/raid1/www/Hosts/bankrupt/CAR_Public/230202.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, February 2, 2023, Vol. 25, No. 25
Headlines
AMAZON.COM INC: Bid to Dismiss de Coster Suit Granted in Part
AUDIOPHILE MUSIC: Tuttle Loses Bid for Prelim. Nod of Class Deal
BADCOCKS ECONOMY: Toro Files ADA Suit in S.D. New York
BEAVER COUNTY, PA: Review Bid in Chester v. Prothonotaries Tossed
BEXAR COUNTY, TX: Miller Files Suit in W.D. Texas
BIG PICTURE: Class Certification Order in Williams Suit Affirmed
BLOCK INC: Faces Smith Suit Over Theft of Cash App Account
CAPITAL HEALTH: Sued Over Exposure of Personal Information
CAVE ENTERPRISE: Wis. App. Flips Class Certification in Cowan Suit
COLUMBIA DERMATOLOGY: Caraboolad Files TCPA Suit in N.D. Ohio
CORECIVIC INC: ICE's Bid to Toss Portview Suit OK'd With Prejudice
DAGOSTINO SUPERMARKETS: Hwang Files ADA Suit in E.D. New York
DIAMOND CENTRAL: Ottum Files Suit in E.D. New York
DOLLAR GENERAL: Faces Wolf Suit for Listing False Prices on Shelves
ETHOS GROUP: Harper Files Suit in N.D. Texas
FRANCISCAN VNS: Fails to Pay Overtime Wages, Beal Suit Alleges
FUNKY CHUNKY: Toro Files ADA Suit in S.D. New York
GALAXY OF COMICS: General Pretrial Management Entered in Sookul
INFORMA MEDIA: Case Management Order Entered in Gottsleben Suit
INOVIO PHARMACEUTICALS: McDermid Class Settlement Gets Final Nod
ISLAND PURSUIT: Court Enters Consent Decree in Toro Class Suit
J-M MANUFACTURING: Stipulation to Continue Deadlines OK'd
K.C. CO. LTD: Toro Files ADA Suit in S.D. New York
KIN COLLECTIVE: Hwang Files ADA Suit in E.D. New York
LIGHTOLOGY WEB: Jackson Files ADA Suit in S.D. New York
MATERNAL AND FAMILY: Heiserman Files Suit in E.D. Pennsylvania
METROPOLITAN LIFE: Summary Judgment Hearing Date Extended
MILWAUKEE COUNTY, WI: Bid to Certify Class in Bush v. Dobson Denied
MONTEREY FINANCIAL: Schaired Has Leave to File Amended Complaint
NFL ENTERPRISES: Young Files Suit in S.D. New York
OPTIO SOLUTIONS: Weinberger Files FDCPA Suit in D. New Jersey
ORBIT/FR INC: Merrill's Bid to Dismiss Stockholders Suit Granted
PHILLIP MUMMAH: Li Suit Remanded to Santa Clara County Super. Court
PRINCE GEORGE'S COUNTY, MD: Bids to Dismiss Frazier Granted in Part
PROGRESSIVE DIRECT: Distribution of Certification Notice Sought
REALPAGE INC: Schmidig Sues Over Housing Lease Monopoly
RELIANT PRO: Court Finds Bid to Transfer or Toss Anderson Suit Moot
RESURGENT CAPITAL: Marshall Files FDCPA Suit in M.D. Florida
SEALED AIR: $3.58M in Attys.' Fees & Costs Awarded in UA Local Suit
SEALED AIR: Court Approves Plan of Allocation in UA Local Suit
SEALED AIR: Final Judgment & Order Entered in UA Local Class Suit
ST. ANN, MO: Court Grants Thomas Notice of Class Settlement
TESLA INC: Objection to Discovery Order in Hiatt Suit Denied
TIKTOK INC: Faces G.R. Suit Over Alleged Illegal Wiretapping
TOYOTA MOTOR: Seeks Leave to File Class Cert Sur-Reply Under Seal
TWOMAGNETS INC: Fails to Pay Overtime Wages, West Suit Alleges
VANDERLANDE INDUSTRIES: Sanchez Labor Suit Removed to C.D. Cal.
VISION INVESTMENTS: Toro Files ADA Suit in S.D. New York
WELLS FARGO: Braxton Suit Consolidated into Single Class Action
WELLS FARGO: EBO Consolidated in Discrimination Litigation
WELLS FARGO: Perkins Suit Consolidated into Single Class Suit
WELLS FARGO: Pope Suit Consolidated into Single Class Action
WELLS FARGO: Thomas Suit Consolidated into Single Class Action
WELLS FARGO: Williams Suit Consolidated into Single Class Action
WINGS OVER: Wins in Part Partial Summary Judgment Bid in Carts Suit
*********
AMAZON.COM INC: Bid to Dismiss de Coster Suit Granted in Part
-------------------------------------------------------------
In the case, ELIZABETH DE COSTER, et al., on behalf of themselves
and all others similarly situated, Plaintiffs v. AMAZON.COM, INC.,
a Delaware corporation, Defendant, Case No. C21-693RSM (W.D.
Wash.), Judge Ricardo S. Martinez of the U.S. District Court for
the Western District of Washington, Seattle, grants in part and
denies in part Amazon's Motion to Dismiss.
Amazon operates the largest online retail marketplace in the United
States. It sells its own goods, but also designed its marketplace
to be a platform where third-party merchants can register and list
their goods for Amazon to sell. Third-party merchants post their
products on the platform, which Amazon presents to users together
with its own goods according to a certain algorithm that takes the
form of a ranking list.
At the time the pleading was drafted, Amazon's marketplace
accounted for over 50% of all online retail sales revenue in the
United States. Amazon competes both (a) as a retailer against the
third-party merchants that list their goods on Amazon's
marketplace, and (b) as a marketplace, against other online retail
marketplaces, such as eBay and Walmart, where third-party merchants
can list their goods. Amazon is critical to the financial success
of its third-party merchants.
The Amended Complaint asserts that Amazon charges higher fees for
third-party merchants than competitor marketplaces and that these
inflated fees are passed on to customers like the Plaintiffs
through higher prices.
In a competitive market, third-party merchants would be able to
sell their products for less in competitor marketplaces. Amazon
bars this type of competition by imposing on third-party merchants
Platform "Most Favored Nation ("MFN") policies, or did so during
the relevant time period. Amazon's MFN policies forbid third-party
merchants from listing their goods anywhere else on the internet at
prices lower than their Amazon list prices.
An investigation by the House of Representatives Judiciary
Committee's Subcommittee on Antitrust, Commercial, and
Administrative Law found that Amazon has a history of using MFN
clauses to ensure that none of its suppliers or third-party sellers
can collaborate with an existing or potential competitor to make
lower-priced or innovative product offerings available to
consumers. Amazon imposes its MFN policies on third-party merchants
through the Amazon Business Solutions Agreement (BSA).
Until March 2019, Amazon enforced its MFN policies through BSA's
"Price Parity Clause," which expressly prohibited third-party
merchants from listing goods on other online retail platforms at
prices lower than their Amazon list prices. In late 2013, because
of German and United Kingdom antitrust proceedings, Amazon
voluntarily abandoned its price parity clause on an EU-wide basis.
Amazon continued to enforce that clause in the United States for
six more years.
Even after withdrawing this clause, Amazon continues to enforce
MFN-type policies through its so-called "Fair Pricing" Policy. This
policy in the BSA states that, if a third-party merchant engages in
pricing practices with regard to "a marketplace offer that harms
customer trust," Amazon may impose sanctions. Sanctions include
making the merchant's product ineligible for a feature (the "Buy
Box" button) that would make the product the most visible and
easiest to purchase among similar goods; removing the third-party
merchant's goods from Amazon's marketplace; suspending shipping
options for the merchant's goods; and terminating or suspending the
merchant's ability to have any goods sold on Amazon's marketplace.
The intent and effects of the "Fair Pricing" Policy are the same as
those of the former Price Parity Clause. Amazon's MFN policies
cause Amazon customers to pay more for goods purchased on its
marketplace than they would pay in a competitive market. Amazon
enforces these policies by, e.g., systematically monitoring the
prices listed by third-party merchants on other online retail
platforms.
The named Plaintiffs are residents of Maryland, Washington, D.C.,
Illinois, Texas, Tennessee, and Connecticut who purchased numerous
goods from Amazon's marketplace, including those listed by
third-party merchants. They bring the action on behalf of
themselves, and as a class action on behalf of all persons who, on
or after May 26, 2017, purchased one or more goods on Amazon's
marketplace.
The Amended Complaint includes causes of action for per se and not
per se violation of the Sherman Act under 15 U.S.C. Section 1
(First and Second Causes of Action), violation of the Sherman Act
under 15 U.S.C. Section 2 for monopolization (Third Cause of
Action), and violation of the Sherman Act under 15 U.S.C. Section 2
for attempted monopolization (Fourth Cause of Action).
Among other things, Judge Martinez agrees with the Plaintiffs that
Amazon has failed to demonstrate a lack of concerted action, or
that concerted action is implausible. Taking the facts in the light
most favorable to the Plaintiffs, he says the third-party merchants
are active participants who set their prices and otherwise engage
with Amazon's policies in an active, albeit allegedly unwilling,
way. This affects horizontal competitors in a unique way not
analogous to the cases cited by Amazon.
Judge Martinez also finds that the relevant market definitions in
the Amended Complaint sustainable on their face. Amazon's arguments
are fact-based and premature, essentially asking the Court to hear
expert testimony at the motion-to-dismiss stage of litigation. That
is not how civil litigation is supposed to proceed and will not
serve as a basis for dismissal under Rule 12(b)(6). Moreover, the
Plaintiffs' allegations, although complicated, are not as
complicated as Amazon would have it and are not too attenuated to
plausibly allege antitrust injury.
Finally, Judge Martinez holds that the Plaintiffs allege a valid
injury, even if third-party merchants also have their own cause of
action for lost profits. The Plaintiffs paid supra-competitive
prices for retail goods based on Amazon's actions in a different
market toward different actors -- policies applied and fees charged
to third-party sellers.
Having reviewed the relevant pleadings and the remainder of the
record, Judge Martinez grants Amazon's Motion to Dismiss with
respect to the Plaintiffs' First Cause of Action. He dismisses the
Plaintiffs' First Cause of Action, for Violation of the Sherman Act
15 U.S.C. Section 1 Per Se.
Although leave to amend would typically be granted, it is not
granted as the Plaintiffs would have to significantly re-work the
pleadings in order to bring this claim. The Plaintiffs may move for
leave to amend if they so choose.
Judge Martinez denies the Motion as to all other claims.
The parties are to promptly propose a class certification briefing
schedule.
A full-text copy of the Court's Jan. 24, 2023 Order is available at
https://tinyurl.com/ye84yrhp from Leagle.com.
AUDIOPHILE MUSIC: Tuttle Loses Bid for Prelim. Nod of Class Deal
----------------------------------------------------------------
In the case, STEPHEN J. TUTTLE, et al., Plaintiffs v. AUDIOPHILE
MUSIC DIRECT INC., et al., Defendants, Case No. C22-1081JLR (W.D.
Wash.), Judge James L. Robart of the U.S. District Court for the
Western District of Washington, Seattle:
(1) denies without prejudice the Plaintiffs' unopposed motion
for preliminary approval of the parties' class action
settlement; and
(2) grants the parties' stipulated motion for an order staying
the case pending the Court's consideration of the
Plaintiffs' motion for preliminary approval.
Judge Robart has identified the following issues that must be
corrected before it can preliminarily approve the settlement:
1. Paragraph 4.26 of the Settlement Agreement defines a
"Qualifying Settlement Claim Certification Form" as "a Settlement
Claim Certification Form that is completed, properly executed, and
timely returned to the Settlement Administrator within one-hundred
and twenty (180) days from the date of publication of Class
Notice." The parties shall clarify whether the deadline for
returning the Settlement Claim Certification Form is 120 or 180
days from publication of notice.
2. The case number in the Proposed Order Granting Preliminary
Approval of the Proposed Class Settlement is incorrect, and the
deadlines highlighted on page 3 of that proposed order are not
consistent with the dates proposed in Plaintiffs' motion.
3. The case number in the Full Notice attached to the
Settlement Agreement is incorrect. The parties shall correct the
case number in the Full Notice.
4. The process for a Class Member to return an Applicable
Record for a refund is unclear. In addition, the instructions in
the second paragraph of Paragraph 7 of the Full Notice are
unreasonably dense and difficult to parse. The parties shall
clarify in the Full Notice the process a Class Member must follow
to receive settlement relief.
5. The Proposed Order Granting Final Approval of Settlement is
inadequate for the Court's purposes and includes an incorrect case
number. The parties shall provide a revised proposed order that
includes the findings required by Federal Rule of Civil Procedure
23(e)(2).
6. The Proposed Judgment includes an incorrect case number. In
addition, the attorneys' fees and class representative service
awards included in the judgment are inconsistent with the amounts
in the Settlement Agreement. The parties shall provide a revised
proposed judgment that includes the correct case number, attorneys'
fees, and service awards.
For the foregoing reasons, Judge Robart denies the Plaintiffs'
unopposed motion for preliminary approval of the class action
settlement without prejudice. The Plaintiffs may submit revised
materials with a renewed motion for preliminary approval. Judge
Robart is concerned, however, that there may be further errors in
the settlement materials that are not identified. Accordingly, he
admonishes the parties to review all of their materials carefully
and thoroughly for consistency, clarity, accuracy, and conformity
with the Federal Rules of Civil Procedure before resubmitting them
to the court.
Finally, Judge Robart grants the parties' stipulated motion to stay
the case pending the Court's consideration of the motion for
preliminary approval. He has ordered the parties to file either
revised preliminary approval materials or a joint statement
regarding the status of their revisions to the preliminary approval
materials by Jan. 31, 2023.
A full-text copy of the Court's Jan. 20, 2023 Order is available at
https://tinyurl.com/yufbycc4 from Leagle.com.
BADCOCKS ECONOMY: Toro Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Badcocks Economy
Furniture Store, Inc. The case is styled as Andrew Toro, on behalf
of himself and all others similarly situated v. Badcocks Economy
Furniture Store, Inc., Case No. 1:23-cv-00599 (S.D.N.Y., Jan. 24,
2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Badcock's Economy Furniture Store, Inc. -- https://www.badcock.com/
-- distributes and supplies home furnishing 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: mars@khaimovlaw.com
BEAVER COUNTY, PA: Review Bid in Chester v. Prothonotaries Tossed
-----------------------------------------------------------------
In the case, Chester Upland School District and Chichester School
District, on behalf of themselves and all others similarly
situated, Petitioners v. Michael Rossi, in the official capacity as
the Prothonotary of the Court of Common Pleas of Beaver County,
Pennsylvania, et al., Respondents, Case No. 133 M.D. 2021 (Comm.
Pa.), the Commonwealth Court of Pennsylvania dismisses with
prejudice the Petitioners' Second Amended Petition for Review.
The other Respondents are Cathy J. Fetter, in the official capacity
as the Prothonotary of the Court of Common Pleas of Bedford County,
Pennsylvania, and Jonathan K. DelCollo in the official capacity as
the Prothonotary of the Court of Common Pleas of Berks County,
Pennsylvania, and Robin G. Patton in the official capacity as the
Prothonotary of the Court of Common Pleas of Blair County,
Pennsylvania, and Dawn Close in the official capacity as the
Prothonotary of the Court of Common Pleas of Bradford County,
Pennsylvania and Judith Reiss in the official capacity as the
Prothonotary of the Court of Common Pleas of Bucks County,
Pennsylvania, and Kelly Ferrari in the official capacity as the
Prothonotary of the Court of Common Pleas of Butler County,
Pennsylvania, and Lisa Crynock in the official capacity as the
Prothonotary of the Court of Common Pleas of Cambria County,
Pennsylvania, and Mary Grace Olay in the official capacity as the
Prothonotary of the Court of Common Pleas of Cameron County,
Pennsylvania, and Kayla M. Semmel in the official capacity as the
Prothonotary of the Court of Common Pleas of Carbon County,
Pennsylvania, and Jeremy S. Breon in the official capacity as the
Prothonotary of the Court of Common Pleas of Centre County,
Pennsylvania, and Debbie Bookman in the official capacity as the
Prothonotary of the Court of Common Pleas of Chester County,
Pennsylvania, and Jeffrey Hines in the official capacity as the
Prothonotary of the Court of Common Pleas of Clarion County,
Pennsylvania, and Brian K. Spencer in the official capacity as the
Prothonotary of the Court of Common Pleas of Clearfield County,
Pennsylvania, and Cynthia A. Love in the official capacity as the
Prothonotary of the Court of Common Pleas of Clinton County,
Pennsylvania, and Barbara N. Silvetti in the official capacity as
the Prothonotary of the Court of Common Pleas of Columbia County,
Pennsylvania, and Emmy Arnett in the official capacity as the
Prothonotary of the Court of Common Pleas of Crawford County,
Pennsylvania, and Dale E. Sabadish in the official capacity as the
Prothonotary of the Court of Common Pleas, of Cumberland County,
Pennsylvania, and Mary J. Walk in the official capacity as the
Director of Office of Judicial Support of the Court of Common Pleas
of Delaware County, Pennsylvania, and Nina Capuzzi Frankhouser in
the official capacity as the Prothonotary of the Court of Common
Pleas of Fayette County, Pennsylvania, and Dawn M. Millin in the
official capacity as the Prothonotary of the Court of Common Pleas
of Forest County, Pennsylvania, and Timothy Sponseller in the
official capacity as the Prothonotary of the Court of Common Pleas
of Franklin County, Pennsylvania, and Patty Fix in the official
capacity as the Prothonotary of the Court of Common Pleas of Fulton
County, Pennsylvania, and Susan K. White in the official capacity
as the Prothonotary of the Court of Common Pleas of Greene County,
Pennsylvania, and Kay Coons in the official capacity as the
Prothonotary of the Court of Common Pleas of Huntingdon County,
Pennsylvania, and Randy Degenkolb in the official capacity as the
Prothonotary of the Court of Common Pleas of Indiana County,
Pennsylvania, and Tonya S. Geist in the official capacity as the
Prothonotary of the Court of Common Pleas of Jefferson County,
Pennsylvania, and Lori A. Ferry in the official capacity as the
Prothonotary of the Court of Common Pleas of Juniata County,
Pennsylvania, and Mauri B. Kelly in the official capacity as the
Prothonotary of the Court of Common Pleas of Lackawanna County,
Pennsylvania, and Jim Haddock in the official capacity as the
Prothonotary of the Court of Common Pleas of Luzerne County,
Pennsylvania, and Thomas D. Heap in the official capacity as the
Prothonotary of the Court of Common Pleas of Lycoming County,
Pennsylvania, and Laura Isadore in the official capacity as the
Prothonotary of the Court of Common Pleas of McKean County,
Pennsylvania, and Tammy Stuck in the official capacity as the
Prothonotary of the Court of Common Pleas of Mifflin County,
Pennsylvania, and George Warden in the official capacity as the
Prothonotary of the Court of Common Pleas of Monroe County,
Pennsylvania, and Susan N. Kauwell in the official capacity as the
Prothonotary of the Court of Common Pleas of Montour County,
Pennsylvania, and Holly Ruggiero in the official capacity as the
Prothonotary of the Court of Common Pleas of Northampton County,
Pennsylvania, and Jamie Saleski in the official capacity as the
Prothonotary of the Court of Common Pleas of Northumberland County,
Pennsylvania, and Zoe Burd in the official capacity as the
Prothonotary of the Court of Common Pleas of Perry County,
Pennsylvania, and Denise Fitzpatrick in the official capacity as
the Prothonotary of the Court of Common Pleas of Pike County,
Pennsylvania, and Bridget Miller in the official capacity as the
Prothonotary of the Court of Common Pleas of Schuylkill County,
Pennsylvania, and Stephanie Wolf in the official capacity as the
Prothonotary of the Court of Common Pleas of Snyder County,
Pennsylvania, and Angie G. Svonavec in the official capacity as the
Prothonotary of the Court of Common Pleas of Somerset County,
Pennsylvania, and Kellie Carpenter in the official capacity as the
Prothonotary of the Court of Common Pleas of Sullivan County,
Pennsylvania, and Marie Seymour in the official capacity as the
Prothonotary of the Court of Common Pleas of Tioga County,
Pennsylvania, and Diane Miller in the official capacity as the
Prothonotary of the Court of Common Pleas of Union County,
Pennsylvania, and Paula M. Palmer in the official capacity as the
Prothonotary of the Court of Common Pleas of Venango County,
Pennsylvania, and Jen Phillips in the official capacity as the
Prothonotary of the Court of Common Pleas of Warren County,
Pennsylvania, and Laura Hough in the official capacity as the
Prothonotary of the Court of Common Pleas of Washington County,
Pennsylvania, and Edward Sandercock in the official capacity as the
Prothonotary of the Court of Common Pleas of Wayne County,
Pennsylvania, and Christina O'Brien in the official capacity as the
Prothonotary of the Court of Common Pleas of Westmoreland County,
Pennsylvania, and Cindy Adams in the official capacity as the
Prothonotary of the Court of Common Pleas of Wyoming County,
Pennsylvania, and Allison Blew in the official capacity as the
Prothonotary of the Court of Common Pleas of York County,
Pennsylvania.
