/raid1/www/Hosts/bankrupt/CAR_Public/220624.mbx
C L A S S A C T I O N R E P O R T E R
Friday, June 24, 2022, Vol. 24, No. 120
Headlines
ANCIENT ORGANICS: Effinger Sues Over Deceptive Product Ads
ARCHAEOLOGICAL INSTITUTE: Loses Bid to Dismiss Krassick Class Suit
BISHOP OF CHARLESTON: Nestler Appeals Reconsideration Bid Denial
CALAVERAS MATERIALS: Leon Suit Remanded to Kings County Super. Ct.
CHRISTINE VALMY: Maddy Files ADA Suit in S.D. New York
COMPLEXIONS INC: Maddy Files ADA Suit in S.D. New York
EUROFINS AIR TOXICS: Mcburney Files Suit in Cal. Super. Ct.
FAMILY DOLLAR: Workers in Arkansas Sue Over Unsanitary Conditions
FORD MOTOR: Berghuis Files Suit in S.D. California
FRESENIUS MEDICAL CARE: Javens Files Suit in M.D. Florida
GMA ACCESSORIES: Lawal Files ADA Suit in S.D. New York
GOZNEY INC: Quezada Files ADA Suit in S.D. New York
GREGORY'S COFFEE: Dawkins Files ADA Suit in E.D. New York
HAIR FAIRIES: Brown Files ADA Suit in S.D. New York
HOPPER (USA) INC: Quezada Files ADA Suit in S.D. New York
JASON MARKK: Luis Files ADA Suit in S.D. New York
JRN INC: Williams Files Suit in S.D. Illinois
JUSTIFI CAPITAL: Fabricant Files TCPA Suit in C.D. California
KAPSCH TRAFFICCOM: Court Denies Bids for Sanctions in Outzen Suit
KOHN LAW FIRM: Spalla Files FDCPA Suit in N.D. Illinois
LOUISIANA: Appeals Prelim. Injunction Ruling in Robinson Suit
LUNDBECK LLC: MSP Sues Over Xenazine Drug Price-fixing
MAINEHEALTH: Wins Bid for Judgment on Pleadings in Sargent Suit
MIDNIGHT VELVET: Velazquez Files ADA Suit in S.D. New York
MONDELZ GLOBAL: Douglass Files ADA Suit in W.D. Pennsylvania
MONEY STORE: Bids for Attorney's Fees & Costs in Mazzei Suit Denied
NATIONAL RIFLE: May Appeal Denial of Judgment in McEwen Suit
NEW YORK CITY, NY: Loses Bid to Dismiss Chalmers' White FPIs Claims
NEWMAN MEMORIAL HOSPITAL: Ketner Suit Removed to D. Kansas
NEWPORT GROUP: Russ Suit Transferred to W.D. Tennessee
NICK'S CUSTOM BOOTS: Cromitie Files ADA Suit in S.D. New York
NISSAN OF NORTH AMERICA: Moses Files Suit in M.D. Tennessee
NOVASTAR MORTGAGE: Order & Final Judgment Entered in NJCH Fund Suit
OHIO LIVING: Kordie Seeks Corrective Notice and Protective Order
OREGON: Bid for Appointment of Counsel in Fudge v. Bennett Denied
PATHWAY HEALTH: Class Settlement in Abel Suit Wins Prelim. Approval
PENNSYLVANIA: Revised Summary Judgment Ruling in Stradford Appealed
POLARIS INC: Miller Files Suit in Minn. 4th Judicial Dist.
PRINCETON ALTERNATIVE: Court Refuses to Sanction Mann's Counsel
RED MANGO: Dawkins Files ADA Suit in E.D. New York
RESERVATION AFFILIATES: Davis Files ADA Suit in S.D. New York
RESURGENT CAPITAL: Stanger Files FDCPA Suit in N.D. Illinois
SPRING EQ LLC: Montanari Suit Removed to S.D. Florida
SWIFT TRANSPORTATION: Mares Appeals Judgment in Saucillo Labor Suit
TELADOC HEALTH: Faces Schneider Suit Over Share Price Drop
TRANSFORM SEARS: Hickey Files Suit in Cal. Super. Ct.
VACATIONRENTER LLC: Quezada Files ADA Suit in S.D. New York
VIRGINIA: 4th Cir. Affirms Denial of Bid to Dismiss Thorpe v. VDOC
WAYNE COUNTY, MI: Bids for Reconsideration in Ingram Suit Denied
WEAL MANAGEMENT: Hanyzkiewicz Files ADA Suit in E.D. New York
Asbestos Litigation
ASBESTOS UPDATE: Graham Corp. Defends Several Exposure Lawsuits
ASBESTOS UPDATE: Judge May Re-open LTL Management's Talc Cases
*********
ANCIENT ORGANICS: Effinger Sues Over Deceptive Product Ads
----------------------------------------------------------
Kelly Effinger and Keefe Stevernu, individually, and on behalf of
those similarly situated, Plaintiffs v. Ancient Organics LLC,
Defendant, Case No. 4:22-mc-80142 (N.D. Cal., June 6, 2022) arises
from the Defendant's deceptive and misleading practices with
respect to its marketing and sale of its food products in violation
of the California's Unfair Competition Law, the False Advertising
Law, the Consumer Legal Remedies Act, as well as State Consumer
Protection Statutes.
According to the complaint, the Defendant manufactures, sells, and
distributes the products using a marketing and advertising campaign
focused on claims that appeal to health-conscious consumers. The
Defendant engages in a deceptive marketing campaign to convince
consumers that the products are nutritious and healthful to
consume, and are more healthful than similar products with "EAT
GOOD FAT" labels. However, this is false, misleading, and deceptive
because Defendant's products contain high amounts of unsafe fats
which increase the risk of severe health issues, including coronary
heart disease - the number one killer of Americans every year, says
the suit.
The Plaintiffs seek damages, interest thereon, reasonable
attorneys' fees and costs, restitution, other equitable relief, and
disgorgement of all benefits Defendant has enjoyed from its
unlawful and/or deceptive business practices. They also seek
injunctive relief to stop Defendant's unlawful conduct in the
labeling and marketing of the products and conduct a corrective
advertising campaign.
Ancient Organics LLC is a consumer retail company based in
California.[BN]
The Plaintiffs are represented by:
J. Ryan Gustafson, Esq.
GOOD GUSTAFSON AUMAIS LLP
2330 Westwood Blvd., No. 103
Los Angeles, CA 90064
Telephone: (310) 274-4663
E-mail: jrg@ggallp.com
- and -
Amir Shenaq, Esq.
SHENAQ PC
3500 Lenox Road, Ste. 1500
Atlanta, GA 30326
Telephone: (888) 909-9993
E-mail: amir@shenaqpc.com
- and -
Steffan T. Keeton, Esq.
THE KEETON FIRM LLC
100 S Commons, Ste 102
Pittsburgh, PA 15212
Telephone: (888) 412-5291
E-mail: stkeeton@keetonfirm.com
ARCHAEOLOGICAL INSTITUTE: Loses Bid to Dismiss Krassick Class Suit
------------------------------------------------------------------
In the lawsuit titled MARY KRASSICK, individually and on behalf of
others similarly situated, Plaintiff v. ARCHAEOLOGICAL INSTITUTE OF
AMERICA, Defendant, Case No. 2:21-cv-180 (W.D. Mich.), Judge Hala
Y. Jarbou of the U.S. District Court for the Western District of
Michigan, Northern Division, denies the Defendant's motion to
dismiss the Plaintiff's complaint for lack of jurisdiction and for
failure to state a claim.
The lawsuit is a putative class action asserting violations of
Michigan's Preservation of Personal Privacy Act (PPPA). The PPPA
prohibits a person engaged in the business of selling at retail,
renting, or lending books or other written materials from
disclosing to any person, other than the customer, a record or
information concerning the purchase, lease, rental, or borrowing of
those materials by a customer that indicates the identity of the
customer. Under the version of the PPPA in effect until July 30,
2016, a person violating the PPPA is liable in a civil action for
damages to the customer, including actual damages, damages for
emotional distress, or $5,000, whichever is greater, as well as
costs and reasonable attorney fees.
Plaintiff Mary Krassick alleges that, sometime before July 30,
2016, she purchased a subscription to Archaeology magazine, which
is published by Defendant Archaeological Institute of America
("AIA"). AIA allegedly gave information that it possessed about
Krassick (including her name, address, and the fact that she
subscribed to Archaeology) to "data aggregators," in violation of
the PPPA. Krassick seeks statutory damages of $5,000 for each
violation. She seeks to represent a class of other Michigan
residents who, at any point before July 30, 2016, had similar
information about them disclosed by AIA to third parties.
Analysis
AIA makes three arguments for dismissal. First, it argues that
Krassick's complaint is untimely. Second, it argues that the Court
lacks jurisdiction because Krassick lacks standing under Article
III of the Constitution to pursue her claim. Third, AIA argues that
the PPPA does not apply to AIA.
A. Standing
Judge Jarbou notes that the Court's power extends only to 'Cases'
and 'Controversies,' citing Spokeo, Inc. v. Robins, 578 U.S. 330,
337 (2016) (quoting U.S. Const., art. III, Section 2). Standing to
sue is a doctrine rooted in the traditional understanding of a case
or controversy. There are three elements to standing. Krassick must
have (1) suffered an injury in fact, (2) that is fairly traceable
to the challenged conduct of AIA, and (3) that is likely to be
redressed by a favorable judicial decision. Krassick carries the
burden of establishing those three elements, and at the pleading
stage, she must clearly allege facts demonstrating each element.
AIA contends that Krassick has not alleged an injury in fact
because her claim is based solely on a statutory violation and does
not arise out of any personal injury. Krassick responds that her
injury is the invasion of her right to privacy in her reading
habits, which is a right protected by the PPPA.
The Court of Appeals for the Sixth Circuit, as well as several
district courts, has rejected the argument that AIA raises here,
Judge Jarbou states. They have concluded that an individual like
Krassick has standing to pursue a PPPA claim.
Judge Jarbou explains that in Coulter-Owens v. Time Inc., 695 F.
App'x 117 (6th Cir. 2017), the Court of Appeals held that the
plaintiff had standing to pursue a PPPA claim because "the
violation at issue" involved "the privacy in one's reading
materials" (citing Perlin v. Time Inc., 237 F.Supp.3d 623, 627-29
(E.D. Mich. 2017), et al.
Judge Jarbou finds that the foregoing cases are persuasive. AIA
does not discuss any of them in its briefing. Instead, AIA draws
the Court's attention to Krassick's arguments that her claim "does
not arise from any 'personal injury' or seek to recover any actual
'damages' for any such 'injuries'"; rather, her claim arises from
the Defendant's violations of her statutorily conferred right to be
free from unauthorized disclosures of her private reading
information, and seeks to recover the statutorily authorized sum of
$5,000 for each of the Defendant's statutory violations.
However, Judge Jarbou holds, AIA takes these statements out of
context. Krassick made them when arguing that the six-year period
of limitation in Mich. Comp. Laws Section 600.5813 should apply to
her claim, rather than the three-year period of limitation in Mich.
Comp. Laws Section 600.5805(2) for "injury to persons or property."
In other words, Krassick contends that Mich. Comp. Laws Section
600.5813 supplies the correct limitation period because her right
to recovery derives from a statute rather than from a tort for
personal injury.
That argument does not deprive her of standing, Judge Jarbou
opines. Nor does her choice to seek statutory damages rather than
actual damages. Regardless of the form of relief that Krassick
seeks, the disclosure of her private information is a concrete
injury in fact that gives her Article III standing to bring a PPPA
claim.
B. Statute of Limitations
Next, AIA argues that Krassick's claim is untimely. AIA argues that
the three-year statute of limitations in Mich. Comp. Laws Section
600.5805(2) applies to this case because Krassick ostensibly seeks
to recover damages for "injury to a person or property." Krassick
brought this case in 2021, approximately five years after the
events giving rise to her case occurred. Consequently, her claim
would be untimely under a three-year limitation period.
Ms. Krassick argues that the appropriate statute of limitations is
found in Section 600.5813, which is a catch-all provision for all
other personal actions unless a different period is stated in the
statutes. The limitation period in Section 5813 is six years,
rather than three. Michigan courts have not decided which
limitation period applies to the PPPA.
Ms. Krassick relies on Palmer Park Square, LLC v. Scottsdale
Insurance Co., 878 F.3d 530 (6th Cir. 2017), in which the Court of
Appeals for the Sixth Circuit noted that "Section 600.5813 applies
to statutory causes of action, including those for civil fines."
Similarly, the Michigan Court of Appeals has stated that "a civil
cause of action arising from a statutory violation is subject to
the six-year limitation period found in Section 5813, if the
statute itself does not provide a limitation period" (DiPonio
Constr. Co. v. Rosati Masonry Co., 631 N.W.2d 59, 66 (Mich. Ct.
App. 2001)). Here, Krassick's cause of action arises from a
violation of the PPPA, which does not provide a limitation period.
The decisions in Palmer Park and Diponio Construction stem from the
Michigan Supreme Court's decision in Citizens for Pretrial Justice
v. Goldfarb, 327 N.W.2d 910 (Mich. 1982). There, the plaintiffs
alleged that the defendant had overcharged them, in violation of
various bail bond statutes. The court considered whether the
overcharge claim was subject to Section 5805 or Section 5813 and
concluded that the latter applied because Section 5805 "applies to
traditional, primarily commonlaw torts," and the "injury complained
of" by the plaintiffs "is not a traditional tort."
In summary, Palmer Park, DiPonio Construction, Goldfarb, and
National Sand indicate that where, as here, a statutory cause of
action does not define a statute of limitations and the cause of
action does not have a traditional common-law counterpart, the
statute of limitations is governed by Section 5813, Judge Jarbou
opines. The Court is satisfied that these decisions provide the
best evidence of how a Michigan court would rule on the issue if
faced with the question today. Accordingly, the six-year statute of
limitations in Mich. Comp. Laws Section 600.5813 governs a PPPA
claim. Consequently, Krassick's action is timely.
C. Applying the PPPA to AIA
AIA further argues that the PPPA does not apply because that
statute governs a person engaged in the business of selling at
retail, renting, or lending books or other written materials. AIA
contends that a "person engaged in the business" refers to a person
operating with a profit motive. AIA is a nonprofit entity
established by Congressional charter. Because AIA did not have a
profit motive, it contends that it was not subject to the PPPA.
Michigan courts have not examined whether the PPPA applies to
nonprofit organizations, so the Court begins with the language of
the statute itself, resorting to dictionary definitions to
determine its plain and ordinary meaning.
Judge Jarbou notes that when Congress intended "engaged in the
business" to require a profit motive, it expressly stated as much.
Without an express statement, courts have reached different
conclusions about the extent to which a profit motive is necessary.
Here, the PPPA does not expressly require a profit motive, which
suggests that such a motive might not be necessary.
Furthermore, even the Sixth Circuit's interpretation of "engaged in
the business," which ostensibly requires a purpose for "livelihood
or profit," might apply to AIA to the extent that AIA sells
magazine subscriptions to support its livelihood rather than to
obtain a profit.
Michigan courts examining "in the business of" language similar to
that found in the PPPA have concluded that it can apply to
nonprofit entities, particularly where those entities are engaged
in relevant transactions on a regular basis, Judge Jarbou finds.
Applying the concepts to the allegations in Krassick's complaint,
AIA satisfies the definition of engaging in the business of selling
media at retail, Judge Jarbou holds. The Court can infer from those
allegations that AIA regularly sells (or sold) subscriptions to its
Archaeology magazine because that magazine allegedly has over
150,000 active subscribers. The Court can also infer that, whether
or not AIA's ultimate purpose as an organization was to reap a
profit, those sales provided a pecuniary benefit.
Indeed, many nonprofit organizations sell merchandise or other
items of value to support their operations. Even if the income from
those sales does not exceed the overall expenses of the
organization, those sales are nevertheless helpful to sustain the
livelihood, or ongoing existence, of the organization. As far as
the PPPA is concerned, such an organization would be "engaged in
the business of" selling those items. Thus, Krassick states a
plausible claim against AIA, even though AIA is a nonprofit entity,
Judge Jarbou holds.
Conclusion
For all these reasons, the Court is not persuaded that dismissal is
warranted. Accordingly, the Court will deny AIA's motion.
The Court will enter an order that is consistent with this
Opinion.
A full-text copy of the Court's Opinion dated June 9, 2022, is
available at https://tinyurl.com/2ssm39s9 from Leagle.com.
BISHOP OF CHARLESTON: Nestler Appeals Reconsideration Bid Denial
----------------------------------------------------------------
Plaintiffs Gary Nestler, et al., filed an appeal from a court
ruling in the lawsuit entitled Gary Nestler, Viewed Student Female
200, Viewed Student Male 300, on behalf of themselves and all
others similarly situated, v. The Bishop of Charleston, a
Corporation Sole, Bishop England High School, Tortfeasors 1-10, The
Bishop of the Diocese of Charleston, in his official capacity, and
Robert Guglielmone, individually, Case No. 2:21-cv-00613-RMG, in
the United States District Court for the District of South Carolina
at Charleston.
The Plaintiffs filed this lawsuit seeking class action status on
behalf of current and past Bishop England High School (BEHS)
students who were made and required to disrobe, partially or fully,
in each of three dressing room/locker rooms, thereby exposing
themselves in the locker rooms controlled by Defendants Bishop
England High School, The Bishop of Charleston, a Corporation Sole,
The Bishop of Charleston, in his official capacity, Robert
Guglielmone, individually, and Tortfeasors 1-10. Each of the locker
rooms (boys and girls) were subject to viewing through a large
plate glass window, positioned at desktop height, while students
were using the dressing room/locker room facilities at BEHS since
the opening of the school building on Daniel Island in the City of
Charleston (approximately September 1, 1998) until May of 2019. The
windows were covered with blinds that could be and were controlled
and/or manipulated from within the viewing rooms; of course,
without warning or knowledge to students or tuition payers, says
the suit.
As reported in the Class Action Reporter on May 9, 2022, the
Plaintiffs asked the Court to enter an order reconsidering and
vacating its March 24, 2022 denial of their motion for class
certification, and to grant their motion for class certification.
The Plaintiffs also filed a separate motion to certify question to
the Supreme Court of South Carolina.
On May 24, 2022, Judge Richard M. Gergel denied the Plaintiffs'
motion for reconsideration as well as their motion to certify
question.
The appellate case is captioned Gary Nestler v. Bishop of
Charleston, Case No. 22-194, in the United States Court of Appeals
for the Fourth Circuit, filed on June 6, 2022.[BN]
Plaintiffs-Petitioners GARY NESTLER, VIEWED STUDENT FEMALE 200, and
VIEWED STUDENT MALE 300, on behalf of themselves and all others
similarly situated, are represented by:
David Kevin Lietz, Esq.
MILBERG
5335 Wisconsin Avenue, NW
Washington, DC 20015
Telephone: (866) 252-0878
Defendants-Respondents THE BISHOP OF CHARLESTON, a Corporation
Sole; BISHOP ENGLAND HIGH SCHOOL; TORTFEASORS, 1-10; THE BISHOP OF
THE DIOCESE OF CHARLESTON, in his official capacity; and ROBERT
GUGLIELMONE, individually, are represented by:
Richard Sears Dukes, Jr., Esq.
TURNER, PADGET, GRAHAM & LANEY, PA
P. O. Box 22129
Charleston, SC 29413-0000
Telephone: (843) 576-2810
- and -
Megan Ashley Rushton, Esq.
TURNER, PADGET, GRAHAM & LANEY, PA
P. O. Box 1509
Greenville, SC 29602-0000
- and -
Carmelo Barone Sammataro, Esq.
TURNER, PADGET, GRAHAM & LANEY, PA
1901 Main Street
Columbia, SC 29201
Telephone: (803) 227-4253
- and -
Albert Peter Shahid, Jr., Esq.
SHAHID LAW OFFICE, LLC
89 Broad Street
Charleston, SC 29401
Telephone: (843) 853-4500
CALAVERAS MATERIALS: Leon Suit Remanded to Kings County Super. Ct.
------------------------------------------------------------------
The U.S. District Court for the Eastern District of California
approves the parties' stipulation and remands to state court the
lawsuit entitled ADRIAN LEON, et al., Plaintiffs v. CALAVERAS
MATERIALS, INC., et al., Defendants, Case No. 1:21-cv-01013-DAD-HBK
(E.D. Cal.).
On May 27, 2022, the parties in the action filed a stipulation to
remand the case to state court.
Having reviewed and considered the stipulation seeking an order
remanding this Class Action case to the Kings County Superior
Court, and finding good cause therefore, the Court grants the
parties' stipulation.
Pursuant to that stipulation, the case is remanded to the Superior
Court of the State of California for the County of Kings. The Clerk
of the Court is directed to close the case.
A full-text copy of the Court's Order dated June 9, 2022, is
available at https://tinyurl.com/34dmvyhe from Leagle.com.
CHRISTINE VALMY: Maddy Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Christine Valmy, Inc.
The case is styled as Veronica Maddy, on behalf of herself and all
others similarly situated v. Christine Valmy, Inc., Case No.
1:22-cv-04950 (S.D.N.Y., June 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Christine Valmy -- https://www.christinevalmy.com/ -- provides
beauty education, skin care treatment and cosmetic products.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
COMPLEXIONS INC: Maddy Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Complexions, Inc. The
case is styled as Veronica Maddy, on behalf of herself and all
others similarly situated v. Complexions, Inc., Case No.
1:22-cv-04952 (S.D.N.Y., June 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Complexions -- https://www.complexions.com/ -- in Saratoga &
Albany, New York offer premium body, hair & skin care
services.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
EUROFINS AIR TOXICS: Mcburney Files Suit in Cal. Super. Ct.
