriate to order
the Defendant to pay the Plaintiff the reasonable expenses,
including attorneys' fees, that she incurred by bringing a motion
to compel.
The Plaintiff seeks costs for hiring an expert to counter the
Defendant's arguments related to the burden of production. However,
Judge Peterson finds that the Plaintiff has not shown that in the
case it is a reasonable expense to hire an expert for the
preparation of a reply brief on a motion to compel. Thus, the
Plaintiff will not be awarded the requested $10,125 in expert
fees.
Turning to attorneys' fees, the Court employs a two-step process to
calculate a reasonable fee award. First, it calculates the lodestar
figure, which represents the number of hours reasonably expended on
the litigation multiplied by a reasonable hourly rate. Second, it
determines whether to increase or reduce that figure based on
several factors. In assessing a fee award, the Court need not
"achieve auditing perfection" or "become green-eyeshade
accountants." Rather, "the trial courts may take into account their
overall sense of a suit and may use estimates in calculating and
allocating an attorney's time."
The Plaintiff seeks reimbursement for two partners who worked on
the case at an hourly rate of $450.2 Considering that it is a class
action lawsuit and the counsel is experienced, Judge Peterson finds
this rate to be reasonable in the Eastern District of California,
Sacramento Division. On the hours reasonably expended, he finds
that the 91 hours of attorney work billed is excessive.
Specifically, the Plaintiff seeks to bill time spent during the
meet and confer process before any motion to compel was authorized.
That time will be excluded -- specifically, the 32.25 hours billed
between July 21, 2021 and Sept. 17, 2021 will not be included as
part of the counsels' reasonable time spent on the motion to
compel. Additionally, the 16.25 hours spent drafting the expert
declaration to be included in the reply brief were also
unreasonable. The remaining 42.5 hours spent researching and
drafting the motion to compel and reply brief as well as
preparation for and participation in the hearing, is reasonable.
Accordingly, the lodestar amount for the Plaintiff's attorneys'
work is $19,125.
The factors set forth in Kerr do not warrant an adjustment of the
lodestar figure. Therefore, the lodestar figure represents a
reasonable award of the Plaintiff's attorneys' fees incurred under
Federal Rule of Civil Procedure 37(a)(5)(A).
Conclusion
Accordingly, Judge Peterson construed the Plaintiff's brief on
attorney's fees as a motion for reasonable expenses and granted.
The Defendant is ordered to pay the Plaintiff's attorneys' fees in
the amount of $19,125 as a sanction under Rule 37(a)(5)(A) within
seven days of the date of entry of the Order.
A full-text copy of the Court's Jan. 18, 2022 Order is available at
https://tinyurl.com/bdf8duas from Leagle.com.
RESURGENT CAPITAL: Peak Files FDCPA Suit in D. Delaware
-------------------------------------------------------
A class action lawsuit has been filed against Resurgent Capital
Services, LP, et al. The case is styled as Erica Peak, individually
and on behalf of all others similarly situated v. Resurgent Capital
Services, LP, LVNV Funding, LLC, John Does 1-25, Case No.
1:22-cv-00087-JEI (D. Del., Jan. 21, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Resurgent Capital Services, LP -- https://www.resurgent.com/ --
provides financial services. The Company manages debt portfolios
for credit grantors and debt buyers.[BN]
The Plaintiff is represented by:
Antranig N. Garibian, Esq.
GARIBIAN LAW OFFICES, P.C.
1010 Bancroft Parkway, Suite 22
Wilmington, DE 19805
Phone: (215) 326-9179
Email: ag@garibianlaw.com
ROB GRAHAM: March 24 Deadline for Class Cert. Bid Filing Sought
---------------------------------------------------------------
In the class action lawsuit captioned as JILLIAN RICARD,
individually and on behalf of all others similarly situated, v. ROB
GRAHAM ENTERPRISES, LLC, d/b/a 100 INSURE, Case No.
2:21-cv-14349-KMM (S.D. Fla.), the Plaintiff asks the Court to
enter an order, pursuant to Fed. R. Civ. P. 16, extending the
deadlines previously issued by the Court in this matter by
approximately 45 days:
Current Amended
Deadline Deadline
-- Plaintiff's Motion for Feb. 7, 2022 March 24, 2022
Class Certification:
-- Defendant's Response March 9, 2022 April 27, 2022
to Plaintiff's Motion
for Class
Certification:
-- Plaintiff's Reply for March 23, 2022 May 11, 2022
Class Certification:
-- Rule 26(a)(2) expert March 10, 2022 April 29, 2022
disclosures
-- Discovery Completion April 9, 2022 May 24, 2022
-- Any and all pretrial April 29, 2022 June 24, 2022
motions including
motions for summary
judgment, Daubert
motions, and motions
in limine:
On August 24, 2021, the Defendant removed this putative class
action to this Court. On September 14, 2021, the parties submitted
a joint scheduling report and proposed scheduling order.
The Court entered its paperless Order Scheduling Trial on September
15, 2021. The Plaintiff immediately served written requests seeking
class discovery on the same date.
On September 23, 2021, the Parties filed a Joint Motion Requesting
Deadline and Briefing Schedule with Respect to Plaintiff's Motion
for Class Certification. The Court granted the Joint Motion, and
ordered that Plaintiff file a motion for class certification on or
before February 7, 2022. Subsequently, Defendant substituted
counsel on November 22, 2021.
On December 2, 2021, Plaintiff filed a Motion to Compel Discovery,
and on December 10, 2021, Defendant filed a Motion to Bifurcate
Discovery into individual and class phases.
Defendant responded to Plaintiff's written discovery requests with
objections to all class related discovery on December 14, 2021.
A copy of the Plaintiff's motion dated Jan. 21, 2022 is available
from PacerMonitor.com at https://bit.ly/3tP4U8B at no extra
charge.[CC]
The Plaintiff is represented by:
Ignacio J. Hiraldo, Esq.
IJH LAW
1200 Brickell Ave Suite 1950
Miami, FL 33131
Telephone: (786) .496.4469
E-mail: ijhiraldo@ijhlaw.com
- and -
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Boulevard, Suite 1400
Ft. Lauderdale, FL 33301
E-mail: mhiraldo@hiraldolaw.com
Telephone: (954) 400-4713
ROOS ROAST: Hobbs Files ADA Suit in S.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Roos Roast, L.L.C.,
et al. The case is styled as Alexandra Hobbs, on behalf of herself
and all other persons similarly situated v. Roos Roast, L.L.C.,
Roosroast Coffee Corporation, Case No. 1:22-cv-00542 (S.D.N.Y.,
Jan. 20, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
RoosRoast Coffee -- - https://www.roosroast.com/ -- is a life/ art/
food project that turned legit.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
ROUND ROCK: Guerrero Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Round Rock Bakery,
LTD. The case is styled as Edelmira Guerrero, individually and on
behalf of all others similarly situated v. Round Rock Bakery, LTD.,
Case No. 1:22-cv-00525 (S.D.N.Y., Jan. 20, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Round Rock -- https://roundrockdonuts.com/ -- is a very own
legendary, western-themed donut shop offering a variety of baked
goods since 1926.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: jmizrahi@mizrahikroub.com
SAFESPEED LLC: Class Cert. Response Deadline Extended to Feb. 10
----------------------------------------------------------------
In the class action lawsuit captioned as Marso v. SafeSpeed, LLC,
et al., Case No. 2:19-cv-02671 (D. Kan.), the Hon. Judge Kathryn H.
Vratil entered an order on motion for extension of time to file
response/reply as follows:
1. sustaining in part unopposed motion To extend Defendants'
response deadline to plaintiff's motion to certify class;
and
2. granting the Defendants an extension of the response
deadline, but only to February 10, 2022.
SafeSpeed provides red light enforcement systems that are used with
the goal of providing safer roadways for the communities.