The lawsuit is a putative class action filed by Petitioners Chester
Upland School District and Chichester School District on behalf of
themselves and all similarly-situated political subdivisions
against the Director of the Office of Judicial Support of the
County of Delaware (Delaware OJS) and 52 prothonotaries of courts
of common pleas in second class A, third through eighth class, and
home rule counties. The Petitioners seek declaratory, injunctive,
and mandamus relief, as well as damages, due to the Respondents'
alleged overcharging of court fees under the applicable sections of
what commonly is known as the Prothonotary Fee Act.
The Petitioners are two political subdivisions located in Delaware
County. They seek to represent a proposed class of all political
subdivisions, as defined by 101 Pa. Code Section 23.226 (school
districts, municipalities, and counties, as applicable), throughout
the entire Commonwealth of Pennsylvania which have in the preceding
four years filed a document in any of the Respondents' Courts of
Common Pleas and which were charged fees in excess of the
statutorily set fees. There are in excess of 3,000 members in the
proposed class definition. Each of the parties constituting a
Respondent is a Prothonotary, or counterpart, of a home rule county
or county of the second class A or of the third to eighth class.
In Count I, the Petitioners request the entry of a declaratory
judgment that the Respondents have violated the Prothonotary Fee
Act and the 1986 Act by overcharging the putative class members for
court fees and should be compelled to issue refunds. In Count II,
they allege that, during the four-year period prior to the date of
filing of their Second Amended Petition, all Respondents have been
unjustly enriched by receiving fees that are more than the
statutorily limited court fees.
The Petitioners further request class certification, issuance of an
injunction limiting all the Respondents from collecting fees, an
award of counsel fees and costs, and an award of money damages as
reimbursement for excessive fees.
Before the Court are the preliminary objections (POs) to the
Petitioners' Second Amended Petition for Review filed by
Respondents Delaware OJS and the Prothonotaries of Beaver, Bedford,
Berks, Blair, Bradford, Bucks, Butler, Cambria, Carbon, Centre,
Chester, Clarion, Clearfield, Clinton, Columbia, Crawford,
Cumberland, Fayette, Forest, Franklin, Fulton, Greene, Huntingdon,
Indiana, Jefferson, Juniata, Lackawanna, Luzerne, Lycoming, McKean,
Mifflin, Monroe, Montour, Northampton, Northumberland, Perry, Pike,
Schuylkill, Snyder, Sullivan, Tioga, Union, Venango, Warren,
Washington, Wayne, Westmoreland, Wyoming, and York Counties.
In their POs to the Second Amended Petition, the Respondents lodge
several objections, which the Commonwealth Court paraphrases as
follows:
(1) The Second Amended Petition was untimely filed more than
20 days after service of the Court's April 29, 2022 order
dismissing the First Amended Petition without prejudice (First
PO).
(2) The Petitioners still lack standing to assert any of their
claims against any Respondents except Delaware OJS. The Second
Amended Petition directly contradicts our holding in Chester Upland
I (Second PO).
(3) Counts I (declaratory judgment) and II (unjust enrichment)
of the Second Amended Petition are legally insufficient because
increases in filing fees are permitted by the Prothonotary Fee Act,
and the Petitioners have failed to allege sufficient facts showing
they have been charged court fees in excess of statutory
limitations (Third and Fourth POs).
(4) Counts I (declaratory judgment) and II (unjust enrichment)
of the Second Amended Petition are barred by sovereign,
governmental, and quasi-judicial immunity (Fifth PO).
(5) Count I (mandamus) fails as a matter of law because the
Petitioners cannot show any clear right to mandamus relief (Sixth
PO).
(6) The Petitioners' request for attorneys' fees fails as a
matter of law (Seventh PO).
Upon review, the Commonweath Court concludse that the Second
Amended Petition does not remedy the deficiencies it previously
identified in the First Amended Petition.
First, it acknowledges that the Respondents' challenge to the
timeliness of the Second Amended Petition, because it dismisses it
on the merits, the Commonwealth Court need not address the
timeliness issue. Moreover, to the extent that the Second Amended
Petition might be untimely, it notes that Rule 126 of the
Pennsylvania Rules of Civil Procedure, Pa.R.Civ.P. 126, would
permit it in this instance to disregard any procedural
irregularity. Accordingly, it dismisses as moot the Respondents'
First PO.
Second, the Commonwealth Court finds that the Petitioners therefore
have done nothing to supply any additional allegations establishing
that they have standing to bring this action against all the named
Respondents. The Second Amended Petition therefore fails as a
matter of law to the extent that it seeks relief against any
Respondent other than Delaware OJS. The Respondents' Second PO is
sustained.
Third, the Petitioners again have failed to allege facts, if
assumed to be true, that establish overcharging. The allegations
remain vague, incomplete, and do not warrant an "inference" of
overcharging by any single Respondent. And, although certain filing
fees charged to the Petitioners by Delaware OJS are included, the
exhibit does not indicate whether and to what extent each fee
properly has been increased over the years or whether and to what
extent it includes other validly assessed fees. All that is
included is the amount charged, which is insufficient in itself to
support a claim for declaratory relief or unjust enrichment.
Accordingly, the Commonwealth Court concludes that both Counts I
and II fail as a matter of law and must be dismissed. The
Respondents' Third and Fourth POs are sustained.
Finally, the Petitioners have not set forth any allegations that,
if accepted as true, would establish that they or any other
political subdivisions in Pennsylvania have been charged excessive
court fees by Delaware OJS or any other prothonotary's office. They
therefore have not established a clear legal right to relief or a
corresponding duty of the Respondents to modify their fee schedules
or pay any damages. Accordingly, the Commonwealth Court concludes
that the mandamus claim also fails as a matter of law. The
Respondents' Sixth PO is sustained.
Accordingly, the Commonwealth Court sustains the Respondents' POs,
in part, and dismisses the Second Amended Petition. Further,
because the Petitioners have had ample opportunity to amend their
pleading to state cognizable claims against Respondents and have
failed to do so, the Commonwealth Court dismisses with prejudice.
A full-text copy of the Court's Jan. 24, 2023 Opinion is available
at https://tinyurl.com/354sxd7j from Leagle.com.
BEXAR COUNTY, TX: Miller Files Suit in W.D. Texas
-------------------------------------------------
A class action lawsuit has been filed against Bexar County, Texas.
The case is styled as Michael Miller, individually and on behalf of
similarly situated individuals v. Bexar County Texas, Case No.
5:23-cv-00085-OLG (W.D. Tex., Jan. 24, 2023).
The nature of suit is stated as Other Civil Rights for the Civil
Rights Act.
Bexar County -- https://www.bexar.org/ -- is a county in the U.S.
state of Texas. It is in South Texas and its county seat is San
Antonio.[BN]
The Plaintiff is represented by:
Abasi Daudi Major, Esq.
THE MAJOR LAW FIRM PLLC
901 NE Loop 410, Suite 405
San Antonio, TX 78209
Phone: (210) 957-1767
Fax: (210) 783-9637
Email: abasi@themajorlawfirm.com
BIG PICTURE: Class Certification Order in Williams Suit Affirmed
----------------------------------------------------------------
In the case, LULA WILLIAMS; GLORIA TURNAGE; GEORGE HENGLE; DOWIN
COFFY; MARCELLA P. SINGH, Administrator of the Estate of Felix M.
Gillison, Jr., on behalf of themselves and all individuals
similarly situated, Plaintiffs-Appellees v. MATT MARTORELLO,
Defendant-Appellant, and BIG PICTURE LOANS, LLC; ASCENSION
TECHNOLOGIES, INC.; DANIEL GRAVEL; JAMES WILLIAMS, JR.; GERTRUDE
McGESHICK; SUSAN McGESHICK; GIIWEGIIZHIGOOKWAY MARTIN, Defendants,
Case No. 21-2116 (4th Cir.), the U.S. Court of Appeals for the
Fourth Circuit affirms these district court rulings that:
(1) reconsidered prior factual findings based on a new finding
that Defendant Martorello made misrepresentations that
substantially impacted the litigation;
(2) found that the Plaintiffs-Appellees -- Virginia citizens
who took out loans (the "Borrowers") -- did not waive
their right to participate in a class-action suit against
Martorello; and
(3) granted class certification.
The class-action proceeding relates to a lending scheme allegedly
designed to circumvent state usury laws.
The Lac Vieux Desert Band of Chippewa Indians (the "Tribe")
purportedly created businesses under tribal law to make
small-dollar, high-interest-rate loans to consumers via the
internet. The Borrowers allege that the Tribe did so alongside
Martorello as part of a "Rent-a-Tribe" scheme in which a payday
lender partners with a Native American tribe to cloak the lender in
the sovereign immunity of the tribe, thereby precluding enforcement
of otherwise applicable usury laws that cap interest rates.
As an initial step of this alleged scheme, the Tribe enacted a
Tribal Consumer Financial Services Code to govern a new consumer
lending program. The Code created the Tribal Financial Services
Regulatory Authority to implement the Code. The Authority's powers
included licensing entities to engage in certain consumer financial
services ("Licensees"). Section 9 of the Code created the Tribal
Dispute Resolution Procedure ("TDRP") under which a consumer could
raise a complaint with a Licensee.
After the enactment of the Code, the Tribe and/or Martorello
created Red Rock Tribal Lending, LLC, which began making consumer
loans in January 2012. The facts related to the creation and
operation of Red Rock are disputed, but the parties agree that Red
Rock contracted with Bellicose VI, LLC -- an entity owned by
Martorello -- to provide services related to the lending in
exchange for a portion of Red Rock's income. The Borrowers allege
that Martorello was essentially running Red Rock during this
initial phase.
The Tribe divided Red Rock into two entities -- Big Picture Loans,
LLC and Ascension Technologies (collectively, the "Entities") -- to
operate the lending business. Consumer loans were made using
standardized agreements between the Borrowers and Red Rock or Big
Picture.
In June 2017, the Borrowers filed a class action complaint against
the Entities, Martorello, and other parties not relevant to the
current appeal. The Borrowers brought claims for declaratory
judgment, violations of federal civil RICO law, violations of
Virginia usury law, and unjust enrichment.
The Entities moved to dismiss for lack of subject matter
jurisdiction, asserting that they were entitled to tribal sovereign
immunity. Following jurisdictional discovery, the district court
denied the motion, and the Entities appealed. The Fourth Circuit
reversed the district court's decision and remanded with
instructions to grant the Entities' motion to dismiss for lack of
subject matter jurisdiction. It found no clear error in the
district court's factual findings on that record and held that the
Entities had met their burden of establishing entitlement to
sovereign immunity.
After remand, the district court dismissed the Entities for lack of
subject matter jurisdiction. It then issued an opinion concluding
that the Borrowers did not waive their right to participate in a
class action against Martorello. It granted the Borrowers' motion
for class certification.
Martorello petitioned for permission to appeal, which the Fourth
Circuit granted.
Martorello appeals from three district court rulings that (1)
reconsidered prior factual findings based on a new finding that
Martorello made misrepresentations that substantially impacted the
litigation, (2) found that the Borrowers did not waive their right
to participate in a class-action suit against him, and (3) granted
class certification.
In particular, Martorello argues that the district court violated
the mandate rule by making factual findings related to the
misrepresentations that contradicted this Court's holding in the
prior appeal and then relying on those factual findings when
granting class certification. He also contends that the Borrowers
entered into enforceable loan agreements with lending entities in
which they waived their right to bring class claims against him. In
addition, he asserts that common issues do not predominate so as to
permit class treatment in the case.
The Fourth Circuit disagrees with Martorello. It concludes that the
district court did not violate the mandate rule. When new evidence
indicates that a district court previously made erroneous factual
findings based on fraud or misrepresentation, the district court
may reconsider those findings as needed. In the case, the district
court found such fraud or misrepresentations and thus did not
violate the mandate rule in reconsidering its prior factual
findings.
The Fourth Circuit also concludes that the Borrowers did not waive
the right to pursue the resolution of their dispute against him in
a class-action proceeding. The term "affiliated entities" in the
Loan Agreement does not refer to individuals. Because Martorello is
an individual, he is not a party exempted from class-action claims
and liability.
Finally, it concludes that the district court did not abuse its
discretion in granting class certification because common issues
predominate. Common questions predominate because the Borrowers can
rely on common proof to show that Martorello participated in and
controlled the direction of the lending operations to establish
RICO liability. Thus, the district court did not misapply Rule
23(b)(3) when rejecting Martorello's first argument against a
finding of predominance.
Accordingly, the Fourth Circuit affirms the rulings of the district
court.
A full-text copy of the Court's Jan. 24, 2023 Opinion is available
at https://tinyurl.com/mv7wp7de from Leagle.com.
ARGUED: Bernard R. Given, II -- bgiven@loeb.com -- LOEB & LOEB LLP,
Los Angeles, California, for the Appellant.
Matthew W.H. Wessler -- matt@guptawessler.com -- GUPTA WESSLER
PLLC, Washington, D.C., for the Appellees.
ON BRIEF: William N. Grosswendt, Los Angeles, California, John D.
Taliaferro -- jtaliaferro@loeb.com -- LOEB & LOEB LLP, Washington,
D.C., for the Appellant.
Kristi C. Kelly -- kkelly@kellyandcrandall.com -- Andrew J. Guzzo
-- aguzzo@kellyandcrandall.com -- KELLY GUZZO PLC, Fairfax,
Virginia; Gregory A. Beck -- greg@guptawessler.com -- GUPTA WESSLER
PLLC, Washington, D.C.; Leonard A. Bennett --
lenbennett@clalegal.com -- Craig C. Marchiando --
craig@clalegal.com -- CONSUMER LITIGATION ASSOCIATES, P.C., Newport
News, Virginia; Beth E. Terrell -- bterrell@terrellmarshall.com --
Elizabeth A. Adams -- eadams@terrellmarshall.com -- Jennifer R.
Murray -- jmurray@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP
PLLC, Seattle, Washington; James W. Speer, VIRGINIA POVERTY LAW
CENTER, Richmond, Virginia; John G. Albanese -- jalbanese@bm.net --
Eleanor M. Drake -- emdrake@bm.net -- BERGER & MONTAGUE, P.C.,
Minneapolis, Minnesota; Michael A. Caddell, CADDELL & CHAPMAN,
Houston, Texas, for the Appellees.
BLOCK INC: Faces Smith Suit Over Theft of Cash App Account
----------------------------------------------------------
MARK SMITH, individually and on behalf of all others similarly
situated, Plaintiff v. BLOCK, INC. (formerly SQUARE, INC.,
CASH-APP, SUTTON BANK, and GOGGLE (PARENT COMPANY ALPHABET INC.)
alleges violation of the Federal Equal Credit Opportunity Act, and
the Consumer Credit Protection Act.
According to the complaint, the Plaintiff was duped into
downloading a Hewlett Packer app from the Google Play Store. The
fraudsters then proceeded to use the fake Hewlett Packer app to
enter into the Plaintiff's Cash App site and steal $276. The
Plaintiff reported the apparent theft and fraud to the Cash App
Defendant, says the suit.
However, the Defendants refused to refund the Plaintiff in spite of
the fact that they were able to confirm that he was defrauded
through no fault of his own.
Block, Inc. operates as a financial services and digital payments
company. The Company develops a payments platform aimed at small
and medium businesses that allows them to accept credit card
payments and use tablet computers as payment registers for a
point-of-sale system. Block also provides financial and marketing
services. [BN]
The Plaintiff is represented pro se.
CAPITAL HEALTH: Sued Over Exposure of Personal Information
----------------------------------------------------------
Jane Doe, individually and on behalf of all other Citizens of the
state of New Jersey similarly situated v. CAPITAL HEALTH SYSTEM,
INC. d/b/a CAPITAL HEALTH, Case No. MER-L-000148-23 (N.J. Super.
Ct., Mercer Cty., Jan. 24, 2023), is brought arising from the
Defendant's systematic violation of the medical privacy rights of
its patients, exposing highly sensitive personal information to
third parties without those patients' knowledge or consent.
The Defendant disclosed information about its patients--including
their status as patients, their physicians, their medical
treatments, the hospitals they visited, and their personal
identities--to Facebook and other third parties without its
patients' knowledge, authorization, or consent. The Defendant
disclosed this protected health information through the deployment
of various digital marketing and automatic rerouting tools embedded
on its websites that purposefully and intentionally redirect
patients' personal health information to third parties who exploit
that information for advertising purposes.