-----------------------------------------------------------
A class action lawsuit has been filed against Eurofins Air Toxics,
LLC, et al. The case is styled as Sean Mcburney, on behalf of all
others similarly situated v. Eurofins Air Toxics, LLC, a limited
liability company, Eurofins Air Toxics, Inc., Does 1-50, Case No.
34-2022-00321801-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., June
14, 2022).
The case type is stated as "Other Employment - Civil Unlimited."
Eurofins Air Toxics, Inc. -- https://www.eurofins.com/ -- is the
world leader in analytical support to the global environmental
testing market, announces the acquisition of Air Toxics Inc., the
leading US air testing laboratory founded in 1989 and based in
Folsom, California.[BN]
The Plaintiff is represented by:
Larry W. Lee, Esq.
DIVERSITY LAW GROUP
515 S Figueroa St., Ste. 1250
Los Angeles, CA 90071-3316
Phone: 213-488-6555
Fax: 213-488-6554
Email: lwlee@diversitylaw.com
- and -
William L. Marder, Esq.
POLARIS LAW GROUP LLP
501 San Benito St # 200
Hollister, CA 95023
Phone: 831-531-4214
Fax: 831-634-0333
Email: bill@polarislawgroup.com
- and -
Dennis S. Hyun, Esq.
HYUN LEGAL, APC
515 S Figueroa St., Ste. 1250
Los Angeles, CA 90071-3316
Phone: 213-488-6555
Fax: 213-488-6554
Email: dhyun@hyunlegal.com
- and -
Edward W. Choi, Esq.
LAW OFFICES OF CHOI & ASSOCIATES
515 S Figueroa St., Ste. 1250
Los Angeles, CA 90071-3316
Phone: 213-381-1515
Fax: 213-465-4885
Email: edward.choi@choiandassociates.com
FAMILY DOLLAR: Workers in Arkansas Sue Over Unsanitary Conditions
-----------------------------------------------------------------
RANDY WASIHNGTON, LINDA PRICE, DA VISHA SILAS, DAVID MARTINEZ and
SEQUORIA GRADY, each individually and on behalf of all others
similarly situated, Plaintiffs v. FAMILY DOLLAR STORES, INC.;
DOLLAR TREE, INC.; FAMILY DOLLAR SERVICES, LLC; and FAMILY DOLLAR
STORES OF ARKANSAS, LLC, Defendants, Case No. 2:22-cv-00101-KGB
(E.D. Ark., June 6, 2022) is a class action for civil conspiracy
and gross negligence under Arkansas law for Defendants' exposure of
its own workers including Plaintiffs to a massive rodent
infestation and other unsanitary conditions at its West Memphis,
Arkansas distribution center; and for a declaratory judgment,
monetary damages, liquidated and punitive damages, prejudgment
interest, costs, including a reasonable attorney's fee as a result
of Defendants' actions and inactions.
According to the complaint, the Defendants breached their duty to
Plaintiffs and Arkansas citizens by marketing, distributing, and
selling potentially hazardous and defective products (which contain
or have a high risk of containing Salmonella or other infectious
diseases) to Arkansas citizens; by failing to take even slight care
to take those steps necessary to correct the massive rodent
infestation or discontinue selling potentially hazardous and
contaminated products to Arkansas citizens; and by failing to warn
the State and its citizens of the potentially hazardous and
defective condition of the products emanating from the West Memphis
Distribution Center and sold at Defendants' retail locations.
As a direct and proximate cause of the foregoing, Arkansas
employees of the West Memphis Distribution Center have lost wages,
have physical, emotional and mental health damages, and will
continue to suffer, damages and economic loss, says the suit.
Family Dollar Stores, Inc. operates as a national discount
store.[BN]
The Plaintiffs are represented by:
Chris W. Burks, Esq.
WH LAW, PLLC
1 Riverfront Pl. Suite 745
North Little Rock, AR 72114
Telephone: (501) 891-6000
E-mail: chris@whlawoffices.com
FORD MOTOR: Berghuis Files Suit in S.D. California
--------------------------------------------------
A class action lawsuit has been filed against Ford Motor Company,
Inc., et al. The case is styled as Victoria Berghuis, on behalf of
herself and others similarly situated v. Ford Motor Company, Inc.,
Does 1 to 10, Case No. 3:22-cv-00871-JLS-KSC (S.D. Cal., June 14,
2022).
The nature of suit is stated as Other Contract for Motor Vehicle
Product Liability.
Ford Motor Company -- http://www.ford.com/-- is an American
multinational automobile manufacturer headquartered in Dearborn,
Michigan.[BN]
The Plaintiff is represented by:
Robert L. Starr, Esq.
THE LAW OFFICE OF ROBERT L. STARR, APC
23901 Calabasas Road, Suite 2072
Calabasas, CA 91302
Phone: (818) 225-9040
Fax: (818) 225-9042
FRESENIUS MEDICAL CARE: Javens Files Suit in M.D. Florida
---------------------------------------------------------
A class action lawsuit has been filed against Fresenius Medical
Care International, et al. The case is styled as Christopher Scott
Javens, Jean McClellan Chambers, and others similarly situated v.
Fresenius Medical Care International; Fresenius Medical Care North
America; Fresenius Medical Care also known as: Fresenius Kidney
Care; Benjamin C. Caldwell, Associate General Counsel; Lisa Ebert,
Regional Vice President of Operations; Jacklyn N. Hehn, Director of
Operations; Marla Allen, Nurse Clinic Manager; Bill Valle, CEO;
Rice Powell, CEO; Other Unidentified or Unknown Individuals, Case
No. 3:22-cv-00666-MMH-MCR (M.D. Fla., June 14, 2022).
The nature of suit is stated as Personal Inj. Med. Malpractice.
Fresenius Medical Care --
https://www.freseniusmedicalcare.com/en/home -- is the world's
leading provider of dialysis products and services.[BN]
The Plaintiffs appears pro se.
GMA ACCESSORIES: Lawal Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against GMA Accessories Inc.
The case is styled as Rafia Lawal, on behalf of herself and all
others similarly situated v. GMA Accessories Inc., Case No.
1:22-cv-04938 (S.D.N.Y., June 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
GMA Accessories Inc., doing business as Capelli New York --
http://capellinewyork.com/-- designs, manufactures, and markets
private label products.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Phone: (845) 367-7146
Fax: (732) 298-6256
Email: yzelman@marcuszelman.com
GOZNEY INC: Quezada Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Gozney, Inc. The case
is styled as Jose Quezada, individually and on behalf of all others
similarly situated v. Gozney, Inc., Case No. 1:22-cv-04932-JPC
(S.D.N.Y., June 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Gozney -- https://eu.gozney.com/ -- is a creators of the world's
most innovative ovens and home to Roccbox.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
GREGORY'S COFFEE: Dawkins Files ADA Suit in E.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Gregory's Coffee
Management, Inc. The case is styled as Elbert Dawkins, on behalf of
himself and all others similarly situated v. Gregory's Coffee
Management, Inc., Case No. 1:22-cv-03483 (E.D.N.Y., June 13,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Gregorys Coffee -- https://www.gregoryscoffee.com/ -- is a
fast-growing specialty coffee brand incorporating lifestyle and
wellness into their 35 and growing cafés across New York, New
Jersey, and Washington, D.C.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
HAIR FAIRIES: Brown Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Hair Fairies, Inc.
The case is styled as Lamar Brown, on behalf of himself and all
others similarly situated v. Hair Fairies, Inc., Case No.
1:22-cv-04941 (S.D.N.Y., June 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Hair Fairies -- https://www.hairfairies.com/ -- is a nationwide,
full service clinical salon dedicated to removing head lice safely
and effectively.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
HOPPER (USA) INC: Quezada Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Hopper (USA), Inc.
The case is styled as Jose Quezada, individually and on behalf of
all others similarly situated v. Hopper (USA), Inc., Case No.
1:22-cv-04934 (S.D.N.Y., June 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Hopper -- https://www.hopper.com/ -- is a travel app that uses
predictive analytics to make travel recommendations.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
JASON MARKK: Luis Files ADA Suit in S.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Jason Markk, Inc. The
case is styled as Kevin Yan Luis, individually and on behalf of all
others similarly situated v. Jason Markk, Inc., Case No.
1:22-cv-04968 (S.D.N.Y., June 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Jason Markk -- https://jasonmarkk.com/ -- is the pioneer and most
trusted name in premium shoe care.[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
JRN INC: Williams Files Suit in S.D. Illinois
---------------------------------------------
A class action lawsuit has been filed against JRN, Inc. The case is
styled as D'Lisa Williams, individually and on behalf of all others
similarly situated v. JRN, Inc., Case No. 3:22-cv-01253 (S.D. Ill.,
June 13, 2022).
The nature of suit is stated as Other Contract.
JRN, Inc. was founded in 1971. The Company's line of business
includes the retail sale of prepared foods and drinks for
on-premise consumption.[BN]
The Plaintiff is represented by:
Patrick H. Peluso, Esq.
WOODROW & PELUSO, LLC
3900 East Mexico Ave., Suite 300
Denver, CO 80210
Phone: (720) 213-0676
Fax: (303) 927-0809
Email: ppeluso@woodrowpeluso.com
JUSTIFI CAPITAL: Fabricant Files TCPA Suit in C.D. California
-------------------------------------------------------------
A class action lawsuit has been filed against Justifi Capital Inc.,
et al. The case is styled as Terry Fabricant, individually and on
behalf of all others similarly situated v. Justifi Capital Inc.,
Does 1-10, inclusive, and each of them, Case No. 2:22-cv-04050
(C.D. Cal., June 13, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
JustiFi -- http://www.justifi.ai/-- develops a payments technology
platform that optimizes each transaction to lower rates.[BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
LAW OFFICES OF TODD M. FRIEDMAN PC
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Phone: (323) 306-4234
Fax: (866) 633-0228
Email: tfriedman@toddflaw.com
KAPSCH TRAFFICCOM: Court Denies Bids for Sanctions in Outzen Suit
-----------------------------------------------------------------
In the lawsuit entitled MONIQUE OUTZEN, et al., Plaintiffs v.
KAPSCH TRAFFICCOM USA, INC., et al., Defendants, Case No.
1:20-cv-01286-TWP-MJD (S.D. Ind.), the U.S. District Court for the
Southern District of Indiana, Indianapolis Division, denies:
(a) the Plaintiffs' Motion for Sanctions Against Defendant
Kapsch Trafficom USA, Inc.; and
(b) Defendant Kapsch's Motion to Compel, or, Alternatively,
for Sanctions Under Rule 37(c) for Failure to Timely
Supplement an Earlier Response.
A. Plaintiffs' Motion for Sanctions
In their motion for sanctions, the Plaintiffs assert that Kapsch
has failed to comply with the Court's Order on their second motion
to compel directed at Kapsch ("the Order"), and argue that, given
Kapsch's repeated failures with regard to its discovery
obligations, which have been ongoing for years and that have not
been corrected despite repeated Orders by the Court and dozens of
meet and confers and discovery conferences, the only appropriate
sanction is to enter a default judgment against Kapsch.
The Plaintiffs' motion is brought pursuant Federal Rule of Civil
Procedure 37(b)(2)(A), which provides that if a party fails to obey
an order to provide or permit discovery, the court where the action
is pending may issue further just orders, which may include
rendering a default judgment against the disobedient party.
In this case, District Judge Mark J. Dinsniore finds that the
Plaintiffs simply have not demonstrated that Kapsch failed to
comply with the Order such that the ultimate sanction of default
judgment is appropriate.
The crux of Plaintiffs' motion is their belief that Kapsch has
failed to "provide complete and unequivocal responses" to the
Plaintiffs' discovery requests as required by the Order. But the
Plaintiffs have not demonstrated that Kapsch's failure to produce
(or log) the documents contained in their supplemental responses
earlier was sanctionable conduct, Judge Dinsniore holds. While in a
perfect world, the sources searched by Kapsch to find these new
documents would have been identified sooner, there is simply no
indication that Kapsch's failure to do so was anything more than
"mere mistake or carelessness," Judge Dinsniore points out.
With regard to the two individuals whom the Plaintiffs believe were
improperly excluded as custodians, Armin Irzl and Kimberly
Neal-Smith, Kapsch has presented rational explanations for why
their documents were not searched, Judge Dinsniore notes. While
perhaps reasonable minds could disagree on the issue of whether
Neal-Smith and Irzl were appropriate document custodians, Kapsch's
decision not to include them had a rational basis and, therefore,
is not sanctionable.
While, as set forth in detail in the Order, Kapsch's conduct during
the course of discovery prior to the Order was objectionable in
several respects, the Court finds that Kapsch substantially
complied with both the spirit and the letter of the Order.
Accordingly, the Plaintiffs' motion for sanctions based on the
failure to comply with the Order is denied.
B. Kapsch's Motion to Compel
Kapsch's motion to compel relates to the Plaintiffs' responses to
Kapsch's interrogatories regarding the Plaintiffs' damages. The
Plaintiffs responded to the interrogatories with regard to the
putative class they would like to represent in this case, rather
than individually. Judge Dinsniore states that the problem with
that is two-fold: one, the Plaintiffs' motion for class
certification has been denied, so unless and until their motion to
reconsider that denial is granted, this case is not proceeding as a
class action; and two, the interrogatories at issue -- which were
served after the denial of class certification -- asked for "an
itemization of all damages [each of the three named Plaintiffs] is
seeking in this case," not for information about class-wide
damages.
The Plaintiffs' arguments to the contrary are without merit, and
their initial refusal to respond to the interrogatories as written
was not reasonable, Judge Dinsniore holds.
Nonetheless, Kapsch's motion to compel should never have been
filed, Judge Dinsniore says. This is made clear on page four of the
motion, which concedes that the Plaintiffs' counsel had already
agreed to provide the supplemental responses at issue before the
motion was filed. That is the entire point of the meet and confer
requirements of Federal Rule of Civil Procedure 37(a)(1) and Local
Rule 37(a) -- to avoid wasting the Court's resources on discovery
motions raising disputes that could be worked out between the
parties without Court involvement.
Kapsch asserts that its motion was necessary because the Plaintiffs
would not agree to provide the supplemental responses prior to the
close of discovery, April 22, 2022.
Judge Dinsniore finds that this argument is simply incorrect.
Kapsch cites Packman v. Chicago Tribune Co., 267 F.3d 628, 647 (7th
Cir. 2001) as holding that there was "no abuse of discretion in
denying motion to compel filed after discovery closed," but the
Seventh Circuit actually said in that case that based on the timing
and the substance of Ms. Packman's motion, the Seventh Circuit
concluded that the district court did not abuse its discretion in
denying the motion.
Thus, neither Packman nor the cases Kapsch relies on support the
notion that a motion to compel may not be filed following the close
of discovery, Judge Dinsniore holds. Indeed, such a blanket rule
would be nonsensical; it would essentially give parties a free pass
to ignore any discovery requests served 30 days prior to the
discovery deadline, even though those requests were timely served.
Rather, those cases stand for the unremarkable proposition that a
party must diligently follow up on discovery disputes and that
motions to compel that are unreasonably delayed may be denied on
timeliness grounds.
In this case, Kapsch clearly could have filed a timely motion to
compel promptly after it received the Plaintiffs' supplemental
responses, if they had been inadequate, or promptly after the date
the Plaintiffs had promised to serve their supplemental responses,
if they had not been forthcoming, even though the discovery
deadline had passed. If Kapsch had good faith concerns that it
would be foreclosed from raising any issues about the Plaintiffs'
supplemental responses after the discovery deadline, a quick
discovery conference with the undersigned could have alleviated
those concerns and avoided the instant motion to compel.
Kapsch also could have withdrawn the motion to compel once it
received the supplemental responses from the Plaintiffs. But
instead, Kapsch doubled down in its reply brief, insisting that
because it filed its (wholly unnecessary) motion to compel before
the Plaintiffs served their supplemental responses, Kapsch is
entitled to a fee award for the motion. Quite frankly, this
position is exceedingly ironic, given Kapsch's own failure to
produce discovery in a timely manner in this case, Judge Dinsniore
states.
Indeed, the Court would be within its discretion to award the
Plaintiffs fees for the instant motion pursuant to 28 U.S.C.
Section 1927, inasmuch as this motion has unreasonably and
vexatiously multiplied these proceedings. Given that the
Plaintiffs' own position regarding their interrogatory responses
was so utterly unreasonable, however, the Court will not do so. The
Defendant's motion to compel is denied.
The Court does not intend to award fees to either party related to
the motions addressed in this order.
So ordered.
A full-text copy of the Court's Order dated June 9, 2022, is
available at https://tinyurl.com/yc2acmkn from Leagle.com.
KOHN LAW FIRM: Spalla Files FDCPA Suit in N.D. Illinois
-------------------------------------------------------
A class action lawsuit has been filed against Kohn Law Firm, S.C.,
et al. The case is styled as Donna Spalla, individually and on
behalf of all others similarly situated v. Kohn Law Firm, S.C.,
Midland Credit Management, Inc., Case No. 1:22-cv-03066 (N.D. Ill.,
June 13, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Kohn Law Firm S.C. -- https://www.kohnlaw.com/ -- provides legal
services. The Company practices in a various areas such as credit
card, municipal, medical finance, and consumer debt, as well as
repossession actions and insurance subrogation claims.[BN]
The Plaintiff is represented by:
Yaakov Saks, Esq.
STEIN SAKS, PLLC
One University Plaza, Suite 620
Hackensack, NJ 07601-2726
Phone: (201) 282-6500
Email: ysaks@steinsakslegal.com
LOUISIANA: Appeals Prelim. Injunction Ruling in Robinson Suit
-------------------------------------------------------------
Kyle Ardoin, in his official capacity as Secretary of State for
Louisiana, et al., filed an appeal from a court ruling entered in
the lawsuit entitled PRESS ROBINSON, et al. v. KYLE ARDOIN, in his
official capacity as Secretary of State for Louisiana, Case No.
3:22-CV-211, consolidated with EDWARD GALMON, SR., et al. v. KYLE
ARDOIN, in his official capacity as Secretary of State for
Louisiana, Case No. 3:22-CV-214, in the United States District
Court for the Middle District of Louisiana, Baton Rouge.
According to the complaint, the United States Census Bureau
delivered the 2020 Census data that would drive the state of
Louisiana's redistricting process in April 2021. The task of
redrawing the six districts fell upon the Louisiana Legislature,
where the drawing of new maps was guided in part by Joint Rule No.
21, passed by the Louisiana Legislature in 2021 to establish
criteria that would "promote the development of constitutionally
and legally acceptable redistricting plans." Citizens who engaged
in the process at the roadshows were assured that "your ideas and
recommendations matter to me and they matter to us." The
Legislature convened on February 1, 2022 to begin the redistricting
process; on February 18, 2022, H.B. 1 and S.B. 5, the bills setting
forth new maps for the 2022 election cycle, passed the Legislature.
Louisiana Governor John Bel Edwards vetoed H.B. 1 and S.B. 5 on
March 9, 2022. The Legislature voted to override the Governor's
veto on March 30, 2022. That same day, the Robinson and Galmon
Plaintiffs filed their Complaints in this Court, alleging that the
2022 congressional map dilutes Black voting strength in violation
of the Voting Rights Act of 1965 by "packing" large numbers of
Black voters into a single majority-Black congressional district
and "cracking" the remaining Black voters among the other five
districts, where, Plaintiffs argue, they are sufficiently
outnumbered to ensure that they are unable to participate equally
in the electoral process, the suit says.
After the Complaints were filed, Patrick Page Cortez, the President
of the Louisiana State Senate, and Clay Schexnayder, the Speaker of
the Louisiana House of Representatives (collectively, "the
Legislative Intervenors"), moved to intervene as Defendants in the
suit, as did Louisiana Attorney General Jeff Landry. The Court
granted those motions and, on April 12, 2022, consolidated the
Robinson and Galmon matters. The Louisiana Legislative Black Caucus
also sought, and was granted, intervention.
On April 15, 2022, the Plaintiffs filed motions for preliminary
injunction, wherein Plaintiffs urged the Court to enjoin Secretary
Ardoin from conducting the 2022 congressional elections under the
enacted district maps, to set a deadline for the Legislature to
enact a compliant map and, if the Legislature fails to do so, to
order that the November 2022 election be conducted under one of the
illustrative plans proposed by Plaintiffs.
On June 6, 2022, the Court entered an Order granting the
Plaintiffs' motions for preliminary injunction, enjoining Secretary
Ardoin from conducting any congressional elections under the map
enacted by the Louisiana Legislature in H.B. 1.
The Defendants are now seeking a review of this ruling.
The appellate case is captioned as Ardoin v. Robinson, Case No.
22-30333, in the United States Court of Appeals for the Fifth
Circuit, filed on June 7, 2022.[BN]
Defendant-Appellant Kyle Ardoin, in his official capacity as
Secretary of State for Louisiana, is represented by:
Alyssa Riggins, Esq.
NELSON MULLINS RILEY & SCARBOROUGH, L.L.P.
4140 Parklake Avenue
Raleigh, NC 27612
Telephone: (919) 329-3800
- and -
John Carroll Walsh, Esq.
SHOWS, CALI & WALSH, L.L.P.
628 Saint Louis Street
Baton Rouge, LA 70802
Telephone: (225) 346-1461
Intervenor Defendants-Appellants Clay Schexnayder, Patrick Page
Cortez, and State of Louisiana - Attorney General Jeff Landry are
represented by:
Richard Bryan Raile, Esq.
Renee Marie Knudsen, Esq.
BAKER & HOSTETLER, L.L.P.
1050 Connecticut Avenue, N.W.
Washington Square
Washington, DC 20036-0000
Telephone: (202) 861-1711
- and -
Patrick T. Lewis, Esq.