The suit alleges violation of the Americans with Disabilities
Act.[CC]
SCHOOL HEALTH: Hanyzkiewicz Files ADA Suit in E.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against School Health
Corporation. The case is styled as Marta Hanyzkiewicz, on behalf of
herself and all others similarly situated v. School Health
Corporation, Case No. 1:22-cv-00358 (E.D.N.Y., Jan. 21, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
School Health -- https://www.schoolhealth.com/ -- is the largest
distributor of school nurse, sports medicine, special education,
speech and health supplies to school nurses, athletic trainers and
special education departments in the U.S.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
SHAMROCK SALOON: Final Approval Order & Judgment Issued in George
-----------------------------------------------------------------
Magistrate Judge Sarah L. Cave of the U.S. District Court for the
Southern District of New York issued a Final Order and Judgment in
the case, MEGHAN GEORGE, on behalf of herself and all others
similarly situated, Plaintiff v. SHAMROCK SALOON II, LLC dba CALICO
JACK'S CANTINA; BLITZ MARKETING, LLC; JOHN L. SULLIVAN; and DOES 1
through 20, inclusive, and each of them, Defendants, Case No.
1:17-cv-06663-RA (S.D.N.Y.).
Plaintiff George and Defendants Shamrock Saloon, LLC dba Calico
Jack's Cantina, Blitz Marketing, LLC, and John L. Sullivan, entered
into a Class Action Settlement, which is subject to review under
Fed. R. Civ. P. 23.
On Jan. 13, 2020, the Court adopted the Report and Recommendation
to certify the matter as a class action and named Plaintiff as the
Class Representative and appointed John P. Kristensen as the Class
Counsel.
The Court ordered the matter to mediation. A mediation session was
held on June 18, 2020 with Charles Newman, Esq., which was
adjourned to allow the Defendants to procure financial statements
to aid in the settlement process. Through Mr. Newman's help and
tireless efforts, documents were exchanged for settlement purposes
only that helped the parties reach a settlement, and notified the
Court of the settlement on Oct. 13, 2020.
On Jan. 22, 2021, the Plaintiff filed the Class Action Settlement
Agreement along with her Motion for Preliminary Approval of Class
Action Settlement. The fully-executed Settlement Agreement and
Release was filed on July 23, 2021.
On July 28, 2021, the Court entered an Order of Granting
Preliminary Approval of Class Action Settlement. Pursuant to the
Preliminary Approval Order, the Court, among other things: (i)
preliminarily approved the proposed Settlement; (ii) appointed
Postlethwaite & Netterville ("P&N") as the Claims Administrator;
and (iii) set the date and time of the Fairness Hearing for Nov.
16, 2021 at 10:00 a.m.
Written notice of the proposed Settlement was served pursuant to
the Class Action Fairness Act of 2005, 28 U.S.C. Section 1715.
On Oct. 12, 2021, the Court, per the Parties' request, continued
the Fairness Hearing to Dec. 21, 2021, at 11:00 a.m.
On Nov. 23, 2021, the Plaintiff filed her Motion for Final Approval
of Class Action Settlement requesting final approval of the
proposed Settlement. Per the Court's request, the Motion was
re-filed on Dec. 13, 2021.
That same day, the Plaintiff filed her Motion for Attorneys' Fees,
Costs, and Incentive Award. Per the Court's request, the Motion was
re-filed on Dec. 13, 2021.
On Dec. 21, 2021, a Fairness Hearing was held to determine whether
the proposed Settlement is fundamentally fair, reasonable,
adequate, and in the best interests of the Class and should be
approved by the Court.
Having considered all matters submitted to it at the hearing on the
Motion for Final Approval and Motion for Attorneys' Fees, Costs,
and Incentive Award and otherwise, Judge Cave finds that the
Settlement is in all respects fair, reasonable and adequate. She
therefore finally approved the Settlement for the reasons set forth
in the Motion for Final Approval including. The Parties will
effectuate the Agreement in accordance with its terms and
provisions.
The Class Counsel's application for an award of attorneys' fees,
costs, and expenses and an incentive award to the Plaintiff is
granted. In accordance with the terms of the Agreement, the
following amounts will be paid by Defendants from the Settlement
Fund: (i) Fees to Class Counsel: $248,385.36; (ii) Costs to Class
Counsel: $35,789.64; and Incentive Award to Plaintiff: $5,000. The
Class Counsel's attorneys' fees, costs, and incentive award to the
Plaintiff will be paid from the Settlement Fund no later than seven
business days from the Effective Date.
Judge Cave authorized payment to the Settlement Administrator of
its fees and costs, in the amount of $40,825.
The Order is intended to be a final judgment disposing of the
action in its entirety.
Without affecting the finality of the Judgment entered, the Court
reserves jurisdiction over the implementation of the Agreement.
Without further order of the Court, the Parties may agree to
reasonable extensions of time to carry out any provisions of the
Agreement.
There is no just reason for delay in the entry of the Judgment, and
immediate entry by the Clerk of the Court is expressly directed
pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.
The Clerk of Court is respectfully directed to close ECF Nos. 138 &
142.
A full-text copy of the Court's Jan. 18, 2022 Final Approval Order
& Judgment is available at https://tinyurl.com/kh3c6y62 from
Leagle.com.
SIRIUS XM: Court Affirms Arbitration Order in Parrella Class Suit
-----------------------------------------------------------------
In the case, JEFFREY PARRELLA, on behalf of himself and all others
similarly situated, Plaintiff-Appellant v. SIRIUS XM HOLDINGS, INC.
d/b/a SIRIUS XM SATELLITE RADIO, SIRIUS XM RADIO INC., and JAMES E.
MEYER, Defendants-Respondents, Case No. A-4283-19 (N.J. Super. App.
Div.), the Superior Court of New Jersey, Appellate Division,
affirmed the trial court's order granting the Defendants' motion to
dismiss the action and compel arbitration under the parties'
customer agreement.
I. Introduction
The Plaintiff, in his individual capacity and on behalf of a
putative class action, filed a complaint against the Defendants,
satellite radio providers, alleging they falsely advertised
discounts to induce consumers to reactivate their Sirius radio
devices. The Defendants moved to dismiss the action and compel
arbitration under the parties' customer agreement. The trial court
granted the motion, finding mutual assent to the arbitration clause
was implied from the Plaintiff's "usage-payment, usage of the
Defendants' service, and extended relationship history with the
Defendants." Therefore, the arbitration agreement was enforceable.
II. Background
In December 2017, the Plaintiff received a mailed advertisement
from the Defendants offering three years of their satellite radio
service for a discounted price of $99. According to Catherine
Petra, the Defendants' Vice President, the Defendants sent the
Plaintiff this advertisement to incentivize him to reactivate his
2009 Jeep Grand Cherokee radio receiver.
The Plaintiff has utilized the Defendants' services for many years.
In 2005, the Plaintiff purchased services for two portable radios
(the 4180 account and 6008 account). In 2009, he received a free
trial subscription when he purchased his Jeep Grand Cherokee, and
subsequently purchased a subscription after the expiration of the
free trial (the 1453 account). He terminated his 6008 account in
2008, his 1453 account in 2010, and his 4180 account in 2011.
When the Plaintiff purchased a Toyota Highlander in 2017, it
included a free three-month trial subscription. He did not renew
the subscription at the end of the free trial period.
When the Plaintiff received the promotion from the Defendants in
December 2017, he went to the Defendants' website and attempted to
reactivate his 1453 account previously used in his 2009 Jeep Grand
Cherokee. However, the Defendants' website did not allow him to
purchase that plan. Instead, the website directed him to choose
from a list of different and more expensive service plans.
After calling the Defendants' service number, the service
representative informed the Plaintiff that the three-year, $99
promotion was not available for his 2009 Jeep Grand Cherokee. The
representative asked the Plaintiff if he wanted to purchase a
different service subscription for his Jeep. The Plaintiff accepted
and provided his credit card information for the billing. The
representative repeated the details of the service selected by the
Plaintiff. The Plaintiff's credit card was charged as described. He
did not hear back from the Defendants regarding his "reservation,"
nor did he contact defendants at any time over the next year.