The Defendant's use of these rerouting tools caused Plaintiff's and
Class Members' personally identifiable information and the contents
of their communications exchanged with Defendant to be
automatically redirected to third parties in violation of those
patients' reasonable expectations of privacy, their rights as
patients, their rights as citizens of New Jersey, and both the
express and implied promises of the Defendant. The Defendant's
conduct in disclosing such protected health information about its
patients to Facebook and other third parties without notice or
consent violates New Jersey law including Wiretapping, Right to
Privacy and Confidentiality of Medical Records, and the fiduciary
duty of confidentiality owed by hospitals and physicians to their
patients, says the complaint.
The Plaintiff has been treated by the Defendant's physicians, and
has been a patient at a Capital Health facility, and thus also a
patient of the Defendant.
Capital Health System, Inc. d/b/a Capital Health is a non-profit
corporation that operates general acute care hospitals.[BN]
The Plaintiff is represented by:
Jason J. Rozger, Esq.
MENKEN, SIMPSON, & ROZGER, LLP
80 Pine Street, 33rd Floor
New York, NY 10005
Phone: (212) 509-1616
CAVE ENTERPRISE: Wis. App. Flips Class Certification in Cowan Suit
------------------------------------------------------------------
In the case, BYRON COWAN, JILL PATTERSON, JEFFREY JACKSON, COURTNEY
HARMON, DEMI PEREZ, JESSI BILLINGTON AND RAQUEL BONILLA,
Plaintiffs-Respondents v. CAVE ENTERPRISE OPERATIONS, LLC,
Defendant-Appellant, Appeal No. 2021AP1441 (Wis. App.), the Court
of Appeals of Wisconsin, District I, reverses the circuit court
order granting class certification.
Cave appeals the circuit court order granting class certification
on the basis of unlawful deprivation of overtime wages to a class
of salaried general managers and assistant general managers of
Burger King restaurants at Wisconsin locations that were owned and
operated by Cave.
In November 2019, Cowan and Patterson, individually and as
representatives of the proposed class, filed an action against
Cave. Cowan and Patterson sought to represent salaried general and
assistant managers at Wisconsin Burger King restaurants owned and
operated by Cave (BK Managers). The BK Managers alleged that Cave
caused them to work in excess of forty hours a week without
overtime compensation, with a majority of their time spent in
non-exempt work activities, in violation of Wisconsin law and
regulations.
The BK Managers alleged that Cave was violating Wisconsin's wage
and hour statutes and administrative code by not paying overtime
pay to employees it classified as managers—in order words,
employees exempt from the overtime rules by way of the executive
exemption. This state requires employers to pay non-exempt
employees time and one-half the regular rate of pay for all hours
worked in excess of 40 hours per week. An employee whose primary
duties consist of "executive" work is exempt from overtime pay
regulations in accordance with Wis. Admin. Code Section DWD
274.04.
Further, at issue, subdivision 5 describes the "sole charge"
exception, which provides that parts one through four of the
executive exemption do not need to be satisfied if the employee is
in sole charge of an independent establishment or a physically
separated branch establishment. In other words, if an employee is
in sole charge of an establishment, the percentage of time the
employee spends on non-managerial work is irrelevant to the
determination of exempt status under the law.
In February 2021, the BK Managers filed a motion for class
certification. In support of their complaint and motion for class
certification, they submitted 36 affidavits from current and former
managers at Cave-owned and operated Burger King restaurants. The
total proposed class included 207 general managers and 107
assistant general managers.
The BK Managers alleged that the BK Managers regularly worked more
than 40 hours in a workweek, they spent the majority of their time
on non-managerial/non-exempt tasks, they did not have meaningful
discretion over their decisions, and they completed schedules and
labor budgets in accordance with Burger King or Cave directives.
The circuit court conducted a hearing on the class certification
issue in April 2021 and issued a written decision in August 2021.
It concluded that the BK Managers satisfied the four prerequisites
for class certification under Wis. Stat. Section 803.08:
numerosity, commonality, typicality, and adequacy of
representation. In its written remarks, the circuit court concluded
that the BK Managers satisfied the predominance and superiority
requirement. It granted the BK Managers motion for class
certification.
Cave appeals, arguing that the circuit court erroneously exercised
its discretion when it granted class certification to the BK
Managers. The BK Managers assert that they provided the circuit
court with sufficient evidence to support that the proposed manager
class had similar job duties, and that the entirety of the
affidavit testimony supports that the managers were performing more
than forty percent of non-managerial tasks in their workweeks. They
argue there was enough evidence to support the circuit court's
discretionary decision.
Ultimately, the Court of Appeals holds that the record leaves it
with unanswered questions about the relevant facts and the circuit
court's decision-making process. It cannot conclude that the
circuit court properly exercised its discretion when it granted the
class certification.
The Court of Appeals notes that a class action certification
requires "rigorous analysis." The circuit court must have the
parties develop necessary relevant facts to resolve the legal
question of the class certification, make pertinent credibility
determinations from the relevant facts, and rigorously analyze how
those facts apply to the proper standard of law. The court's
demonstration of rational decision-making will in turn support a
determination that it properly exercised its discretion in reaching
a decision on the class certification that a reasonable court could
reach.
For these reasons, the Court of Appeals concludes that the record
does not support that the circuit court made adequate factual or
credibility findings to support its discretionary decision to grant
class certification. Therefore, it reverses the court's order and
remands with directions to make sufficient findings of fact and
pertinent credibility determinations to support the court's
conclusions of law, and then for further proceedings.
A full-text copy of the Court's Jan. 24, 2023 Order is available at
https://tinyurl.com/mpkxj85v from Leagle.com.
COLUMBIA DERMATOLOGY: Caraboolad Files TCPA Suit in N.D. Ohio
-------------------------------------------------------------
A class action lawsuit has been filed against Columbia Dermatology,
LLC. The case is styled as Ryan Caraboolad, individually and on
behalf of all others similarly situated v. Columbia Dermatology,
LLC, Case No. 1:23-cv-00138-BMB (N.D. Ohio, Jan. 24, 2023).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Columbia Dermatology -- https://columbiadermsc.com/ -- provide the
best in medical, cosmetic & surgical dermatology in Columbia, South
Carolina .[BN]
The Plaintiff is represented by:
Brian T. Giles, Esq.
LAW OFFICES OF BRIAN T. GILES
1470 Apple Hill Road
Cincinnati, OH 45230
Phone: (513) 379-2715
Email: brian@gileslenox.com
CORECIVIC INC: ICE's Bid to Toss Portview Suit OK'd With Prejudice
------------------------------------------------------------------
In the case, PORTVIEW PROPERTIES, LLC, Plaintiff v. CORECIVIC,
INC., and UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT,
Defendants, Civil Action No. 22-03220 (SDW) (CLW) (D.N.J.), Judge
Susan D. Wigenton of the U.S. District Court for the District of
New Jersey:
a. grants ICE's Motion to Dismiss Plaintiff's Second Amended
Complaint ("SAC") pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6) with prejudice, and
b. remands the matter to the Superior Court of New Jersey,
Union County.
The matter arises from a contractual dispute concerning a lease
between the Plaintiff and CoreCivic. The Plaintiff is a Delaware
Limited Liability Company, with its principal place of business in
Elizabeth, New Jersey. It owns a warehouse building located at 625
Evans Street, Elizabeth, New Jersey ("the Property").
ICE is a bureau of the United States Department of Homeland
Security ("DHS"). It is an investigative governmental agency that
enforces federal immigration law headquartered in Washington D.C.
and has a local office in Newark, New Jersey.
CoreCivic is a Maryland corporation, with its principal place of
business in Brentwood, Tennessee. It operates private correctional
and detention facilities throughout the country. It has contracted
with ICE to operate and manage a private ICE detention facility --
the Elizabeth Detention Center ("EDC") -- at the Property.
CoreCivic has leased the Property and operated and managed the EDC
since 1993.
On Dec. 13, 1993, the Elberon Development Co., owner of the
Property, and Esmor, Inc., tenant of the Property, entered into a
lease agreement in which Esmor leased 94,909 square feet of space
to be used as an ICE facility that would accommodate immigrants
detained at John F. Kennedy and Newark Airports. The Lease had an
original term of five years, six months, 17 days, commencing on
Dec. 15, 1993 and ending on June 30, 1999.
After the Lease commenced, the parties made several amendments and
changes. On June 13, 1996, Esmor assigned the Original Lease to
Juvenile and Jail Facility Management Services, Inc., d/b/a CCA. On
Nov. 9, 2016, CCA changed its name to CoreCivic, Inc. On July 31,
2017, the parties amended the Lease to update provisions concerning
the parking area, and further provided that all unmodified terms
and conditions remained in effect.
The ICE Contract -- to which the Plaintiff is not a party -- is a
contract between CoreCivic and ICE and is set to end on Aug. 31,
2023. The Plaintiff alleges that the ICE Contract requires
CoreCivic to follow the detention standards set forth by ICE's 2011
Performance-Based National Detention Standards, as amended in 2016
and to comply with CDC guidelines for the prevention and control of
infectious and communicable diseases.
According to the Plaintiff, in March of 2020, the CDC issued
guidelines for correctional and detention facilities to reduce the
spread of COVID-19 and ICE subsequently adopted procedures based on
those guidelines, but CoreCivic failed to follow the protocols ICE
adopted. The Plaintiff puts forth that the allegations in a
currently pending class action matter concerning Habeas Corpus
petitions of six individuals who were held in EDC in May of 2020
reflect that CoreCivic and ICE violated federal law by ignoring the
COVID-19 safety guidelines set forth by the CDC.
The Plaintiff contends that the petitioners allege that CoreCivic
may have violated the Lease by failing to meet the basic safety,
health care, sanitation, and hygiene needs of the confined persons;
failing to suspend new admissions and enforce screening protocols
to mitigate the spread of COVID-19 in the facility; failing to
enforce protocols that would mitigate the spread of COVID-19 within
the facility; failing to provide adequate sanitary and hygienic
supplies; affirmatively adopting some protocols that are likely to
increase the chances that COVID-19 will spread in the facility; and
failing to enforce protocols that would effectively treat those who
are suspected or confirmed to have COVID-19.
The Plaintiffs contend that CoreCivic continues to operate the EDC
without regard to CDC and ICE COVID-19 safety guidelines and
requirements.
On May 3, 2021, the Plaintiff filed a two-count Complaint against
CoreCivic in the Superior Court of New Jersey, Law Division, Union
County. On July 21, 2021, CoreCivic filed a motion to dismiss the
Plaintiff's Complaint.
The Plaintiff filed a First Amended Complaint ("FAC") on Sept. 9,
2021. On Dec. 28, 2021, by Decision and Order, the Honorable John
G. Hudak, J.S.C. granted CoreCivic's motion to dismiss the FAC and
found that the Plaintiff did not have standing to proceed with a
contract claim because it was not a party to the ICE Contract, and
the matter could not proceed without ICE becoming a party to the
litigation.
On March 8, 2022, the Plaintiff filed its SAC, in which it added
ICE as a "nominal defendant." In the SAC, the Plaintiff alleges
breach of contract (Count I); requests a declaratory judgment
(Count II); and requests a declaratory judgment (Count III). On May
16, 2022, CoreCivic filed a Motion to Dismiss the SAC.
On May 27, 2022, ICE removed the matter to federal court pursuant
to 28 U.S.C. Section 1442(a)(1). On July 22, 2022, ICE moved to
dismiss the SAC; on July 26, 2022, CoreCivic moved to dismiss the
SAC; and the parties thereafter completed timely briefing.
Judge Wigenton opines that when viewing the facts declared in the
Complaint in the most favorable light to the Plaintiff, the
Complaint does not set forth any concrete and particularized
allegations against ICE, does not allege that the Plaintiff has
suffered an injury in fact caused by ICE, and does not claim an
actual invasion of its legally protected interest or interests by
ICE.
Moreover, the underlying premise of the alleged Lease breach rests
on an alleged breach of the ICE Contract, yet the Complaint fails
to purport that ICE has alleged, confirmed, or pursued CoreCivic
for any such breach. The Plaintiff is not a party to the ICE
Contract or a third-party beneficiary of the contract and has only
included ICE as a "nominal defendant" because the Superior Court of
New Jersey, Union County, set forth that ICE was an indispensable
party.
Consequently, the Plaintiff lacks standing to pursue claims against
ICE and, in turn, the Plaintiff's claims against ICE are
dismissed.
Judge Wigenton further opines that ICE's dismissal from the matter
impacts the Court's jurisdiction. The remaining parties have not
asserted diversity jurisdiction, pursuant to 28 U.S.C. Section
1332, and the Complaint does not present a federal question,
pursuant to 28 U.S.C. Section 1331. Further, the matter exclusively
presents state-law claims, and this Court declines to exercise
supplemental jurisdiction. The matter, therefore, will be remanded
to the Superior Court of New Jersey, Union County.
For the reasons set forth, Judge Wigenton grants ICE's Motion to
Dismiss with prejudice, and remands the matter to the Superior
Court of New Jersey, Union County.
An appropriate order follows.
A full-text copy of the Court's Jan. 24, 2023 Opinion is available
at https://tinyurl.com/yefc2v75 from Leagle.com.
DAGOSTINO SUPERMARKETS: Hwang Files ADA Suit in E.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against D'Agostino
Supermarkets, Inc. The case is styled as Jenny Hwang, on behalf of
herself and all others similarly situated v. DAgostino
Supermarkets, Inc., Case No. 1:23-cv-00500-HG (E.D.N.Y., Jan. 24,
2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
D'Agostino Supermarkets -- http://www.dagnyc.com/-- once a
family-owned supermarket chain in the New York City area, is now
owned by Gristedes.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
DIAMOND CENTRAL: Ottum Files Suit in E.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Diamond Central, LLC.
The case is styled as Chris Ottum, individually and on behalf of
all others similarly situated v. Diamond Central, LLC, Case No.
1:23-cv-00499-ENV-JRC (E.D.N.Y., Jan. 24, 2023).
The nature of suit is stated as Other P.I. for Personal Injury.
Diamond Central -- https://mydiamondcentral.com/ -- is an training
center which focuses on providing top quality Spanish language
construction safety education at an affordable price for the
Hispanic market.[BN]
The Plaintiff is represented by:
Arun Ravindran, Esq.
HEDIN HALL LLP
1395 Brickell Avenue, Suite 1140
Miami, FL 33131
Phone: (305) 203-4573
Email: ARavindran@hedinhall.com
DOLLAR GENERAL: Faces Wolf Suit for Listing False Prices on Shelves
-------------------------------------------------------------------
JOSEPH WOLF; and CARMEN WOLF, individually and on behalf of all
others similarly situated, Plaintiff v. DOLLAR GENERAL CORPORATION;
DOLGEN NEW YORK, LLC D/B/A DOLGEN; and DOLGENCORP OF TEXAS, INC.,
Defendants, Case No. 1:23-cv-00123-BMB (N.D. Ohio, Jan. 23, 2023)
is an action arising out of the Defendants' policies and practices
of regularly charging the Plaintiffs and putative class members a
higher price at the register than the price of merchandise
advertised on the shelves at the time of sale at its Dollar General
stores in New York.
DOLLAR GENERAL CORPORATION operates a chain of discount retail
stores. The Company offer a broad selection of merchandise,
including consumable products such as food, paper and cleaning
products, health, beauty, pet supplies, and non-consumables such as
seasonal merchandise. Dollar General serves customers in the United
States. [BN]
The Plaintiff is represented by:
James L. Simon, Esq.
SIMON LAW CO.
5000 Rockside Road
Liberty Plaza Building - Suite 520
Independence, OH 44131
Telephone: (216) 816-8696
Email: james@simonsayspay.com
ETHOS GROUP: Harper Files Suit in N.D. Texas
--------------------------------------------
A class action lawsuit has been filed against Ethos Group Inc. The
case is styled as Earl Harper, Marilyn Thamert, Scheretta Michelle
White, individually and on behalf of all others similarly situated
v. Ethos Group Inc., Case No. 3:23-cv-00184-N (N.D. Tex., Jan. 24,
2023).
The nature of suit is stated as Torts/Pers Prop: Other Personal
Property Damage.
Ethos Group -- https://www.ethosgroup.com/ -- partners with retail
automotive dealers to promote an ethical, customer-focused approach
to the sale, financing and servicing of automobiles.[BN]
The Plaintiffs are represented by:
Bruce William Steckler, Esq.
STECKLER WAYNE CHERRY & LOVE PLLC
12720 Hillcrest Rd., Suite 1045
Dallas, TX 75230
Phone: (972) 387-4040
Fax: (972) 387-4041
Email: bruce@swclaw.com
FRANCISCAN VNS: Fails to Pay Overtime Wages, Beal Suit Alleges
--------------------------------------------------------------
LISA ANN BEALS, individually and on behalf of all others similarly
situated, Plaintiff v. FRANCISCAN VNS HOME CARE, INC., Defendant,
Case No. 1:23-cv-00137-TWP-MG (S.D. Ind. Jan. 23, 2023) is an
action against the Defendant's failure to pay the Plaintiff and the
class minimum wages, and overtime compensation for hours worked in
excess of 40 hours per week.
Plaintiff Beals was employed by the Defendant as an occupational
therapist.
Franciscan VNS Home Care is a not-for-profit home health care and
hospice agency in central Indiana. [BN]
The Plaintiff is represented by:
Robert F. Hunt, Esq.
Robert J. Hunt, Esq.
THE LAW OFFICE OF ROBERT J. HUNT, LLC
1905 South New Market Street, Suite 168
Carmel, IN 46032
Telephone: (317) 743-0614
Facsimile: (317) 743-0615
Email: rfh@indianwagelaw.com
rob@indianawagelaw.com
FUNKY CHUNKY: Toro Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Funky Chunky, LLC.
The case is styled as Andrew Toro, on behalf of himself and all
others similarly situated v. Funky Chunky, LLC, Case No.
1:23-cv-00604-ER (S.D.N.Y., Jan. 24, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Funky Chunky -- https://funkychunky.com/ -- offers gourmet and
chocolate popcorn and pretzel gifts in tins, pail, canisters and
buckets.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
GALAXY OF COMICS: General Pretrial Management Entered in Sookul
---------------------------------------------------------------
In the class action lawsuit captioned as SANJAY SOOKUL, v. GALAXY
OF COMICS, Case No. 1:23-cv-00379-JMF-BCM (S.D.N.Y.), the Hon.
Judge Barbara Moses entered an order regarding general pretrial
management as follows:
-- All pretrial motions and applications, including those
related to scheduling and discovery (but excluding motions
to dismiss or for judgment on the pleadings, for injunctive
relief, for summary judgment, or for class certification
under Fed. R. Civ. P. 23) must be made to Judge Moses and
in compliance with this Court's Individual Practices in
Civil Cases, available on the Court's website at
https://nysd.uscourts.gov/hon-barbara-moses. Parties and
counsel are cautioned:
-- Once a discovery schedule has been issued, all discovery
must be initiated in time to be concluded by the close of
discovery set by the Court.