BAKER & HOSTETLER, L.L.P.
127 Public Square, Key Tower
Cleveland, OH 44114-1214
Telephone: (216) 861-7096
- and -
Michael Warren Mengis, Esq.
BAKER & HOSTETLER, L.L.P.
811 Main Street
Houston, TX 77002-6111
Telephone: (713) 751-1600
- and -
Elizabeth Baker Murrill, Esq.
Morgan Brungard, Esq.
LOUISIANA OFFICE OF THE ATTORNEY GENERAL
P.O. Box 94005
Baton Rouge, LA 70804-9005
Telephone: (225) 326-6766
- and -
Angelique Duhon Freel, Esq.
Jeffrey M. Wale, Esq.
LOUISIANA DEPARTMENT OF JUSTICE
1885 N. 3rd Street
Baton Rouge, LA 70802
Telephone: (225) 326-6000
- and -
Phillip Michael Gordon, Esq.
HOLTZMAN VOGEL BARAN TORCHINSKY & JOSEFIAK, P.L.L.C.
15405 John Marshall Highway
Haymarket, VA 20169
Telephone: (540) 341-8808
- and -
Shae Gary McPhee, Jr., Esq.
LOUISIANA DEPARTMENT OF JUSTICE
909 Poydras Street
New Orleans, LA 70112
Telephone: (225) 938-0779
- and -
Jason Brett Torchinsky, Esq.
HOLTZMAN VOGEL BARAN TORCHINSKY & JOSEFIAK, P.L.L.C.
2300 N Street, N.W.
Washington, DC 20037
Telephone: (202) 737-8808
Plaintiffs-Appellees Press Robinson; Edgar Cage; Dorothy Nairne;
Edwin Rene Soule; Alice Washington; Clee Earnest Lowe; Davante
Lewis; Martha Davis; Ambrose Sims; National Association for the
Advancement of Colored People Louisiana State Conference, also
known as NAACP; Power Coalition for Equity and Justice; Edward
Galmon, Sr.; Ciara Hart; Norris Henderson; and Tramelle Howard are
represented by:
Leah Camille Aden, Esq.
Kathryn C. Sadasivan, Esq.
NAACP
40 Rector Street
New York, NY 10006-1738
Telephone: (212) 965-2200
- and -
John Nelson Adcock, Esq.
3110 Canal Street
New Orleans, LA 70119
Telephone: (225) 284-6327
- and -
Adam Savitt, Esq.
PAUL, WEISS, RIFKIND, WHARTON & GARRISON, L.L.P.
1285 Avenue of the Americas
New York, NY 10019-6064
Telephone: (212) 373-3000
LUNDBECK LLC: MSP Sues Over Xenazine Drug Price-fixing
------------------------------------------------------
MSP RECOVERY CLAIMS, SERIES LLC, a Delaware series limited
liability company; MSPA CLAIMS I, LLC, a Florida limited liability
company; MSP Recovery Claims Series 44, LLC, a Delaware series
limited liability company; MSP Recovery Claims PROV, Series LLC, a
Delaware series limited liability company; and MSP Recovery Claims
CAID, Series LLC, a Delaware series limited liability company; on
behalf of themselves and all others similarly situated, Plaintiffs
v. LUNDBECK LLC, a Delaware corporation; CARING VOICE COALITION,
INC., an Idaho non-profit corporation; THERACOM, LLC, an Ohio
corporation; and ADIRA FOUNDATION, a Virginia non-profit
corporation, Defendants, Case No. 3:22-cv-00422-HEH (E.D. Va., June
6, 2022) is brought against the Defendants for unjust enrichment
under state law and for alleged violations of the Racketeering
Influenced Corrupt Organization Act, State Consumer Protection
Laws, and the Civil Remedies for Criminal Practices Act due to the
Defendants' engagement in conspiratorial schemes.
The case arises from Lundbeck's conspiratorial schemes to increase
the unit price and quantity dispensed of Xenazine, which is used to
treat chorea associated with Huntington's disease. As a result of
these schemes, Plaintiffs' assignors and the Class Members paid
supra-competitive prices for Xenazine and for artificially inflated
quantities of dispensed Xenazine on behalf of beneficiaries
enrolled in their health plans, the Plaintiffs assert.
According to the complaint, the Defendants' improper actions have
allowed Lundbeck to maintain supra-competitive prices by
eliminating price sensitivity that would have directly benefited
consumers and the public at large. Price sensitivity
counterbalances Lundbeck's desire to inflate prices for medically
necessary drugs--which is why U.S. Congress relies on price
sensitivity as a vital mechanism for combating supra-competitive
pricing. CVC's co-payment assistance program allowed Lundbeck to
increase the price of Xenazine regardless of the relevant market
conditions by insulating Lundbeck from the realities of patients'
inability to afford their co-payment obligations. Not only did this
allow Lundbeck to charge supra-competitive prices, but also
resulted in the induced over-dispensing of Xenazine, says the
suit.
The Plaintiffs bring this lawsuit to redress the damages sustained
by Assignors and Class Members as a result of RICO Defendants'
unlawful Scheme to increase the price and dispensed quantity of
Xenazine.
The Plaintiffs are companies that obtained assignments from their
Assignors to recover reimbursement or payment from RICO
Defendants.
Lundbeck LLC provides health services related to psychiatric and
neurological disorders.[BN]
The Plaintiffs are represented by:
David Hilton Wise, Esq.
Joseph M. Langone, Esq.
WISE LAW FIRM, PLC
10640 Page Street, Suite 320
Fairfax, VA 22030
Telephone: (703) 934-6377
Facsimile: (703) 934-6379
E-mail: dwise@wiselaw.pro
jlangone@wiselaw.pro
- and -
John W. Cleary, Esq.
Michael O. Mena, Esq.
MSP RECOVERY LAW FIRM
2701 S. LeJeune Road, 10th Floor
Coral Gables, FL 33134
Telephone: (305) 614-2222
E-mail: mmena@msprecoverylawfirm.com
jcleary@msprecoverylawfirm.com
- and -
Shereef H. Akeel, Esq.
Adam S. Akeel, Esq.
Sam R. Simkins, Esq.
Daniel W. Cermak, Esq.
AKEEL & VALENTINE, PLC
888 W. Big Beaver Road 420
Troy, MI 48084
E-mail: shereef@akeelvalentine.com
adam@akeelvalentine.com
sam@akeelvalentine.com
daniel@akeelvalentine.com
MAINEHEALTH: Wins Bid for Judgment on Pleadings in Sargent Suit
---------------------------------------------------------------
In the case, MONIQUE SARGENT, individually and on behalf of all
those similarly situated, Plaintiff v. MAINEHEALTH, Defendant, Case
No. 2:22-cv-00006-JAW (D. Me.), Judge John A. Woodcock, Jr., of the
U.S. District Court for the District of Maine grants MaineHealth's
Motion for Judgment on the Pleadings.
I. Introduction
A Defendant parent company brings a motion for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c) arguing
that the action against it should be dismissed because the
Plaintiff's claims were improperly split from a prior action filed
against the defendant's subsidiary. The Court concludes that the
Plaintiff improperly split her claims against the parent company
and subsidiary and dismisses without prejudice the Plaintiff's
complaint against the parent company.
II. Background
MaineHealth is a non-profit corporation organized in the state of
Maine. It is the largest healthcare organization in the state and
is the parent company to multiple integrated healthcare providers
operating under the "MaineHealth" umbrella. NorDx is a MaineHealth
subsidiary and is authorized by the state of Maine to operate as a
human specimen laboratory. Ms. Sargent is a resident of Biddeford,
Maine, and was hired by NorDx in 2016 as a phlebotomist in NorDx's
Biddeford oncology office.
Ms. Sargent alleges that she was jointly employed by MaineHealth
and NorDx because they share common management, ownership,
direction and control, administration of employee benefits,
operations, employee health services, labor counsel, and human
resources. As a NorDx employee, Ms. Sargent was also considered a
"MaineHealth System Employee" working at the "SMHC Biddeford
Specimen Mgmt" department, which was also referred to as the "NDX
Specimen Mgmt SMMC." Employee documents and payroll records
indicate that Ms. Sargent worked for a company called
"MaineHealth."
Ms. Sargent signed a "MaineHealth Confidentiality Agreement" upon
her hiring, and she was subject to MaineHealth's attendance policy
and code of conduct. She also states that MaineHealth posted the
job description for her position as "Phlebotomist II" and listed
"NorDx" as the relevant facility. Finally, Ms. Sargent's work email
address ended in "mmc.org" and when she filed paperwork with the
Department of Labor following her termination from NorDx, "Maine
Medical Center" was the listed employer.
On Dec. 15, 2020, Monique Sargent filed a two-count complaint
against NorDx alleging disability discrimination under the
Americans with Disabilities Act (ADA) and the Maine Human Rights
Act (MHRA) (Sargent I). NorDx answered the complaint on April 23,
2021. The Magistrate Judge set the discovery deadline for Jan. 10,
2022.
On Jan. 6, 2022, Ms. Sargent filed a four-count class-action
lawsuit against MaineHealth alleging retaliation and interference
with her rights under the Federal Family Medical Leave Act (FMLA),
and discrimination and interference with her rights under the Maine
Family Medical Leave Act (Maine FMLA) (Sargent II). That same day,
Ms. Sargent filed a motion to amend the scheduling order in Sargent
I.
On Jan. 11, 2022, NorDx opposed Ms. Sargent's motion to amend the
scheduling order. In its opposition, NorDx indicated that it would
move to stay Sargent I pending the resolution of Sargent II, and
that its parent company MaineHealth intended to imminently file a
motion to dismiss Sargent II. I
On Jan. 12, 2022, Ms. Sargent responded to NorDx's motion to stay
indicating that she did not oppose the stay. On Jan. 13, 2022, the
Magistrate Judge issued an order granting NorDx's motion to stay
and deferring ruling on the motion to amend the Sargent I
scheduling order pending resolution of MaineHealth's anticipated
motion to dismiss in Sargent II.
On Feb. 14, 2022, MaineHealth filed a motion for judgment on the
pleadings in Sargent II. On March 21, 2022, Ms. Sargent filed her
opposition to MaineHealth's motion for judgment on the pleadings.
III. Discussion
MaineHealth brings a motion pursuant to Federal Rule of Civil
Procedure 12(c) requesting that the Court dismiss Sargent II with
prejudice because Ms. Sargent has "improperly split her claims in
order to avoid demonstrating good cause for amendment of her
pleading" in Sargent I. It asserts that although a court may
dismiss, stay, enjoin, or consolidate a duplicative suit, in the
case, "the appropriate remedy is for the Court to dismiss Sargent
II with prejudice, unless the Plaintiff seeks and is granted leave
to amend in Sargent I." It says that "there is no valid
justification for the Plaintiff bringing a second suit rather than
seeking to amend her complaint in Sargent I" where Ms. Sargent "has
not alleged any facts in Sargent II that were unavailable to her
prior to filing Sargent I, as both suits arise out of her
employment relationship with the Defendants and both sets of claims
had accrued as of her termination in May 2019." MaineHealth
ultimately labels Sargent II "the type of gamesmanship that the
rule against claim splitting is intended to prevent."
Ms. Sargent contends that "Sargent II should proceed through
discovery as the more time-consuming and complex FMLA class action
that seeks to consolidate and adjudicate the rights of many
employees" and that Sargent I should remain stayed to "eliminate
any 'vexatious' problems associated with concurrent litigation."
She further argues that "the lag time between Sargent I's July 9,
2021, deadline to amend and the depositions that occurred in
December of 2021 was a product of mutual agreement by the parties,
not a lack of diligence" on her part. As to the merits, Ms. Sargent
argues that "the First Circuit does not endorse dismissal or bar
concurrent litigation between similar parties absent of a final
judgment."
Finally, Ms. Sargent argues that other employees' potential
involvement in Sargent II should change the claim preclusion
analysis. She distinguishes the case from Airframe Systems v.
Raytheon Co., 601 F.3d 9 (1st Cir. 2010), because she is
representing a larger class of plaintiffs as part of a class
action.
MaineHealth contests Ms. Sargent's assertion that she lacked
information to support her FMLA claim until Ms. Bachand's
deposition in December 2021. According to MaineHealth, Ms. Sargent
conceded that Sargent II is duplicative and advanced no valid
argument against its dismissal. Furthermore, it submits that
"Sargent II's status as a putative class action is immaterial
because the only named plaintiff's claims are barred by the claim
splitting doctrine."
Judge Woodcock considers: (1) the "identicality between the causes
of action asserted in" Sargent I and Sargent II and (2) the
"identicality between the parties in the two actions." Finally, he
considers issues of equity to determine whether either party will
be unfairly prejudiced.
Judge Woodcock concludes that Sargent I and Sargent II share a
common nucleus of operative facts and therefore are sufficiently
"identical" theories of action for purposes of the claim-splitting
analysis. First, he finds that both Sargent I and Sargent II center
on the time period in early 2019 leading up to Ms. Sargent's
termination in May 2019. Based on her claims and relevant time
periods of the alleged illegal conduct, Ms. Sargent could have
alleged her disability discrimination and FMLA claims in the same
action, even though she decided not to do so. Second, both cases
involve the same employment relationship between Ms. Sargent and
NorDx and both causes of action seek relief for the same wrong (Ms.
Sargent's alleged improper termination) albeit on different legal
grounds.
Judge Woodcock further concludes that NorDx and MaineHealth are in
privity and are thus the "same" party for purposes of the
claim-splitting analysis. First, NorDx is a wholly owned subsidiary
of MaineHealth, as Ms. Sargent alleges in her Sargent II Complaint.
Second, because their supervisory and management structures are
interconnected, NorDx and MaineHealth share identical interests in
resolving the employment dispute with Ms. Sargent, especially as
her allegations are based on the same underlying circumstances.
Moreover, there is nothing on the record that would suggest that
NorDx and MaineHealth have separate property holdings, or other
differentiating attributes that would overcome their identical
interests, identical boards of directors, and identical legal
counsel.
Having concluded that the parties and claims in Sargent I and
Sargent II are identical, Judge Woodcock next considers equitable
factors including (1) the impact, if any, of Sargent II's status as
a class action; and (2) the appropriate remedy. To the extent that
other potential members of the employee class wish to pursue the
FMLA claim, he holds that they are not prohibited from doing so.
However, Ms. Sargent may not pursue two separate cases that share a
common nucleus of facts.
Now that he has determined that Ms. Sargent improperly split her
claims, Judge Woodcock must decide what to do with Sargent I and
Sargent II. First, he agrees that consolidation would be
inappropriate because it would allow Ms. Sargent to bring her
Sargent II Complaint without having to seek leave to amend, which
would be inconsistent with Federal Rules of Civil Procedure 15 and
16. Second, he is not convinced by Ms. Sargent's argument that
staying Sargent I would be the best course of action. He similarly
declines to stay Sargent II pending resolution of Sargent I. Such a
stay would be inapposite with the articulated claim-splitting
principles, which courts developed in order to avoid having to stay
a case pending the final judgment in a prior case.
IV. Conclusion
Ultimately, Judge Woodcock concludes that dismissal of Sargent II
without prejudice is the more equitable solution. Such an outcome
is consistent with equitable principles designed to avoid
unnecessarily burdening the Defendant, while still enabling Ms.
Sargent to litigate her FMLA claim by filing a motion for leave to
amend her Sargent I Complaint. Nor does this outcome prejudice
other potential members of the class action. His Order in no way
restricts other potential members of the putative class from
bringing their own claims against NorDx and/or MaineHealth for FMLA
retaliation.
Although NorDx is concerned about Ms. Sargent reinitiating the
second lawsuit in state court, Judge Woodcock concludes that if
that were to happen, the state court, not the Court, should
determine whether Ms. Sargent should be allowed to proceed in state
court. Finally, he is concerned about the potentially overlapping
impact of the dismissal with prejudice of the second lawsuit and
what impact, if any, a with prejudice dismissal should have on the
first lawsuit. In his view, the first lawsuit should proceed on its
own merits.
For the foregoing reasons, Judge Woodcock grants MaineHealth's
Motion for Judgment on the Pleadings, No. 2:22-cv-00006-JAW, and
dismisses without prejudice Monique Sargent's Complaint in Sargent
II, No. 2:22-cv-00006-JAW.
A full-text copy of the Court's June 14, 2022 Order is available at
https://tinyurl.com/yfd4y4hu from Leagle.com.
MIDNIGHT VELVET: Velazquez Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Midnight Velvet, Inc.
The case is styled as Bryan Velazquez, on behalf of himself and all
others similarly situated v. Midnight Velvet, Inc., Case No.
1:22-cv-04966 (S.D.N.Y., June 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Midnight Velvet -- https://www.midnightvelvet.com/ -- offers a wide
selection of women's fashions, jewelry, shoes home decor and
more.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
MONDELZ GLOBAL: Douglass Files ADA Suit in W.D. Pennsylvania
------------------------------------------------------------
A class action lawsuit has been filed against Mondelz Global LLC.
The case is styled as Blair Douglass, on behalf of himself and all
others similarly situated v. Mondelz Global LLC, Case No.
2:22-cv-00875-NBF (W.D. Pa., June 14, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Mondelez International, Inc. --
http://www.mondelezinternational.com/-- is an American
multinational confectionery, food, holding and beverage and snack
food company based in Chicago, Illinois.[BN]
The Plaintiff is represented by:
Kevin W. Tucker, Esq.
EAST END TRIAL GROUP LLC
6901 Lynn Way, Suite 215
Pittsburgh, PA 15208
Phone: (412) 877-5220
Email: ktucker@eastendtrialgroup.com
MONEY STORE: Bids for Attorney's Fees & Costs in Mazzei Suit Denied
-------------------------------------------------------------------
In the lawsuit styled JOSEPH MAZZEI, INDIVIDUALLY AND ON BEHALF OF
THE FEE-SPLIT CLASS, Plaintiffs v. THE MONEY STORE, ET AL.,
Defendants, Case No. 01-cv-5694 (JGK) (S.D.N.Y.), Judge John G.
Koeltl of the U.S. District Court for the Southern District of New
York issued a Memorandum Opinion and Order denying:
(a) the Plaintiffs' motion for attorney's fees and expenses;
and
(b) the Defendants' request for attorney's fees pursuant to
Rule 37(a) of the Federal Rules of Civil Procedure.
In 2001, Joseph Mazzei initiated a putative class action against
Defendaants The Money Store, TMS Mortgage Inc., and HomEq Servicing
Corp., advancing claims relating to fees that the Defendants, who
were in the mortgage lending business, charged to their borrowers.
One of the principal claims in the action was that the Defendants
had charged Mazzei and those similarly situated for purported
"attorney's fees" in connection with their mortgages, when in
reality those fees were allegedly being shared improperly with
Fidelity National Foreclosure Solutions, the Defendants' legal
outsourcer, in violation of the Defendants' contractual
commitments.
In January 2013, the Court certified a nationwide class of
individuals, who paid purported attorney's fees to the Defendants
that allegedly included amounts that were paid to Fidelity (the
"Fee-Split Class"). Mazzei and the Fee-Split Class's claims went to
trial in December 2014 and the jury returned a verdict on their
fee-split claims in favor of the Defendants. That verdict was
upheld following post-trial motions before this Court and an appeal
to the Court of Appeals for the Second Circuit.
While this action was pending, the Defendants made several
representations, and the Court issued several orders, relating to
the New Invoice System, a database that the Plaintiffs claimed
contained data that were relevant to their fee-split claims.
Now, years after judgment was entered in this case, the Plaintiffs
seek attorney's fees and expenses from the Defendants for the costs
that the Plaintiffs incurred while litigating issues relating to
the New Invoice System. The Plaintiffs contend that such an award
is warranted under Federal Rule of Civil Procedure 37(b) and the
Court's inherent power in view of newly discovered alleged
misconduct by the Defendants relating to the New invoice System.
The Defendants deny these allegations and contend that because the
Plaintiffs' motion is baseless, they are entitled to attorney's
fees incurred in connection with defending this motion pursuant to
Rule 37(a).
I.
The Court assumes familiarity with the facts of this protracted
case, which are recited in detail in the Court's Opinion and Order
resolving the parties' post-trial motions; see Mazzei v. The Money
Store, 308 F.R.D. 92 (S.D.N.Y. 2015) (the "Post-Trial Opinion"). In
brief, in 1994, the named plaintiff, Joseph Mazzei, took out a
mortgage loan from The Money Store. After Mazzei defaulted on his
loan, The Money Store charged him various fees, which Mazzei paid
when he paid off the loan in full in October 2000. Thereafter,
Mazzei initiated this action alleging, among other things, that the
Defendants were not permitted to charge him certain fees pursuant
to the contract that governed the mortgage. Specifically, Mazzei
claimed that the Defendants charged Mazzei and similarly situated
borrowers for purported "attorney's fees," which were in fact
shared with Fidelity, a non-lawyer entity.
In an Order dated Jan. 28, 2013 (the "Certification Order"), the
Court certified the Fee-Split Class, which was defined as follows:
All similarly situated borrowers who signed form loan
mortgage agreements on loans which were owned or serviced by
the defendants and who from March 1, 2000 to the present
(Class Period) were charged . . . amounts paid to Fidelity,
a non-lawyer entity, from attorneys' fees charged to
borrowers.
The definition of the Fee-Split Class was subsequently amended to
exclude "any borrowers who signed form loan mortgage agreements
after Nov. 1, 2006."
The present motion relates to the Defendants' litigation conduct
surrounding the New Invoice System, which purportedly contained
data relevant to the Plaintiffs' claims. The Post-Trial Opinion
discussed the history of the proceedings relating to the New
Invoice System at length. No further disputes arose regarding the
New Invoice System until February 2013.