The Defendants sent the Plaintiff a welcome kit that included the
agreement. Corporate records reflected the agreement was mailed on
Dec. 28, 2017, and the estimated arrival date at the Plaintiff's
address was Jan. 10, 2018 -- before the paid subscription period
began and before the Plaintiff's credit card was charged. On the
envelope was written "IMPORTANT SUBSCRIBER INFORMATION INSIDE." At
the bottom of the cover letter, it stated: "See our Customer
Agreement enclosed or online at www.siriusxm.com. Please be sure to
read it." The agreement's arbitration provision labeled "RESOLVING
DISPUTES" is located in the second column of the brochure.
The Defendants also mailed the Plaintiff a welcome kit with the
agreement when he opened the 1453 account for his Jeep Grand
Cherokee in 2009 and the account for his Toyota Highlander
purchased in 2017. The Plaintiff did not recall ever receiving a
welcome kit containing an agreement for either account. He also
certified he had "never read and was never aware of a set of
standardized terms and conditions that the Defendants call an
agreement. As stated, the identical agreement was also available
online on the SiriusXM website.
The Plaintiff did not cancel his radio service subscription during
the 2018 term of agreement, and he continued to use the service. On
Dec. 14, 2018, the Defendants mailed an automatic subscription
renewal notice to the Plaintiff for his 1453 account. The notice
advised that the Plaintiff's subscription service would renew
monthly beginning on Feb. 8, 2019 and provided the monthly charge.
Additionally, he was informed if he wanted to "review or make
changes to his account, he can visit sirusxm.com/myaccount
anytime." The Plaintiff was also instructed to "see their agreement
for complete terms, their refund policy, and how to cancel." And,
the renewal notice provided that if the Plaintiff did "not wish to
be charged for his subscriptions, he must cancel prior to renewal."
The Plaintiff did not cancel the subscription and continued to pay
the monthly charge after the renewal date.
In June 2019, the Plaintiff filed a complaint relating to his 1453
account subscription, alleging that the Defendants violated the New
Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to-20, the General
Advertising Regulations, N.J.A.C. 13:45A-9.1 to-9.8, and the
Truth-in-Consumer Contract, Warranty and Notice Act, N.J.S.A.
56:12-14 to-18. Defendants moved for dismissal of the complaint and
to compel arbitration under the agreement.
In a comprehensive oral opinion placed on the record over two dates
in June 2020, the trial judge noted the 15-year relationship the
Plaintiff had with the use of the Defendants' services. It further
noted: "Plaintiff received multiple copies of the Defendants'
agreement. The judge pointed out that the Plaintiff did not dispute
receiving the hard copies of the agreement in the mail at any time
but instead said he could not recall receiving the mailed notices.
The judge found mutual implied assent existed to support the
enforcement of the arbitration clause, "including usage-payment,
usage of the service, and an extended relationship history for an
extended period of time." The court found the arbitration clause
was "conspicuous and very clear" and encompassed the Plaintiff's
claims. Therefore, he granted the Defendants' motion to compel
arbitration and dismissed the complaint.
III. Discussion
On appeal, the Plaintiff contends the trial court erred in finding
he impliedly assented to the terms of the agreement. He also
asserts the agreement is facially deficient under the Plain
Language Act (PLA), N.J.S.A. 56:12-1 to-13.
The Superior Court is not persuaded by either contention. First, it
opines that the Plaintiff does not dispute he received the
agreement. He had sufficient notice of the arbitration provision
contained in the agreement. The Defendants had mailed two prior
welcome kits containing the agreement and arbitration provision in
connection with plaintiff's prior use of their services. The
Plaintiff's actions of requesting the Defendants' services, using
those services, and paying for them after receiving the agreement
demonstrates his assent to the contractual relationship established
under the agreement.
As the Superior Court stated in Weichert Co. Realtors v. Ryan, 128
N.J. 427, 435-36 (1992), a person may manifest "assent to the terms
of an offer through words, creating an express contract, or by
conduct, creating a contract implied-in-fact." The totality of the
Plaintiff's actions over the 15-year relationship with the
Defendants establishes implied assent.
Second, the Superior Court opines that the arbitration provision
informed the Plaintiff he was waiving his right to go to court and
to have a jury resolve his dispute. In clear, simple language, the
clause stated that any dispute would be resolved by binding
arbitration. An arbitration agreement does not need to include any
specific set of words but "must explain that the Plaintiff is
giving up their right to bring their claims in court or have a jury
resolve the dispute."
III. Order
For these reasons, the Superior Court affirmed.
A full-text copy of the Court's Jan. 18, 2022 Opinion is available
at https://tinyurl.com/3btwnvnj from Leagle.com.
Andrew R. Wolf -- awolf@dannlaw.com -- argued the cause for
appellant (The Dann Law Firm, PC and The Law Office of Henry P.
Wolfe LLC, attorneys; Andrew R. Wolf, Bharati O. Sharma --
bsharma@wolflawfirm.net -- and Henry P. Wolfe, on the briefs).
Harry P. Morgenthau (Kramer Levin Naftalis & Frankel LLP) of the
New York bar, admitted pro hac vice, argued the cause for
respondents (Robinson Miller LLC, Harry P. Morgenthau, Mark A.
Baghdassarian -- mbaghdassarian@kramerlevin.com -- (Kramer Levin
Naftalis & Frankel LLP) of the New York and Connecticut bars,
admitted pro hac vice, and Aaron M. Frankel and Eileen M. Patt
(Kramer Levin Naftalis & Frankel LLP) of the New York bar, admitted
pro hac vice, attorneys; Michael J. Gesualdo --
mgesualdo@rwmlegal.com -- Mark A. Baghdassarian, Aaron M. Frankel
-- afrankel@kramerlevin.com -- Eileen M. Patt --
epatt@kramerlevin.com -- and Harry P. Morgenthau, on the brief).
TOYS FOR SPECIAL: Hanyzkiewicz Files ADA Suit in E.D. New York
--------------------------------------------------------------
A class action lawsuit has been filed against Toys For Special
Children, Inc. The case is styled as Marta Hanyzkiewicz, on behalf
of herself and all others similarly situated v. Toys For Special
Children, Inc., Case No. 1:22-cv-00440 (E.D.N.Y., Jan. 25, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Toys For Special Children, Inc. -- https://enablingdevices.com/ --
offer the largest variety of products for those with
disabilities.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
TRANSWORLD SYSTEMS: Veney Files FDCPA Suit in D. Delaware
---------------------------------------------------------
A class action lawsuit has been filed against Transworld Systems
Inc. The case is styled as Brendan Veney, individually and on
behalf of all others similarly situated v. Transworld Systems Inc.,
Case No. 1:22-cv-00080-UNA (D. Del., Jan. 20, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Transworld Systems Inc. (TSI) -- https://tsico.com/ -- provides
receivables collection and management services.[BN]
The Plaintiff is represented by:
Antranig N. Garibian, Esq.
GARIBIAN LAW OFFICES, P.C.
1010 Bancroft Parkway, Suite 22
Wilmington, DE 19805
Phone: (215) 326-9179
Email: ag@garibianlaw.com
TROWBRIDGE LAW: Cal. App. Affirms Dismissal of Ergur Class Suit
---------------------------------------------------------------
In the case, KORAY ERGUR, Plaintiff and Appellant v. JEFFERY D.
TROWBRIDGE, Defendant and Respondent, Case No. A163845 (Cal. App.),
the Court of Appeals of California, First District, Division Three,
dismissed the Plaintiff's appeal from the trial court's dismissal
of his entire complaint with prejudice as to Trowbridge.
I. Introduction
Koray Ergur, appearing in propria persona, sued Jeffery Trowbridge
with a 252-page complaint seeking $13.5 quadrillion in damages for
a series of alleged conspiracies and crimes Trowbridge and his
family committed over the course of human history. Trowbridge, an
attorney who had some years earlier secured the dismissal of a
complaint Ergur brought against Trowbridge's clients, moved to
dismiss Ergur's complaint as a strategic lawsuit against public
participation (SLAPP). After the trial court granted the motion and
dismissed Ergur's complaint with prejudice, Ergur appealed.