-- Discovery applications, including letter-motions requesting
discovery conferences, must be made promptly after the need
for such an application arises and must comply with Local
Civil Rule 37.2 and section 2(b) of Judge Moses's
Individual Practices.
-- For motions other than discovery motions, pre-motion
conferences are not required, but may be requested where
counsel believe that an informal conference with the Court
may obviate the need for a motion or narrow the issues.
Galaxy of Comics sells comic books, graphic novels, back issues and
toys.
A copy of the Court's order dated Jan. 18, 2022 is available from
PacerMonitor.com at https://bit.ly/3XMqBlA at no extra charge.[CC]
INFORMA MEDIA: Case Management Order Entered in Gottsleben Suit
---------------------------------------------------------------
In the class action lawsuit captioned as MARK GOTTSLEBEN, v.
INFORMA MEDIA, INC., Case No. 1:22-cv-00866-HYJ-RSK (W.D. Mich.),
the Hon. Judge Ray Kent entered a case management order as
follows:
-- Trial: December 2, 2024
-- Motions to Join Parties or April 14, 2023
Amend Pleadings
-- Rule 26(a)(1) Disclosures
(including lay witnesses)
Plaintiff: March 3, 2023
Defendant: March 3, 2023
-- Motion for Class Certification November 6, 2023
Informa Media operates as a marketing and information company.
A copy of the Court's order dated Jan. 18, 2023 is available from
PacerMonitor.com at https://bit.ly/3D7jLPL at no extra charge.[CC]
INOVIO PHARMACEUTICALS: McDermid Class Settlement Gets Final Nod
----------------------------------------------------------------
In the class action lawsuit captioned as PATRICK MCDERMID,
individually and on behalf of all others similarly situated, v.
INOVIO PHARMACEUTICALS, INC., et al, Case No. 2:20-cv-01402-GJP
(E.D. Pa.), the Hon. Judge Gerald J. Pappert entered an order
granting the Plaintiffs motion for final approval of the Settlement
Agreement, Plan of Allocation, award for attorneys' fees, expenses,
and awards to the lead and representative Plaintiffs.
Mr. McDermid sued the Defendants alleging violations of sections
10(b) and 20(a) of the Securities and Exchange Act of 1934 and SEC
Rule 10b-5.
The Plaintiffs claim that during the class period, Defendants made
several false or misleading statements regarding Inovio's progress
on a COVID-19 vaccine that artificially inflated Inovio's stock
price.
For example, on February 14, 2020, Kim announced on television that
"within three hours of accessing [COVID-19's genetic sequence] we
were able to construct our vaccine INO-4800."
His announcement caused Inovio's stock price to increase 7.5
percent. On March 2, 2020, Kim met with then-President Trump, and
while discussing the COVID-19 pandemic, stated that Inovio had
"fully construct[ed] [its COVID-19] vaccine within three hours."
Inovio's stock rose 69.7 percent by the end of the next day.
After Kim's statements, Citron Research -- a well-known securities
trading and research firm -- denounced on Twitter Inovio's
"ludicrous and dangerous" claim that it designed a vaccine in 3
hours.
Inovio later corrected Kim's statements, conceding it had not
constructed a vaccine in three hours, as Kim had claimed; rather,
it had designed a vaccine in three hours. Over the following
months, further misstatements were revealed, such as Inovio's
assertion that it could manufacture hundreds of millions of doses
of its vaccine. Within two days, Inovio's stock tumbled from $18.72
per share to just $5.70 per share.
Under the Settlement Agreement, Inovio agrees to pay an award of at
least $44 million. Of that total, $30 million will be paid in cash,
with the remainder paid in either seven million shares of Inovio
common stock or $14 million worth of stock, whichever is greater.
Each individual class member's recovery will depend on when they
purchased their Inovio stock, how much they paid for their stock,
and how many shares the individual purchased.
Reimbursement from the fund for counsel's $814,374.95 in litigation
expenses is appropriate. An attorney who has created a common fund
for the benefit of the class is entitled to reimbursement of his
reasonable litigation expenses from that fund. Counsel has
submitted a Declaration outlining the firm's expenses incurred
during this litigation.
Lead Plaintiff Williams and Representative Plaintiff Zenoff seek
awards of $77,450.00 and $75,712.50, respectively. Courts regularly
"approve incentive awards to compensate named plaintiffs for the
services they provided and the risks they incurred during the
course of the class action litigation."
Zenoff spent 168.25 hours working on the case, while Williams
logged 221.2 hours. Plaintiffs' requests are reasonable given the
time spent on this case and success obtaining a substantial class
settlement.
A copy of the Court's order dated Jan. 18, 2023 is available from
PacerMonitor.com at https://bit.ly/3HkUCU7 at no extra charge.[CC]
ISLAND PURSUIT: Court Enters Consent Decree in Toro Class Suit
--------------------------------------------------------------
Judge Jess M. Furman of the U.S. District Court for the Southern
District of New York enters Consent Decree in the case, ANDREW
TORO, Individually, and On Behalf of All Others Similarly Situated,
Plaintiff v. ISLAND PURSUIT, INC., Defendant, Case No.
1:22-cv-07667 (JMF)(BCM)(S.D.N.Y.).
The Consent Decree is entered into as of the Effective Date by and
between the Toro and the Defendant.
On Sept. 8, 2022, the Plaintiff filed a purported class action
complaint in the Court, alleging that the Defendant's website,
www.islandpursuit.com, is not fully accessible to blind or
visually-impaired individuals in violation of Title III of the
Americans with Disabilities Act of 1990 ("ADA"), New York State
Human Rights Law ("NYSHRL"), and the New York City Human Rights Law
("NYCHRL").
The ADA, 42 U.S.C. Sections 12181-12189 and its implementing
regulation, prohibit discrimination on the basis of disability in
the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, and accommodations by any private entity
that owns, leases (or leases to), or operates any place of public
accommodation.
The Defendant disputes and expressly denies each and every material
allegation in the Complaint, and most particularly, that the
Website is a place of public accommodation, that the Website
violates any federal, state or local law, including the ADA,
NYSHRL, NYCHRL, and that the Website is presently not reasonably
accessible for use by individuals with a disability using
commercially available screen reader technologies.
The Parties mutually desire to settle the Action to avoid cost and
inconvenience of litigation and without admission of fault,
liability or wrongdoing by either Party.
The Consent Decree resolves, settles, and compromises all issues
between the Parties in the Action. It is entered into by the
Plaintiff, individually, but is intended to inure to the benefit of
vision impaired individuals who are purported members of the class
alleged in the Complaint.
The Parties agree that it is in their best interest to resolve the
Action on mutually agreeable terms without further litigation or
any admission of fault, liability, or concession that the Defendant
is generally subject to personal jurisdiction in this venue.
Accordingly, they agree to the entry of the Consent Decree without
trial or further adjudication of any issues of fact or law raised
in the Complaint.
The Plaintiff and the Defendant have agreed to settle all matters
relating to costs, damages, attorneys' fees, experts' fees, other
financial matters, relating to any alleged inaccessibility of the
Website through a separate agreement (the "Settlement Agreement").
If any of the Parties claim the Consent Decree or any portion of it
has been violated, the Party alleging the breach will give written
notice (including reasonable particulars) of such violation to the
party alleged to be in breach. The alleged breaching Party must
respond to such written notice of breach no later than 60 calendar
days thereafter, unless the Parties agree to extend the time for
response.
Any notice or communication required or permitted to be given to
the Parties will be given in writing by e-mail and by overnight
express mail or United States first class mail, addressed as
follows: For PLAINTIFF: Mars Khaimov, Esq. MARS KHAIMOV LAW, PLLC
108-26 64th Ave., 2nd Floor Forest Hills, New York 11375 Email:
mars@khaimovlaw.com Phone: 929-324-0717 Fax: 929-333-7774 For
DEFENDANT: Lawrence S. Han RIVKIN RADLER LLP 926 RXR Plaza
Uniondale, NY 11556 E-mail: lawrence.han@rivkin.com Phone:
516-357-3148 Fax: 516-357-3333
The Consent Decree contains the entire agreement of the Plaintiff
and the Defendant, other than the terms of the Settlement
Agreement, and no other statement, promise, or agreement, either
written or oral, made by any party or agent of any party, that is
not contained in the Consent Decree, will be enforceable, other
than the Settlement Agreement.
The Parties expressly intend and agree that the Consent Decree will
inure to the benefit of all persons with vision disabilities as
defined by the ADA, including those who utilize a screen reader to
access the Website, which disabled persons will constitute
third-party beneficiaries to this Consent Decree.
Having considered the pleadings, law, underlying facts, and having
reviewed the Consent Decree, Judge Furman approves the Consent
Decree and in doing so specifically adopts it and makes it an Order
of the Court. He holds that the provisions of the Consent Decree
will be binding upon the Parties and the entry of the Consent
Decree is in the public interest;
The Consent Decree is for settlement purposes only and does not
constitute an admission by the Defendant of any of the allegations
contained in the Complaint or any other pleading in the Action, nor
does it constitute any finding of liability against the Defendant.
The Plaintiff is acting as a private attorney general in bringing
the Action and enforcing the ADA.
The Consent Decree will be deemed as adjudicating, once and for
all, the merits of each and every claim, matter, and issue that was
alleged, or could have been alleged by the Plaintiff in the Action
based on, or arising out of, or in connection with, the allegations
in the Complaint.
Any pending motions are moot. All conferences are vacated. The
Clerk of Court is directed to close the case.
A full-text copy of the Court's Jan. 20, 2023 Consent Decree is
available at https://tinyurl.com/2s4dxa5x from Leagle.com.
Mars Khaimov, Esq. -- mars@khaimovlaw.com -- MARS KHAIMOV LAW,
PLLC, Forest Hills, New York, PLAINTIFF'S LAWYERS.
Lawrence S. Han, Esq. -- lawrence.han@rivkin.com -- RIVKIN RADLER
LLP, Uniondale, New York, DEFENDANT'S LAWYERS.
J-M MANUFACTURING: Stipulation to Continue Deadlines OK'd
---------------------------------------------------------
In the class action lawsuit captioned as CAMBRIDGE LANE, LLC, v.
J-M MANUFACTURING COMPANY, INC. dba J-M PIPE MANUFACTURING COMPANY,
et al., Case No. 2:10-cv-06638-GW-MAR (C.D. Cal.), the Hon. Judge
George H. Wu entered an order granting stipulation to continue
deadlines as follows:
1. Expert witness designations shall be April 5, 2023
exchanged on:
2. Fact Discovery shall be completed by: May 22, 2023
3. Rebuttal expert designations shall May 22, 2023
be exchanged on:
4. Expert discovery shall be completed July 24, 2023
by:
5. Plaintiff's Motion for Class Sept. 5, 2023
Certification shall be filed by:
6. Defendant's Opposition shall be Oct. 18, 2023;
filed by:
7. The Plaintiff's Reply in Support Nov. 8, 2023.
of the Motion shall be filed by:
JM Eagle is an American corporation and a manufacturer of plastic
pipe.
A copy of the Court's order dated Jan. 18, 2023 is available from
PacerMonitor.com at https://bit.ly/3J7sIMt at no extra charge.[CC]
K.C. CO. LTD: Toro Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against K.C. Co., Ltd. The
case is styled as Andrew Toro, on behalf of himself and all others
similarly situated v. K.C. Co., Ltd., Case No. 1:23-cv-00606
(S.D.N.Y., Jan. 24, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
K.C. Co., Ltd. manufactures and distributes semiconductor capital
equipment. The Company develops semiconductor systems, display
systems, and materials.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
KIN COLLECTIVE: Hwang Files ADA Suit in E.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Kin Collective, LLC.
The case is styled as Jenny Hwang, on behalf of herself and all
others similarly situated v. Kin Collective, LLC., Case No.
1:23-cv-00501 (E.D.N.Y., Jan. 24, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Kin Collective -- https://www.kincollective.com/ -- is a
creative studio – based in Denver, Colorado – building brands
and experiences for social purpose organizations.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
LIGHTOLOGY WEB: Jackson Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Lightology Web LLC.
The case is styled as Sylinia Jackson, on behalf of herself and all
other persons similarly situated v. Lightology Web LLC, Case No.
1:23-cv-00618 (S.D.N.Y., Jan. 24, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Lightology -- https://www.lightology.com/ -- is the largest
contemporary lighting showroom in North America offering
contemporary lighting, outdoor lighting, LED lights & ceiling
fans.[BN]
The Plaintiff is represented by:
Dana Lauren Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (917) 796-7437
Fax: (212) 982-6284
Email: danalgottlieb@aol.com
MATERNAL AND FAMILY: Heiserman Files Suit in E.D. Pennsylvania
--------------------------------------------------------------
A class action lawsuit has been filed against Maternal and Family
Health Services, Inc. The case is styled as Jacquelyn Heiserman,
individually, and on behalf of all others similarly situated v.
Maternal and Family Health Services, Inc., Case No. 5:23-cv-00297
(E.D. Pa., Jan. 24, 2023).
The nature of suit is stated as Other Contract.
Maternal and Family Health Services (MFHS) -- https://www.mfhs.org/
-- is a non-profit health and human service organization working to
improve the health of Pennsylvania women and children by offering
programs that prevent disease, promote wellness, and empower
individuals to make healthy lifestyle choices.[BN]
The Plaintiff is represented by:
Mark C. Rifkin, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
270 Madison Avenue, 10th Floor
New York, NY 1001630
Phone: (212) 545-4600
Fax: (212) 545-4653
Email: rifkin@whafh.com
METROPOLITAN LIFE: Summary Judgment Hearing Date Extended
---------------------------------------------------------
In the class action lawsuit captioned as RONIT LARONE,
Individually, as Trustee of the Gary Lang Trust; and on Behalf of
the Class, v. METROPOLITAN LIFE INSURANCE COMPANY, a New York
Corporation; MERCER HEALTH AND BENEFITS ADMINISTRATION, LLC, a
Delaware Corporation; and DOES 1 through 10, Inclusive, Case No.
2:21-cv-00995-AB-AGR (C.D. Cal.), the Hon. Judge Andre Birotte Jr.
entered an order granting joint stipulation to extend hearing date
on motion for summary judgment and miscellaneous dates as follows:
-- The Plaintiff's opposition to March 31, 2023
Defendant's Motion for Summary
Judgment is due:
-- The Defendant's reply to Motion April 21, 2023
for Summary Judgment is due:
-- The hearing on Defendant's Motion May 12, 2023
for Summary Judgment, if held, is
continued to:
-- The deadline for the completion Sept. 29, 2023
of Phase II discovery is extended
from June 2, 2023, to:
-- The deadline for the filing of Oct. 27, 2023.
any Motion for Class Certification
is extended from June 30, 2023, to:
Metropolitan Life offers annuities, auto, dental, home,
disabilities, life, vision, accident, and health insurance
services.
A copy of the Court's order dated Jan. 18, 2023 is available from
PacerMonitor.com at https://bit.ly/3XtPrHb at no extra charge.[CC]
MILWAUKEE COUNTY, WI: Bid to Certify Class in Bush v. Dobson Denied
-------------------------------------------------------------------
In the case, TOMMY T. BUSH, MARION PATILLO, and CLIFFORD E. BENT,
Plaintiffs v. INSPECTOR DOBSON, EARNELL LUCAS, DAVID CROWLEY, CITY
OF MILWAUKEE and MILWAUKEE COUNTY, Defendants, Case No. 22-CV-697
(E.D. Wis.), Judge Brett H. Ludwig of the U.S. District Court for
the Eastern District of Wisconsin:
a. grants the Plaintiffs' motions for leave to proceed in
forma pauperis;
b. denies the Plaintiffs' motion to appoint counsel;
c. denies the Plaintiffs' motion for certification of class;
and
d. dismisses Inspector Dobson, Earnell Lucas, David Crowley,
and the City of Milwaukee.
Plaintiffs Bush, Patillo, and Bent, who are confined at the
Milwaukee County Jail and representing themselves, filed a
complaint under 42 U.S.C. Section 1983 alleging that the Defendants
violated their constitutional rights. Initially the matter had over
20 plaintiffs, but, for various reasons, including several
plaintiffs' voluntary withdrawal and others' failure to pay the
required initial partial filing fee, only Bush, Patillo and Bent
remain.
The Plaintiffs allege that Milwaukee County Jail has made
conditions for pretrial detainees nearly unlivable. Among other
things, they allege that (i) they are served food that is freezer
burned or spoiled, and suffer from gastrointestinal distress as a
result; (ii) detainees are denied hygiene supplies; (iii) cells are
full of bugs and often times full of sewage and human waste; (iv)
the toilets are often disabled for more than 12 hours at a time;
and (v) there is also a lack of recreation and religious services.
The Plaintiffs also allege that when they complain about these
conditions, their grievances are not investigated. Additionally,
they assert that the courts are slow to process their preliminary
hearings and are depriving them of speedy trials.
Judge Ludwig screens their complaint and resolves their motions for
leave to proceed without prepayment of the filing fee.
Additionally, he resolves their motions to appoint counsel, and for
class certification.
The Plaintiffs have asked for leave to proceed without prepaying
the full fling fee (in forma pauperis).
Judge Ludwig holds that each prisoner plaintiff proceeding in forma
pauperis is required to pay the full amount of the $350.00 filing
fee over time. All the remaining Plaintiffs have submitted
certified copies of their trust account statements as required
under 28 U.S.C. Section 1915(a)(2). They have also been assessed
and paid the initial partial filing fees. Accordingly, their
motions for leave to proceed without prepayment of the filing fee
are granted.
Judge Ludwig then screens the complaint. First, he finds that the
Plaintiffs' allegations do not detail what any of the named
Individual Defendants specifically did or did not do to cause the
constitutional violations. Accordingly, the claims against all
three Individual Defendants are dismissed.
Second, he finds that the Plaintiffs' claims against the City of
Milwaukee fail because the Milwaukee County Jail is operated under
the authority of Milwaukee County and not the City. Accordingly, he
dismisses the Plaintiffs' claims against the City of Milwaukee. He
also allows the Plaintiffs to proceed, however, with Monell claims
against Milwaukee County based on two sets of allegations.
Third, the Plaintiffs' other allegations are not sufficient to
state claims that can survive screening. While the Plaintiffs
contend that Milwaukee County has limited their access to the
courts by denying them legal materials and has been slow in
providing them preliminary hearings and trials, they do not allege
how (if at all) these limitations have prevented them from
litigating their cases or otherwise negatively impacted them.
Absent such allegations, the Plaintiffs lack standing to assert
constitutional violations.