Following class certification in January 2013, the parties
encountered difficulties identifying potential members of the
Fee-Split Class. This resulted in a series of orders in early 2013
regarding class notices and methods for identifying potential class
members: the Certification Order; the February 2013 Order; the
March 1, 2013 Order; and the March 9, 2013 Order, together with the
three prior orders, the Class Identification Orders.
The issues relating to the creation of a class list were ultimately
resolved and on June 2, 2014, the Court ordered that notices be
sent to the class members on the Plaintiffs' proposed class list.
In February 2013, the Plaintiffs served a document request on the
Defendants seeking, among other things, documents concerning any
payments received by Fidelity in connection with loans referred by
the Defendants to Fidelity during the Class Period. In a discovery
conference among the parties regarding this request, HomEq revealed
that it had sold its mortgage servicing operation and all related
assets, including the New Invoice System, to Barclays Real Estate
Capital, Inc. in 2006, and that consequently the Defendants no
longer had possession of the New Invoice System and the data
contained therein. At a hearing regarding the New Invoice System,
defense counsel represented that the Defendants have no information
on whether any fees were split; if so, with whom or in what amounts
for that is not information that was captured on the databases.
Following these disclosures, the Plaintiffs served document
subpoenas on Fidelity and its successors that sought documents and
data relating to the payments received by Fidelity.
In October 2013, the Plaintiffs moved the Court for an order
compelling the Defendants to determine whether the New Invoice
System data could be retrieved from LPS and to produce that data.
In an Order dated July 21, 2014, Magistrate Judge Ellis found that
the Defendants had a duty to preserve the information hosted on the
New Invoice System but had failed to do so; Mazzei v. The Money
Store, No. 01-cv-5694, 2014 WL 3610894, at *8 (S.D.N.Y. July 21,
2014) (the "July 2014 Order"). Magistrate Judge Ellis concluded
that the Defendants should be sanctioned for violating the duty to
preserve information in the New Invoice System and ordered the
Defendants to (1) bear the cost of determining whether the New
Invoice System data currently in possession of LPS is searchable;
and (2) pay Mazzei his attorneys' fees for this application.
The Plaintiffs and the Defendants both filed objections to the July
2014 Order. The Plaintiffs also moved for trial sanctions against
the Defendants, seeking relief such as an adverse inference or a
default judgment on liability. In their objections to the July 2014
Order, the Defendants represented that they (1) never had access to
information on the alleged splitting of any fees; and (2) had no
practical ability to obtain the alleged fee-split information at
Fidelity (or LPS). The Defendants and their counsel made additional
representations to the Court while the parties' objections and the
Plaintiffs' motion for trial sanctions were pending.
The case then proceeded to trial. Before trial, the Plaintiff
obtained the records from the New Invoice System relating to Mazzei
and introduced them at trial. Despite access to the New Invoice
documents relating to Mazzei, the jury returned a verdict in favor
of the Defendants on Mazzei's individual Fee Split claim. The
Plaintiffs then moved to set aside that verdict, arguing in part
that the Court erred by not sanctioning the Defendants with an
adverse inference at trial. The Court denied the Plaintiffs'
motion, reasoning that as explained several times during
litigation, the Plaintiff's failures in proof are due principally
to his lack of diligence in pursuing evidence.
The Plaintiffs appealed this aspect of the Post-Trial Opinion to
the Court of Appeals for the Second Circuit, which found the
Plaintiffs' arguments to be without merit and affirmed this Court's
rulings; see Mazzei v. The Money Store, 656 F. App'x 558 (2d Cir.
2016).
Meanwhile, in March 2014, Lamar Rigsby initiated a putative class
action against Barclays alleging, among other things, that Barclays
charged its borrowers for purported attorney's fees that were split
improperly with Fidelity; see Bigsby v. Barclays Capital Real
Estate, Inc., No. 14-cv-1398 (S.D.N.Y., filed Mar. 3, 2014). In
that action, Bigsby was represented by the same counsel that
represents Mazzei and the Fee-Split Class in this action. During
discovery in that action, two Fidelity and LPS successors -- Black
Knight Financial Services and ServiceLink Process Solutions
(together, "Black Knight") -- agreed to produce certain documents
and to produce a witness for a deposition regarding Fidelity's
relationship with the Defendants in this action.
On April 10, 2019, Black Knight produced a document that it
described as "list[ing] gross revenues received from Network Firms
for Administrative Fees in connection with all loans serviced by
Barclays/HomEq on Black Knight's software platform for each year
from 2006 to 2010." The Plaintiffs did not provide the Court or the
Defendants with a copy of this document in connection with the
pending motion because the document was designated as confidential
under the protective order in the Bigsby action. On May 22, 2019,
the Plaintiffs' counsel deposed Caroline Bolen, a Vice President at
Black Knight (the "Black Knight Deposition," together with the
documents produced by Black Knight, the "Bigsby Evidence"). The
Plaintiffs provided the Court and the Defendants with only the
select excerpts from the Black Knight Deposition that were not
marked as confidential under the protective order in the Bigsby
action.
The Plaintiffs submit that the evidence from the Bigsby action
demonstrates that in May 2019, Black Knight had the ready ability
to extract data from the database used by the Defendants to show
each of the coded fees assessed on attorney invoices -- including
so-called 'administrative fees' paid to Fidelity. This evidence,
according to the Plaintiffs, shows that the Defendants and their
counsel made false and misleading representations to this Court and
violated the Court's orders relating to the New Invoice System.
As a sanction for this alleged misconduct, pursuant to Federal Rule
of Civil Procedure 37 and the Court's inherent authority, the
Plaintiffs now seek attorney's fees and expenses caused by the
Defendants' alleged failure to comply with the Court's discovery
orders. The Defendants oppose the motion and, pursuant to Federal
Rule of Civil Procedure 37, seek attorney's fees incurred by the
Defendants in opposing the Plaintiffs' motion.
Judge Koeltl notes that this is not the first time that the
Plaintiffs have sought sanctions against the Defendants for alleged
misconduct uncovered by the discovery developed in the Bigsby
action. In 2020, the Plaintiffs brought an action asserting claims
under Federal Rules of Civil Procedure 60(d)(3) and 37 for fraud on
the Court and failure to obey the Court's orders in this action.
Judge Torres found the Plaintiffs' claim arising under Rule
60(d)(3) to be without merit and dismissed their claim under Rule
37 without prejudice for lack of subject matter jurisdiction; see
Mazzei v. The Money Store, No. 20-cv-307, 2020 WL 7774492 (S.D.N.Y.
Dec. 30, 2020), reconsideration denied, 2021 WL 4429631. (S.D.N.Y.
Sept. 27, 2021). Judge Torres concluded that the Plaintiffs'
allegations regarding the Defendants' litigation conduct were
either barred by res judicata or were insufficient to state a claim
for fraud on the court. An appeal of Judge Torres's decisions is
pending before the Court of Appeals for the Second Circuit.
II.
As a preliminary matter, the Defendants object to the Plaintiffs'
inclusion of Wells Fargo Bank, N.A. ("Wells Fargo") in the case
caption on the Plaintiffs' motion. The Defendants argue that
because Wells Fargo is not a party to this lawsuit and has never
been served with process, it should be stricken from the caption.
The Plaintiffs failed to respond to this argument in their reply
brief and appear to have abandoned any claims against Wells Fargo.
Accordingly, the Defendants' request to have Wells Fargo stricken
from the caption is granted.
III.
Rule 37(b)(2) provides that if a court finds that a failure to
comply with an "order to provide or permit discovery, including an
order under Rule 26(f), 35, or 37(a)" has occurred, the Court may
issue further just orders including striking pleadings.
The Plaintiffs contend that the Bigsby Evidence demonstrates that
the Defendants violated the Court's orders by having concealed
relevant discovery from the Plaintiffs, making multiple
misrepresentations to the Court, and generally acting in bad faith.
The Defendants deny these allegations and contend that even if the
Plaintiffs' interpretation of the Bigsby Evidence were accepted, it
does not show that the Defendants violated any court order or made
any misrepresentation.
In sum, the Plaintiffs determined through discussions with LPS's
counsel that the New Invoice System data was not in an accessible
format. The Plaintiffs informed the Court and the Defendants of
their determination. The Defendants then paid the Plaintiffs for
any fees that the Plaintiffs applied for.
There is, therefore, no basis on which to conclude that the
Defendants violated the July or November 2014 Orders and nothing in
the Bigsby Evidence undermines this conclusion, Judge Koeltl holds.
If the Plaintiffs thought that the Defendants were obligated to
take more proactive steps to determine whether the New Invoice
System was searchable, then the Plaintiffs should have brought
those concerns to the Court's attention at the November 2014
conference, or at some other earlier point while this litigation
was still ongoing.
Because the Plaintiffs failed to do so, and because the evidence
from the Bigsby action provides no new basis for finding that the
Defendants violated these orders, the Plaintiffs' motion pursuant
to Rule 37(b) as to the July and November 2014 Orders is denied.
Judge Koeltl also finds that the Plaintiffs' argument is barred by
the law of the case doctrine. Any argument that the Bigsby Evidence
provides a basis for revisiting these issues fails. Reopening a
previously resolved issue that was decided and upheld on appeal
requires "a showing of exceptional circumstances" such as a proffer
of significant new evidence, not earlier obtainable in the exercise
of due diligence; or convincing the Court that a blatant error in
the prior decision will, if uncorrected, result in a serious
injustice, Judge Koeltl points out, citing Atlantica Holdings, Inc.
v. Sovereign Wealth Fund Samruk-Kazyna JSC, No. 12-cv-8852, 2018 WL
922191, at *1 (S.D.N.Y. Feb. 15, 2018).
For these reasons, the Plaintiffs' motion pursuant to Rule 37(b) as
to the Class Identification Orders is denied.
In sum, Judge Koeltl holds, the Bigsby Evidence does not establish
that the Defendants in this action could have easily obtained data
from the New Invoice System or that defense counsel's
representations about the availability of data relevant to this
action were false. Accordingly, the Plaintiffs' argument that the
Bigsby Evidence demonstrates that the Defendants acted in bad faith
and, therefore, engaged in newly discovered sanctionable conduct
fails.
Finally, irrespective of whether the Plaintiffs' favored
interpretation of the Bigsby Evidence were accepted, the Court
would exercise its discretion and decline to impose sanctions.
IV.
The Defendants argue that pursuant to Rule 37(a), they should be
awarded attorney's fees incurred in connection with defending this
motion.
Judge Koeltl holds that the Defendants are not entitled to
attorney's fees pursuant to Rule 37(a)(5)(B). The attorney's fees
provision of this subsection of Rule 37(a) plainly applies to
applications made under Rule 37(a), namely, motions for an order
compelling disclosure or discovery. In this case, the Plaintiffs
moved for an order for sanctions for the Defendants' alleged
"failure to comply with a court order" pursuant to Rule 37(b).
Unlike Rule 37(a), Rule 37(b) does not include a provision that
contemplates an award of attorney's fees to a party that defeats a
Rule 37(b) motion, Judge Koeltl explains.
Conclusion
The Court has considered all of the arguments of the parties. To
the extent not discussed here, the arguments are either moot or
without merit.
For these reasons, the Plaintiffs' motion for attorney's fees and
expenses is denied. The Defendants' motion for attorney's fees and
expenses is also denied. The Clerk is directed to close all pending
motions.
A full-text copy of the Court's Memorandum Opinion and Order dated
June 9, 2022, is available at https://tinyurl.com/59tbmh6d from
Leagle.com.
NATIONAL RIFLE: May Appeal Denial of Judgment in McEwen Suit
------------------------------------------------------------
In the lawsuit captioned TRAVIS McEWEN, Plaintiff v. NATIONAL RIFLE
ASSOCIATION OF AMERICA and INFOCISION, INC., d/b/a INFOCISION
MANAGEMENT CORPORATION, Defendants, Case No. 2:20-cv-00153-LEW (D.
Me.), Judge Lance E. Walker of the U.S. District Court for the
District of Maine:
(a) granted the Defendants' Unopposed Motion to Certify the
Court's Dec. 20, 2021 Order for Interlocutory Appeal
Pursuant to 28 U.S.C. Section 1292(b); and
(b) granted in part and denied in part the Plaintiff's
Unopposed Motion for (1) Rule 54(b) Entry of Final
Judgment on Claims in Counts C, D, E, and F;
(2) Certification of Interlocutory Appeal under 28 U.S.C.
Section 1292(b); and (3) Stay of Further Discovery in this
Court.
The Defendants ask that Judge Walker certifies for interlocutory
appeal his denial of their motion for a judgment on the pleadings
with respect to Counts A & B.
Background
In this action, Plaintiff Travis McEwen pursues class action claims
on behalf of certain classes of persons annoyed or harmed by
unsolicited calls received from Defendant InfoCision, Inc., on
behalf of Defendant National Rifle Association of America. For
Counts A and B, the Plaintiff describes a class comprised of all
persons in the United States, who received a call from the
Defendants that utilized an "automatic telephone dialing system,"
or "ATDS." For Counts C and D, the Plaintiff describes a class
comprised of all persons in the United States, who registered their
number with the National Do-Not-Call Registry but nonetheless
received more than one call from the Defendants within any
twelve-month period thereafter. Finally, for Counts E and F, the
Plaintiff describes a class comprised of all persons in the United
States, who requested to be placed on InfoCision's or the NRA's
internal donot-call list but received more than one call within any
twelve-month period thereafter.
In April 2021, Judge Walker granted the Defendants' motion to
dismiss Counts C, D, E, and F (the do-not-call claims). Judge
Walker did so on the ground that the Defendants' alleged calls do
not come within the meaning of "telephone solicitation," as that
term is used in the Telephone Consumer Protection Act, 47 U.S.C.
Section 227(a)(4). In December 2021, Judge Walker then denied the
Defendants' motion for judgment on the pleadings seeking dismissal
of Counts A and B (the ATDS claims) because Judge Walker found that
the Plaintiff "plausibly alleges that InfoCision called him using
an ATDS."
Given his rulings, Judge Walker notes that the parties collectively
feel that he has steered them into a legal quagmire that makes
further travel of the case unduly burdensome and impractical. Each
side wants the opportunity to have the First Circuit clear a more
propitious path before they are made to march any further.
Discussion
A. Rule 54(b)
The Plaintiff asks that Judge Walker enters final judgment on the
claims previously dismissed, thereby, permitting him immediately to
appeal the order dismissing his proposed do-not-call class action
claims. To enter final judgment on fewer than all claims pursuant
to Rule 54(b), Judge Walker must find that the Plaintiff's motion
meets three criteria.
First, the resulting judgment must have finality. Here, because
Counts C-F all concern separate proposed classes and claims, a
judgment on the Counts would be "a coherent and final disposition."
Second, Judge Walker must consider "all claims and parties in
perspective." The Plaintiff's request meets this criterion because
the entry of final judgment on the Count C-F class claims would
permit an appeal that might, assuming the Plaintiff's success on
appeal, avoid duplicative discovery and preliminary class
proceedings, while also potentially enabling a consolidated trial
utilizing only one jury.
Third, Judge Walker must assess the equities associated with the
delayed access to an appeal that would result if Judge Walker
denies the Plaintiff's request. Much as with the second criterion,
the inequity of delay is demonstrated by the inability to ensure
one cohesive proceeding that encompasses all of the various
class/subclass claims and the additional expense and effort that
would arise in the event Judge Walker's ruling on Counts C-F is
vacated only after the conclusion of district court proceedings on
Counts A and B.
For these reasons, Judge Walker grants the Plaintiff's request for
final judgment on Counts C-F and, given the parties' joint request
that Judge Walker does so and his findings concerning judicial
efficiency, he also grants the Plaintiff's and the Defendants'
requests that further proceedings in the Court on Counts A and B be
stayed.
B. Certification of interlocutory appeal
The remaining component of the Plaintiff's motion and the core of
the Defendants' motion involves the jurisdiction of the courts of
appeals to hear appeals of interlocutory orders when a district
judge finds that such order involves a controlling question of law
as to which there is substantial ground for difference of opinion
and that an immediate appeal from the order may materially advance
the ultimate termination of the litigation. These requests concern
both Judge Walker's April 2021 interlocutory order and December
2021 interlocutory order.
1. April Order dismissing Counts C-F
Judge Walker is not persuaded by the Plaintiff's request that the
April Order is a good candidate for certification under Section
1292(b) because Judge Walker is not convinced that the reason
supplied for the dismissal has a substantial ground for difference
of opinion. Judge Walker dismissed Counts C through F because the
Plaintiff did not allege that the Defendants ever placed telephone
calls to him for the purpose of selling goods and, thus, could not
show that the Defendants were engaged in "telephone solicitation,"
as is required to establish liability under 47 U.S.C. Section
227(c).
To Judge Walker's knowledge, only one court has adopted the view
that charitable solicitation can establish liability under Section
227(c), see Kalmbach v. Nat'l Rifle Association of America, No.
17-cv-00399-RSM, 2017 WL 3172836, *4 (W.D. Wash. July 26, 2017),
which does not suggest that a substantial ground for disagreement
exists on this issue. In any event, the Plaintiff achieves the
relief he desires from the Court given Judge Walker's ruling on the
Rule 54 component of his motion.
2. December Order denying the Defendants' motion to dismiss Counts
A & B
The Defendants ask that Judge Walker certifies for interlocutory
appeal the denial of their motion for a judgment on the pleadings
with respect to Counts A & B. In Judge Walker's December Order,
Judge Walker considered whether the Plaintiff pled a plausible
Telephone Consumer Protection Act ("TCPA") claim for unlawful use
of an automatic telephone dialing system ("ATDS") in violation of
47 U.S.C. Section 227(b)(1), where, as alleged, InfoCision uses an
ATDS "to make calls to telephone numbers assigned to a cellular
telephone," and has admitted placing calls to the Plaintiff's phone
using a dialing system that had the capacity to store or produce
numbers to be called using a random or sequential number
generator.
Judge Walker found that the Plaintiff states a claim that
InfoCision used an ATDS because InfoCision's use of a device that
calls phone numbers from a preproduced list may still be an ATDS,
so long as it uses a random or sequential number generator to
determine the order in which to pick the numbers from the list or
otherwise stores the list of numbers using a random or sequential
number generator.
The Defendants wish to appeal this denial, arguing that the TCPA
only applies to dialing systems that generate phone numbers
randomly in the first instance, and excludes those systems that use
a number generator to randomly select numbers that were originally
acquired through some other means (for example, from a list of
known donors).
Here, Judge Walker explains, the courts' preference against
piecemeal litigation, in fact, cuts in favor of permitting an
interlocutory appeal on Counts A and B--because Counts C through F
are subject to final judgment and, hence, immediately appealable,
an interlocutory appeal on Counts A and B will have the effect of
consolidating rather than balkanizing this litigation. Thus, Judge
Walker's ultimate determination turns on the factors prescribed by
Section 1292(b): whether the order "involves a controlling question
of law," whether there is "substantial ground for difference of
opinion" on that question, and whether an interlocutory appeal
would expedite the ultimate resolution of this case.
Judge Walker finds that all of those factors are met. Thus, if the
TCPA applies only to systems that generate phone numbers randomly
in the first instance, Counts A and B of the Plaintiff's Second
Amended Class Action Complaint should be dismissed.
Second, the proper scope of the TCPA in light of Facebook is a live
issue as to which there exists substantial disagreement among the
federal courts, Judge Walker notes.
Finally, Judge Walker opines that an interlocutory appeal would
help to expedite the ultimate disposition of this case. If the
First Circuit were to reverse his order denying the Defendants'
request for judgment on the pleadings on Counts A and B, and affirm
his order dismissing Counts C through F, this case would be over.
Ordinarily, the recent issuance of a persuasive circuit court
opinion would not warrant certification of an early interlocutory
appeal. As an interlocutory order, the order on the motion for
judgment on the pleadings comes within Judge Walker's
"discretionary power to alter it at any time prior to the entry of
the final decree," citing Farr Man & Co. v. M/V Rozita, 903 F.2d
871, 875 (1st Cir. 1990).
Nonetheless, given the appropriateness of a Rule 54(b) final
judgment on Counts C-F, the recent summary judgment ruling by the
Eighth Circuit that would alter the pleading requirements for
Counts A and B if followed by the First Circuit, and the
Plaintiff's understandable desire to prosecute a class action
lawsuit with subclasses that should be managed cohesively for
purposes of trial, it strikes Judge Walker that the better exercise
of discretion is to certify an interlocutory appeal concerning the
denial of judgment on the pleadings on Counts A and B.
Conclusion
The Plaintiff's Unopposed Motion for (1) Rule 54(b) Entry of Final
Judgment on Claims in Counts C, D, E, and F; (2) Certification of
Interlocutory Appeal under 28 U.S.C. Section 1292(b); and (3) Stay
of Further Discovery in this Court (ECF No. 95) is granted in part
and denied in part. Specifically, final judgment will enter on
Counts C, D, E, and F pursuant to Rule 54(b) and discovery will be
stayed pending the anticipated appeal.
The Defendant's Unopposed Motion to Certify this Court's December
20, 2021 Order for Interlocutory Appeal Pursuant to 28 U.S.C.
Section 1292(b) is granted. Specifically, interlocutory
certification is granted as to Counts A and B, and the Dec. 20,
2021 Order is amended to include a finding that the Order involves
a controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal from
the order may materially advance the ultimate termination of the
litigation.
A full-text copy of the Court's Order dated June 9, 2022, is
available at https://tinyurl.com/5h57z6zk from Leagle.com.