Trowbridge now moves to dismiss Ergur's appeal as frivolous.
II. Background
In 2016 judicial proceedings, Trowbridge represented several
parties sued by Ergur and obtained for them a dismissal of Ergur's
claims with prejudice. Ergur appealed the dismissal in Case No.
A150477. By order of the Court of Appeals, it dismissed Ergur's
appeal for his failure to file a brief in conformity with the
California Rules of Court and for his failure to advance any
pertinent or intelligible legal argument, after giving him an
opportunity to cure its defects and he failed to do so.
In 2021, Ergur appearing in propria persona sued Trowbridge.
According to Trowbridge, he has no connection to Ergur other than
the 2016 representation, and the instant lawsuit was the product of
"some sort of grudge" against him. Ergur's complaint was a
purported class action complaint for "civil and criminal penalties
damages.
At 252 pages, the complaint alleged Trowbridge was "born into the
royal class" and was a "well connected criminal royalty mafia
member" whose family roots "can be easily traced back literally
1000 plus years into the Imperial Patrician Roman Empire Eras." He
further alleged the "Dynasty of Trowbridge's Family Members"
committed "all types of violations, endless and bottomless greed's,
crimes, frauds." These included "Colonizing, Slavery, Human, Opium,
Heroin, Trafficking, and Robbing the entire world today;"
destroying Ergur's court records and evidence; and stealing Ergur's
patents "a/k/a 'The Internet.' "In his prayer for relief, Ergur
requested among other things a declaration that profits and
property possessed by Trowbridge were obtained through "systematic
persecution, extermination, deportation, torture, force, and murder
violated international law" and $13.5 quadrillion. An additional
prayer included "one faith for all," "one equal justice for all,"
"one currency," "one alphabet, one language for all," and a
"Constitution" and "Manifesto" to be written "by/for/all We The
People of The Earth" as further sought-after relief.
Trowbridge filed a special motion to strike the complaint pursuant
to the anti-SLAPP statute (Code of Civ Proc., Section 425.16). The
trial court granted the motion and dismissed Ergur's entire
complaint with prejudice as to Trowbridge. In so doing, the court
found that based on a number of cases, Trowbridge's actions as an
attorney in the 2016 judicial proceedings for Ergur's litigation
adversaries arose from protected activity under Code of Civil
Procedure section 425.16, and that Ergur had failed to establish
the probability of prevailing on any of his claims to overcome
dismissal.
The court also concluded Trowbridge's activities were protected by
the absolute litigation privilege in Civil Code section 47,
subdivision (b). The court observed Ergur's claims were "not
cognizable as a matter of law or even intelligible," and that his
opposition to Trowbridge's motion contained "no coherent argument."
It also denied Ergur's request for judicial notice of nearly 4,000
pages of "unauthenticated and irrelevant documents regarding the
entire sweep of human history from Abraham to the present day."
Mr. Ergur appealed the dismissal order. After being advised he was
in default for failing to procure the record, Ergur filed a notice
designating the record on appeal requesting the preparation of a
clerk's transcript containing more than 13,000 pages of exhibits.
Trowbridge asserts he made several requests to Ergur to abandon his
appeal and advised him frivolous appeals might subject him to
further sanctions.
In response to Ergur's election to maintain his appeal, Trowbridge
has moved to dismiss it. Ergur has submitted written opposition to
the motion. To date, no record of the trial court proceeding has
been filed with the Court of Appeals, and Ergur has yet to file his
opening brief.
III. Discussion
Trowbridge contends Ergur's appeal should be dismissed because his
"fantastic, delusional and fanciful allegations fall unquestionably
into the category of frivolous cases where the Court of Appeal can
and must act to stop the offending harassment and vexatious
activity of Ergur."
The Court of Appeals agrees that the dismissal of Ergur's appeal as
frivolous is appropriate. It finds that the limited excerpts from
Ergur's complaint included with Trowbridge's motion provide
sufficient grounds to conclude Ergur's appeal is frivolous. The
allegations in the complaint evince harassment. They are replete
with invective and ad hominem personal attacks on Trowbridge and
his relatives. His appeal, which seeks to restore this complaint,
functions to extend this harassment.
In addition, under the reasonable attorney standard, the Court of
Appeals holds that it is not difficult to conclude even at this
stage that the appeal lacks merit. In his opposition to the motion
to dismiss, Ergur does not dispute Trowbridge's contention that the
only connection between the two was from the 2016 judicial
proceedings in which Trowbridge was opposing counsel. Nor does he
identify what, if any, cognizable legal claims his complaint
asserts against Trowbridge. Even assuming there is a cognizable
claim in his complaint, he fails to preview or offer any reasoned
argument or analysis that he has a probability of prevailing on the
claim. He also does not bother to address any of the grounds on
which the trial court dismissed his case.
Based on these deficiencies in the context of the multiple
authorities cited by the trial court establishing that the
anti-SLAPP statute protects lawyers sued for litigation-related
speech and activity, the Court of Appeals concludes no reasonable
attorney would consider Ergur's appeal meritorious.
In his opposition, Ergur describes Trowbridge's motion to dismiss
as "bogus," disputes Trowbridge's claims of success in the 2016
case, and asserts he does not carry a grudge against Trowbridge
from that experience. However, he provides no grounds in his
opposition to compel the Court of Appeals to deny the motion to
dismiss, or even to defer its ruling until it considers the merits
of his appeal following full briefing.
Mr. Ergur's principal legal argument against Trowbridge's motion to
dismiss is his assertion that he is not a vexatious litigant within
the meaning of Code of Civil Procedure section 391. However,
Trowbridge's motion does not ask this court to declare Ergur
vexatious. And the Court of Appeals decision is in no way based on
whether Ergur is a vexatious litigant but rather on the
frivolousness of Ergur's appeal, which provides sufficient grounds
for dismissal.
The Court of Appeals is cognizant that its "power to dismiss an
appeal must be used with extreme rarity" and that "'in all but the
clearest cases it should not be used.'" "One of the reasons that
the power to dismiss an appeal must be used with extreme rarity is
that determination of whether an appeal is frivolous entails at
least a peek at the merits -- if not, as is usually the case, a
thorough review of the record -- and, having taken that look, the
appellate court is in a position to affirm whatever was appealed
rather than dismiss the appeal." In the case, the Court of Appeals
opines that any review of the complaint clearly reveals it to be
harassing and Ergur's inability to even preview an intelligible
argument to defend his complaint further underscores its lack of
merit. It sees no need to spend further limited judicial resources
on such an appeal.
IV. Disposition
The Court of Appeals dismissed the appeal. Trowbridge is awarded
costs on appeal.
A full-text copy of the Court's Jan. 18, 2022 Opinion is available
at https://tinyurl.com/2p8umwj3 from Leagle.com.
TWO RIVERS: $1.5MM Class Settlement in Paulson Suit Wins Prelim. OK
-------------------------------------------------------------------
In the case, JOHN PAULSON, Individually and on Behalf of all Others
Similarly Situated, Plaintiff v. JOHN R. McKOWEN, WAYNE HARDING,
and TIMOTHY BEALL, Defendants, Civil Action No. 19-cv-02639-PAB-NYW
(D. Colo.), Judge Philip A. Brimmer of the U.S. District Court for
the District of Colorado the Revised Unopposed Motion of Plaintiff
for Preliminary Approval of Settlement, Certification of Class, and
Appointment of Class Representative and Class Counsel.
I. Background
The Plaintiff brings a securities class action against the
Defendants. The Plaintiff's amended complaint alleges that McKowen,
Harding, and Beall (collectively, the "individual defendants") were
officers of defendant Two Rivers Water and Farming Co.
The Plaintiff alleges that Two Rivers and McKowen formed GrowCo,
Inc. to "capitalize on the burgeoning marijuana industry in
Colorado." To support their operations, the Defendants offered
GrowCo securities to investors. With the Offerings, the Defendants
provided "sales presentations, memoranda of terms, exchange note
purchase agreements, exchange agreements, investor questionnaires,
and other documents which purported to make material disclosures to
investors about GrowCo and the Securities Offerings." The Plaintiff
alleges that the Offering documents omitted material information
about McKowen, including a 1987 disciplinary action, fine, and
suspension with the National Association of Securities Dealers, a
1995 bankruptcy, and a 1992 default judgment in connection with a
complaint before the Indiana Securities division.