Because the Plaintiffs' motion for certification of class requires
a finding that they are adequate representatives of the class,
Judge Ludwig addresses their motion to appoint counsel. He denies
their motion for counsel without prejudice. He finds that the
Plaintiffs do not give any information that would allow him to
discern whether they are able to participate in discovery or other
stages of the litigation. Based on their current filings, including
the complaint and their ability to communicate to the court that
they want to proceed with the case, it seems that they possess the
ability to litigate the case.
Finally, prior to the dismissal of over 20 plaintiffs, the
Plaintiffs moved for class certification. Judge Ludwig has found
that the Plaintiffs do not qualify for recruitment of counsel at
this stage and will need to proceed pro se. Their motion for class
certification is denied.
Based on the foregoing, Judge Ludwig grants the Plaintiffs' motions
for leave to proceed in forma pauperis; denies the Plaintiffs'
motion to appoint counsel; denies the Plaintiffs' motion for
certification of class; and dismisses Inspector Dobson, Earnell
Lucas, David Crowley, and the City of Milwaukee.
Under an informal service agreement between Milwaukee County and
the Court, a copy of the complaint and the Order have been
electronically transmitted to Milwaukee County for service on
Milwaukee County. Under the informal service agreement, the
Defendant will file a responsive pleading to the complaint within
60 days.
The agency having custody of 1) Tommy T. Bush shall collect from
his institution trust account the $271.85 balance of the filing
fee; 2) Marion Patillo will collect from his institution trust
account the $328.53 balance of the filing fee; and 3) Clifford E.
Bent shall collect from institution trust account the $321.36
balance of the filing fee.
The agency will collect these filing fees by collecting monthly
payments from their prison trust accounts in an amount equal to 20%
of the preceding month's income credited to each prisoner's trust
account and forwarding payments to the Clerk of Court each time the
amount in each account exceeds $10 in accordance with 28 U.S.C.
Section 1915(b)(2).
The payments will be clearly identified by the case name and number
assigned to the action. If a Plaintiff is transferred to another
institution, the transferring institution will forward a copy of
the Order along with the Plaintiff's remaining balance to the
receiving institution.
A copy of Judge Ludwig's order will be sent to the Milwaukee County
Sheriff and to Dennis Brand, 821 W. State Street, Room 224,
Milwaukee, WI 53233.
The parties may not begin discovery until after the Court enters a
scheduling order setting deadlines for discovery and dispositive
motions.
The Plaintiffs who are inmates at Prisoner E-Filing Program
institutions must submit all correspondence and case filings to
institution staff, who will scan and e-mail documents to the Court.
The Prisoner E-Filing Program is mandatory for all inmates of Green
Bay Correctional Institution, Waupun Correctional Institution,
Dodge Correctional Institution, Wisconsin Secure Program Facility,
Columbia Correctional Institution, and Oshkosh Correctional
Institution.
The Plaintiffs who are inmates at all other prison facilities must
submit the original document for each filing to the Court to the
following address: Office of the Clerk 517 E. Wisconsin Avenue,
Room 362 Milwaukee, Wisconsin 53202
The Plaintiffs are further advised that failure to make a timely
submission may result in the dismissal of the case for failure to
diligently pursue it. In addition, the parties must notify the
Clerk of Court of any change of address. The Plaintiffs are
reminded that it is their responsibility to promptly notify the
court if they are released from custody or transferred to a
different institution. Their failure to keep the court advised of
their whereabouts may result in their dismissal or the dismissal of
the case without further notice.
The case is returned to Magistrate Judge William E. Duffin. The
case is no longer referred to Judge Ludwig.
A full-text copy of the Court's Jan. 24, 2023 Screening Order is
available at https://tinyurl.com/vpjctbcj from Leagle.com.
MONTEREY FINANCIAL: Schaired Has Leave to File Amended Complaint
----------------------------------------------------------------
In the case, ROBERT SCHAIRED, Plaintiff v. MONTEREY FINANCIAL
SERVICES, INC., Defendant, Case No. 22-cv-0736-BAS-MDD (S.D. Cal.),
Judge Cynthia Bashant of the U.S. District Court for the Southern
District of California grants in part and denies in part Schaired's
Motion for Leave to File his proposed Amended Complaint.
In approximately 2016, Schaired, a Georgia resident, bought a
timeshare property at the Westgate Resort in Florida. At some
point, which he does not specify, he defaulted on his obligations
set forth in the timeshare purchase agreement, leaving an unpaid
balance of $8,969.
Westgate placed that debt for collection with MFSI, a collection
agency located in Oceanside, California. MFSI somehow obtained
Schaired's cellular phone number and began to call him to collect
the subject debt in approximately June 2021.
Schaired ignored these calls for approximately nine months. Then,
in approximately March 2022, Schaired answered a call, marking the
first communication between the parties that is identified in the
Complaint. During that call, Schaired alleges he advised MFSI he
wanted to address the subject debt with Westgate directly and
requested that MFSI cease its collection calls. Nevertheless, MFSI
continued its collection calls, which Schaired continued to
ignore.
Approximately two months after the initial communication, Schaired
commenced the putative-class action against Defendant Monterey
Financial Services, Inc. ("MFSI") on May 23, 2022. The initial
Complaint asserts three claims: one under the Telephone Consumer
Protection Act ("TCPA"), 47 U.S.C. Section 227 et seq., and two
under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C.
Section 1692 et seq.
MFSI moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to
dismiss one of Schaired's FDCPA claims -- that MFSI violated 15
U.S.C. Section 1692e(11) -- and to strike pursuant to Rule 12(f)
Schaired's class allegations.
Now before the Court is Schaired's Motion, which he filed in
response to MFSI's motions to dismiss and strike. He explicitly
brings his Motion pursuant to Rule 15(a)(2). The proposed Amended
Complaint alters only Schaired's class allegations; it leaves
untouched the initial Complaint's factual allegations and claims.
MFSI concedes Schaired's proposed amendments cure the deficiencies
it identified in its motion to strike. However, it contends
Schaired still fails to state a Section 1692e(11) claim upon which
relief can be granted. Accordingly, MFSI argues the Motion should
be denied as futile as to that claim.
In response, Schaired does not address the merits of MFSI's
contention but rather argues MFSI is required as a matter of
procedure to file a new motion to dismiss if it seeks to challenge
the sufficiency of his Section 1692e(11) claim.
Judge Bashant finds the Motion suitable for determination based
upon the papers submitted and without oral argument. Because
Schaired has amended his pleading only once -- and the allegations
pertinent to Count II in the proposed Amended Complaint are
identical to those set forth in his initial Complaint -- Judge
Bashant cannot determine at this time whether Schaired is able to
come forward with facts supporting a viable Section 1692e(11)
claim.
Indeed, Schaired has identified only one communication from MFSI
despite allegedly receiving 15 voicemails in the period between
March 2022 and May 2022. Therefore, it is possible other MFSI
voicemails exist that Schaired has yet to disclose, which would
fail to inform even the least sophisticated consumer that MFSI is a
debt collector.
Judge Bashant concludes: (1) MFSI's challenge that Schaired fails
to state a claim under Section 1692e(11) is properly before the
Court and (2) the proposed Amended Complaint fails to allege MFSI
violated Section 1692e(11) and, thus, that claim is futile.
For these reasons, Judge Bashant grants in part and denies in part
Schaired's Motion. She denies without prejudice Schaired's Motion
to the extent he seeks to move forward with Count II because the
underlying FDCPA claim is futile as presently alleged. However, she
grants Schaired's request to amend his class-action allegations.
Schaired shall file a revised Second Amended Complaint that is
consistent with the Order by no later than Feb. 6, 2023.
Judge Bashant further terminates as moot MFSI's motion to dismiss
the initial Complaint.
A full-text copy of the Court's Jan. 24, 2023 Order is available at
https://tinyurl.com/8mcu2243 from Leagle.com.
NFL ENTERPRISES: Young Files Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against NFL Enterprises LLC.
The case is styled as James Young, individually and on behalf of
all others similarly situated v. NFL Enterprises LLC, Case No.
1:23-cv-00590 (S.D.N.Y., Jan. 24, 2023).
The nature of suit is stated as Other P.I.
NFL Enterprises LLC was founded in 2003. The Company's line of
business includes operating and promoting professional and
semiprofessional athletic clubs and events.[BN]
The Plaintiff is represented by:
Arun G. Ravindran, Esq.
HEDIN HALL LLP
1395 Brickell Avenue, Suite 1140
Miami, FL 33131
Phone: (305) 203-4573
Email: ARavindran@hedinhall.com
OPTIO SOLUTIONS: Weinberger Files FDCPA Suit in D. New Jersey
-------------------------------------------------------------
A class action lawsuit has been filed against Optio Solutions, LLC.
The case is styled as Yocheved Weinberger, individually and on
behalf of all others similarly situated v. Optio Solutions, LLC
d/b/a Qualia Collection Services, Case No. 3:23-cv-00383 (D.N.J.,
Jan. 24, 2023).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Optio Solutions -- https://www.optiosolutions.com/ -- is a national
debt collection agency providing first- and third-party collections
while leveraging creative solutions.[BN]
The Plaintiff is represented by:
Christofer Merritt, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: cmerritt@steinsakslegal.com
ORBIT/FR INC: Merrill's Bid to Dismiss Stockholders Suit Granted
----------------------------------------------------------------
In the case, IN RE ORBIT/FR, INC. STOCKHOLDERS LITIGATION, C.A. No.
2018-0340-SG (Del. Ch.), the Court of Chancery of Delaware grants
Douglas Merrill's Motion to Dismiss.
The Memorandum Opinion is the latest incarnation of a long-running
class action, asserting that a merger between a Delaware
corporation, Orbit, and its controller Microwave Vision, S.A.
("Micro"), was unfair to the class of minority stockholders. The
Lead Plaintiff is former stockholder AB Value Partners, L.P.
("Partners"). It replaced original lead Plaintiff Minerva Group
L.P. and filed an amended complaint, styled the Substitute
Complaint (the "SC"), on May 13, 2022.
Orbit was a Delaware incorporated, Pennsylvania based corporation
that was in the business of testing the performance of microwave
emitting devices. In 2008, Orbit stock traded on FINRA's
Over-the-Counter Bulletin Board. The company merged into Defendant
Micro in 2018 following a cash only freeze-out originally -- but
not ultimately -- conditioned on approval of an independent special
committee and majority of the minority vote.
Defendant Philippe Garreau was Saitmo S.A.'s principal from 1996
until its reorganization as Micro. Following the reorganization, he
served as Micro's CEO.
Defendant Per Iversen was Satimo's Chief Technology Officer from
1998 until its reorganization and served Micro in the same capacity
following Satimo's reorganization. Following Satimo's 2008 purchase
of a controlling stake in Orbit, Iversen served on the Board and as
Orbit's CEO.
Merrill "lived a couple of houses" away from Iversen in 2004, and
the two became friends when they "bonded" over mountain biking. At
Iversen's request, he served on the Board starting in 2008. He
served as a member of the two person special committee designated
to evaluate the sufficiency of the Merger consideration.
Partners is a former Orbit stockholder squeezed out in the Merger.
It held Orbit shares continuously from 2011 until the Merger and at
the Merger's effective date, Partners held 71.6% of the minority
block.
The Complaint alleges that in August 2009, Orbit and Micro executed
a services agreement whereby Orbit was to pay Micro to run its
operations. The Services Agreement, which was renewed "by tacit
agreement" yearly, allegedly allowed Micro to "tunnel cash flow to
itself" and cancellation would have been all downside to Micro.
Minerva brought a class action on behalf of the minority
shareholders challenging the fairness of the merger. It named
Merrill as a defendant but dismissed him without prejudice on Aug.
16, 2022. The original complaint withstood a motion to dismiss, and
eventually, the parties reached an agreement and proposed a
settlement, which included cash consideration for the minority
stockholders. However, Partners, holder of a majority of the
minority of Orbit stock, objected to the settlement seeking to take
over the litigation.
After consideration of the proposed settlement and the objection,
the Court of Chancery allowed Partners to assume lead-plaintiff
status and continue the litigation upon the posting of a bond
representing the cash component of the settlement together with
Minerva's requested attorney's fees and costs. Partners filed the
required bond. The Court of Chancery held that Partners could file
an amended complaint, asserting certain elements of the purportedly
unfair nature of the transaction, without prejudice to the right of
the Defendants (Micro and certain Orbit fiduciaries) to oppose any
amendment under Rule 15.63 Partners did so in the SC.
A slew of motions to dismiss followed. The Court of Chancery held
oral argument on these motions as well as motions to stay discovery
on Oct. 26, 2022. It granted Merrill's motion to stay discovery but
denied the other Defendants' similar motion. In its memorandum
opinion of Jan. 9, 2023, the Court of Chancery denied Micro,
Garreau, and Arnaud Gandois' as well as Iversen's motions to
dismiss. Merrill seeks dismissal on other grounds; this decision
addresses only Merrill's motion.
The Court of Chancery explains that among the original Defendants
was the movant, Merrill. Merrill is a former director of Orbit who
served on the special committee that negotiated sale of Orbit to
Micro. Minerva, however, voluntarily dismissed Merrill without
prejudice. The SC, by contrast, again named Merrill as a defendant.
That is understandable, as the SC alleges that Merrill was, in
addition to serving as a supposedly independent director, an
executive of Orbit whose job depended, or had depended, on the
continued patronage of Orbit's controller, Micro. In other words,
per Partners, Merrill was not independent, and given his dependence
on Micro, he reasonably could be inferred to have facilitated an
unfair sale to placate that entity.
The problem with this argument, according to the Court of Chancery,
is that it is based on a fundamental error. It opines that the
Plaintiff's counsel, confronted with this error at oral argument,
forthrightly admitted that counsel had misread a document, which
(upon casual reading) could be read to support a conclusion that
Merrill served as an Orbit "President of Manufacturing and Supply
Chain Strategies."
Partners now concedes that there are no facts from which the Court
of Chancery may infer that Merrill was employed by Orbit or
otherwise dependent on Micro. The Plaintiff, nonetheless, points to
a personal relationship with another Defendant, Iverson, as
overcoming the presumption of Merrill's independence. Iverson was a
member of the Orbit board, and a senior executive of both Micro and
Orbit. According to the complaint, in the past Iverson and Merrill
were neighbors, their children were contemporaries, and Iverson and
Merrill frequently went for bicycle rides together. Iverson was
responsible for Merrill becoming a board member. That is the
substance of the remaining claim against Merrill.
To survive a motion to dismiss, in light of Orbit's exculpation
clause, the Court of Chancery says the SC must allege facts that
make it reasonably conceivable that Merrill breached his duty of
loyalty to Orbit and its stockholders in his conduct while on the
Special Committee. The SC does not suggest that Merrill had a
personal interest in the transaction at issue, however. Nor does it
allege facts suggesting that he acted in bad faith. The Plaintiff,
accordingly, is reliant on the alleged fact that Iverson had
divided loyalties as a fiduciary of both Orbit and Micro, and that
the Court of Chancery should thus infer that Iverson wanted Micro
to acquire Orbit in a process and for a price that were unfair to
the Orbit minority stockholders.
The Plaintiff then attempts to imply that the relationship between
Iverson and Merrill was so close and meaningful that the Court of
Chancery should infer that Merrill ignored his duty of loyalty in
order to benefit Iverson's employer, Micro. If the Court of
Chancery could make such an inference reasonably, that would
presumably state a cause of action for an unexculpated breach of
duty against Merrill.
In other words, the Plaintiff's logic is sound and consonant with
our case law. The allegations of fact, however, are an inadequate
foundation to support the inferential load that the Plaintiff asks
them to bear. The facts concerning the Iverson/Merrill
relationship, even looked at in the manner most favorable to the
Plaintiff, do not imply that Merrill allowed his fiduciary
obligations to be overborne by a personal loyalty to Iverson or
Micro. Instead, they represent a rather casual sharing of interests
between neighbors.
Because the Court of Chancery cannot reasonably infer that
Merrill's loyalty to Orbit was corrupted by his personal
relationships, and since the SC does not allege that he was
interested in the transaction and does not plead facts implying
Merrill's bad faith, the Motion to Dismiss must be granted.
The Court of Chancery notes, for the casual reader, that a
fiduciary duty action has been adequately pled against Micro and
the individual Defendants associated with Micro. The action,
therefore, will go forward. Based on the current pleadings,
however, it must do so without Special Committee member Merrill.
For the foregoing reasons, the Court of Chancery grants Merrill's
Motion to Dismiss. The parties should provide a form of order.
A full-text copy of the Court's Jan. 24, 2023 Memorandum Opinion is
available at https://tinyurl.com/ys92bnja from Leagle.com.
A. Thompson Bayliss -- Bayliss@AbramsBayliss.com -- E. Wade
Houston
-- Houston@AbramsBayliss.com -- and G. Mason Thomson --
Thomson@abramsbayliss.com -- of ABRAMS & BAYLISS LLP, in
Wilmington, Delaware, Attorneys for Plaintiff AB Value Partners,
L.P.
Ashley R. Altschuler -- aaltschuler@mwe.com -- Ethan H. Townsend
--
ehtownsend@mwe.com -- Harrison S. Carpenter -- hcarpenter@mwe.com
-- and Kevin M. Regan -- kregan@mwe.com -- of McDERMOTT WILL &
EMERY LLP, in Wilmington, Delaware, Attorneys for Defendants
Microwave Vision S.A., Phillippe Garreau, and Arnaud Gandois.
Daniel M. Silver --- dsilver@mccarter.com -- Benjamin A. Smyth --
dsilver@mccarter.com -- and Travis J. Ferguson --
tferguson@mccarter.com -- of McCARTER & ENGLISH, LLP, in
Wilmington, Delaware, Attorneys for Defendant Douglas Merrill.
Henry E. Gallagher Jr. -- hgallagher@connollygallagher.com -- and
Shaun Michael Kelly -- skelly@connollygallagher.com -- of CONNOLLY
GALLAGHER LLP, in Wilmington, Delaware, Attorneys for Defendant
Per
Iversen.
PHILLIP MUMMAH: Li Suit Remanded to Santa Clara County Super. Court
-------------------------------------------------------------------
Magistrate Judge Nathanael M. Cousins of the U.S. District Court
for the Northern District of California remands the case, TIANQING
LI, Plaintiff v. PHILLIP MUMMAH, Defendant and Cross-Complainant,
v. SCOTT A. FLAXMAN, Cross-Claim Defendant, Case No. 22-cv-07626 NC
(N.D. Cal.), to the Superior Court of the State of California for
the County of Santa Clara.
Scott A. Flaxman sought to remove the cross-claim filed against him
in Santa Clara County Superior Court to this Court. On Dec. 9,
2022, Judge Cousins issued an Order to Show Cause Regarding
Removal, asking Flaxman to explain why the case should not be
remanded back to the Superior Court under 28 U.S.C. Section 1441
and Home Depot, U.S.A. v. Jackson, 139 S.Ct. 1743, 1745 (2019).