NEW YORK CITY, NY: Loses Bid to Dismiss Chalmers' White FPIs Claims
-------------------------------------------------------------------
The U.S. District Court for the Southern District of New York
denies the Defendant's motion to dismiss the complaint as to
certain claims of white fire protection inspectors in the lawsuit
captioned DARRYL CHALMERS, DARREN CONNORS, GLENN MENDEZ, JAMES
NOVA, and FATIMA Q. ROSEMOND, on behalf of themselves and all
others similarly situated, and ASFCME DISTRICT COUNCIL 37 LOCAL
2507, on behalf of its members, Plaintiffs v. CITY OF NEW YORK,
Defendant, Case No. 20 Civ. 3389 (AT) (S.D.N.Y.).
The Plaintiffs, "minority" and white fire protection inspectors and
associate fire protection inspectors (collectively, "FPIs")
employed by the New York City Fire Department (the "FDNY") and
their representative union, bring this putative class action
against the Defendant, City of New York, alleging employment
discrimination on the basis of race, in violation of 42 U.S.C.
Section 1981, 42 U.S.C. Section 1983, Title VII of the Civil Rights
Act of 1964, and the New York City Human Rights Law (the
"NYCHRL").
On Sept. 16, 2021, the Court granted the City's motion to dismiss
the complaint as to the claims of the white named Plaintiff and
putative class members (collectively, the "white FPIs") arising
under Title VII and the NYCHRL. On Oct. 12, 2021, the Plaintiffs
filed an amended complaint, and, in Count 3, renewed their NYCHRL
disparate treatment claim as to the entire putative class,
including the white FPIs. The City now moves to dismiss that claim
as to the white FPIs.
Background
FPIs are employed by the FDNY to conduct inspections of buildings,
facilities, vehicles, and public activities in New York City to
ensure compliance with safety codes and regulations. Roughly 30% of
FPIs identify as white.
White and minority FPIs at similar levels generally perform the
same duties, work closely together every day, and are paid pursuant
to the same policies and practices.
Since at least fiscal year ("FY") 2008, the City has paid FPIs
salaries, overtime, and other benefits that are substantially lower
than those paid to the City's building inspectors ("BIs") employed
by the Department of Buildings, where white employees comprise 50%
of the workforce. The Plaintiffs allege that such compensation
disparities persist even though FPIs and BIs take similar
qualifying exams, undergo training covering a "virtually identical"
range of subjects, and share the same principal duty of conducting
field inspections to ensure conformance with the City's codes and
standards.
FPI and BI job titles are arranged hierarchically, with four tiers
of FPI designations, and three tiers of BI designations. Based on
publicly available salary data for City employees from FYs
2008-2019, the Plaintiffs allege that the City pays FPIs lower
salaries than BIs at comparable levels, who work comparable hours.
The Plaintiffs attribute these disparities to three City's policies
and practices. First, the Plaintiffs allege that the City maintains
a practice of paying FPIs at, or slightly above, the minimum salary
level prescribed by their union's collective bargaining agreement
("CBA"), while paying BIs well above the minimum salary level
required by their union's CBA--including, in some cases, exceeding
the designated maximum level.
Second, the Plaintiffs allege that, although the City recognizes
FPIs as "uniformed" for purposes of collective bargaining, the City
only provides FPIs with civilian-level increases of pay during each
cycle of collective bargaining, which prevents the FPIs from
catching up to the minimum salaries of BIs. Third, the Plaintiffs
claim that the City has failed to charge any agency with monitoring
pay across the various City departments and agencies, which has
allowed such disparities to arise.
The Plaintiffs argue that these three policies and practices affect
white and minority FPIs equally. The Plaintiffs also provide
compensation data, which demonstrates that, in general, white and
minority FPIs receive the same average base pay per hour. Because
base pay is determinative of an employee's overtime pay rate and
eventual pension benefits, the Plaintiffs allege that white FPIs,
like minority FPIs, receive lower pay, overtime, and pension
benefits than BIs at comparable levels.
Discussion
The Plaintiffs allege that the City provides predominantly-minority
FPIs with lower base salaries, overtime pay, and pension benefits
as compared to predominantly-white BIs, despite the similarity in
the two roles' responsibilities and qualifications. The Plaintiffs
argue, on behalf of the putative class, that these compensation
discrepancies constitute disparate treatment on the basis of race.
And, the Plaintiffs extend their NYCHRL disparate treatment claim
to the white FPIs, under a theory of associational discrimination.
The City moves to dismiss the Plaintiffs' NYCHRL disparate
treatment claim as to the white FPIs only on the ground that the
Plaintiffs have failed to demonstrate a sufficient "relationship"
or "association" between white and minority FPIs to state an
associational discrimination claim under the NYCHRL. The Court
disagrees.
The Court previously rejected the Plaintiffs' associational
discrimination claims under both Title VII and the NYCHRL, finding
that because the original complaint was virtually devoid of factual
allegations as to the white FPIs, Plaintiffs had failed to
demonstrate that the "white FPIs and their minority counterparts
have a 'relationship'--personal, social, professional, or
otherwise--that goes beyond the tenuous bounds of merely working
within the same 400-person department." The Court also noted that,
even under the liberal standard of the NYCHRL, the Plaintiffs had
failed to plead that the white FPIs had suffered any "independent
injuries" as a result of the alleged associational discrimination.
The amended complaint, by contrast, now makes specific references
to four white FPIs, including a named plaintiff, and describes the
quality and quantity of the interactions between white and minority
FPIs. One employee, for instance, is the only white member of his
30-person unit, and reports to a woman of color whom he considers a
"mentor."
District Judge Analisa Torres holds that the Plaintiffs have,
therefore, demonstrated that white and minority FPIs are each
other's supervisors, co-workers, and direct reports. They train
each other, regularly perform similar tasks as part of the same
team, sit together at work, answer each other's questions, and form
mentoring relationships. These factual allegations are sufficient
to demonstrate--at minimum--that white and minority FPIs not only
have the same job title, or work within the same large department,
but have a professional relationship with each other.
In addition, Judge Torres finds that the amended complaint now
contains factual allegations that support a claim that white FPIs
have suffered an independent injury--that is, that they were
aggrieved by the Defendant's actions because of the discrimination
targeted at their predominantly-minority organization.
Specifically, the Plaintiffs have shown through statistical pay
data that white FPIs have generally received the same base
salaries--and correspondingly, overtime pay and pension
benefits--as their minority counterparts, leading to the necessary
inference that they have also been underpaid as compared to the
predominantly-white BI workforce.
Judge Torres notes that the Court's obligation at this stage is
two-fold--it must construe the NYCHRL's provisions broadly in favor
of discrimination plaintiffs, and draw all inferences in the
Plaintiffs' favor. Under these permissive standards, the Court
finds that the Plaintiffs' new factual allegations are sufficient
to establish an associational discrimination claim under the NYCHRL
as to the white FPIs.
Judge Torres notes that the City raises three arguments in
response, none of which have merit. First, the City argues that the
terms "relationship" or "association" must apply only to those of a
"personal or political" nature, rather than a "professional" one.
The Court will not infer such a narrow construction in the absence
of any qualifiers in the statutory language, or inconsistencies
with the plain meaning of the terms.
Second, the City argues that "much like in" Title VII cases, the
Plaintiffs must show that the Defendant disapproved of the
relationship between white and non-white FPIs. But, as the Court
explained in the Order, Title VII and NYCHRL associational
discrimination claims are not analyzed similarly.
Finally, the City argues that, in finding that the terms
"relationship" and "association" apply to professional
relationships, the Court will open the floodgates to claims by "any
white employee," who could allege discrimination solely because
they and a single non-white colleague with whom they worked are
underpaid.
The City overlooks, however, the causal requirement set forth by
the NYCHRL, Judge Torres points out. The Plaintiffs cannot merely
claim associational discrimination by demonstrating a relationship
with an individual in a protected class. Rather, they must show
causality--that, because of that relationship or affiliation, they
too, experienced an independent injury as a result of the
defendant's discriminatory behavior.
Here, the white FPIs allege that their injuries--lower pay, as
compared to BIs with similar job functions--are caused by the
City's discrimination against their predominantly-minority
colleagues. Permitting such a claim to proceed is consistent with
the NYCHRL's expansive reach--it does not, however, pave the way
for meritless claims from white individuals, who simply happen to
know of a minority co-worker they believe is being unfairly
treated, Judge Torres holds.
Conclusion
For the reasons stated, the Defendant's motion to dismiss Count 3
of the amended complaint as to the white FPIs is denied. The Clerk
of Court is directed to terminate the motion at ECF No. 73.
A full-text copy of the Court's Order dated June 9, 2022, is
available at https://tinyurl.com/3e3bmtjx from Leagle.com.
NEWMAN MEMORIAL HOSPITAL: Ketner Suit Removed to D. Kansas
----------------------------------------------------------
The case styled as Eliora Ketner, individually and on behalf of all
others similarly situated v. Newman Memorial Hospital Foundation,
Case No. 2022-CV-000906-TO was removed from the Sedgwick County
District Court, to the U.S. District Court for the District Of
Kansas on June 13, 2022.
The District Court Clerk assigned Case No. 6:22-cv-01136 to the
proceeding.
The nature of suit is stated as Other P.I. for Breach of Fiduciary
Duty.
Newman Memorial Hospital -- https://newmanmemorialhospital.org/ --
is a critical access hospital that prides itself on maintaining the
highest quality standards.[BN]
The Plaintiff appears pro se.
The Defendant is represented by:
Mark A. Cole, Esq.
SPENCER FANE, LLP - OVERLAND PARK
6201 College Blvd., Suite 500
Overland Park, KS 66211
Phone: (913) 327-5108
Fax: (913) 345-0736
Email: mcole@spencerfane.com
NEWPORT GROUP: Russ Suit Transferred to W.D. Tennessee
------------------------------------------------------
The case styled as Phillip Russ, IV, Presiding Elder; Marcius King,
Rev. by and through Lynette Glenn, Power of Attorney; Matthew
Ewing, Rev.; on behalf of themselves and all others similarly
situated v. Newport Group, Inc., Symetra Financial Corporation,
Jerome V. Harris, Rev. Dr.; Samuel L. Green, Bishop; African
Methodist Episcopal Church, John Doe 1-10, Case No. 3:22-cv-00375
was transferred from the U.S. District Court for the Middle
District of Florida, to the U.S. District Court for the Western
District of Tennessee on June 14, 2022.
The District Court Clerk assigned Case No. 1:22-cv-01129-STA-jay to
the proceeding.
The nature of suit is stated as Other Personal Property for Other
Civil Rights.
Newport Group -- https://www.newportgroup.com/ -- helps companies
offer their associates a more secure financial future through
retirement plans, insurance and consulting services.[BN]
The Plaintiffs are represented by:
Rachel Nicole Dapeer, Esq.
DAPEER LAW, P.A.
300 S Biscayne Blvd., Suite 2704
Miami, FL 33131
Phone: (305) 610-5523
NICK'S CUSTOM BOOTS: Cromitie Files ADA Suit in S.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Nick's Custom Boots,
LLC. The case is styled as Seana Cromitie, on behalf of herself and
all others similarly situated v. Nick's Custom Boots, LLC, Case No.
1:22-cv-04957-MKV (S.D.N.Y., June 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Nick's Custom Boots -- https://nicksboots.com/ -- is USA-made and
owned specializing in serious work boots, makes custom work boots,
specializing in durable, custom footwear for the hardest of
jobs.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Phone: (845) 367-7146
Fax: (732) 298-6256
Email: yzelman@marcuszelman.com
NISSAN OF NORTH AMERICA: Moses Files Suit in M.D. Tennessee
-----------------------------------------------------------
A class action lawsuit has been filed against Nissan of North
America, Inc., et al. The case is styled as Sherrell Moses, Ashle
Wilson, individually and on Behalf of All Others Similarly Situated
v. Nissan of North America, Inc.,Nissan Motor Co., Ltd., Case No.
3:22-cv-00448 (M.D. Tenn., June 14, 2022).
The nature of suit is stated as Other Fraud.
Nissan North America Inc. -- https://www.nissanusa.com/ -- operates
in the automotive industry.[BN]
The Plaintiffs are represented by:
Alex Phillips, Esq.
Samuel Strauss, Esq.
TURKE & STRAUSS LLP
613 Williamson St., Ste. 201
Madison, WI 53703
Phone: (608) 237-1775
Fax: (608) 509-4423
Email: alexp@turkestrauss.com
sam@turkestrauss.com
- and -
Benjamin A. Gastel, Esq.
James Gerard Stranch, IV, Esq.
BRANSTETTER, STRANCH & JENNINGS, PLLC
223 Rosa L. Parks Avenue, Suite 200
Nashville, TN 37203
Phone: (615) 254-8801
Fax: (615) 255-5419
Email: beng@bsjfirm.com
gerards@bsjfirm.com
- and -
Lynn A. Toops, Esq.
COHEN & MALAD, LLP
One Indiana Square, Suite 1400
Phone: Indianapolis, IN 46204
Phone: (317) 636-6481
Fax: (317) 636-2593
Email: ltoops@cohenandmalad.com
NOVASTAR MORTGAGE: Order & Final Judgment Entered in NJCH Fund Suit
-------------------------------------------------------------------
Judge Katherine Polk Failla of the U.S. District Court for the
Southern District of New York issued an Amended Order and Final
Judgment in the lawsuit titled NEW JERSEY CARPENTERS HEALTH FUND,
on Behalf of Itself and all Others Similarly Situated, Plaintiff v.
NOVASTAR MORTGAGE, INC., NOVASTAR MORTGAGE FUNDING CORPORATION,
SCOTT F. HARTMAN, GREGORY S. METZ, W. LANCE ANDERSON, MARK HERPICH,
RBS SECURITIES INC. f/k/a GREENWICH CAPITAL MARKETS, INC., d/b/a
RBS GREENWICH CAPITAL, DEUTSCHE BANK SECURITIES INC., WELLS FARGO
ADVISORS, LLC f/k/a WACHOVIA SECURITIES LLC, Defendants, Case No.
08-cv-5310 (KPF) (S.D.N.Y.).
The matter came for hearing on Sept. 13, 2017 (the "Final Approval
Hearing"), on the application of the Plaintiffs to determine
whether the terms and conditions of the Stipulation and Agreement
of Settlement (the "Stipulation") are fair, reasonable, adequate
and in the best interest of the Settlement Class Members for the
settlement of all claims by Lead Plaintiff New Jersey Carpenters
Health Fund and the other Class Representative Iowa Public
Employees Retirement System, on behalf of themselves and the
Settlement Class, against Defendants NovaStar Mortgage, Inc.,
NovaStar Mortgage Funding Corporation, Scott F. Hartman, Gregory S.
Metz, W. Lance Anderson, Mark Herpich, RBS Securities Inc. f/k/a
Greenwich Capital Markets, Inc., d/b/a RBS Greenwich Capital,
Deutsche Bank Securities Inc., and Wells Fargo Advisors, LLC f/k/a
Wachovia Securities LLC in the Action, and should be approved; and
whether judgment should be entered dismissing the Action on the
merits and with prejudice in favor of the Defendants and as against
all persons or entities, who are members of the Settlement Class,
who have not requested exclusion therefrom, and releasing the
Released Claims.
Due and adequate notice have been given to the Settlement Class as
provided in the Preliminary Approval Order.
The Court has jurisdiction to enter this Order and Final Judgment.
The Court has jurisdiction over the subject matter of the Action
and over all parties to the Action, including all Settlement Class
Members.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the
Court certifies, for purposes of the Settlement only, a class
consisting of: "all Persons who purchased or otherwise acquired
publicly offered Certificates representing interests in any of the
NovaStar Mortgage Funding Trusts, NovaStar Home Equity Loan Series
2006-3, 2006-4, 2006-5, 2006-6, 2007-1, or 2007-2 Offerings, prior
to May 21, 2008, pursuant or traceable to the Registration
Statement and accompanying prospectus filed with the Securities and
Exchange Commission by NovaStar Mortgage Funding Corporation a/k/a
NovaStar Certificates Financing Corporation on June 16, 2006 (No.
333-134461), and who were damaged thereby, except those Persons
that timely and validly requested exclusion from the class pursuant
to and in accordance with the terms of the Preliminary Approval
Order. Also excluded from the Settlement Class are all Defendants,
their officers and directors at all relevant times, members of
their immediate families and their legal representatives, heirs,
successors or assigns, and any entity in which any Defendant has or
had a controlling interest, except for any Investment Vehicle."
Pursuant to Rule 23, and solely for the purposes of the Settlement,
Plaintiffs New Jersey Carpenters Health Fund and Iowa Public
Employees' Retirement System are appointed as Class Representatives
of the Settlement Class, and the law firm of Cohen Milstein Sellers
& Toll PLLC ("Lead Counsel") is appointed as lead counsel for the
Settlement Class.
Pursuant to Rule 23, the Court approves the Settlement, and finds
that the Settlement is, in all respects, fair, reasonable and
adequate, and in the best interests of the Settlement Class
Members.
The distribution of the Notice and the publication of the Summary
Notice as provided for in the Preliminary Approval Order
constituted the best notice practicable under the circumstances,
including individual notice to all Settlement Class Members who
could be identified with reasonable effort.
The Court has received one objection to the Settlement, submitted
by the Federal Housing Finance Agency ("FHFA") in its capacity as
conservator of the Federal Home Loan Mortgage Corporation ("Freddie
Mac"). The Court finds and concludes that FHFA and Freddie Mac's
objections to the adequacy of notice and interpretation of 12
U.S.C. Section 4617(f) (objection to subject matter jurisdiction of
Court) are without merit and, therefore, overrules it in its
entirety. FHFA, which succeeded to the interests of Freddie Mac in
September 2008, is not a member of the Settlement Class; that class
is defined as persons or entities who inter alia "purchased or
otherwise acquired interests in the specified NovaStar Offerings
prior to May 21, 2008."
Judge Failla holds that the Action and all claims contained therein
are dismissed on the merits with prejudice as to the Plaintiffs and
the Settlement Class Members. The parties are to bear their own
costs, except as otherwise provided in the Stipulation.
Upon the Effective Date, the Plaintiffs and all other Settlement
Class Members, on behalf of themselves and any of their personal
representatives, spouses, domestic partners, trustees, heirs,
executors, administrators, successors or assigns, will be deemed to
have, and by operation of this Order and Final Judgment will have,
fully, finally and forever waived, released, relinquished,
discharged, and dismissed all Released Claims, with prejudice and
on the merits, whether or not such Plaintiff or Settlement Class
Member executes and delivers a Proof of Claim Form.
Upon the Effective Date, the Plaintiffs and all other Settlement
Class Members are forever barred and enjoined from commencing,
instituting, prosecuting or continuing to prosecute any action or
proceeding in any court of law or equity, arbitration tribunal,
administrative forum, or other forum of any kind, asserting any
Released Claims, including instigating, voting in favor of or
otherwise supporting the assertion of any claim asserting
contractual repurchase (or other "putback") rights with respect to
any residential mortgage loan included in any of the Offerings
other than in any action filed prior to Dec. 20, 2016, asserting
such claims.
Upon the Effective Date, the Released Parties will be deemed to
have, and by operation of this Order and Final Judgment will have,
fully, finally and forever waived, released, relinquished,
discharged, and dismissed all claims arising out of, relating to,
or in connection with the institution, prosecution, assertion,
settlement or resolution of the Action or the Released Claims, with
prejudice and on the merits, against each and all of the
Plaintiffs, Settlement Class Members, and Lead Counsel.
Without affecting the finality of this Order and Final Judgment in
any way, the Court retains continuing jurisdiction over: (a)
implementation and enforcement of the Settlement; (b) the
allowance, disallowance or adjustment of any Settlement Class
Member's claim on equitable grounds and any award or distribution
of the Settlement Fund; (c) disposition of the Settlement Fund; (d)
enforcing and administering this Order and Final Judgment; (e)
enforcing and administering the Stipulation, including any releases
and bar orders executed in connection therewith; and (f) other
matters related or ancillary to the foregoing.
The Escrow Account, into which the Defendants have deposited the
Settlement Amount, is approved as a Qualified Settlement Fund
pursuant to Internal Revenue Code 468B and the Treasury Regulations
promulgated thereunder.
In the event that the Settlement does not become effective in
accordance with the terms of the Stipulation or in the event that
the Settlement Fund, or any portion thereof, is returned to the
Defendants or any of them, who paid such Settlement Amount on
behalf of the Defendants, then this Order and Final Judgment will
be rendered null and void to the extent provided by and in
accordance with the Stipulation, and will be vacated to the extent
provided by the Stipulation and, in such event: (a) all orders
entered and releases delivered in connection herewith will be null
and void to the extent provided by and in accordance with the
Stipulation; and (b) the fact of the Settlement will not be
admissible in any trial of the Action.
Without further Order of the Court, the parties may agree to
reasonable extensions of time to carry out any of the provisions of
the Stipulation.
A full-text copy of the Court's Amended Order and Final Judgment
dated June 9, 2022, is available at https://tinyurl.com/5dz5w7xx
from Leagle.com.
OHIO LIVING: Kordie Seeks Corrective Notice and Protective Order
----------------------------------------------------------------
In the lawsuit entitled NICOLE KORDIE, on behalf of herself and
others similarly situated, et al., Plaintiffs v. OHIO LIVING, et
al., Defendants, Case No. 21cv-3791 (S.D. Ohio), the U.S. District
Court for the Southern District of Ohio, Eastern Division, granted
in part and denied in part Ms. Kordie's Emergency Motion for a
Corrective Notice, Reopening/Extending the Opt-In Period, and
Immediate Protective Order, Attorneys' Fees Relating to this
Motion, and Immediate Production of Declarations and
Communications.