The Defendants dispute these allegations and deny liability for the
claims. McKowen moved to dismiss the complaint on the basis that
the information underlying the allegations against him "concerned
the distant past, was not required to be disclosed, and was not
material to investors' decisions to purchase GrowCo securities."
This motion was pending when the parties and the Defendants'
insurance carrier, Starstone Specialty Casualty Insurance Co.,
agreed to engage in mediation before retired Denver District Court
Judge William Meyer. The parties ultimately reached a settlement in
August 2020, and on Oct. 9, 2020, the Plaintiff filed an unopposed
motion for preliminary approval of the settlement, approval of the
notice to the class, preliminary certification of the class for the
purposes of settlement, appointment of class counsel, and the
scheduling of a fairness hearing.
On Jan. 25, 2021, the assigned magistrate judge granted a motion to
withdraw by counsel for Two Rivers and issued an order to show
cause why she should not impose sanctions against Two Rivers for
failure to defend in the absence of legal representation. On March
10, 2021, the Court entered an order notifying the parties that the
Court would deny the motion for preliminary approval without
prejudice if Two Rivers did not enter an appearance by March 16,
2021.
On March 15, 2021, the Plaintiff filed a motion for a status
conference regarding Two Rivers' failure to hire counsel and
failure to respond to the order to show cause. He requested that
the Court holds a status conference and, if the status conference
could not be held before March 16, that the Court holds in abeyance
a ruling on the motion for preliminary approval until the Court
held a status conference.
On April 6, 2021, the Plaintiff filed a motion to dismiss Two
Rivers as a party. On June 29, 2021, the Court granted the
Plaintiff's motion to dismiss Two Rivers without prejudice. It also
granted the Plaintiff leave to file a revised motion for
preliminary approval in light of Two Rivers' dismissal, which the
Plaintiff subsequently filed.
The matter is before the Court on the Revised Unopposed Motion of
Plaintiff for Preliminary Approval of Settlement, Certification of
Class, and Appointment of Class Representative and Class Counsel.
The motion for preliminary approval seeks certification of a
settlement class consisting of: All persons or entities who
currently hold claims based on Securities of GrowCo, and who
purchased or otherwise acquired the securities through Offerings
listed below, during the time period beginning October 2014 through
December 2017 (the Class Period), and suffered Alleged Losses.
In exchange for the release of all claims of the Settlement Class
against all the Defendants, the Settlement Agreement provides that
Starstone will pay $1.5 million for the benefit of the Class. The
parties agree that this amount provides a "substantial and
immediate benefit to the Class" and is appropriate given that
GrowCo is in bankruptcy and Two Rivers' financial situation makes
it unlikely that it would be able to satisfy a judgment. They
arrived at this amount after reviewing the Defendants' insurance
policy, which covers claims up to $2 million minus the cost of the
defense. The $1.5 million figure "represents substantially all of
the remaining insurance coverage net of defense costs to date." The
Plaintiff also considered that, if he persisted with litigation,
"the amount of insurance coverage available to satisfy a judgment
would be substantially less than the Settlement because as defense
costs increase, available funds for settlement decrease."
Class Members who wish to object to the fairness, reasonableness,
or adequacy of the Settlement Agreement may do so up to 14 days
before the fairness hearing, and subject to the requirements set
out in the Order. Those who fail to object will be deemed to have
waived any objections. In addition, potential Class Members who
wish to exclude themselves from the Class must submit a written
statement requesting exclusion no later than 21 days after the date
on the notice pursuant to the terms of the notice.
The Claims Administrator, selected by the Class Counsel, will
administer the process of receiving, reviewing, and denying claims
under the Class Counsel's supervision and will determine each
claimant's pro rata share of the Settlement Amount upon a Class
Member's showing of loss. The $1.5 million Settlement Fund will be
used to pay, among other things, attorneys' fees and expenses,
costs and expenses reasonably and actually incurred in connection
with locating and providing notice to potential Class Members,
assisting with filing claims, and administering and distributing
the Settlement Fund.
II. Analysis
A. Settlement Agreement
The Plaintiff moves for certification for the purposes of
settlement and the remaining Defendants do not oppose the motion.
Rule 23(a) requires that (1) the class be so numerous that joinder
is impracticable; (2) there are questions of law or fact common to
the class; (3) the claims of the representative party are typical
of those of the class; and (4) the representative parties will
fairly and adequately protect the interests of the class. A class
action may be sustained if these requirements are satisfied and the
class meets the requirements of one of the categories of Rule
23(b).
The Plaintiff asks the Court to certify a settlement class under
Rule 23(b)(3). Under that provision, the Plaintiff must show that
"questions of law or fact common to class members predominate over
any questions affecting only individual members" and that a class
action "is superior to other available methods for fairly and
efficiently adjudicating the controversy."
Rule 23(e) provides that a proposed settlement may only be approved
after a "finding that it is fair, reasonable, and adequate." In
making this determination, "trial judges bear the important
responsibility of protecting absent class members" and must be
"assured that the settlement represents adequate compensation for
the release of the class claims."
Judge Brimmer finds that (i) joinder of at least 80 investors would
be impracticable and that the numerosity requirement is met; (ii)
the issues of fact and law are common to all the Class Members'
claims; (iii) Mr. Paulson, as the named Plaintiff, brings claims
that are typical of the proposed class; and (iv) Mr. Paulson does
not have a conflict of interest with the rest of the Class and the
Class Counsel have preliminarily shown that they can vigorously
litigate on behalf of the Class.
Judge Brimmer further finds that (i) because the common questions
of law and fact depend entirely upon the conduct of the Defendants,
the questions on the Defendants' alleged material
misrepresentations and omissions regarding GrowCo and Mr. McKowen
predominate as they are unaffected by the particularized conduct of
individual Class Members; and (ii) a class action settlement is a
superior method for resolving this dispute fairly and effectively.
As to the Settlement Agreement, Judge Brimmer finds that the
presumption of fairness is sufficient to preliminarily approve the
terms of the proposed partial Settlement Agreement. He finds that
(i) the negotiations were done fairly and honestly; (ii) immediate
recovery outweighs the time and costs inherent in complex
securities litigation, especially when the prospect is some
recovery versus no recovery; (iii) the settlement was the result of
arms-length negotiations and was reached with the aid of an
experienced mediator; and (iv) certifying the Class will allow the
Court to determine whether there are other members of the class
that challenge the fairness of the parties' proposed Settlement
Agreement.
B. Notice to the Settlement Class
Judge Brimmer finds that the proposed notice in the case provides
the potential Class Members with information regarding the class
action, the terms of the Settlement Agreement, the plan of
allocation, the attorneys' fees and expenses, the fairness hearing,
how investors can opt-out of the Class or object to the terms of
the Settlement Agreement. The Class Counsel have physical addresses
for all the Class Members, rendering direct mail the best notice
practicable. Based on the foregoing, Judge Brimmer is satisfied
that the parties' proposed notice is reasonably calculated to
apprise the absent Class Members of the action.
C. Class Counsel
The Settlement Agreement lists the Plaintiff's current attorneys --
Paul Scarlato and Alan Rosca of Goldman Scarlato & Penny, P.C., and
J. Barton Goplerud and Brian Marty of Shindler, Anderson, Goplerud
& Weese, P.C. -- as the Class Counsel and Steve Miller of Steve A.
Miller, P.C. as the "Additional Plaintiff's Counsel." The
Plaintiff's attorneys state that they have "extensive experience
and expertise in prosecuting complex securities litigation and
class action proceedings throughout the United States."
Judge Brimmer finds that the counsel have sufficient experience in
class actions and their knowledge of the applicable law, as
exhibited in the case up to this point, weighs in favor of their
appointment. Therefore, he finds that it is appropriate to appoint
the Plaintiff's counsel as the Class Counsel and the Additional
Plaintiff's Counsel.