Flaxman responded the next day.
Judge Cousins held hearings on the removal on January 11 and Jan.
18, 2023. At the January 18 hearing, the Defendant and
cross-complainant Mummah stated his opposition to removal and did
not waive any defects in removal procedures.
Judge Cousins finds that Flaxman still has not met his burden to
establish that removal was proper under 28 U.S.C. Section 1441 and
he therefore remands the case back to the Superior Court. He holds
that the Supreme Court's Section 1441(a) analysis in Home Depot is
not limited to class actions under the Class Action Fairness Act.
He finds unpersuasive Flaxman's argument that the Home Depot case
is "inapposite." He says the "exception" Flaxman cites in 28 U.S.C.
Section 1441(c) does not change the plain meaning of Section
1441(a).
At bottom, applying the plain meaning of 28 U.S.C. Section 1441(a)
as determined by the U.S. Supreme Court, Judge Cousins finds that
Flaxman's removal was improper because he is not a "defendant"
under that statute. He was not a "defendant" in the complaint filed
by the original plaintiff in state court. If Congress wanted to
write a statute permitting cross-claim defendants to remove
cross-claims to federal court it could do so. It has not. And
Mummah has not waived objection to the improper removal. Judge
Cousins thus remands the case back to Santa Clara County Superior
Court.
A remand order may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of the
removal. Judge Cousins does not award any fees or costs because
Mummah's fees and costs were minimal and Flaxman responded promptly
to the OSC.
Finally, Flaxman's separately filed Motion for Judgment on the
Pleadings is terminated in this Court without prejudice.
The Clerk of Court will administratively close the federal case
after remanding the case back to Superior Court.
A full-text copy of the Court's Jan. 20, 2023 Order is available at
https://tinyurl.com/26zcrr7x from Leagle.com.
PRINCE GEORGE'S COUNTY, MD: Bids to Dismiss Frazier Granted in Part
-------------------------------------------------------------------
In the case, ROBERT FRAZIER, et al., individually and on behalf of
a class of similarly situated persons, Plaintiffs v. PRINCE
GEORGE'S COUNTY, MARYLAND, et al., Defendants, Civil No. 22-1768
PJM (D. Md.), Judge Peter J. Messite of the U.S. District Court for
the District of Maryland grants in part and denies in part the
Motions to Dismiss of the County and the Judge Defendants.
The putative class action challenges the process by which criminal
defendants in Prince George's County, Maryland are granted release
prior to trial. The Plaintiffs are individuals who were arrested
and charged with various crimes between October 2020 and June 2022.
They assert that the Judge Defendants improperly delegated
decisions regarding their pretrial release to Defendant Employees
of the County, also a Defendant, and that the process by which all
the Defendants made release determinations violated their due
process rights. The Defendants have moved to dismiss the case based
on lack of subject matter jurisdiction, abstention doctrines, and
failure to state a claim.
When an individual is arrested in Prince George's County, he or she
is taken before a District Court Commissioner for an initial
determination of release or detention. Any individual ordered to be
detained is given a prompt bail review hearing, typically within 24
hours, by a judge of the District or the Circuit Courts of the
County. The judge decides whether pretrial release or detention is
appropriate. Maryland law directs that the judge's decision be
based, inter alia, on the recommendation of the Population
Management Division of the Prince George's County Department of
Corrections (the "Pretrial Division").
What that requirement has meant in practice, in Prince George's
County at least, is that, while the judge authorizes pretrial
release, actual release occurs only when the Pretrial Division
determines that a defendant satisfies certain criteria making him
or her eligible for release. The Plaintiffs contend that the
methods by which the Pretrial Division decides eligibility are
opaque, drawn out, and often arbitrary, during which time of course
the defendant unconstitutionally remains in custody.
The Pretrial Division considers a number of criteria in determining
a defendant's eligibility for release. At this juncture, the Court
has no information before it regarding which of these factors, if
any, are deemed mandatory and which are deemed optional in
determining a defendant's eligibility for release.
The Pretrial Division apparently has no deadline by which it must
determine whether a defendant is eligible for release. At some
point, however, if the Pretrial Division determines that it cannot
confirm whatever information it believes is critical, a defendant
is deemed ineligible for pretrial release and remains in custody.
The Court has not been advised of any policy or protocol indicating
the extent and frequency with which the Pretrial Division must
undertake to confirm relevant eligibility factors and report back
to the bail judge. Too often according to the Plaintiffs' counsel
(relying on oral reports from public defenders representing the
Plaintiffs in the trial courts), the process of confirming whether
a client is eligible for release or even for obtaining information
from the Pretrial Division as to a given defendant's status takes
an unduly long time.
As of November 2022, six of the named Plaintiffs (Frazier,
Hernandez, Davis, D.P., Sharp, and Worthington) (collectively, the
"Released Plaintiffs") were no longer in custody. The remaining
three Plaintiffs (Butler, Williams, and Laguan-Salinas)
(collectively, the "Detained Plaintiffs"), for various reasons,
continue to be detained.
In July 2022, the nine named Plaintiffs filed the case against
Prince George's County, various County Officials in their official
capacities, and Prince George's County District and Circuit Court
Judges who made certain decisions regarding the pretrial release
status of the various Plaintiffs. On Sept. 26, 2022, the Defendants
filed separate Motions to Dismiss.
On Oct. 25, 2022, the Court heard oral argument on the Motions and
took them under advisement. During the hearing, the Court, by oral
order, dismissed the individual County Officials from the case
since they had only been sued in their official capacities, making
the County the true party in interest. Jude Messite considers what
remains of the Defendants' Motions to Dismiss.
The Defendants' two Motions assert a total of six grounds they
believe warrant dismissal: (1) lack of subject matter jurisdiction
pursuant to the Rooker-Feldman doctrine, (2) various abstention
doctrines, (3) sovereign and judicial immunity, (4) lack of
entitlement to monetary damages, (5) failure to state a claim; and
(6) lack of justiciability.
First, Judge Messite opines that the Rooker-Feldman inapplicable.
He says what the Plaintiffs seek is only to ensure that the process
by which bail decisions are made in Prince George's County is
constitutionally adequate. This may or may not affect an individual
Plaintiff's bail outcome in a future bail review proceeding, but it
is entirely possible that a different pretrial release process
would still result in the same bail outcome. Therefore, the
Plaintiffs' claims do not amount to relief that would "reverse or
modify" a state court decree.
Second, having established that it has subject matter jurisdiction
in the case, Judge Messite considers whether any doctrines
nonetheless warrant abstention by the Court. He finds no reason to
abstain based on any of these doctrines. He opines that the
Plaintiff's criminal trials are not an adequate forum for Younger
purposes because they cannot raise issues of pretrial release as
part of their criminal defense. Furthermore, none of the
circumstances that the Judge Defendants cite to justify abstention
are "exceptional."
Third, having established that it has jurisdiction over the case
and finding no reason to abstain, Judge Messite considers, as the
case moves forward, which parties and remedies belong in the case
and which do not. He holds it is only the claims of the Plaintiffs
who are presently detained that could reasonably be affected by
such a remedy; changes to the pretrial process would not affect the
Plaintiffs who have been released. Therefore, all the Released
Plaintiffs' claims as to the Judge Defendants will be dismissed;
the Detained Plaintiffs' claims for prospective equitable relief as
to the Judge Defendants, however, will remain. Accordingly, the
Judge Defendants' Motion to Dismiss with respect to the Released
Plaintiffs is granted, but the Motion with respect to the Detained
Plaintiffs is denied.
Because the County is entitled to "quasi-judicial" immunity, like
the Judge Defendants it can only be liable to the Plaintiffs for
prospective equitable relief. Accordingly, all of the Plaintiffs'
claims for money damages against the County are dismissed.
Regarding the Plaintiffs' request for future equitable relief,
Judge Messite's earlier analysis applies. The only Plaintiffs who
remain eligible for such relief are those who remain in custody. As
a result, the County's Motion to Dismiss is granted in all respects
as to the Released Plaintiffs but denied as to the claim for future
equitable relief of the Detained Plaintiffs.
Fourth, Judge Messite opines that a declaratory judgment is
appropriate anywhere it would serve a useful purpose in clarifying
and settling the legal relations in issue. Certainly, as to the
Detained Plaintiffs and future participants in the pre-release
program (remembering again that class action relief is sought), an
order "clarifying and settling" their rights under the pretrial
release program, more particularly due process protections, would
resolve the claims pending before the Court, regardless of which
state court judge might conduct particular bail reviews.
Finally, Judge Messite holds that the Defendant Judges may not
evade review simply by passing the basic responsibility for setting
bail on to another judge not presently before the Court. The
Plaintiffs can fairly invoke the "inherently transitory" exception,
which allows courts to exercise jurisdiction over claims that are
likely to become moot before the court can reasonably be expected
to rule on them. Pretrial detention is a classic example of an
inherently transitory claim. And if the case proceeds as a class
action, it makes sense to keep the current roster of Judge
Defendants in place, since all of them might be subject to such
remedy as the Court might order.
For the foregoing reasons, Judge Messite grants in part and denies
in part the Motions to Dismiss of the County and of the Judge
Defendants. He grants both Motions as to all claims of the Released
Plaintiffs. He grants both Motions as to the money damages claims
of the Detained Plaintiffs, but denies as to the claims of those
Plaintiffs for prospective equitable relief.
Within 30 days from the date of entry of the Order, the counsel for
the parties are directed to submit a Joint Proposed Scheduling
Order to the Court that includes a timetable for discovery as well
as a proposed briefing schedule to address, if necessary, the
Plaintiffs' Motion for Preliminary Injunction and Motion for Class
Certification.
A separate Order will be issued.
A full-text copy of the Court's Jan. 24, 2023 Memorandum Opinion is
available at https://tinyurl.com/mub7pd4d from Leagle.com.
PROGRESSIVE DIRECT: Distribution of Certification Notice Sought
---------------------------------------------------------------
In the class action lawsuit captioned as JOEL STEDMAN, et al., v.
PROGRESSIVE DIRECT INSURANCE CO., a foreign automobile insurance
company, Case No. 2:18-cv-01254-RSL (W.D. Wash.), the Parties
stipulated motion to distribute certification notice.
The Parties jointly propose a notice program which satisfies the
due process requirements of Rule 23(c)(2) by providing notice to
Class Members by U.S. Mail and describing their rights in a
straightforward and concise manner.
The Plaintiffs Joel Stedman and Karen Joyce, on behalf of a class
of similarly situated individuals, and the Defendant Progressive
Direct Insurance Company move the Court to appoint Simpluris as
Notice Administrator, and to authorize distribution of the proposed
Notice of Certification to Class Members.
In discovery, Progressive produced claim file materials from
approximately six hundred and four (604) Personal Injury Protection
("PIP") claims during the four-year Class Period. Pursuant to the
Court's Order on Motion to Compel, for each claim, Progressive
produced a copy of the Independent Medical Examination report
("IME") and copies of any post-IME communications describing the
insurer's bases for limiting benefits.
Following this production, Class Counsel analyzed these materials
and identified approximately four-hundred and forty-three (443)
Class Member claim files where Progressive allegedly identified
achievement of maximum medical improvement or a "fixed-and-stable"
condition as a basis to limit benefits. Class Counsel produced a
list of these claim files to Progressive, and the Parties agree
they are putative Class Members for purposes of certification
notice.
Progressive Direct underwrites auto, fire, marine, and casualty
insurance.
A copy of the Parties' motion dated Jan. 18, 2023 is available
from PacerMonitor.com at https://bit.ly/3WsArrK at no extra
charge.[CC]
The Plaintiffs are represented by:
Duncan C. Turner, Esq.
Mark Trivett, Esq.
BADGLEY MULLINS TURNER PLLC
19929 Ballinger Way NE, Suite 200
Seattle, WA 98155
Telephone: (206) 621-6566
E-mail: dturner@badgleymullins.com
mtrivett@badgleymullins.com
- and -
Randall C. Johnson, Jr., Esq.
LAW OFFICE OF RANDALL C. JOHNSON, PLLC
Seattle, WA 98115
Telephone: (206) 890-0616
E-mail: rcjj.law@gmail.com
- and -
Daniel R. Whitmore, Esq.
LAW OFFICE OF DANIEL R. WHITMORE
6840 Fort Dent Way, #210
Tukwila, WA 98188
Telephone: (206) 329-8400
E-mail: dan@whitmorelawfirm.com
The Defendant is represented by:
Paul G. Karlsgodt, Esq.
Sammantha Tillotson, Esq.
James R. Morrison, Esq.
BAKER & HOSTETLER LLP
1801 California Street, Suite 4400
Denver, CO 80202
Telephone: (303) 861-0600
E-mail: pkarlsgodt@bakerlaw.com
stillotson@bakerlaw.com
jmorrison@bakerlaw.com
REALPAGE INC: Schmidig Sues Over Housing Lease Monopoly
-------------------------------------------------------
SHELLEY SCHMIDIG, individually and on behalf of all others
similarly situated, Plaintiff v. REALPAGE, INC.; THOMA BRAVO, L.P.;
AMLI MANAGEMENT COMPANY; ALLIANCE RESIDENTIAL COMPANY; APARTMENT
MANAGEMENT CONSULTANTS, LLC; ASSET LIVING, LLC; AVENUE5 RESIDENTIAL
LLC; BH MANAGEMENT LLC; THE BOZZUTO GROUP; CAMDEN PROPERTY TRUST;
CORTLAND PROPERTIES, INC.; CUSHMAN & WAKEFIELD, INC.; EQUITY
RESIDENTIAL; ESSEX PROPERTY TRUST; FPI MANAGEMENT, INC.; GREYSTAR
REAL ESTATE PARTNERS, LLC; LINCOLN PROPERTY CO.; MID- AMERICA
APARTMENT COMMUNITIES, INC.; MORGAN PROPERTIES; RPM LIVING LLC;
SECURITY PROPERTIES INC.; THRIVE COMMUNITIES MANAGEMENT, LLC; and
WINNCOMPANIES LLC, Defendants, Case No. Case 1:23-at-00059 (E.D.
Cal., Jan. 23, 2023) alleges violation of the Sherman Act.
The Plaintiff alleges in the complaint that the Defendants have
formed a cartel in the multifamily residential apartment building
market in the United States, the purpose and effect of which is to
artificially inflate the rental prices of apartment units in the
United States above competitive levels. To facilitate this unlawful
scheme, the Apartment Management Defendants provide RealPage --
and, through RealPage, one another -- with highly sensitive and
confidential competitive information on a daily basis, including
detailed real-time data regarding pricing, inventory, occupancy
rates, and unit types that are or will be coming available to rent,
among other things. The Apartment Management Defendants do so with
the knowledge, provided by RealPage, that their competitors are
also exchanging their real-time confidential information, the
Plaintiff asserts.
The Defendants have successfully increased rents to
supracompetitive levels while decreasing supply since at least
2016. Defendants' agreement to share their confidential commercial
data with their horizontal competitors and to adopt RealPage's
monopoly pricing constitutes a horizontal agreement not to compete
on price, a per se violation of the Sherman Act. Plaintiffs have
suffered antitrust injury by paying inflated rents and seek damages
and injunctive relief, says the suit.
RealPage is an American multinational corporation that provides
property management software for the multifamily, commercial,
single-family and vacation rental housing industries.[BN]
The Plaintiff is represented by:
Joseph R. Saveri, Esq.
Steven N. Williams, Esq.
Cadio Zirpoli, Esq.
Kevin E. Rayhill, Esq.
JOSEPH SAVERI LAW FIRM, LLP
601 California Street, Suite 1000
San Francisco, CA 94108
Telephone: (415) 500-6800
Facsimile: (415) 395-9940
Email: jsaveri@saverilawfirm.com
swilliams@saverilawfirm.com
czirpoli@saverilawfirm.com
krayhill@saverilawfirm.com
- and -
Benjamin J. Widlanski, Esq.
Javier A. Lopez, Esq.
KOZYAK TROPIN & THROCKMORTON LLP
2525 Ponce de Leon Blvd., 9th Floor
Coral Gables, FL 33134
Telephone: (305) 372-1800
Email: bwidlanski@kttlaw.com
jal@kttlaw.com
- and -
Archie C. Lamb, Jr., Esq.
ARCHIE LAMB & ASSOCIATES
P.O. Box 2088
Birmingham, AL 35201
Telephone: (205) 612-6789
Email: alamb@archielamb.com
RELIANT PRO: Court Finds Bid to Transfer or Toss Anderson Suit Moot
-------------------------------------------------------------------
In the case, REBECCA ANDERSON, individually and on behalf of all
others similarly situated, TARA NUNALLY, Plaintiffs v. RELIANT PRO
REHAB, LLC, Defendant, Case No. 1:22-cv-00599-HBK (E.D. Cal.),
Magistrate Judge Helena M. Barch-Kuchta of the U.S. District Court
for the Eastern District of California enters an Order finding the
Defendant's motion to transfer or partially dismiss the Plaintiffs'
amended complaint as moot.
The Plaintiffs commenced the action by filing a purported class
action complaint and subsequent amended complaint alleging the
Defendant, a Delaware corporation headquartered in Texas, violated
the Fair Labor Standard Act ("FLSA") by failing to make overtime
payments, inter alia. They sought to bring the class action on
behalf of a national collective action comprised of Reliant
employees, including employees who never worked in California.
In response, Reliant filed a motion to transfer or partially
dismiss the Plaintiffs' amended complaint for lack of personal
jurisdiction on Aug. 19, 2022. It contends the Court lacks
jurisdiction regarding any claims by potential opt-in plaintiffs
who did not perform work for Reliant in California. To the extent
the Plaintiffs seek to bring the action as a nationwide class
action, the Defendant requests the Court to either: (1) transfer
the action to the Eastern District of Texas, the Court with general
jurisdiction over the Defendant; or (2) dismiss the claims by any
potential non-California opt-in plaintiffs.
On Dec. 15, 2022, the Plaintiffs filed a Second Amended Complaint
("SAC") alleging only violations of California labor laws against
the Defendant, seeking to certify as a class only those current or
former employees of the Defendant, classified as non-exempt and
employed in California. On Dec. 29, 2023, the Defendant filed an
Answer to the SAC.
Because the SAC alleges only state law claims against Defendant and
seeks to certify only a class of California employees, Judge
Barch-Kuchta finds the Defendant's motion to transfer or partially
dismiss Plaintiffs' amended complaint moot.
Accordingly, she orders that the Defendant's motion to transfer or
partially dismiss the Plaintiffs' amended complaint is moot. The
Court will issue a Case Management and Scheduling Order after the
mandatory initial scheduling conference set for Feb. 9, 2023, at
10:45 a.m.
A full-text copy of the Court's Jan. 20, 2023 Order is available at
https://tinyurl.com/bdds3x24 from Leagle.com.