I. Background
The lawsuit is an unpaid overtime suit under the Fair Labor
Standards Act ("FLSA"), and related Ohio wage and hour laws. The
Court's March 2, 2022 Order conditionally certified the following
classes under 29 U.S.C. Section 216(b):
* Overtime Collective:
All current and former hourly healthcare employees who
worked at least forty (40) hours in any workweek and (1)
received additional renumeration; or (2) had deductions
applied in workweeks during the three (3) years preceding
the filing of this Motion and continuing through the final
disposition of this case; and
* Minimum Wage Collective:
All current and former hourly healthcare employees who had
deductions applied to their pay during the three (3) years
preceding the filing of the Complaint and continuing through
the final disposition of this case.
The Order established a 45-day response deadline and authorized
Notice and Consent to Join Forms to be sent to the putative class
members via e-mail and regular mail. The Consent Form stated the
signatory agrees to be a party plaintiff in the collective action
and to be represented by Coffman Legal, LLC.
Ms. Kordie's motion takes issue with a letter Defendants Ohio
Living and Ohio Living Communities (collectively "Ohio Living")
sent their current employees after the Order but before the Notice
and Consent to Join Forms were distributed to putative class
members.
Ms. Kordie argues the letter is "coercive, misleading, and
improper" and serves to suppress employee participation in the
collective. In support, she offers the declaration of Heather
Hobson, a nurse presently employed by Ohio Living. Ms. Hobson
averred that the letter's statement that Ohio Living would not
retaliate against her if she joined the collective "worried" her
that Ohio Living would do so. She testified the letter "seemed to
indicate that while there may have been an issue with unpaid
overtime in the past, Ohio Living was going to pay me any unpaid
overtime due and that Judge Walker does not need to take any action
with regard to the 'Notice of Unpaid Overtime Wage Lawsuit' I would
soon receive." While she averred that the letter made her feel that
Ohio Living did not want her to participate in the lawsuit, she
still joined the collective.
Ms. Kordie argues the letter warrants a multitude of remedies.
First, she wants a corrective notice issued specifying the Court
did not authorize the letter, directing putative members to contact
Coffman Legal, not Ohio Living, with questions regarding this
lawsuit, and stating that any payments Ohio Living makes to
employees will not prevent the employees from joining this suit.
Second, she wants the opt-in period extended for an additional 45
days from the date the Corrective Notice is issued. Third, she
wants an "immediate protective order" that prohibits the Defendants
and their counsel from communicating with putative collective
members in any manner related to this lawsuit or their alleged
'payroll error' until the end of trial. Fourth, she wants Ohio
Living to pay her attorney's fees associated with the motion.
Lastly, she wants the Court to order Ohio Living to execute
declarations "detailing the follow-up communications held with any
employees" regarding the letter.
Ohio Living counters the letter contains a "brief, factual
description of the events and allegations that are the basis of
this lawsuit" and was sent "in a good-faith effort to avoid any
confusion with respect to this lawsuit." Ohio Living points to the
more than 150 employees, who have already opted-in to the
collective, as evidence that the letter is not coercive.
II. Analysis
A. Protective Order & Corrective Notice
While the Court has broad authority to govern counsel and parties
in Section 216(b) collective actions, its discretion is not
unbridled, District Judge Sarah D. Morrison notes, citing
Hoffmann-La Roche v. Sperling, 493 U.S. 165, 171 (1989). Ms.
Kordie's gag-order request seeks to curtail Ohio Living's First
Amendment right to correspond with potential collective members, a
right that is not lost simply because collective certification has
been granted and notice has been issued.
Communications to potential collective members are commercial
speech, which enjoys a lesser degree of protection than other
constitutionally guaranteed expression, Judge Morrison explains,
citing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of
N.Y., 447 U.S. 557, 563 (1980). Thus, courts can restrict such
speech when it is or has the potential to be misleading or
coercive, Murton v. Measurecomp, LLC, No. 1:07CV3127, 2008 U.S.
Dist. LEXIS 108085, at *13 (N.D. Ohio Dec. 2, 2008). In those
instances, the communications "may be narrowly limited consistent
with the First Amendment," Judge Morrison adds.
Judge Morrison states that Ms. Kordie carries the burden of
establishing the letter is "coercive, misleading, or improper," in
that it affects the proper functioning of the litigation.
Judge Morrison finds that Ms. Kordie fails to sustain her burden
that the letter is coercive or encourages putative members to
refrain from joining the lawsuit. Her counsel's description of the
letter as "blatantly coercive" does not make it so. Furthermore,
more than 150 individuals have opted-in to the suit, making Ms.
Hobson's contention that the letter was coercive "frivolous."
Ms. Kordie argues the following portions of the letter are
misleading: (1) addressing Ohio Living's remedial actions; (2)
stating the employees need take no action; and (3) indicating the
Notice is from Coffman Legal. As to the first, Ms. Kordie argues
Ohio Living's statement that it will reimburse unpaid wages equates
to an impermissible offer to settle without court approval. But
offers to reimburse unpaid wages in this context do not equate to
FLSA settlement offers, Judge Morrison holds.
Finding success are her latter two arguments. The letter states
that the putative members are not required to take any action. This
is only partially true; while no action is necessary if a putative
member elects not to join the suit, action is required to opt-in to
the collective, Judge Morrison notes. This misstatement could
confuse employees about whether they need to affirmatively act to
join the collective.
Second, the letter states Coffman Legal will send the Notice to the
employees. Judge Morrison holds that this is incorrect. The Court
issued the Notice. Putative collective members are more likely to
respond to information from the Court than attorneys.
As to the final category of communications possibly justifying
corrective action, Ms. Kordie does not contend that the letter
undermines cooperation with or confidence in Coffman Legal, Judge
Morrison finds.
Ms. Kordie fails to sustain her burden to produce a "clear record
and specific findings" that necessitate the need for a protective
order, Judge Morrison opines. Instead, she establishes two
non-egregious errors that a Corrective Notice can easily cure.
Accordingly, the Court orders the parties to meet, confer and file
a proposed Corrective Notice within 10 days of this Order. The
proposal will be short and limited to clarifying the two errors
identified here. Areas of contention will be briefly described with
authority provided. Ohio Living will pay for the reasonable costs
associated with the Corrective Notice. Because the Corrective
Notice will be sent via mail and e-mail, and because a large number
of individuals have already joined the action despite the letter's
two errors, the Court determines that extending the opt-in period
by 30 days is sufficient.
B. Remaining Requested Relief
While the Court finds the Motion partially meritorious, the Court
does not find that Ohio Living acted in bad faith. Because that
finding is necessary for a discretionary sanction of attorney's
fees, Ms. Kordie's ask for same is denied. The remainder of Ms.
Kordie's requested relief is also denied.
III. Conclusion
The Motion is granted in part and denied in part.
The parties will jointly file a proposed Corrective Notice within
10 days of this Opinion and Order.
The opt-in period will be extended by 30 days from the date that
the Corrective Notice is sent to putative collective members.
Ohio Living will pay for the reasonable costs associated with the
Corrective Notice.
No fees or sanctions are awarded. Any remaining requested relief is
denied.
A full-text copy of the Court's Opinion & Order dated June 9, 2022,
is available at https://tinyurl.com/565maypy from Leagle.com.
OREGON: Bid for Appointment of Counsel in Fudge v. Bennett Denied
-----------------------------------------------------------------
In the lawsuit entitled JAMES CHARLES FUDGE, Plaintiff v. BRET
BENNETT, et al., Defendants, Case No. 2:19-cv-01102-SB (D. Or.),
Senior District Judge Michael W. Mosman of the U.S. District Court
for the District of Oregon, Pendleton Division, denies the
Plaintiff's Motion for Appointment of Counsel.
On June 9, 2022, Magistrate Judge Stacie F. Beckerman issued an
Order denying the Plaintiff's Motion for Appointment of Counsel.
Plaintiff James Charles Fudge objects to that order. Upon review,
Judge Mosman agrees with Judge Beckerman and denies the Plaintiff's
Objections.
Discussion
A magistrate judge in a civil action is permitted to hear and
determine any pretrial matter pending before the court, except a
motion for injunctive relief, for judgment on the pleadings, for
summary judgment, to dismiss or to permit maintenance of a class
action, to dismiss for failure to state a claim upon which relief
can be granted, and to involuntarily dismiss an action.
When a magistrate judge decides a matter under Section
636(b)(1)(A), a district judge may reconsider the magistrate's
order if the order is clearly erroneous or contrary to law.
Similarly, under Rule 72(a), the district judge in the case must
consider timely objections and modify or set aside any part of the
order that is clearly erroneous or is contrary to law.
Upon review, Judge Mosman agrees with Judge Beckerman's Order, and
he adopts it as his own. The Plaintiff's Motion for Appointment of
Counsel is denied. The Plaintiff's Objections are denied.
A full-text copy of the Court's Opinion and Order dated June 9,
2022, is available at https://tinyurl.com/5n8fcf4a from
Leagle.com.
PATHWAY HEALTH: Class Settlement in Abel Suit Wins Prelim. Approval
-------------------------------------------------------------------
Judge Paul A. Magnuson of the U.S. District Court for the District
of Minnesota grants the Plaintiffs' Unopposed Motion for Rule 23
Class Action Certification and for Preliminary Approval of the
Settlement in the lawsuit styled Danielle Abel, individually and
behalf of all others similarly situated, Plaintiff v. Pathway
Health Services, Inc., Defendant, Case No. 20-1307 (PAM/LIB) (D.
Minn.).
The Plaintiffs' Motion is granted and the settlement contained in
the Stipulation and Settlement Agreement is preliminarily
approved.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the
Court preliminarily certifies the following Minnesota Rule 23
Settlement Class for purposes of settlement:
The MN Rule 23 Settlement Class:
All individuals who Defendant's records reflect performed
work for Defendant in Minnesota as a nurse consultant or
consultant during the applicable statute of limitations
period who do not timely opt out of the settlement within
the time specified in the Notice of Settlement.
The Court finds, for settlement purposes only, that the
requirements of Rule 23(a) and Rule 23(b) are satisfied, with the
exception of the requirements of Rule 23(b)(2), which the Court
need not address for purposes of settlement.
Because Plaintiff Abel's interests are typical of the rest of the
Settlement Class, and she can fairly and adequately represent the
Settlement Class, the Court appoints Plaintiff Abel as Class
Representative for settlement purposes only.
Having considered the factors set forth in Fed. R. Civ. P. 23(g)(1)
and having found Rachhana T. Srey and Kayla M. Kienzle, of the law
firm of Nichols Kaster, PLLP, to be adequate and qualified to
represent the Settlement Class, the Court appoints Rachhana T. Srey
and Kayla M. Kienzle of Nichols Kaster, PLLP, and their firm as
Class Counsel to represent the Settlement Class Members.
The Court has conducted a preliminary review of the details of the
proposed settlement, including information regarding distribution
of the settlement and value, the mechanisms for notifying and
paying Settlement Class Members, and the percentage of anticipated
recovery. The Court finds, on a preliminary basis, that the
Settlement Agreement, along with the plan for the distribution of
the proposed Notice of Settlement to the Plaintiffs' Memorandum in
Support of Plaintiffs' Unopposed Motion for Preliminary Settlement
Approval and Certification, is fair, reasonable, and adequate, and
is likely to obtain final approval following notice to the class
members.
The Court approves the Notices of Settlement and appoints Class
Counsel, Nichols Kaster, PLLP, to distribute the Notice of
Settlement and directs that Notice of the Settlement be distributed
by U.S. mail and email as set forth in the Plaintiffs' Memorandum
and in the Settlement Agreement. Within ten days of this Order,
Class Counsel will distribute the Notice of Settlement to all
Settlement Class Members.
Settlement Class Members, who do not wish to be included in the
settlement, can reject their offer and request exclusion by
providing written notice to Class Counsel. Settlement Class
Members, who do not exclude themselves, will be considered a
Settling Plaintiff.
On May 10, 2022, the Defendant sent the notice required by the
Class Action Fairness Act, 28 U.S.C Section 1711, et seq., to the
appropriate authorities.
The Court will conduct a Final Approval Hearing on Sept. 20, 2022,
at 11:00 a.m.
The Plaintiffs will file their Motion for Final Settlement Approval
on or before Sept. 1, 2022.
The Class Counsel will petition the Court for approval of the
requested attorney's fees, litigation costs, settlement
administration costs, and service payments, and file any motion on
or before Aug. 8, 2022.
A full-text copy of the Court's Order dated June 9, 2022, is
available at https://tinyurl.com/2p8w67sj from Leagle.com.
PENNSYLVANIA: Revised Summary Judgment Ruling in Stradford Appealed
-------------------------------------------------------------------
Secretary Pennsylvania Department of Corrections filed an appeal
from a court ruling entered in the lawsuit entitled LACEY
STRADFORD, et al. v. JOHN WETZEL, SECRETARY PENNSYLVANIA DEPARTMENT
OF CORRECTIONS, Civil Action No. 2-16-cv-02064, in the United
States District Court for the Eastern District of Pennsylvania.
Plaintiffs Stradford, William Nettles, Jesse Stroud, William Scott,
and Richard Richardson are all offenders with sex offense
classifications who are, or were formerly, incarcerated in State
Correctional Institutions in Pennsylvania. They bring the putative
class action and assert an equal protection claim against Defendant
Wetzel, the Secretary of the Pennsylvania DOC.
The Plaintiffs claim that although they have been granted parole,
their release from prison and placement into DOC-operated halfway
houses has been significantly delayed because of the DOC's policy
of considering community sensitivity to a criminal offense in
making these placements. Because the consideration of community
sensitivity disproportionately delays the placement of parolees
with a sex offense classification, the Plaintiffs have been subject
to prolonged incarceration following a grant of parole which
individuals without a sex offense classification do not have to
endure.
In July 2020, the parties filed separate motions for summary
judgment.
On February 12, 2021, Chief Judge Juan R. Sanchez entered an order
denying Defendant's motion for summary judgment and granting
Plaintiff's motion for summary judgment. The DOC's motion for
summary judgment was denied because there are no legitimate bases
for delaying sex offenders' release to Community Corrections
Centers or Community Contract Facilities (CCCs), and any potential
justifications are not rationally related to the policy, ruled the
Court. For the same reasons, Judge Sanchez granted the Plaintiffs'
motion.
Accordingly, judgment was entered in favor of Plaintiffs and
against the Defendant on February 19, 2021.
Shortly thereafter, the Defendant filed a motion for
reconsideration, which the court granted on February 25, 2021, and
the judgment ruling was, therefore, vacated that day.
However, Judge Sanchez once again entered judgment in favor of
Plaintiffs and against Defendant on March 26, 2021.
The Defendant asked the Court to alter its judgment on April 23,
2021, but Judge Sanchez denied the request on August 12, 2021.
As previously reported in the Class Action Reporter, the Defendant
took an appeal from the Court's denial of his motion to alter
judgment. That appellate case was captioned Lacey Stradford, et al.
v. Secretary Pennsylvania Department, Case No. 21-2655, in the
United States Court of Appeals for the Third Circuit, filed on
Sept. 8, 2021.
The Defendant also sought and obtained a ruling from the court
staying all proceedings until such time his appeal to the Third
Circuit has been adjudicated.
On March 25, 2022, the Plaintiffs filed a motion to modify the
Court's March 26, 2021 judgment.
On April 29, 2022, the court granted the Plaintiff's request. Judge
Sanchez's two-page order directed the Defendant to continue to
provide monthly "PRP List" reporting for an additional six-month
period, following which Plaintiffs may seek an additional
modification if Defendant has not taken the necessary reasonable
steps to eliminate the disparity in CCC placement or has failed to
provide information necessary to make this determination.
Plaintiffs may conduct limited, reasonable discovery solely for the
purpose of ascertaining the extent of any lingering effects of the
past discriminatory policies and the cause of any continuing
disparities revealed, ruled the Court.
The Defendant is seeking a review of Judge Sanchez's ruling. He
also filed a motion to stay the order but the Court denied his
request.
The appellate case is captioned as Lacey Stradford, et al. v.
Secretary Pennsylvania Department, Case No. 22-2027, in the United
States Court of Appeals for the Third Circuit, filed on June 2,
2021.[BN]
Defendant-Appellant SECRETARY PENNSYLVANIA DEPARTMENT OF
CORRECTIONS is represented by:
Kelly J. Hoke, Esq.
Timothy A. Holmes, I, Esq.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS
1920 Technology Parkway
Mechanicsburg, PA 17050
Telephone: (717) 728-7749
- and -
Sean A. Kirkpatrick, Esq.
OFFICE OF ATTORNEY GENERAL OF PENNSYLVANIA
Strawberry Square, 15th Floor
Harrisburg, PA 17120
Telephone: (717) 705-2331
- and -
Daniel B. Mullen, Esq.
OFFICE OF ATTORNEY GENERAL OF PENNSYLVANIA
1251 Waterfront Place, Mezzanine Level
Pittsburgh, PA 15222
Telephone: (412) 235-9067
Plaintiffs-Appellees LACEY STRADFORD, WILLIAM NETTLES, JESSE
STROUD, WILLIAM SCOTT, RICHARD RICHARDSON, on behalf of themselves
and all other similarly situated, are represented by:
Donald Driscoll, Esq.
COMMUNITY JUSTICE PROJECT
100 Fifth Avenue, Suite 900
Pittsburgh, PA 15222
Telephone: (412) 434-6012
- and -
Alexandra Morgan-Kurtz, Esq.
PENNSYLVANIA INSTITUTIONAL LAW PROJECT
247 Fort Pitt Boulevard, 4th Floor
Pittsburgh, PA 15222
Telephone: (412) 434-6175
- and -
Su Ming Yeh, Esq.
PENNSYLVANIA INSTITUTIONAL LAW PROJECT
718 Arch Street, Suite 304 South
Philadelphia, PA 19106
Telephone: (215) 925-2966
POLARIS INC: Miller Files Suit in Minn. 4th Judicial Dist.
----------------------------------------------------------
A class action lawsuit has been filed against Polaris Inc. The case
is styled as Jay Miller, individually and on behalf of all others
similarly situated v. Polaris Inc., Case No. 27-CV-22-09138 (Minn.
4th Judicial Dist., Hennepin Cty., June 13, 2022).
Polaris Inc. -- http://www.polaris.com/en-us-- is an American
automotive manufacturer of motorcycles, snowmobiles, all-terrain
vehicles, and neighborhood electric vehicles headquartered in
Medina, Minnesota.[BN]
The Plaintiff is represented by:
Kate M. Baxter-Kauf, Esq.
Karen Hanson Riebel, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401
Phone: Fax: (612) 339-0981
Phone: (612) 339-6900
Email: kmbaxter-kauf@locklaw.com
khriebel@locklaw.com
- and -
Theodore J. Leopold, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
2925 PGA Boulevard, Suite 200
Palm Beach Gardens, FL 33410
Fax: (561) 515-1401
Phone: (561) 515-1400
- and -
Andrew N. Friedman, Esq.
Douglas J. Mcnamara, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
1100 New York Ave. NW East Tower, 5th Floor
Washington, DC 20005
Fax: (202) 408-4699
Phone: (202) 408-4600
- and -
Steve Calamusa, Esq.
Robert Gordon, Esq.
GORDON & DONER
4114 Northlake Blvd.
Palm Beach Gardens, FL 33410
Fax: (561) 799-4050
Phone: (561) 799-5070
PRINCETON ALTERNATIVE: Court Refuses to Sanction Mann's Counsel
---------------------------------------------------------------
The U.S. District Court for the Eastern District of Virginia,
Richmond Division, denies the Defendants' motion for sanctions in
the lawsuit captioned STEVEN MANN, et al., Plaintiffs v. MICHAEL
GOMEZ, et al., Defendants, Case No. 3:20-cv-820 (E.D. Va.).
The matter is before the Court on the Defendants' Motion for
Sanctions Against Plaintiffs' Counsel Pursuant to Federal Rule Of
Civil Procedure 11(b)(1-3). The Motion is the lone pending matter
in the case, with all other claims and issues having been resolved
by settlement.
The Motion asks the Court to impose sanctions on the Plaintiffs'
attorneys for the following filings:
(1) The Plaintiffs' dismissal notice, ECF No. 13, which the
Defendants argue contains sanctionable advocacy of a
disproven claim (the dismissal notice); and
(2) A filing in a separate case pending before the Court
(Williams v. MicroBilt Corp., 3:19cv85), which attaches as
an exhibit the COMPLAINT in this case in support of claims
about Philip Burgess, who is a defendant in that case and
one of the dismissed Defendants in this case (the Williams
filing).
The Defendants argue that both of those filings violate Rule 11
because they constitute "later advocating" of claims about the
Defendants that have been refuted.
Senior District Judge Robert E. Payne notes that case law, the text
of Rule 11, and the Rule's Advisory Committee note uniformly
indicate that the filings for which the Defendants ask the Court to
apply sanctions are not the kind of filings that are sanctionable
under Rule 11. Accordingly, it is not necessary to decide whether
the Plaintiffs had a sufficient basis for the allegations they made
in their class action complaint ("the Complaint"), and the Court
will, therefore, deny the Motion.
Background
The Complaint alleges a Racketeer Influenced and Corrupt
Organizations Act (RICO) conspiracy in which one subset of the
Defendants provided funding to the second subset of the Defendants,
affiliated with the Big Valley Band of Pomo Indians, so that the
second subset could provide consumer loans at rates that exceed
Virginia's state usury laws while remaining immune from recourse
(due to tribal sovereign immunity) as part of a so-called
rent-a-tribe scheme.