D. Additional Procedures
Judge Brimmer will adopt the notice, fairness hearing, and opt-out
schedule proposed by the Plaintiff, with the exception that the
fairness hearing will not be set until a date in April 2022.
Accordingly, the following deadlines apply:
a. Deadline for mailing the Notice and Claim Form to the
Settlement Class - - Not later than 14 days after the date of entry
of the Court's Preliminary Approval Order
b. Deadline for Class Members to exclude themselves from the
Class - Not later than 30 calendar days after the Notice Date
c. Filing of papers in support of final approval of the
Settlement, the Plan of Allocation, and Lead Counsel's fee and
expense request - Not later than 21 calendar days of prior to the
Fairness Hearing
d. Deadline for objections to the Settlement Class requests
and for exclusion from the settlement - Not later than 14 calendar
days prior Fairness Hearing
e. Filing of reply papers in support of final approval of the
Settlement, Plan of Allocation, and Class Counsel's fee and expense
request - Not later than seven calendar days prior to the Fairness
Hearing.
f. Deadline for submitting Claim Forms Postmarked - 60
calendar days after the Notice Date (Class Counsel may, at its
discretion, accept for processing late Claims)
The parties will contact the Court's chambers to set a date for the
fairness hearing within seven days of the entry of the Order.
III. Conclusion
For the foregoing reasons, Judge Brimmer granted the Unopposed
Motion of Plaintiff for Preliminary Approval of Settlement,
Certification of Class, and Appointment of Class Representative and
Class Counsel.
The parties will contact the Court's chambers within seven days of
the entry of the Order to set a date for the fairness hearing.
A full-text copy of the Court's Jan. 19, 2022 Order is available at
https://tinyurl.com/2xw4pmms from Leagle.com.
UNITED STATES: $700K in Attys. Fees & Costs Awarded in Kirwa v. DOD
-------------------------------------------------------------------
In the case, MAHLON KIRWA, et al., Plaintiffs v. UNITED STATES
DEPARTMENT OF DEFENSE, et al., Defendants, Civil Action No. 17-1793
(PLF) (D.D.C.), Judge Paul L. Friedman of the U.S. District Court
for the District of Columbia granted the parties' Joint Motion for
Approval of Settlement Regarding Plaintiffs' Claims for Equal
Access to Justice Act Attorneys' Fees and Cost.
I. Background
The Secretary of Defense authorized the creation of the Military
Accessions Vital to the National Interest ("MAVNI") program in
2008. The MAVNI program permits non-citizens who are not lawful
permanent residents to enlist in the U.S. military if it is
determined to be vital to the national interest. Certain
individuals who enlist in the Selected Reserve of the Ready Reserve
of the U.S. military through the MAVNI program are eligible for
naturalization under 8 U.S.C. Section 1440. Namely, that statute
permits non-citizens who have honorably served as members in the
Selected Reserve or in an active-duty status in the military during
a designated period of military hostilities (i.e., "qualifying
military service") to become U.S. citizens.
To determine eligibility for naturalization, the U.S. Citizenship
and Immigration Services requires an applicant to submit, along
with a Form N-400 application for naturalization, a Form N-426
completed by an official within the U.S. Department of Defense
("DOD") certifying the applicant's qualifying military service.
Starting in the spring of 2017, the Army and other branches of the
U.S. military began to reject requests for Form N-426s from MAVNI
enlistees who were serving in the Selected Reserve but had not yet
been shipped to basic training. On Oct. 13, 2017, DOD issued formal
policy guidance imposing additional requirements for the issuance
of Form N-426s.
On Sept. 1, 2017, the Plaintiffs filed a complaint in the Court
challenging the Defendants' refusal to certify the Plaintiffs' Form
N-426s, alleging violations of the Administrative Procedure Act, 5
U.S.C. Section 706, and seeking mandamus, 28 U.S.C. Section 1361.
On Oct. 25, 2017, the Court provisionally certified a class and
entered a preliminary injunction in favor of the Plaintiffs,
enjoining the Defendants from refusing to complete the Plaintiffs'
Form N-426s according to the DOD's October 13 Guidance. On Dec. 1,
2017, the Court certified a class consisting of all persons who, by
Oct. 13, 2017, had enlisted in the U.S. military through the MAVNI
program, had served in the Selected Reserve, and had not received a
completed and duly authenticated Form N-426 certifying their
qualifying military service.
On Sept. 2, 2020, the Court converted its preliminary injunction
into a permanent injunction and entered judgment for the
Plaintiffs. The injunction prohibits the Defendants from "refusing
to sign and issue Form N-426s to members of the class pursuant to
Section II of DOD's October 13 Guidance" and from "refusing to
certify class members who have served for one day or more in the
Selected Reserve as having served honorably, except as related to
the conduct of an individual plaintiff or class member as reflected
in that soldier's service record and based on sufficient grounds
generally applicable to all enlistees." On May 27, 2021, the
parties jointly filed the motion for approval of a settlement
regarding attorneys' fees currently before the Court.
II. Discussion
A. The Equal Access to Justice Act
The Plaintiffs seek an award of attorneys' fees and costs under the
Equal Access to Justice Act ("EAJA" or the "Act"), 28 U.S.C.
Section 2412. They invoke Section 2412(d)(1)(A) of the EAJA, which
provides for the recovery of attorneys' fees and costs to a
prevailing party in non-tort cases against the United States
"unless the court finds that the position of the United States was
substantially justified or that special circumstances make an award
unjust." The Plaintiffs also cite Section 2412(b), which permits a
court to award reasonable attorneys' fees and costs to the
prevailing party in any civil action against the United States "to
the same extent that any other party would be liable under the
common law or under the terms of any statute which specifically
provides for such an award." Under that provision, and consistent
with the common law, the United States may be liable for attorneys'
fees and costs if it has "acted in bad faith, vexatiously,
wantonly, or for oppressive reasons."
The Plaintiffs maintain that there is no statutory ceiling on the
hourly rate used to calculate fees under Section 2412(b) if there
is a finding of bad faith. The Defendants maintain that they have
not acted in bad faith and that Section 2412(b) therefore is
irrelevant. The Settlement Agreement itself references the EAJA and
cites 28 U.S.C. Section 2412 without mentioning any particular
subsection of the Act. Judge Friedman sees no need to address the
bad faith issue raised by the Plaintiffs and disputed by the
Defendants.
B. Notice and Opportunity for Class Members to Object
Under the Federal Rules of Civil Procedure, a court may award
attorneys' fees and costs that are authorized by law or by the
parties' agreement. Notice of the motion for attorney' fees must be
"directed to class members in a reasonable manner," so that a class
member has an opportunity to object to the motion, see FED. R. CIV.
P. 23(h)(2). Upon filing the Joint Motion for Attorneys' Fees in
the case, the class counsel published the joint motion, supporting
documentation, and the Settlement Agreement on the website used to
communicate with class members throughout the litigation:
https://dcfederalcourtmavniclasslitigation.org/. Furthermore, in
accordance with the Court's July 30, 2021 Order, the Plaintiffs
filed a supplemental memorandum reporting that, as of Aug. 5, 2021,
no class members had commented on or objected to the motion for
attorneys' fees.
In view of the above, Judge Friedman finds that the class counsel
has provided notice to class members sufficient to satisfy the
demands of Rule 23(h)(1).
C. Reasonableness of Fees and Costs Requested
"In a certified class action, the court may award reasonable
attorneys' fees and nontaxable costs that are authorized by law or
by the parties' agreement." Rule 23(h) does not itself "create new
grounds for an award of attorney fees," "leaving the courts to
continue to develop the standards that will be applied."
When awarding attorneys' fees, federal courts "have a duty to
ensure that claims for attorneys' fees are reasonable in light of
the results obtained." Where, in the case, the parties have reached
an agreement on the award of attorneys' fees, the Court may give
consideration and weight to that agreement, but "the Court remains
responsible to determine a reasonable fee." .