RESURGENT CAPITAL: Marshall Files FDCPA Suit in M.D. Florida
------------------------------------------------------------
A class action lawsuit has been filed against Resurgent Capital
Services, L.P. The case is styled as Terrence Marshall,
individually and on behalf of all others similarly situated v.
Resurgent Capital Services, L.P., Case No. 3:23-cv-00087-HES-PDB
(M.D. Fla., Jan. 24, 2023).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Resurgent Capital Services is a manager and servicer of domestic
and international consumer debt portfolios for credit grantors and
debt buyers.[BN]
The Plaintiff is represented by:
Justin Zeig, Esq.
ZEIG LAW FIRM, LLC
3475 Sheridan Street, Suite 310
Hollywood, FL 33021
Phone: (754) 217-3084
Fax: (754) 217-3084
Email: justin@zeiglawfirm.com
SEALED AIR: $3.58M in Attys.' Fees & Costs Awarded in UA Local Suit
-------------------------------------------------------------------
In the case, UA LOCAL 13 & EMPLOYERS GROUP INSURANCE FUND,
Individually and on Behalf of All Others Similarly Situated,
Plaintiff v. SEALED AIR CORPORATION and WILLIAM G. STIEHL,
Defendants, Civil Action No. 1:19-cv-10161-LLS-RWL (S.D.N.Y.),
Judge Louis L. Stanton of the U.S. District Court for the Southern
District of New York grants the Lead Counsel's motion for an award
of attorneys' fees and expenses and awards to the Plaintiffs.
The matter came before the Court on Jan. 20, 2023, on the motion of
the Lead Counsel for an award of attorneys' fees and expenses and
awards to the Plaintiffs.
Judge Stanton has considered all papers filed and found the
Settlement of the Action to be fair, reasonable, and adequate.
The Order incorporates by reference the definitions in the
Stipulation and Agreement of Settlement dated as of Sept. 9, 2022,
and all capitalized terms used will have the same meanings as set
forth in the Stipulation.
Judge Stanton awards the Lead Counsel attorneys' fees of 25% of the
$12.5 million Settlement Amount, plus expenses in the amount of
$455,832.33, together with the interest earned on both amounts for
the same time period and at the same rate as that earned on the
Settlement Fund until paid. He finds that the amount of fees
awarded is fair, reasonable, and appropriate under the
"percentage-of-recovery" method.
The awarded attorneys' fees and expenses and interest earned
thereon, will be paid to the Lead Counsel immediately upon
execution of the Final Judgment and the Order and subject to the
terms, conditions, and obligations of the Stipulation.
Judge Stanton further awards $3,150 to Plaintiffs UA Local 13
Pension Fund and UA Local 13 & Employers Group Insurance Fund,
$4,800 to Plaintiff Plumbers & Steamfitters Local 267 Pension Fund,
and $4,800 to Plaintiff Plumbers and Steamfitters Local No. 7
Pension and Welfare Funds for the time they spent directly related
to their representation of the Class.
Any appeal or any challenge affecting the Court's approval
regarding the Fee Motion will in no way disturb or affect the
finality of the Judgment entered with respect to the Settlement.
In the event that the Settlement is terminated or does not become
Final or the Effective Date does not occur in accordance with the
terms of the Stipulation, the Order will be rendered null and void
to the extent provided in the Stipulation and will be vacated in
accordance with the Stipulation.
A full-text copy of the Court's Jan. 20, 2023 Order is available at
https://tinyurl.com/43ym4t5r from Leagle.com.
SEALED AIR: Court Approves Plan of Allocation in UA Local Suit
--------------------------------------------------------------
In the case, UA LOCAL 13 & EMPLOYERS GROUP INSURANCE FUND,
Individually and on Behalf of All Others Similarly Situated,
Plaintiff v. SEALED AIR CORPORATION and WILLIAM G. STIEHL,
Defendants, Civil Action No. 1:19-cv-10161-LLS-RWL (S.D.N.Y.),
Judge Louis L. Stanton of the U.S. District Court for the Southern
District of New York grants the Plaintiffs' motion for approval of
the Plan of Allocation.
The matter came before the Court on Jan. 20, 2023, on the
Plaintiffs' motion for approval of the Plan of Allocation.
The Order incorporates by reference the definitions in the
Stipulation and Agreement of Settlement dated Sept. 9, 2022.
Pursuant to and in full compliance with Rule 23 of the Federal
Rules of Civil Procedure, Judge Stanton finds and concludes that
(i) due and adequate notice was directed to all persons who are
Class Members; (ii) the formula for the calculation of the claims
of Authorized Claimants provides a fair and reasonable basis upon
which to allocate the proceeds of the Net Settlement Fund; and
(iii) the Plan of Allocation is, in all respects, fair and
reasonable. Accordingly, he approves the Plan of Allocation.
A full-text copy of the Court's Jan. 20, 2023 Order is available at
https://tinyurl.com/2p8uyesr from Leagle.com.
SEALED AIR: Final Judgment & Order Entered in UA Local Class Suit
-----------------------------------------------------------------
Judge Louis S. Stanton of the U.S. District Court for the Southern
District of New York enters Final Judgment and Order in the case,
UA LOCAL 13 & EMPLOYERS GROUP INSURANCE FUND, Individually and on
Behalf of All Others Similarly Situated, Plaintiff v. SEALED AIR
CORPORATION and WILLIAM G. STIEHL, Defendants, Civil Action No.
1:19-cv-10161-LLS-RWL (S.D.N.Y.).
The matter came before the Court pursuant to the Order
Preliminarily Approving Settlement and Providing for Notice dated
Sept. 14, 2022, on the application of the Plaintiffs for approval
of the Settlement set forth in the Stipulation and Agreement of
Settlement dated as of Sept. 9, 202. Due and adequate notice having
been given to the Class as required in the Order.
The Final Judgment and Order of Dismissal with Prejudice
incorporates by reference: (a) the Stipulation; and (b) the Notice,
Summary Notice, and Declaration of the Claims Administrator filed
with the Court on Dec. 16, 2022. All terms used therein shall have
the same meanings as set forth in the Stipulation, unless otherwise
set forth therein.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Judge
Stanton affirms the determinations in the Order and finally
certifies for purposes of settlement only a Class defined as "all
persons and entities who purchased or otherwise acquired Sealed Air
common stock from Nov. 17, 2014 to June 20, 2019, inclusive, and
were damaged thereby.
Judge Stanton affirms the determinations in the Order and finally
appoints Plaintiffs UA Local 13 Pension Fund, UA Local 13 &
Employers Group Insurance Fund, Plumbers & Steamfitters Local 267
Pension Fund, and Plumbers and Steamfitters Local No. 7 Pension and
Welfare Funds the Class Representatives for the Class; and Robbins
Geller Rudman & Dowd LLP the Class Counsel for the Class.
Judge Stanton further affirms the determinations in the Order,
fully and finally approves the Settlement set forth in the
Stipulation in all respects. Accordingly, he authorizes and directs
implementation and performance of all the terms and provisions of
the Stipulation, as well as the terms and provisions thereof.
Except as to any individual claim of those Persons who have validly
and timely requested exclusion from the Class, he dismisses the
Action and all Released Claims of the Class with prejudice. The
Settling Parties are to bear their own costs, except as and to the
extent provided in the Stipulation and therein.
Judge Stanton orders that pursuant to the Judgment, without further
action by anyone, upon the Effective Date, and as provided in the
Stipulation, the Plaintiffs shall, and each of the Releasing
Plaintiffs' Parties shall be deemed to have, and by operation of
this Judgment shall have, fully, finally, and forever waived,
released, relinquished, discharged, and dismissed with prejudice
all Released Claims against the Released Persons and shall forever
be barred and enjoined from commencing, instituting, prosecuting,
or maintaining any and all of the Released Claims against the
Released Persons, whether or not such Releasing Plaintiffs' Party
executes and delivers the Proof of Claim and Release or shares in
the Settlement Fund. Claims to enforce the terms of the Stipulation
are not released.
Any Plan of Allocation submitted by the Lead Counsel or any order
entered regarding any attorneys' fee and expense application or
application by Plaintiffs pursuant to 15 U.S.C. Section 78u-4(a)(4)
in connection with their representation of the Class will in no way
disturb or affect the Judgment and shall be considered separate
from the Judgment.
The Defendants have denied and continue to deny liability and
maintain that they have meritorious defenses, and they have
represented that they entered into the Settlement solely in order
to avoid the cost and burden of litigation.
Without affecting the finality of this Judgment in any way, the
Court hereby retains continuing jurisdiction over: (a)
implementation of the Settlement and any award or distribution of
the Settlement Fund; (b) disposition of the Settlement Fund; (c)
hearing and determining applications for attorneys' fees, expenses,
and interest in the Action; (d) all parties herein for the purpose
of construing, enforcing, and administering the Stipulation; (e)
the Class Members for all matters relating to the Action; and (f)
other matters related or ancillary to the foregoing.
Without further order of the Court, the Settling Parties may agree
to reasonable extensions of time to carry out any of the provisions
of the Stipulation.
Judge Stanton directs immediate entry of the Judgment by the Clerk
of the Court.
A full-text copy of the Court's Jan. 20, 2023 Final Judgment &
Order is available at https://tinyurl.com/cvke2zvy from
Leagle.com.
ST. ANN, MO: Court Grants Thomas Notice of Class Settlement
-----------------------------------------------------------
In the class action lawsuit captioned as QUINTON M. THOMAS, et al.,
v. CITY OF ST. ANN, MISSOURI, Case No. 4:16-cv-01302-SEP (E.D.
Mo.), the Hon. Judge Sarah E. Pitlyk entered an order:
1. granting the Plaintiff's notice of settlement;
2. granting the Plaintiffs' motion for stay;
3. staying the case until final approval of class
certification;
4. directing the counsel to file a joint status report
updating the Court on the parties' settlement status no
later than February 17, 2023; and
5. directing the counsel to file within 30 days from the date
of final approval of class certification, a stipulation
for dismissal, a motion for leave to voluntarily dismiss,
or a proposed consent judgment.
A copy of the Court's order dated Jan. 18, 2023 is available from
PacerMonitor.com at https://bit.ly/3QUz2ZT at no extra charge.[CC]
TESLA INC: Objection to Discovery Order in Hiatt Suit Denied
------------------------------------------------------------
In the case, JERRY M. HIATT, Plaintiff v. TESLA, INC., Defendant,
Civ. No. 21-00198 LEK-KJM (D. Haw.), Judge Leslie E. Kobayashi of
the U.S. District Court for the District of Hawaii denies Tesla's
L.R. 74.1 Statement of Objection to Magistrate Judge's August 1,
2022 Discovery Order.
On Aug. 15, 2022, Tesla appealed a discovery order entered by the
magistrate judge on Aug. 1, 2022 that denied its request for a stay
of discovery and permitted Hiatt to have Tesla respond to written
discovery. Hiatt filed his response on Aug. 29, 2022. Tesla filed
its reply memorandum on Sept. 12, 2022.
Tesla argues that the August 1 Order is clearly erroneous because
it overlooks that the disputed discovery is relevant to issues
already pending before the arbitrator and therefore stayed in the
action.
Judge Kobayashi holds that Tesla is mistaken. She says the Court
has already ruled that the arbitration will decide Hiatt's
individual claims; that the potentially dispositive gateway issues
regarding Hiatt's class action claims are for the district court
(and not the arbitrator) to decide; and that discovery can go
forward on these issues during the pendency of the arbitration
proceedings.
The more precise discovery issue is whether the discovery requested
is directed to the gateway issues regarding the class action
claims, to Hiatt's individual claims, or both. Tesla, in its Reply,
never raised this argument and pointed to specific interrogatories
before the magistrate judge. It merely gave a broad brush of its
objections to the discovery based on relevancy to the class action
issues. Based on the limited record that the parties presented to
the magistrate judge, Judge Kobayashi cannot conclude that the
August 1 Order is clearly erroneous.
Moreover, the Court has already ruled that discovery as to gateway
class certification issues is not stayed. A protective order such
as what Tesla sought from the magistrate judge or a stay of
discovery is therefore not appropriate. If Tesla has specific
objections to certain interrogatories because the discovery being
sought pertains solely to Hiatt's individual claims, then it should
articulate them.
For these reasons, the Appeal is denied, and Tesla is ordered to
provide responses to the discovery by no later than Feb. 21, 2023.
Judge Kobayashi concludes that the magistrate judge's August 1
Order was not clearly erroneous and denies Tesla's objection to
that order. Further, Tesla is ordered to provide responses to the
Plaintiff's outstanding discovery requests by no later than Feb.
21, 2023.
A full-text copy of the Court's Jan. 20, 2023 Order is available at
https://tinyurl.com/yc5xmwty from Leagle.com.
TIKTOK INC: Faces G.R. Suit Over Alleged Illegal Wiretapping
------------------------------------------------------------
G.R., a Minor, by and through Her Guardian MAYRA DE LA CRUZ,
individually and on behalf of all others similarly situated,
Plaintiff, v. TIKTOK, INC.; and BYTEDANCE, INC., Defendant, alleges
violation of the Federal Wire Tap Act.
The Plaintiff alleges in the complaint that the Defendant
surreptitiously intercepted the private electronic communications
of users of TikTok's social media application (the "TikTok app")
and its integrated website browser (the "in-app browser") without
their consent.
The Defendants intercept these private electronic communications by
embedding JavaScript code into the third-party websites that are
accessed using TikTok's in-app browser, which enables the
Defendants to track users' mouse movements, clicks, keystrokes
(e.g., text being entered into an information field or text box),
URLs of web pages visited, and other electronic communications in
real time (collectively, "Website Communications"), says the suit.
TIKTOK INC. operates as a free service and social media application
for creating and sharing short mobile videos. The Company provides
a fully realized platform for connecting individuals to a vibrant
community of content creators. [BN]
The Plaintiff is represented by:
John T. Jasnoch, Esq.
Hal D. Cunningham, Esq.
SCOTT+SCOTT
ATTORNEYS AT LAW LLP
600 W. Broadway, Suite 3300
San Diego, CA 92101
Telephone: (619) 233-4565
Facsimile: (619) 233-0508
Email: jjasnoch@scott-scott.com
hcunningham@scott-scott.com
TOYOTA MOTOR: Seeks Leave to File Class Cert Sur-Reply Under Seal
-----------------------------------------------------------------
In the class action lawsuit captioned as WILLIAM SQUIRES, et al.,
v. TOYOTA MOTOR CORP, et al., Case No. 4:18-cv-00138-ALM (E.D.
Tex.), the Defendants Toyota Motor North America, Inc., Toyota
Motor Corporation and Toyota Motor Sales U.S.A. Inc. ask the Court
for leave to file under seal their sur-reply in opposition to the
Plaintiffs' motion for class certification.
The motion and exhibits contain confidential information that is
not accessible by the public, including information so designated
by the Defendants.
The Plaintiffs do not oppose this motion.
Toyota Motor is a Japanese multinational automotive manufacturer.
A copy of the Defendants' motion dated Jan. 18, 2023 is available
from PacerMonitor.com at https://bit.ly/3QZK7IR at no extra
charge.[CC]
The Defendants are represented by:
Thomas M. Melsheimer, Esq.
M. Brett Johnson, Esq.
Natalie L. Arbaugh, Esq.
Ahtoosa A. Dale, Esq.
William G. Fox Jr., Esq.
Shawn R. Obi, Esq.
WINSTON & STRAWN LLP
2121 N. Pearl Street, Suite 900
Dallas, TX 75201
Telephone: (214) 453-6500
Facsimile: (214) 453-6400
E-mail: tmelsheimer@winston.com
mbjohnson@winston.com
narbaugh@winston.com
adale@winston.com
wfox@winston.com
sobi@winston.com
- and -
Bryan Burg, Esq.
Elvin E. Smith, III, Esq.
Kirte Kinser, Esq.
Elizabeth S. Forrest, Esq.
SIEBMAN FORREST BURG & SMITH, LLP
Federal Courthouse Square, 300 N. Travis
Sherman, TX 75090
Telephone: (903) 870-0070
Facsimile: (903) 870-0066
E-mail: bryanburg@siebman.com
elvinsmith@siebman.com
kirtekinser@siebman.com
elizabethforrest@siebman.com
TWOMAGNETS INC: Fails to Pay Overtime Wages, West Suit Alleges
--------------------------------------------------------------
TAJUANA WEST, individually and on behalf of all others similarly
situated, Plaintiff v. TWOMAGNETS, INC. d/b/a Clipboard Health,
Defendant, Case No. 1:23-cv-00123-BMB (N.D. Ohio, Jan. 23, 2023) is
an action against the Defendants' failure to pay the Plaintiff and
the class minimum wages, and overtime compensation for hours worked
in excess of 40 hours per week.
Plaintiff West was employed by the Defendant as nurse.
TWOMAGNETS, INC. d/b/a Clipboard Health is engaged as a health care
provide. [BN]
The Plaintiff is represented by:
James L. Simon, Esq.
SIMON LAW CO.
5000 Rockside Road
Liberty Plaza Building - Suite 520
Independence, OH 44131
Telephone: (216) 816-8696
Email: james@simonsayspay.com
VANDERLANDE INDUSTRIES: Sanchez Labor Suit Removed to C.D. Cal.
---------------------------------------------------------------
The case styled NELDA SANCHEZ, an individual and on behalf of all
others similarly situated, Plaintiff v. VANDERLANDE INDUSTRIES,
INC., a Delaware Corporation; KURT HATTERLE, an individual; and
DOES 1 through 100, inclusive, Defendants, Case No. 22STCV33930,
was removed from the Superior Court of the State of California for
the County of Los Angeles, to the United States District Court for
the Central District of California on January 24, 2023.
The Clerk of Court for the Central District of California assigned
Case No. 2:23-cv-00531 to the proceeding.
The complaint alleges thirteen causes of action: (1) failure to pay
overtime wages, (2) failure to pay minimum wages, (3) failure to
provide meal periods, (4) failure to provide rest periods, (5)
waiting time penalties, (6) wage statement violations, (7) failure
to indemnify, (8) failure to timely pay wages, (9) violation of the
California Labor Code, (10) violation of the Fair Credit Reporting
Act, (11) violation of the California Investigative Consumer
Reporting Agencies Act, (12) violation of the Consumer Credit
Reporting Agencies Act, and (13) unfair competition.
Vanderlande Industries, Inc. is a material handling and logistics
automation company.[BN]
The Defendant is represented by:
Marlene S. Muraco, Esq.
Adam J. Fiss, Esq.
Nicholas Lansdown, Esq.
LITTLER MENDELSON, P.C.