The Complaint named the following Defendants:
(1) Princeton Alternative Funding, LLC; Princeton Alternative
Income Fund, L.P.; Philip Burgess; Alonzo Primus; Walter
Wojciewchowski; MicroBilt Financial Services Corp.; and
LJP Consulting, LLC (the non-Tribal Defendants); and
(2) Philip Gomez, Michael Gomez, Chris McCloud, Vivian
McCloud, and John Does 1-15 (the Tribal Defendants)
The Complaint was filed on Oct. 21, 2020. On Nov. 11, 2020, the
Defendants' attorneys sent the Plaintiffs' counsel a safe harbor
letter, which warned that the Complaint's allegations about the
non-Tribal Defendants were unfounded and that failure to retract
them would result in the Defendants' moving for sanctions. The safe
harbor letter also took issue with the fact that the Plaintiffs'
counsel, who are also counsel for the Plaintiffs in Williams v.
MicroBilt, had attached the Complaint in this case to a filing in
the Williams case. The Complaint was used in Williams to illustrate
the Plaintiffs' claim that Philip Burgess (a defendant in both
cases) has voluminous business dealings in Virginia and is,
therefore, amenable to specific personal jurisdiction in Virginia
for purposes of the Williams litigation.
The Defendants' safe harbor letter requested that in addition to
withdrawing the Class Complaint, the Plaintiffs' counsel further
notify the Court that the purpose for which the Plaintiffs' counsel
utilized the Class Complaint in Williams is no longer valid and
that the Court should not consider the Class Complaint for the
jurisdictional purposes for which it was attached as an exhibit.
In response to the Defendants' letter, the Plaintiffs' attorneys
submitted a notice of voluntary dismissal, in which they dismissed
the non-Tribal Defendants from this case. They retained their
claims against the Tribal Defendants in their amended Class Action
Complaint. The dismissal notice was filed on Dec. 1, 2020 -- 20
days after the Plaintiffs' counsel had been sent the safe harbor
letter and, thus, within the time allowed by Rule 11's safe harbor
provision.
The dismissal notice withdrew the allegations in the Complaint that
the Defendants had alleged to be sanctionable. But the dismissal
notice also included the following statement: Although the
Plaintiffs believe there is a reasonable basis to allege that the
Defendants are part of a single conspiracy, the Plaintiffs are
dismissing this case until more information is obtained from the
tribal officials regarding the operations of their businesses.
Appended to that sentence was the following footnote: Defendant
Burgess has sued on a personal basis the attorneys representing the
consumers in this matter and others, including a recent attempt to
amend a complaint in a pending action with respect to counsel's
representation in this case. While it is possible that the present
action could have preceded against him as is, that distraction can
await a later day.
The Plaintiffs' attorneys took no action in Williams with respect
to what had been requested in the safe harbor letter.
On Dec. 8, 2020, a week after the Plaintiffs' notice of dismissal
of the claims against the non-Tribal Defendants, the Defendants
filed the motion for sanctions, claiming both the dismissal notice
and the Plaintiffs' attorneys' inaction in Williams to be
sanctionable under Rule 11.
Analysis
a. Predicate Requirement for Sanctions
Rule 11 requires not only that an argument or factual claim be
unfounded but also that it be submitted to the Court on an
inadequate basis, with the submitting attorney's not having
satisfied obligations to perform due diligence.
Judge Payne notes that the Defendants provide extensive argument
that the allegations as to the non-Tribal Defendants were unfounded
ab initio. Were the Court to find that either the dismissal notice
or the Williams filing fall within the scope of potentially
sanctionable conduct, it would then be necessary to determine
whether the Plaintiffs' attorneys had a reasonable basis for making
the claims in question.
But because neither filing is even in-principle sanctionable under
Rule 11's "later advocating" provision, the Court need not reach
the question regarding the evidentiary basis on which the
Plaintiffs made their filing. Accordingly, the Court sets aside
whether the Plaintiffs' attorneys had an adequate basis on which to
make their allegations.
b. The Dismissal Notice
The Defendants argue that the dismissal notice constitutes an
attempt by the Plaintiffs' counsel "to achieve the idiomatic
proverb of having their cake and eating it too." The Plaintiffs'
attorneys do this, according to the Defendants, by admitting that
they lacked evidence to support the Complaint while simultaneously
continuing to actively advocate in the Dismissal Filing for their
unsupportable factual positions.
The Defendants' argument depends on a specific construal of what
the term "later advocating" means, Judge Payne states. However, the
Defendants do not provide a clear argument as to the meaning of the
term. Instead, they cite to a variety of sources that state what is
already clear from the plain text of Rule 11, viz. that "later
advocating" (whatever that might be) unfounded claims is not
permitted.
The Plaintiffs' attorneys do not deny the proposition that later
advocating such claims is prohibited; they deny that the filing in
question constitutes later advocating. And the Defendants'
attorneys' arguments do not succeed in establishing that the
Plaintiffs' attorneys have engaged in impermissible "later
advocating" of unfounded claims because they do not properly
attempt to do so, instead in each brief moving directly to the
conclusory claim that the Plaintiffs' filings, because they are
assumed to be an instance of "later advocating," warrant sanctions,
Judge Payne opines.
The Defendants' briefing eventually makes clear that they consider
the dismissal filing to be the core of their sanctions claim
because it "wrongfully telegraphed" to the Court and to the public
that despite the withdrawal of the Complaint, there was
nevertheless purported evidence of RICO-type activity by Mr.
Burgess in Virginia.
Whether the grudging "parting shot," as the Defendants describe the
filing, is exemplary behavior is a wholly separate question from
whether it is sanctionable under Rule 11, Judge Payne says, among
other things. And there is no basis in the text of Rule 11, the
committee notes, or any of the very scant authorities cited by the
Defendants to justify the application of sanctions for the
dismissal filing. Their position runs contrary to the text and
purpose of Rule 11 as well as all identifiably relevant case law.
c. The Williams Filing
The arguments regarding the Williams filing are dealt with quite
straightforwardly. The Court will not impose sanctions because the
Court lacks authority to do so. Rule 11 governs written submissions
and later advocacy of those submissions in a particular case; it
gives a Court no authority to sanction conduct in any other cases
or any form of conduct not explicitly specified in the text of Rule
11.
The argument as to why the Plaintiffs' attorneys conduct in
Williams should be sanctioned fails for a second reason: the
Advisory Committee makes clear that Rule 11 does not, as a general
matter, require the retraction of contentions that are later shown
to be ungrounded, Judge Payne notes.
These points are jointly dispositive of the issue: The Plaintiffs'
attorneys did not, as the Defendants argue, have a duty to withdraw
their filing; and even if they did, an act or failure to act with
regard to a different case is not sanctionable in this case, Judge
Payne holds.
Conclusion
For the reasons set forth, the Defendants' Motion for Sanctions
Against Plaintiffs' Counsel Pursuant to Federal Rule of Civil
Procedure 11(b)(1-3) will be denied.
It is so ordered.
A full-text copy of the Court's Memorandum Opinion dated June 9,
2022, is available at https://tinyurl.com/2s3j5ue5 from
Leagle.com.
RED MANGO: Dawkins Files ADA Suit in E.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Red Mango, LLC. The
case is styled as Elbert Dawkins, on behalf of himself and all
others similarly situated v. Red Mango, LLC, Case No. 1:22-cv-03484
(E.D.N.Y., June 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Red Mango -- http://www.redmangousa.com/-- is an American frozen
yogurt and smoothie brand known for its all-natural frozen yogurt,
fresh fruit smoothies, yogurt parfaits, and fresh juices.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
RESERVATION AFFILIATES: Davis Files ADA Suit in S.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Reservation
Affiliates, LLC. The case is styled as Kevin Davis, individually
and on behalf of all others similarly situated v. Reservation
Affiliates, LLC, Case No. 1:22-cv-04927 (S.D.N.Y., June 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Reservation Affiliates provides technology and marketing resources
to independent car rental companies.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
RESURGENT CAPITAL: Stanger Files FDCPA Suit in N.D. Illinois
------------------------------------------------------------
A class action lawsuit has been filed against Resurgent Capital
Services L.P. The case is styled as Mark Stanger, individually and
on behalf of all others similarly situated v. Resurgent Capital
Services L.P., Case No. 1:22-cv-03112 (N.D. Ill., June 14, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Resurgent Capital Services -- https://www.resurgent.com/ -- is a
manager and servicer of domestic and international consumer debt
portfolios for credit grantors and debt buyers.[BN]
The Plaintiff is represented by:
Yaakov Saks, Esq.
STEIN SAKS, PLLC
One University Plaza, Suite 620
Hackensack, NJ 07601-2726
Phone: (201) 282-6500
Email: ysaks@steinsakslegal.com
SPRING EQ LLC: Montanari Suit Removed to S.D. Florida
-----------------------------------------------------
The case styled as Laura Montanari, individually and on behalf of
all others similarly situated v. Spring EQ, LLC, Case No.
22-008568-CA-01 was removed from the 11th Judicial Circuit In and
For Miami-Dade County, to the U.S. District Court for the Southern
District of Florida on June 14, 2022.
The District Court Clerk assigned Case No. 1:22-cv-21813-DPG to the
proceeding.
The nature of suit is stated as Consumer Credit.
Spring EQ -- https://mortgage.springeq.com/ -- is the fast, easy,
simple mortgage lender..[BN]
The Plaintiff is represented by:
Andrew John Shamis, Esq.
Garrett O. Berg, Esq.
SHAMIS & GENTILE P.A.
14 N.E. 1st Ave., Ste. 1205
Miami, FL 33132
Phone: (305) 479-2299
Fax: (786) 623-0915
Email: ashamis@sflinjuryattorneys.com
gberg@shamisgentile.com
- and -
Manuel Santiago Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Blvd. Ste 1400
Fort Lauderdale, FL 33394
Phone: (954) 400-4713
Email: mhiraldo@hiraldolaw.com
- and -
Scott Adam Edelsberg, Esq.
EDELSBERG LAW PA
20900 NE 30th Ave.
Aventura, FL 33180
Phone: (305) 975-3320
Email: scott@edelsberglaw.com
The Defendant is represented by:
Aaron Stenzler Weiss, Esq.
CARLTON FIELDS, P.A.
700 NW 1st Avenue, Suite 1200
Miami, FL 33136
Phone: (305) 530-0050
Fax: (305) 530-0055
Email: aweiss@carltonfields.com
SWIFT TRANSPORTATION: Mares Appeals Judgment in Saucillo Labor Suit
-------------------------------------------------------------------
Objector Sadashiv Mares filed an appeal from a court judgment
entered in the lawsuit styled GILBERT SAUCILLO and JAMES R.
RUDSELL, on behalf of themselves and all others similarly situated,
Plaintiff-Appellees; JOHN BURNELL and JACK POLLOCK, Plaintiffs;
LAWRENCE PECK, Objector-Appellant v. SWIFT TRANSPORTATION COMPANY
OF ARIZONA, LLC, an Arizona corporation, Defendant-Appellee; and
SWIFT TRANSPORTATION COMPANY INCORPORATED and DOES, Defendants,
Case No. 5:10-cv-00809-VAP-OP, in the U.S. District Court for the
Central District of California (Riverside).
In February 2010, Burnell filed a class action against Swift in
California state court alleging various wage and hour violations
pursuant to California law. In June 2010, Swift removed the case to
federal court. Burnell then amended the complaint in October 2010,
adding Pollock as a named plaintiff. The amended complaint asserted
both an independent cause of action pursuant to Section 2802 of the
California Labor Code and a Private Attorneys General Act (PAGA)
cause of action. Pollock subsequently withdrew as a named
plaintiff, and Burnell then filed another amended complaint, this
time adding Saucillo as a named plaintiff. In 2016, the district
court denied a motion by Burnell and Saucillo for class
certification.
Upon the instruction of the district court, the Plaintiffs filed a
new, consolidated complaint in June 2019. In the consolidated
complaint, the Plaintiffs alleged that Swift violated Section 2802.
They also asserted a PAGA cause of action that "incorporated each
and every one of the allegations contained in the preceding
paragraphs of the consolidated Complaint." Subsequently, the
parties reached an agreement and submitted a copy of the settlement
agreement to the California Labor and Workforce Development Agency
(LWDA), in accordance with PAGA. The LWDA did not object to the
settlement.
Lawrence Peck and Sadashiv Mares, two Swift drivers, objected to
the proposed settlement. Both Peck and Mares had filed their own
suits against Swift. Peck filed a PAGA complaint in California
state court, while Mares filed a class action. Peck objected to the
PAGA portion of the settlement, while Mares argued that the
monetary award for the class claims was not fair and reasonable.
Despite these objections, the district court granted in January
2020, final approval to the settlement agreement and overruled both
sets of objections. It granted final approval to the settlement
agreement for both the class claims and the PAGA claim, though the
court reduced the attorneys' fees.
On April 28, 2022, Judge Virginia A. Phillips issued judgment in
favor of Defendants Swift Transportation Company of Arizona, LLC
and Swift Transportation Company. Plaintiffs and the certified
class, except those members who timely and validly requested
exclusion, will take nothing from Defendants except in accordance
with the approved settlement and the Court's April 28, 2022,
order.
Objector Mares seeks a review of the judgment entered by Judge
Phillips.
The appellate case is captioned as Sadashiv Mares v. Swift
Transportation Company of Arizona, LLC, et al., Case No. 22-55560,
in the United States Court of Appeals for the Ninth Circuit, filed
on June 6, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant Sadashiv Mares Mediation Questionnaire was due on
June 13, 2022;
-- Transcript shall be ordered by June 30, 2022;
-- Transcript is due on July 28, 2022;
-- Appellant Sadashiv Mares opening brief is due on September 8,
2022;
-- Appellees James R. Rudsell, Gilbert Saucillo and Swift
Transportation Company of Arizona, LLC answering brief is due on
October 11, 2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Objector-Appellant SADASHIV MARES is represented by:
Joseph Clapp, Esq.
Hallie Von Rock, Esq.
AIMAN-SMITH & MARCY
7677 Oakport Street, Suite 1150
Oakland, CA 94621
Telephone: (510) 817-2665
Plaintiffs-Appellees GILBERT SAUCILLO and JAMES R. RUDSELL, on
behalf of themselves and all others similarly situated, are
represented by:
Deepak Gupta, Esq.
GUPTA WESSLER, PLLC
2001 K Street, NW, Suite 850 N
Washington, DC 20006
Telephone: (202) 888-1741
- and -
James R. Hawkins, Esq.
Gregory Mauro, Esq.
JAMES HAWKINS APLC
9880 Research Drive
Irvine, CA 92618
Telephone: (949) 387-7200
- and -
Stanley D. Saltzman, Esq.
MARLIN & SALTZMAN, LLP
29800 Agoura Road
Agoura Hills, CA 91301
Defendant-Appellee SWIFT TRANSPORTATION COMPANY OF ARIZONA, LLC, an
Arizona corporation is represented by:
Paul Scott Cowie, Esq.
John Ellis, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON, LLP
4 Embarcadero Center, 17th Floor
San Francisco, CA 94111-4106
Telephone: (415) 774-3182
- and -
Robert Mussig, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON, LLP
333 S Hope Street, 43rd Floor
Los Angeles, CA 90071-1448
Telephone: (213) 620-1780
TELADOC HEALTH: Faces Schneider Suit Over Share Price Drop
----------------------------------------------------------
JEREMY SCHNEIDER, individually and on behalf of all others
similarly situated, Plaintiff v. TELADOC HEALTH, INC., JASON
GOREVIC, and MALA MURTHY, Defendants, Case No. 1:22-cv-04687
(S.D.N.Y., June 6, 2022) is a federal securities class action
brought by the Plaintiff, on behalf of a class consisting of all
persons and entities other than Defendants that purchased or
otherwise acquired Teladoc securities between October 28, 2021 and
April 27, 2022, both dates inclusive, seeking to recover damages
caused by Defendants' violations of the federal securities laws and
to pursue remedies under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, against
the Company and certain of its top officials.
Teladoc provides virtual healthcare services in the U.S. and
internationally through Business-to-Business (“B2B”) and
Direct-to-Consumer distribution channels. The Company offers its
customers various virtual products and services addressing, among
other medical issues, mental health through its BetterHelp D2C
product, and chronic conditions.
According to the complaint, throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operations, and prospects. Specifically,
Defendants made false and/or misleading statements and/or failed to
disclose that: (i) increased competition, among other factors, was
negatively impacting Teladoc's BetterHelp and chronic care
businesses; (ii) accordingly, the growth of those businesses was
less sustainable than Defendants had led investors to believe;
(iii) as a result, Teladoc's revenue and adjusted EBITDA
projections for FY 2022 were unrealistic; (iv) Teladoc would be
forced to recognize a significant non-cash goodwill impairment
charge; and (v) the Company's public statements were materially
false and misleading at all relevant times, says the suit.
On this news, Teladoc's stock price fell $22.48 per share, or
40.15%, to close at $33.51 per share on April 28, 2022, the suit
asserts.
As a result of Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the Company's
securities, Plaintiff and other Class members have suffered
significant losses and damages, added the suit.[BN]
The Plaintiff is represented by:
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
James M. LoPiano, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
E-mail: jalieberman@pomlaw.com
ahood@pomlaw.com
jlopiano@pomlaw.com
TRANSFORM SEARS: Hickey Files Suit in Cal. Super. Ct.
-----------------------------------------------------
A class action lawsuit has been filed against Transform Sears Home
Services, LLC, et al. The case is styled as Kevin Hickey, on behalf
of himself and all others similarly situated v. Transform Sears
Home Services, LLC, Does 1-10, Case No. 34-2022-00321759-CU-OE-GDS
(Cal. Super. Ct., Sacramento Cty., June 14, 2022).
The case type is stated as "Other Employment - Civil Unlimited."
Transform Sears Home Services -- https://www.searshomeservices.com/
-- providing services and products for your home from home
improvements such as kitchen and bath remodeling, HVAC and more to
product repair, parts and replacement and protection services.[BN]
The Plaintiff is represented by:
David R. Markham, Esq.
THE MARKHAM LAW FIRM
888 Prospect St, Ste 200
La Jolla, CA 92037-4261
Phone: 619-399-3995
Fax: 619-615-2067
Email: dmarkham@markham-law.com
- and -
Walter Haines, Esq.
UNITED EMPLOYEES LAW GROUP
5500 Bolsa Ave, Ste 203
Huntington Beach, CA 92649-1102
Phone: 562-256-1047
Fax: 562-256-1006
Email: Email: whaines@uelglaw.com
VACATIONRENTER LLC: Quezada Files ADA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against VacationRenter LLC.
The case is styled as Jose Quezada, individually and on behalf of
all others similarly situated v. VacationRenter LLC, Case No.
1:22-cv-04930 (S.D.N.Y., June 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
VacationRenter -- https://www.vacationrenter.com/ -- provides
rental options from the top sites, all in one place.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
VIRGINIA: 4th Cir. Affirms Denial of Bid to Dismiss Thorpe v. VDOC
------------------------------------------------------------------
In the case, WILLIAM THORPE; FREDERICK HAMMER; DMITRY KHAVKIN;
GERALD McNABB; GARY WALL; VERNON BROOKS; BRIAN CAVITT; DEREK
CORNELISON; CHRISTOPHER COTTRELL; PETER MUKURIA; STEVEN RIDDICK;
KEVIN SNODGRASS, Plaintiffs-Appellees v. HAROLD CLARKE; RANDALL C.
MATHENA; H. SCOTT RICHESON; A. DAVID ROBINSON; HENRY J. PONTON;
MARCUS ELAM; DENISE MALONE; DR. STEVE HERRICK; TORI RAIFORD;
JEFFREY KISER; CARL MANIS, Defendants-Appellants, and VIRGINIA
DEPARTMENT OF CORRECTIONS, Defendant. PROFESSORS AND PRACTITIONERS
OF PSYCHIATRY AND PSYCHOLOGY; FORMER CORRECTIONS EXECUTIVES;
RODERICK AND SOLANGE MACARTHUR JUSTICE CENTER Amici Supporting
Appellant, Case No. 21-1714 (4th Cir.), the U.S. Court of Appeals
for the Fourth Circuit affirms the district court's denial of the
Defendants' motion to dismiss.
I. Introduction
In this putative class action, the Plaintiffs allege that as
prisoners at two of Virginia's supermax facilities, they have
suffered severe isolation in violation of the U.S. Constitution.
Supermaxes are maximum-security prisons designed to segregate the
most dangerous prisoners from the general prison population. Their
use has increased in recent decades, in part as a response to the
rise in prison gangs and violence. And conditions in these prisons
have long been recognized as "synonymous with extreme isolation."
They deprive prisoners of nearly all environmental and sensory
stimuli and of nearly all human contact for 22-24 hours a day.
The Plaintiffs acknowledge that isolation has a place in today's
prisons. But they object the Virginia Department of Corrections
(VDOC) has not used its supermax facilities for any legitimate
penological purposes. Instead, they claim, Virginia and its
officers have warehoused prisoners in solitary, without any
meaningful path back to general population, to justify the
profligate costs of building and running those institutions. They
now bring this action against VDOC and several of its officials for
violating their Eighth Amendment right to be free from cruel and
unusual punishment and their Fourteenth Amendment right to receive
sufficient process.
In response, the Defendants focus on qualified immunity. Even if
they committed the violations, the Defendants posit, case law that
existed in 2012, when their latest solitary-confinement program
went into effect, simply did not put them on notice that either the
conditions themselves or the procedures used to decide who belongs
in them violated the Constitution. The problem for the Defendants,
however, is that they invoke qualified immunity at the motion to
dismiss, before any of the evidence is in. And on the facts the
Plaintiffs have pleaded, the Defendants cannot succeed: On the
Eighth Amendment charge, the Plaintiffs have adequately alleged --
even by the Defendants' own measure -- that Defendants knew the
harms long-term solitary confinement causes and disregarded them.
But qualified immunity does not protect knowing violations of the
law. As to the Fourteenth, the Plaintiffs suggest the Defendants
violated even the most foundational due process guarantees: notice
and an opportunity to respond. The Defendants cannot meaningfully
argue they did not know due process requires at least that much.