The determination of a reasonable fee under the EAJA is governed by
the approach first articulated by the Supreme Court in Hensley v.
Eckerhart, 461 U.S. 424 (1983). Using the lodestar method, the
Court begins by "determining the amount of a reasonable fee," that
is, "the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate."
The Plaintiffs represent that the class counsel devoted 2,863 hours
working on this case, not including the time related to the
preparation of the Joint Motion for Attorneys' Fees. Given the
scope of the Plaintiffs' claims and the duration of the litigation,
Judge Friedman finds reasonable the amount of time spent for this
representation.
With regard to a "reasonable hourly rate," the Plaintiffs represent
that the class counsel's baseline rate used to calculate the
proposed settlement amount was $197.35 per hour. In view of the
complexity of this multi-year litigation -- which has involved
extensive motions practice, including a motion for preliminary
injunction, as well as mediation and settlement negotiations -- and
the experience and skill of the counsel, this reflects a reasonable
hourly rate for the Plaintiffs' counsel. Multiplying the number of
hours reasonably expended on the litigation by the Plaintiffs'
counsel's reasonable hourly rate yields a lodestar amount of
$565,000.
To arrive at a fair and reasonable award of attorneys' fees, a
court may further adjust the lodestar amount considering several
other factors, the most important of which is the "results
obtained." "Where a plaintiff has obtained excellent results, his
attorney should recover a fully compensatory fee."
As discussed, the Plaintiffs successfully challenged the
Defendants' policy and practice of refusing to certify class
members' Form N-426s, resulting in a preliminary and then a
permanent injunction. In addition, the class counsel estimates that
through its efforts the Defendants "have provided more than 1,000
former Kirwa class members certifications of honorable service
pursuant to the injunctions in the case."
Judge Friedman therefore finds that the proposed amount of $700,000
in attorneys' fees and costs agreed upon by the parties adequately
reflects the Plaintiffs' sterling success and is a reasonable and
fair award.
III. Conclusion
For the foregoing reasons, Judge Friedman granted the parties'
Joint Motion for Attorneys' Fees and awarded $700,000 in attorneys'
fees and costs to the Plaintiffs. Accordingly, he granted the
parties' Joint Motion for Approval of Settlement Regarding
Plaintiffs' Claims for Equal Access to Justice Act Attorneys' Fees
and Costs. He approved the parties' Settlement Agreement. The
United States will pay the counsel for the Plaintiffs $700,000 in
attorneys' fees and costs.
A full-text copy of the Court's Jan. 18, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/2vwudvdc from
Leagle.com.
UNITED STATES: Bid to Stay Class Cert. Briefing Partly Granted
--------------------------------------------------------------
In the class action lawsuit captioned as L.F.O.P.. et al., v.
Alejandro Mayorkas, Ur Mendoza Jaddou, and Department of Homeland
Security, Case No. 4:21-cv-11556 (D. Mass.), the Hon. Judge Timothy
S. Hillman entered an order granting in part and denying in part
motion to stay class certification briefing.
Motion is denied as to the defendants' request for a stay and
granted as to the defendants' request for a 14-day extension to
respond to the plaintiffs' motion for class certification, says
Judge Hillman.
The suit alleges violation of the Administrative Procedure Act.
The United States Department of Homeland Security is the U.S.
federal executive department responsible for public security,
roughly comparable to the interior or home ministries of other
countries.[CC]
URSUS BOOKS: Miller Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Ursus Books Ltd. The
case is styled as Kimberly Miller, on behalf of herself and all
other persons similarly situated v. Ursus Books Ltd., Case No.
1:22-cv-00662 (S.D.N.Y., Jan. 25, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Ursus Books -- https://www.ursusbooks.com/ -- is a veteran shop
featuring collections of rare titles & art books, plus decorative
prints & engravings.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: nyjg@aol.com
michael@gottlieb.legal
WASHINGTON: Court Denies Bid to Certify Class in Penwell v. Strange
-------------------------------------------------------------------
In the case, TONY PENWELL, Plaintiff v. CHERYL STRANGE, et al.,
Defendants, Case No. 3:21-cv-5722 RJB-JRC (W.D. Wash.), Judge
Robert J. Bryan of the U.S. District Court for the Western District
of Washington, Tacoma, denied without prejudice the Plaintiff's
Motion for Certification of a Class.
The matter comes before the Court on the Report and Recommendation
of U.S. Magistrate Judge J. Richard Creatura. Judge Bryan has
considered the Report and Recommendation and the remaining file. No
objections were filed to the Report and Recommendation.
The Plaintiff filed the case on Sept. 28, 2021, asserting that his
Eighth Amendment right to be free from cruel and unusual punishment
is being violated by the Defendants' decision to force him to be
double-celled with another prisoner. He also makes claims under the
Fourteenth Amendment. The case is related to two other cases filed
by two ORDER ON REPORT AND RECOMMENDATION - 1 other inmates:
Ejonga-Deogracias v. Strange, 2:21-cv-01004 RJB-JRC and Schubert v.
Strange, 2:21-cv-01070 RJB-JRC.
The Plaintiff's application to proceed in forma pauperis ("IFP") in
the case was granted. The Plaintiff filed a Motion for Temporary
Restraining Order and Preliminary Injunction on Oct. 25, 2021. In
that motion, the Plaintiff requested that the Court orders the
Defendants to cease double-bunking at the facility and cease
transporting prisoners to other facilities.
A Report and Recommendation was filed recommending that the
Plaintiff's Motion for Temporary Restraining Order and Preliminary
Injunction be denied. After an extension of time for the Plaintiff
to file objections was granted, on Jan. 3, 2021, that Report and
Recommendation was adopted.
The Plaintiff's motion for appointment of counsel was granted on
Dec. 23, 2021, contingent on identification of counsel willing to
represent the Plaintiff pro bono in the matter. Objections to that
order have been filed and are noted for consideration on Jan. 28,
2021.
Now pending is a Report and Recommendation on the Plaintiff's
motion to certify the case as a class action. The Report and
Recommendation recommends denying the motion without prejudice
because the Plaintiff is proceeding pro se, at the moment, and
because his motion for class certification, as argued, lacks
merit.
For the reasons stated in therein, the Report and Recommendation
should be adopted. The Plaintiff's motion for certification of the
case as a class action should be denied without prejudice. The case
should be re-referred to U.S. Magistrate Judge Creatura for further
proceedings.
Accordingly, Judge Bryan adopted the Report and Recommendation. He
denied without prejudice the Plaintiff's Motion for Certification
of a Class. The case is re-referred to U.S. Magistrate Judge
Creatura for further proceedings. The Clerk is directed to send
uncertified copies of the Order to U.S. Magistrate Judge Creatura,
all counsel of record, and to any party appearing pro se at said
party's last known address.
A full-text copy of the Court's Jan. 18, 2022 Order is available at
https://tinyurl.com/y5tre5r2 from Leagle.com.
WESTCHESTER FIRE: Mass. App. Affirms Summary Judgment in Meadows
----------------------------------------------------------------
In the case, MEADOWS CONSTRUCTION CO. LLC, & another v. WESTCHESTER
FIRE INSURANCE CO., Case No. 20-P-1272 (Mass. App.), the Appeals
Court of Massachusetts affirmed summary judgment entered in the
insurer's favor.
At issue is whether summary judgment was properly entered in the
insurer's favor in this declaratory judgment action. The standard
of review of a grant of summary judgment is whether, viewing the
evidence in the light most favorable to the nonmoving party, all
material facts have been established and the moving party is
entitled to a judgment as a matter of law." "The allowance of a
motion for summary judgment is reviewed de novo."
The instant appeal turns entirely on whether the Plaintiffs
complied with the notice requirements of the claims-made policy at
issue. "The interpretation of an insurance policy is a question of
law, which the Appeals Court reviews de novo." "Interpretation of
an insurance policy is no different from interpretation of any
other contract."
Where there is no ambiguity, "the Appeals Court must construe the
words of the policy in their usual and ordinary sense." When the
language of a policy is ambiguous, "it interprets it in the way
most favorable to the insured." "However, an ambiguity is not
created simply because a controversy exists between parties, each
favoring an interpretation contrary to the other." "A term is
ambiguous only if it is susceptible of more than one meaning and
reasonably intelligent persons would differ as to which meaning is
the proper one." Finally, "it is a long-standing rule of
construction that the favored interpretation of an insurance policy
is one which best effectuates the main manifested design of the
parties."
With these legal principles in mind, the Appeals Court now turns to
the specifics of the case. The Defendant insurer issued to Meadows
Construction Co. LLC (the insured) a claims-made policy for the
period Sept. 12, 2014 to Sept. 12, 2015, which the insured did not
thereafter renew. A "claims made and reported" policy is to be
contrasted with an "occurrence" policy.
A "claims made and reported" policy covers claims against an
insured that are made during the policy period and reported within
a specified period, whereas an "occurrence" policy covers insured
events that occur during the policy period, regardless of when they
are reported to the insurer. A "claims made and reported" policy is
designed to promote "fairness in rate setting" because it helps
ensure that the insured event and the insurer's payout happen close
together in time, so that an insurer will have an easier time in
calculating its risk of liability and the size of that liability.
Accordingly, the requirement that notice of the claim be given in
the policy period or shortly thereafter in a claims-made policy is
of the essence in determining whether coverage exists.
In boldface, all-capital letters on the declarations page of the
policy, there is a warning that the policy coverage sections "cover
only claims first made against the insured during the policy period
and reported to the insurer pursuant to the terms of the relevant
coverage section." The pertinent notice provisions of the policy
are to be found in sections E.1 (as amended by endorsement) and
E.2. Section E.1.
Put simply, this provision required that the insured give notice of
a claim, at the latest, within 60 days of Sept. 12, 2015, the
expiration of the policy. The insured concedes that it did not
provide notice of the wage and hour class action complaint for
which it sought a defense and indemnification during the policy
period, or within sixty days of the policy period's expiration.
Thus, it is clear that the requirements of section E.1 were not
satisfied.
The insured, however, argues that it is entitled to an extended
notice period based on the provisions of section E.2. In essence,
the insured's argument is that, because it did not become aware of
facts or circumstances which could reasonably give rise to the
claims made in the wage and hour class action complaint until it
was served with the complaint, its notice to the insurer shortly
thereafter was timely.
Much of the parties' briefing in this regard focuses on whether the
series of events that took place during the policy period was
sufficient to make the insured reasonably aware of a potential
future claim. Among other things, the insured became aware of
efforts to settle claims regarding unpaid wages with two employees;
there was a series of communications between the insured and the
Brazilian Workers Center concerning claims by employees concerning
their wages; and the insured had been notified that State and
Federal agencies were looking into the company's wage practices.
But whether these circumstances were enough to trigger the
insured's obligation under section E.2 is a question we need not
answer because, regardless, it is undisputed that the insured never
gave written notice to the insurer of these circumstances, let
alone during the policy period. Thus, the insured can find no safe
harbor in section E.2.
Relying on Chas. T. Main, Inc., 406 Mass. At 862, and G. L. c. 175,
Section 112, the insured also argues that, even if notice was
untimely, the insurer cannot disclaim coverage unless it can
demonstrate that it was prejudiced by the late notice. To begin
with, the insured misreads Chas. T. Main, Inc., where the Supreme
Judicial Court held that an insurer need not show it was prejudiced
by late notice in the case of a "claims made and reported" policy
such as the one at issue. The insured's reliance on G. L. c. 175,
Section 112 is equally misplaced. Although, the statute provides
that "an insurance company will not deny insurance coverage to an
insured because of failure of an insured to seasonably notify an
insurance company of an occurrence, incident, claim or of a suit
founded upon an occurrence, incident or claim, which may give rise
to liability insured against unless the insurance company has been
prejudiced thereby," the Supreme Judicial Court has rejected the
argument that the quoted provision applies to claims-made policies
such as the one at issue in the present case. "A requirement that
an insurer on a claims-made policy must show that it was prejudiced
by its insured's failure to report a claim within the policy period
or a stated period thereafter would defeat the fundamental concept
on which claims-made policies are premised."
In light of Appeals Court's disposition of the issues, it follows
that the Plaintiffs' cross motion for summary judgment in their own
favor on their claims for declaratory judgment, indemnification,
and damages under G. L. c. 93A & 176D, was properly denied. Where
coverage was properly disclaimed, the insurer had no duty to defend
or indemnify, nor did it violate chapters 93A or 176D.
Based on the foregoing, because it agrees with the judge that the
policy required that notice of the claim be reported to the insurer
during the policy period, and it is undisputed that the claim was
not reported when required, the Appeals Court affirmed the
Judgment.
A full-text copy of the Court's Jan. 18, 2022 Memorandum & Order is
available at https://tinyurl.com/mvww5w2y from Leagle.com.
WHEELZY LLC: Guerrero Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Wheelzy LLC. The case
is styled as Edelmira Guerrero, individually and on behalf of all
others similarly situated v. Wheelzy LLC, Case No. 1:22-cv-00523
(S.D.N.Y., Jan. 20, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Wheelzy -- https://wheelzy.com/ -- is revolutionizing car selling
with an easy, streamlined process where you can drive to our store
and leave with a check with minutes.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: jmizrahi@mizrahikroub.com
Asbestos Litigation
ASBESTOS UPDATE: FDA Eyes at Stricter Asbestos Testing in Talc
--------------------------------------------------------------
Tim Povtak, writing for Asbestos.com, reports that the U.S. Food
and Drug Administration recently moved a step closer to a
much-needed, stricter standardization of testing for the presence
of toxic asbestos fibers in talc-containing cosmetic products.
On Jan. 13, the FDA released its 124-page consensus document
written by the Interagency Working Group on Asbestos in Consumer
Products. It outlined a scientific assessment on testing that
should better protect the public.
Eight U.S. federal agencies, selected by the FDA, were represented
in the Interagency Working Group, which began the project in 2018.
The burgeoning issue of small amounts of dangerous asbestos in talc
products stems from the rise of cancers – including malignant
mesothelioma – that have been linked in recent years to various
consumer products containing talc.
Talc and asbestos, two naturally occurring minerals, often are
found in close proximity near the Earth’s surface. Asbestos is no
longer mined within the U.S., but talc remains a commonly used and
valuable resource.
Over the past several years, traces of asbestos have been found in
children’s toys, crayons and makeup products.
ASBESTOS UPDATE: Paddock Proposes $610M Asbestos Claims Trust
-------------------------------------------------------------
Rick Archer of Law360 reports that Paddock Enterprises, a spinoff
of glassmaker Owens-Illinois, has submitted a proposed Chapter 11
plan to the Delaware bankruptcy court that would establish a $610
million trust fund to pay off its legacy asbestos liability.
In a plan disclosure statement filed Wednesday, January 13, 2022,
Paddock said the plan is the result of a settlement with its
asbestos claimants committee and future asbestos claims
representative, and will "result in a permanent resolution of all
current and future asbestos personal injury claims against the
debtor. This plan represents a favorable outcome for all parties,
and we look forward to the plan's implementation."
ASBESTOS UPDATE: Soriano Fined $62K for Asbestos Violations
-----------------------------------------------------------
Katherine Hamilton, writing for wbjournal.com, reports that
Marlborough-based asbestos and mold removal company Soriano
Environmental, Inc. has been fined $62,640 for violations of
asbestos regulations by the Massachusetts Department of
Environmental Protection (MassDEP).
The penalty is regarding work the company did on three residential
properties in Brookline and Newton, according to the MassDEP press
release.
MassDEP conducted a review which found Soriano had completed
asbestos abatement work without filing for the required Asbestos
Notification Form and fee. The company removed significantly more
asbestos, which is an insulation material and a known carcinogen,
than was approved under the emergency waivers received for each of
the three sites.
Soriano will pay $26,100 of the penalty now and have the rest of
the fine suspended for one year as long as the firm has no further
violations.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2022. All rights reserved. ISSN 1525-2272.
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