The Defendants' contentions boil down to disagreements over the
facts: What they knew and when, and what procedures they offered in
practice. But at this stage, the Fourth Circuit takes the
Plaintiffs' allegations as true.
II. Background
The Plaintiffs are prisoners living in long-term solitary
confinement—some as long as 24 years -- in Red Onion and Wallens
Ridge State Prisons VDOC operates. They bring the action for
declarative and injunctive relief as well as damages against VDOC
and several corrections officers who created and administered their
segregation program. Plaintiffs also seek to represent a class of
similarly situated prisoners. But this appeal comes to the Fourth
Circuit at an early stage: the district court's denial of the
Defendants' motion to dismiss.
All the Plaintiffs were originally sentenced to confinement in
general population but were at some point assigned to either Red
Onion or Wallens Ridge. VDOC built these supermaxes in the 1990s,
six years after publishing a report that faulted a previous
solitary facility, Mecklenburg, for using its confinement program
to fill empty beds for economic, not penological purposes. The
Plaintiffs allege that Red Onion and Wallens Ridge have followed
the same practices and for the same reasons. They point to several
investigations and reports conducted by legislators and the U.S.
Department of Justice that allegedly pressured VDOC in 2012 to
introduce the Step-Down program to help progress prisoners to lower
security levels through a system of incentives and periodic
reviews. But even that program, the Plaintiffs now maintain, runs
roughshod over basic constitutional guardrails.
Step Down offers two pathways, Special Management (SM) and
Intensive Management (IM). Both move prisoners through levels 0, 1,
and 2 to a level called SL-6, whereupon VDOC maintains prisoners
receive more freedoms, but Plaintiffs allege solitary confinement
remains severe. The principal difference between IM and SM is that
SM prisoners may one day be transferred to general population,
provided they have no disciplinary infractions at SL-6, but IM
prisoners may not -- unless VDOC first reclassifies them as SM.
The Plaintiffs allege concerning confinement conditions. They claim
to spend 22-24 hours each day in cells smaller than a parking
space. Steel doors, lined with solid strips, halt communication
with others, and opaque windows obscure not just the outside but
even the inside of the prison; bright lights stay on all day and
night. They also claim to experience only perfunctory interactions
with mental-health professionals and that VDOC's answer to threats
of self-harm is to strip prisoners naked, strap them to a gurney,
and feed them a liquid diet until they change their minds.
As for out-of-cell time, the Plaintiffs allege they receive just
one hour of non-contact visitation per week, a shower three times a
week, and one hour of exercise a day in a small cage -- but they
must agree to a cavity search each time they wish to leave their
cells. VDOC then denies them all productive activities, save for
the Challenge Series workbooks that are supposed to aid prisoners'
progress through Step Down. Adding to all that, the Plaintiffs
claim, they cannot earn any good-time credits (or earn them at a
much-reduced rate) and cannot receive parole. Plaintiffs allege
severe mental-health problems as a result, including psychosis,
hallucinations, suicidal acts, and permanent neurological damage.
The Plaintiffs also allege deficiencies in their status reviews.
For both SM and IM designees, mill-run staff initially assess
prisoners' progress. Supervised by a Unit Manager and a Building
Management Committee (BMC), which often consists solely of the same
Unit Manager, the staff fill out weekly Status Rating Charts. A
negative review on the charts often means prisoners have to restart
at level 0. Yet prisoners do not receive a hearing, do not have
access to the charts, and cannot appeal any re-start decisions.
VDOC provides two other, "formal" reviews.
The Institutional Classification Authority (ICA) conducts one,
every 90 days. But the ICA, according to the Plaintiffs, does not
review prisoners' "internal" progress through the program, only
their "external" assignment to the supermax facilities. And it
holds hearings that last only minutes and result in pre-filled,
rote explanations such as "Remain Segregation." The External Review
Team (ERT) conducts another review, but only for IM prisoners. Even
then, the ERT provides no written decisions and reviews solely the
original directive to place prisoners in IM.
On top of this, the Plaintiffs challenge the metrics corrections
officers use to assess their progress through Step Down. They
insist that individual officers have, by policy, unfettered
discretion to retain, regress, or even restart prisoners in Step
Down for reasons unrelated to any security concerns. Altogether,
they argue officials designed Step Down to stock enough prisoners
in Red Onion and Wallens Ridge to justify the cost of constructing
those impressive facilities -- exactly what VDOC said it would not
do after Mecklenburg.
Believing their confinement conditions violate the Eighth Amendment
and Step Down's review process violates the Fourteenth, the
Plaintiffs filed suit. They sought declarative and injunctive
relief, including the abolition of Step Down and the end to
longterm solitary confinement in such restrictive conditions. They
also asked for compensatory damages, including for emotional pain
and suffering. As the Defendants, the Plaintiffs named VDOC along
with eleven of its officials who created, administered, or
implemented Step Down, including the Director of VDOC, the wardens
of the two supermax facilities, several members of the ERT, and
several persons responsible for providing mental-health services.
The Defendants moved to dismiss for failure to state a claim and on
grounds of qualified immunity. The district court declined. On
qualified immunity, it reasoned that "when this suit was filed in
May 2019, caselaw had clearly established that the Eighth Amendment
prohibited prison officials from depriving inmates of 'the basic
human need for meaningful social interaction' without a legitimate
penological interest," citing Thorpe v. Va. Dep't of Corr., No.
2:20CV00007, 2021 WL 2435868, at *8 (W.D. Va. June 15, 2021)
(citing Porter v. Clarke, 923 F.3d 348, 368 (4th Cir. 2019)). And
that, beyond caselaw, the risk of prolonged detention in these
conditions was obvious from the "extensive scholarly literature
describing and quantifying the adverse mental health effects of
prolonged solitary confinement that has emerged in recent years."
The court also found that the Plaintiffs have sufficiently alleged
Defendants denied them "meaningful" review required by clearly
established due process principles.
The Defendants now appeal the court's qualified-immunity rulings as
to both claims.
III. Discussion
The Eighth Amendment inquiry proceeds in two parts: whether
confinement conditions inflict harm that is, "objectively,
sufficiently serious" to deprive prisoners of "the minimal
civilized measure of life's necessities" and whether officers
subjectively acted with "deliberate indifference to inmate health
or safety" because they knew of but disregarded the inhumane
treatment.
The Defendants agree the Plaintiffs have adequately pleaded both
those prongs to survive a motion to dismiss but urge the district
court was wrong to deny them qualified immunity. Qualified
immunity, too, has two prongs: Courts must decide whether a
constitutional right was violated on the facts alleged and whether
"the unconstitutionality of the officers' conduct was clearly
established." The Defendants, having already accepted that the
Plaintiffs satisfactorily pleaded an Eighth Amendment violation,
direct their arguments towards the second. Our case law, they
insist, did not clearly establish until the 2019 Porter decision
that solitary confinement in itself can cause severe enough harm to
implicate the Eighth Amendment.
The Fourth Circuit opines that the Defendants rightly observe that
the Fourth Circuit assesses clearly established law at the time the
wrong is committed, and in that way, Porter could not strip them of
immunity for acts committed before 2019. But they misapprehend the
nature of the Eighth Amendment inquiry and with it, Porter's
import. Eighth Amendment liability comes into play only where a
corrections officer appreciates the harm confinement conditions
impose yet chooses to disregard it -- but qualified immunity does
"not allow the official who actually knows that he was violating
the law to escape liability for his actions." Because the
Plaintiffs have adequately pleaded the Defendants' deliberate
indifference, the district court correctly denied qualified
immunity at the motion-to-dismiss stage. And Porter only buttresses
that holding as it helps illustrate that the harm to Plaintiffs was
"obvious" -- to explain, that is, why the Plaintiffs have
"plausibly alleged" just such indifference.
IV. Conclusion
For the foregoing reasons, the Fourth Circuit affirms the district
court's judgment.
A full-text copy of the Court's June 14, 2022 Opinion is available
at https://tinyurl.com/mr3w6mmf from Leagle.com.
ARGUED: Margaret Hoehl O'Shea-- moshea@oag.state.va.us -- OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, in Richmond, Virginia, for the
Appellants.
Vishal Mahendra Agraharkar -- vagraharkar@acluva.org --AMERICAN
CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, Richmond, Virginia;
Andrei Alexander Popovici, WHITE & CASE LLP, in Washington, D.C.,
for the Appellees.
ON BRIEF: Mark R. Herring, Attorney General, K. Scott Miles, Deputy
Attorney General, Michelle S. Kallen, Acting Solicitor General,
Brittany M. Jones, Deputy Solicitor General, Laura H. Cahill --
lcahill@oag.state.va.us -- Assistant Attorney General, Rohiniyurie
Tashima, John Marshall Fellow, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, in Richmond, Virginia, for the Appellants.
Tara Lee -- tara.lee@whitecase.com -- Daniel Levin --
dlevin@whitecase.com -- Kristen J. McAhren, Timothy L. Wilson Jr.,
Nathan Swire -- nathan.swire@whitecase.com -- WHITE & CASE LLP,
Washington, D.C.; Eden Heilman -- eheilman@acluva.org -- AMERICAN
CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, in Richmond,
Virginia, for the Appellees.
Jacob Frasch -- jacob.frasch@dlapiper.com -- Washington, D.C.,
Robert P. Sherman -- rob.sherman@dlapiper.com -- Boston,
Massachusetts, Andrew P. Valentine -- andrew.valentine@dlapiper.com
-- DLA PIPER LLP (US), East Palo Alto, California, for Amici
Professors and Practitioners of Psychiatry and Psychology. Laura
Rovner, Molly O'Hara, Student Attorney, Kevin M. Whitfield, Student
Attorney, Jamie Ray, Student Attorney, Student Law Office, Civil
Rights Clinic, UNIVERSITY OF DENVER STURM COLLEGE OF LAW, Denver,
Colorado, for Amici Former Corrections Executives. Rosalind Dillon,
RODERICK & SOLANGE MACARTHUR JUSTICE CENTER, Chicago, Illinois;
Daniel M. Greenfield, Roderick & Solange MacArthur Justice Center,
NORTHWESTERN PRITZKER SCHOOL OF LAW, in Chicago, Illinois, for
Amicus The Roderick and Solange MacArthur Justice Center.
WAYNE COUNTY, MI: Bids for Reconsideration in Ingram Suit Denied
----------------------------------------------------------------
Judge George Caram Steeh of the U.S. District Court for the Eastern
District of Michigan, Southern Division, denies the Defendant's
motions for reconsideration in the lawsuit entitled MELISA INGRAM,
STEPHANIE WILSON, and ROBERT REEVES, Plaintiffs v. COUNTY OF WAYNE,
Defendant, Case No. 20-CV-10288 (E.D. Mich.).
In this putative class action civil rights case, Plaintiffs Melisa
Ingram, Stephanie Wilson and Robert Reeves challenge Defendant
Wayne County's vehicle seizure and civil forfeiture policy and
practices. The matter is before the Court on the Defendant's
motions for reconsideration of portions of the Court's order
granting in part and denying in part the Defendant's motions to
abstain, stay, dismiss and for summary judgment.
Facts
Once in November 2018, and again in June 2019, deputies from the
Wayne County Sheriff's Office seized Melisa Ingram's 2017 Ford
Fusion pursuant to Michigan's Nuisance Abatement Act. Each seizure
resulted from allegations that Ingram's then-boyfriend was using
the vehicle in connection with prostitute-related activities.
Ingram was not present for either seizure. On both occasions,
Ingram's boyfriend was given a Notice of Seizure, which he gave to
Ingram. Ingram claims she was not mailed a notice of either
seizure.
On two separate occasions, deputies from the Wayne County Sheriff's
Office seized vehicles owned by Stephanie Wilson pursuant to
Michigan's Controlled Substances Forfeiture Act. The Act authorizes
the forfeiture of property involved in the sale or transportation
of narcotics or the facilitation of a violation of state drug laws.
Both seizures occurred while Wilson was giving a ride to the father
of her child, who has a drug addiction. No drugs, guns or cash were
found on either occasion and no arrests were made.
In July 2019, a Michigan State Police (MSP) Task Force invoked
Michigan's Omnibus Forfeiture Act ("OFA") and seized Robert Reeves'
vehicle and other personal property in connection with a criminal
investigation. Police claimed a piece of equipment Reeves operated
at a construction site had been stolen from Home Depot. Reeves was
detained for several hours and then released. The seizure notice
Reeves received stated "a civil forfeiture matter may follow the
criminal proceeding which will require further process of which you
will be notified." No forfeiture action was filed against Reeves'
property.
Procedural Posture
On Oct. 14, 2021, the Court entered an order granting in part and
denying in part the Defendant's motions to abstain, stay, dismiss
and for summary judgment. The Defendant filed motions seeking
reconsideration of many of the Court's rulings. On Feb. 16, 2022,
the case was reassigned to Judge Steeh due to the death of the Hon.
Arthur J. Tarnow.
A. Melisa Ingram
The parties stipulated to dismissal of the Defendant's nuisance
abatement case with prejudice, as it related to the June 2019
seizure of Ingram's vehicle. This was a final judgment on the
merits for purposes of res judicata such that Ingram is barred from
further challenging the 2019 seizure.
However, the settlement agreement entered by the parties regarding
the 2018 seizure did not result in a waiver of Ingram's right to
challenge the constitutionality of the seizure in the Court. As to
the 2018 seizure, Ingram stated a claim in Count I for a Fourth
Amendment violation, Count IV for violation of the Fourteenth
Amendment due to lack of a prompt post-seizure hearing, and Count V
for violation of the Fourteenth Amendment due to arbitrary and
irrational fines and fees.
B. Stephanie Wilson
The Court abstained to the pending state court case involving
Wilson's June 2019 seizure. However, the Court held that all claims
regarding Wilson's voluntary abandonment of her vehicle seizure in
January 2019 may proceed because there is no pending state court
proceeding to trigger abstention.
C. Robert Reeves
The Court concluded that Reeves sufficiently alleged a Fourteenth
Amendment Due Process cause of action based on the County's failure
to provide a prompt post-seizure hearing.
Analysis
I. Melisa Ingram
The Defendant maintains that the Court's finding that Ingram has
established standing to pursue her claims for prospective
declaratory or injunctive relief conflicts with Supreme Court and
Sixth Circuit precedent. The Defendant contends that the likelihood
of Ingram's vehicle being seized today or in the future is the same
as for all drivers and is purely speculative.
Judge Steeh finds that Ingram's allegations support the conclusion
that she cannot avoid injury by following the law. The fact that
Ingram is no longer in a relationship with her ex-boyfriend does
not preclude her from having standing to bring her claims,
particularly where she alleges systemic vehicle forfeiture
practices by the Defendant and two out of three Plaintiffs have had
vehicles seized and retained twice.
The Defendant's argument that Ingram lacks standing is denied. The
Court also considered the Defendant's argument and concluded that
Ingram alleges a Fourth Amendment claim. The Court read the
settlement agreement waiver to preclude action in the state case
regarding the vehicle but did not find any language preventing
Ingram from challenging the seizure in federal court.
The Defendant's motion for reconsideration, which largely repeats
arguments previously made and considered by the Court, is denied.
The Court considered Ingram's claim that the Defendant's custom of
delaying forfeiture proceedings and requiring a claimant's
appearance at multiple pre-trial conferences before they have an
opportunity to challenge their car's detention in front of a
judicial officer violates the Due Process Clause of the Fourteenth
Amendment. The Court concluded that the Sixth Circuit has not
directly addressed the issue, but "recently left an open door for
recognition of this right" (referring to Nichols v. Wayne County,
822 F. App'x 445, 446047 (6th Cir. 2020)).
The Court also concluded that Ingram states a Fourteenth Amendment
substantive due process claim based on the County's policy of
conditioning the release of her seized vehicle on paying fines and
fees unrelated to the government's purposed interest in deterring
and punishing crime. The Defendant makes the same arguments
previously raised and considered. The Defendant's arguments for
reconsideration are denied.
II. Stephanie Wilson
In its motion for reconsideration, the Defendant argues the Court
did not consider its argument that Wilson's decision to not contest
the seizure and forfeiture of the Malibu is considered an
abandonment under Michigan law and a conclusive and final
resolution of any argument that could have been raised in a
potential or pending case.
The Defendant appears to have first raised this issue in the last
paragraph of its reply brief in support of its motion to abstain.
There, the Defendant argued that Wilson failed to cite any
authority that permits her to assert in a collateral federal
proceeding any claim or defense to a seizure and forfeiture that
should have been raised in the state court. The Defendant now
argues that the Court should reconsider the issue and dismiss
Wilson's claims arising from the January 2019 seizure of her
Malibu.
Ms. Wilson is not seeking return of her vehicle. Rather, she is
challenging the constitutionality of the Defendant's vehicle
seizure and forfeiture program and seeks to enjoin such policies.
Even if the state forum would have been an adequate substitute for
the Plaintiff's claims seeking prospective declaratory and
injunctive relief, exhaustion of state administrative remedies is
not a prerequisite to bringing an action under 42 U.S.C. Section
1983.
The Defendant's motion for reconsideration is denied.
III. Robert Reeves
The Defendant argues on reconsideration that the Court erred in its
conclusion that Reeves sufficiently alleged a Fourteenth Amendment
Due Process violation for the County's failure to provide a prompt
post-seizure hearing. Reeves' property was seized under Michigan's
Omnibus Forfeiture Act (OFA). A necessary predicate for obtaining a
state court forfeiture judgment under the OFA is the securing of a
criminal conviction.
In Reeves' case, his car, two cellphones and cash were seized in
July 2019, but criminal charges have been dismissed and there has
not been a criminal conviction. Therefore, no forfeiture
proceedings have been filed against Reeves' property.
The Defendant points out that the OFA itself provides an avenue for
a claimant to seek a hearing to challenge the seizure of their
property. Within 28 days from the filing of a petition, the state
court having jurisdiction over the forfeiture proceeding must hold
a hearing at which the government has to establish it has probable
cause to believe the property is subject to forfeiture and that the
claimant had knowledge that the property was being used in
connection with a crime. If the government fails to sustain its
burden of proof, the court will order the return of the property.
In its motion for reconsideration, the Defendant argues that the
OFA's 28-day and 7-day provisions provide adequate due process in
the case of vehicle seizures. According to the Defendant, these
provisions in the OFA provide notice and an opportunity to be heard
at a meaningful time and in a meaningful manner, as required by the
Due Process Clause. Between them, the 7-day and 28-day hearings
provide an avenue to seek the return of a vehicle during the
pendency of a state court criminal and civil proceeding, and the
option to seek contested state court adjudication of whether there
was adequate probable cause to seize the vehicle.
The petitions for such hearings are to be filed in the court having
jurisdiction over the forfeiture proceeding. However, it is not
clear that the 7-day or 28-day hearings were an available avenue of
relief to Reeves where no forfeiture proceedings have commenced.
Hence, the Defendant's motion for reconsideration is denied.
Order
Judge Steeh rules that the Defendant's motions for reconsideration
are denied.
A full-text copy of the Court's Order dated June 9, 2022, is
available at https://tinyurl.com/5n8xeewx from Leagle.com.
WEAL MANAGEMENT: Hanyzkiewicz Files ADA Suit in E.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Weal Management NY,
LLC. The case is styled as Marta Hanyzkiewicz, on behalf of herself
and all others similarly situated v. Weal Management NY, LLC, Case
No. 1:22-cv-03481-DG-TAM (E.D.N.Y., June 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Wealth Management Group, LLC -- https://www.wealthmg.com/ -- is a
fee-based financial planning firm located in Rochester, New
York.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
Asbestos Litigation
ASBESTOS UPDATE: Graham Corp. Defends Several Exposure Lawsuits
---------------------------------------------------------------
Graham Corporation is a defendant in a number of lawsuits alleging
illnesses from exposure to asbestos or asbestos-containing products
and seeking unspecified compensatory and punitive damages,
according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission.
The Company states, "We cannot predict with certainty the outcome
of these lawsuits or whether we could become subject to any
similar, related or additional lawsuits in the future. In addition,
because some of our products are used in systems that handle toxic
or hazardous substances, any failure or alleged failure of our
products in the future could result in litigation against us. For
example, a claim could be made under various regulations for the
adverse consequences of environmental contamination. Any litigation
brought against us, whether with or without merit, could result in
substantial costs to us as well as divert the attention of our
management, which could have a material adverse effect on our
business and results of operations."
A full-text copy of the Form 10-K is available at
https://bit.ly/3OBkc8d
ASBESTOS UPDATE: Judge May Re-open LTL Management's Talc Cases
--------------------------------------------------------------
Dietrich Knauth of Reuters reports that U.S. Bankruptcy Judge
Michael Kaplan may allow some lawsuits that accuse Johnson &
Johnson talc products of causing cancer to proceed while the
company's subsidiary seeks a national settlement of the claims in
bankruptcy.
U.S. Bankruptcy Judge Michael Kaplan in Trenton, New Jersey said he
would consider "two very different paths forward" for the
bankruptcy at a July 6 hearing. The company wants the bankruptcy
court to estimate the number and value of talc claims, while
plaintiffs in the talc lawsuits have asked the court to allow some
cases to resume outside of the bankruptcy court.
J&J, which maintains that its Baby Powder and other talc products
are safe, assigned its talc liabilities to a new subsidiary, LTL
Management LLC, and placed it in bankruptcy in October, pausing
38,000 lawsuits that had been filed against J&J.
The talc claimants have appealed Kaplan's decision to allow the
bankruptcy case to block their lawsuits, and the two sides remain
far apart in recent mediation.
LTL attorney Greg Gordon of Jones Day said the bankruptcy court
should estimate the overall value of talc claims to impose
"discipline" on settlement talks.
*********
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
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2022. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.
Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000.
*** End of Transmission ***