50 West San Fernando St. 7th Floor
San Jose, CA 95113-2434
Telephone: (408) 998-4150
Facsimile: (408) 273-6694
E-mail: mmuraco@littler.com
afiss@littler.com
nlansdown@littler.com
VISION INVESTMENTS: Toro Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Vision Investments,
LLC. The case is styled as Andrew Toro, on behalf of himself and
all others similarly situated v. Vision Investments, LLC, d/b/a
Autogeek, Case No. 1:23-cv-00609 (S.D.N.Y., Jan. 24, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Vision Investments, LLC, doing business as Autogeek --
https://www.autogeek.net/ -- is a car care source for auto
detailing supplies, the best car wax, car care products, car
polishes, auto accessories, polishers, and car detailing tools
store.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
WELLS FARGO: Braxton Suit Consolidated into Single Class Action
---------------------------------------------------------------
In the class action lawsuit captioned as Braxton v. Wells Fargo
Bank, N.A. a Delaware corporation et al., Case No. 3:22-cv-01748-JD
(N.D. Cal.), the Hon. Judge James Donato entered an order regarding
consolidation and interim lead counsel:
-- Consequently, the following cases are ordered to be
consolidated into a single action as follows.
"Williams v. Wells Fargo Bank, N.A., Case No. 3:22-cv-
00990-JD;"
Braxton v. Wells Fargo Bank, N.A., Case No. 3:22-cv-01748-
JD;"
Pope v. Wells Fargo Bank, N.A., Case No. 3:22-cv-01793-JD;"
Thomas v. Wells Fargo & Co., Case No. 3:22-cv-01931-JD;"
Ebo v. Wells Fargo Bank, N.A., Case No. 3:22-cv-02535-JD;"
and
"Perkins v. Wells Fargo, N.A., Case No. 3:22-cv-03455-JD."
The Plaintiffs in six putative class actions have sued defendants
Wells Fargo Bank, N.A., Wells Fargo & Co., and Wells Fargo Home
Mortgage, Inc. on allegations of discrimination with respect to
residential mortgage and refinance practices.
Each putative class action brings claims against Wells Fargo for
violations of the Equal Credit Opportunity Act, U.S.C. section 1691
et seq., and the Fair Housing Act, among other related federal and
state law claims that vary by complaint.
Wells Fargo proposed a consolidation of the cases on the grounds
that they are "predicated Wells Fargo, to discuss how to
consolidate these cases." The Plaintiffs now jointly propose filing
two complaints. The first would be "on behalf of a class of Black
applicants and borrowers, including origination and refinance
mortgages."
The Court declines to appoint interim lead counsel pending further
proceedings.
Interim counsel is warranted for this consolidated action, but the
current applications did not have an opportunity to address who
that should be now that consolidation will be into a single case.
The Plaintiffs may file a renewed proposal.
A renewed application for appointment of interim lead counsel must
be filed by February 13, 2023. Wells Fargo may file a response by
February 20, 2023. No other party may file an opposition without
the Court's prior approval. The Court will set a date for the
filing of the consolidated complaint after the appointment of
interim lead counsel.
Wells Fargo is an American multinational financial services company
with corporate headquarters in San Francisco, California.
A copy of the Court's order dated Jan. 18, 2023 is available from
PacerMonitor.com at https://bit.ly/3iZZZig at no extra charge.[CC]
WELLS FARGO: EBO Consolidated in Discrimination Litigation
----------------------------------------------------------
In the class action lawsuit captioned as EBO v. Wells Fargo Bank,
N.A., Case No. 3:22-cv-02535-JD (N.D. Cal.), the Hon. Judge James
Donato entered an order regarding consolidation and interim lead
counsel:
-- Consequently, the following cases are ordered to be
consolidated into a single action as follows.
"Williams v. Wells Fargo Bank, N.A., Case No. 3:22-cv-
00990-JD;"
Braxton v. Wells Fargo Bank, N.A., Case No. 3:22-cv-01748-
JD;"
Pope v. Wells Fargo Bank, N.A., Case No. 3:22-cv-01793-JD;"
Thomas v. Wells Fargo & Co., Case No. 3:22-cv-01931-JD;"
Ebo v. Wells Fargo Bank, N.A., Case No. 3:22-cv-02535-JD;"
and
"Perkins v. Wells Fargo, N.A., Case No. 3:22-cv-03455-JD."
The Plaintiffs in six putative class actions have sued defendants
Wells Fargo Bank, N.A., Wells Fargo & Co., and Wells Fargo Home
Mortgage, Inc. on allegations of discrimination with respect to
residential mortgage and refinance practices.
Each putative class action brings claims against Wells Fargo for
violations of the Equal Credit Opportunity Act, U.S.C. section 1691
et seq., and the Fair Housing Act, among other related federal and
state law claims that vary by complaint.
Wells Fargo proposed a consolidation of the cases on the grounds
that they are "predicated Wells Fargo, to discuss how to
consolidate these cases." THe Plaintiffs now jointly propose filing
two complaints. The first would be "on behalf of a class of Black
applicants and borrowers, including origination and refinance
mortgages."
The Court declines to appoint interim lead counsel pending further
proceedings.
Interim counsel is warranted for this consolidated action, but the
current applications did not have an opportunity to address who
that should be now that consolidation will be into a single case.
The Plaintiffs may file a renewed proposal.
A renewed application for appointment of interim lead counsel must
be filed by February 13, 2023. Wells Fargo may file a response by
February 20, 2023. No other party may file an opposition without
the Court's prior approval. The Court will set a date for the
filing of the consolidated complaint after the appointment of
interim lead counsel.
Wells Fargo is an American multinational financial services company
with corporate headquarters in San Francisco, California.
A copy of the Court's order dated Jan. 18, 2023 is available from
PacerMonitor.com at https://bit.ly/3wkljSr at no extra charge.[CC]
WELLS FARGO: Perkins Suit Consolidated into Single Class Suit
-------------------------------------------------------------
In the class action lawsuit captioned as Perkins, et al., v. Wells
Fargo, N.A. et al., Case No. 3:22-cv-03455-JD (N.D. Cal.), the
Hon. Judge James Donato entered an order regarding consolidation
and interim lead counsel:
Consequently, the following cases are ordered to be consolidated
into a single action as follows.
"Williams v. Wells Fargo Bank, N.A., Case No. 3:22-cv-
00990-JD;"
"Braxton v. Wells Fargo Bank, N.A., Case No. 3:22-cv-01748-
JD;"
"Pope v. Wells Fargo Bank, N.A., Case No. 3:22-cv-01793-
JD;"
"Thomas v. Wells Fargo & Co., Case No. 3:22-cv-01931-JD;"
"Ebo v. Wells Fargo Bank, N.A., Case No. 3:22-cv-02535-JD;"
and
"Perkins v. Wells Fargo, N.A., Case No. 3:22-cv-03455-JD."
The Plaintiffs in six putative class actions have sued defendants
Wells Fargo Bank, N.A., Wells Fargo & Co., and Wells Fargo Home
Mortgage, Inc. on allegations of discrimination with respect to
residential mortgage and refinance practices.
Each putative class action brings claims against Wells Fargo for
violations of the Equal Credit Opportunity Act, U.S.C. section 1691
et seq., and the Fair Housing Act, among other related federal and
state law claims that vary by complaint.
Wells Fargo proposed a consolidation of the cases on the grounds
that they are "predicated Wells Fargo, to discuss how to
consolidate these cases." THe Plaintiffs now jointly propose filing
two complaints. The first would be "on behalf of a class of Black
applicants and borrowers, including origination and refinance
mortgages."
The Court declines to appoint interim lead counsel pending further
proceedings.
Interim counsel is warranted for this consolidated action, but the
current applications did not have an opportunity to address who
that should be now that consolidation will be into a single case.
The Plaintiffs may file a renewed proposal.
A renewed application for appointment of interim lead counsel must
be filed by February 13, 2023. Wells Fargo may file a response by
February 20, 2023. No other party may file an opposition without
the Court's prior approval. The Court will set a date for the
filing of the consolidated complaint after the appointment of
interim lead counsel.
Wells Fargo is an American multinational financial services company
with corporate headquarters in San Francisco, California.
A copy of the Court's order dated Jan. 18, 2023 is available from
PacerMonitor.com at https://bit.ly/3Wtcdxh at no extra charge.[CC]
WELLS FARGO: Pope Suit Consolidated into Single Class Action
------------------------------------------------------------
In the class action lawsuit captioned as Pope v. Wells Fargo Bank,
N.A. et al., Case No. 3:22-cv-01793-JD (N.D. Cal.), the Hon. Judge
James Donato entered an order regarding consolidation and interim
lead counsel:
-- Consequently, the following cases are ordered to be
consolidated into a single action as follows.
"Williams v. Wells Fargo Bank, N.A., Case No. 3:22-cv-
00990-JD;"
Braxton v. Wells Fargo Bank, N.A., Case No. 3:22-cv-01748-
JD;"
Pope v. Wells Fargo Bank, N.A., Case No. 3:22-cv-01793-JD;"
Thomas v. Wells Fargo & Co., Case No. 3:22-cv-01931-JD;"
Ebo v. Wells Fargo Bank, N.A., Case No. 3:22-cv-02535-JD;"
and
"Perkins v. Wells Fargo, N.A., Case No. 3:22-cv-03455-JD."
The Plaintiffs in six putative class actions have sued defendants
Wells Fargo Bank, N.A., Wells Fargo & Co., and Wells Fargo Home
Mortgage, Inc. on allegations of discrimination with respect to
residential mortgage and refinance practices.
Each putative class action brings claims against Wells Fargo for
violations of the Equal Credit Opportunity Act, U.S.C. section 1691
et seq., and the Fair Housing Act, among other related federal and
state law claims that vary by complaint.
Wells Fargo proposed a consolidation of the cases on the grounds
that they are "predicated Wells Fargo, to discuss how to
consolidate these cases." THe Plaintiffs now jointly propose filing
two complaints. The first would be "on behalf of a class of Black
applicants and borrowers, including origination and refinance
mortgages."
The Court declines to appoint interim lead counsel pending further
proceedings.
Interim counsel is warranted for this consolidated action, but the
current applications did not have an opportunity to address who
that should be now that consolidation will be into a single case.
The Plaintiffs may file a renewed proposal.
A renewed application for appointment of interim lead counsel must
be filed by February 13, 2023. Wells Fargo may file a response by
February 20, 2023. No other party may file an opposition without
the Court's prior approval. The Court will set a date for the
filing of the consolidated complaint after the appointment of
interim lead counsel.
Wells Fargo is an American multinational financial services company
with corporate headquarters in San Francisco, California.
A copy of the Court's order dated Jan. 18, 2023 is available from
PacerMonitor.com at https://bit.ly/3HodOjN at no extra charge.[CC]
WELLS FARGO: Thomas Suit Consolidated into Single Class Action
--------------------------------------------------------------
In the class action lawsuit captioned as Thomas, et al., v. Wells
Fargo & Company, et al., Case No. 3:22-cv-01931-JD (N.D. Cal.), the
Hon. Judge James Donato entered an order regarding consolidation
and interim lead counsel:
Consequently, the following cases are ordered to be consolidated
into a single action as follows.
"Williams v. Wells Fargo Bank, N.A., Case No. 3:22-cv-
00990-JD;"
"Braxton v. Wells Fargo Bank, N.A., Case No. 3:22-cv-01748-
JD;"
"Pope v. Wells Fargo Bank, N.A., Case No. 3:22-cv-01793-
JD;"
"Thomas v. Wells Fargo & Co., Case No. 3:22-cv-01931-JD;"
"Ebo v. Wells Fargo Bank, N.A., Case No. 3:22-cv-02535-JD;"
and
"Perkins v. Wells Fargo, N.A., Case No. 3:22-cv-03455-JD."
The Plaintiffs in six putative class actions have sued defendants
Wells Fargo Bank, N.A., Wells Fargo & Co., and Wells Fargo Home
Mortgage, Inc. on allegations of discrimination with respect to
residential mortgage and refinance practices.
Each putative class action brings claims against Wells Fargo for
violations of the Equal Credit Opportunity Act, U.S.C. section 1691
et seq., and the Fair Housing Act, among other related federal and
state law claims that vary by complaint.
Wells Fargo proposed a consolidation of the cases on the grounds
that they are "predicated Wells Fargo, to discuss how to
consolidate these cases." THe Plaintiffs now jointly propose filing
two complaints. The first would be "on behalf of a class of Black
applicants and borrowers, including origination and refinance
mortgages."
The Court declines to appoint interim lead counsel pending further
proceedings.
Interim counsel is warranted for this consolidated action, but the
current applications did not have an opportunity to address who
that should be now that consolidation will be into a single case.
The Plaintiffs may file a renewed proposal.
A renewed application for appointment of interim lead counsel must
be filed by February 13, 2023. Wells Fargo may file a response by
February 20, 2023. No other party may file an opposition without
the Court's prior approval. The Court will set a date for the
filing of the consolidated complaint after the appointment of
interim lead counsel.
Wells Fargo is an American multinational financial services company
with corporate headquarters in San Francisco, California.
A copy of the Court's order dated Jan. 18, 2023 is available from
PacerMonitor.com at https://bit.ly/3GWOSOZ at no extra charge.[CC]
WELLS FARGO: Williams Suit Consolidated into Single Class Action
----------------------------------------------------------------
In the class action lawsuit captioned as Williams v. Wells Fargo
Bank, N.A. et al., Case No. 3:22-cv-00990-JD (N.D. Cal.), the Hon.
Judge James Donato entered an order regarding consolidation and
interim lead counsel:
-- Consequently, the following cases are ordered to be
consolidated into a single action as follows.
"Williams v. Wells Fargo Bank, N.A., Case No. 3:22-cv-
00990-JD;"
Braxton v. Wells Fargo Bank, N.A., Case No. 3:22-cv-01748-
JD;"
Pope v. Wells Fargo Bank, N.A., Case No. 3:22-cv-01793-JD;"
Thomas v. Wells Fargo & Co., Case No. 3:22-cv-01931-JD;"
Ebo v. Wells Fargo Bank, N.A., Case No. 3:22-cv-02535-JD;"
and
"Perkins v. Wells Fargo, N.A., Case No. 3:22-cv-03455-JD."
The Plaintiffs in six putative class actions have sued defendants
Wells Fargo Bank, N.A., Wells Fargo & Co., and Wells Fargo Home
Mortgage, Inc. on allegations of discrimination with respect to
residential mortgage and refinance practices.
Each putative class action brings claims against Wells Fargo for
violations of the Equal Credit Opportunity Act, U.S.C. section 1691
et seq., and the Fair Housing Act, among other related federal and
state law claims that vary by complaint.
Wells Fargo proposed a consolidation of the cases on the grounds
that they are "predicated Wells Fargo, to discuss how to
consolidate these cases." THe Plaintiffs now jointly propose filing
two complaints. The first would be "on behalf of a class of Black
applicants and borrowers, including origination and refinance
mortgages."
The Court declines to appoint interim lead counsel pending further
proceedings.
Interim counsel is warranted for this consolidated action, but the
current applications did not have an opportunity to address who
that should be now that consolidation will be into a single case.
The Plaintiffs may file a renewed proposal.
A renewed application for appointment of interim lead counsel must
be filed by February 13, 2023. Wells Fargo may file a response by
February 20, 2023. No other party may file an opposition without
the Court's prior approval. The Court will set a date for the
filing of the consolidated complaint after the appointment of
interim lead counsel.
Wells Fargo is an American multinational financial services company
with corporate headquarters in San Francisco, California.
A copy of the Court's order dated Jan. 18, 2023 is available from
PacerMonitor.com at https://bit.ly/3H0lveB at no extra charge.[CC]
WINGS OVER: Wins in Part Partial Summary Judgment Bid in Carts Suit
-------------------------------------------------------------------
In the case, TY CARTS, et al., individually and on behalf of all
other similarly situated individuals, Plaintiffs v. WINGS OVER
HAPPY VALLEY MDF, LLC d/b/a WINGS OVER HAPPY VALLEY, et al.,
Defendants, Case No. 4:17-cv-00915 (M.D. Pa.), Judge Yvette Kane of
the U.S. District Court for the Middle District of Pennsylvania
grants in part and denies in part the Defendants' motion for
partial summary judgment.
All four Named Plaintiffs and 24 Opt-In Plaintiffs worked as
delivery drivers for the Wings Over restaurant at various points
between 2015 and 2017. Defendant Steve Moreira was the sole member
of Wings Over Happy Valley, MDF, LLC, which owned and operated
Wings Over.
Starting sometime around 2009 or 2010, delivery drivers began
placing portions of their tips into a jar, and when the restaurant
closed at the end of every workday, managers would empty the jar
and divide the tips among the restaurant's kitchen staff. Moreira
did not report the tip-sharing on the payroll, and no one at Wings
Over kept any records of the tips shared with kitchen workers. He
did, however, instruct drivers that they were required to report
all of their tips.
The tip-sharing continued into 2016, according to the testimony of
Jonathan Street, Wings Over's general manager since 2009, although
there is no evidence that a tip jar was used after Feb. 28, 2017.
In a letter to Moreira dated Sept. 26, 2016, former Wings Over
employee Arthur Westmore accused Defendants of enforcing an
"illegal tip pool policy" by requiring drivers to contribute tips
to a pool that was then divided among kitchen staff.
The parties are sharply divided as to whether and to what extent
tip-sharing continued -- and as to whether tip-sharing was required
rather than voluntary -- following the Defendants' receipt of the
Westmore Letter. The parties point to disputed evidence in support
of their positions.
The Named Plaintiffs, along with Jacob Wilson, initiated the action
with the filing of a complaint styled "COMPLAINT-CLASS ACTION" on
May 24, 2017. They brought suit maintaining that Wings Over and its
then-owner and -operator, Moreira, required them and other delivery
drivers to share their tips with kitchen employees in violation of
29 U.S.C. Section 203(m), which prohibits the pooling of tips
except among employees who customarily and regularly receive tips,
and state wage and hour laws. The Named Plaintiffs alleged that the
Defendants did so in order to avoid paying their kitchen workers an
appropriate wage.
With the Court's leave, in 2018, the Plaintiffs filed an amended
complaint (also styled "COMPLAINT-CLASS ACTION"), removing Wilson
as a plaintiff and adding Wings Over, as a defendant. Following an
unsuccessful mandatory mediation, the Plaintiffs filed motions to
conditionally certify a FLSA collective class and to certify a FLSA
and state law class pursuant to Federal Rule of Civil Procedure
23.
The Court granted the Plaintiffs' motion to conditionally certify a
FLSA collective class but denied their Rule 23 motions. The Court
defined the collective class as all individuals who worked for the
Defendants as delivery drivers between May 24, 2014, and Feb. 28,
2017, and permitted the class notice and an opportunity to opt into
the action. The Plaintiffs then filed an unopposed motion for
approval of a collective action notice, which the Court granted in
April 2020, as well as a motion for equitable tolling, which the
Court later denied without prejudice.
Throughout these proceedings -- from mid-2017 through until late
2020 -- the 24 Opt-In Plaintiffs consented to join the action. In
late 2020, after the last Opt-In Plaintiff consented to become a
party plaintiff in the action, the Plaintiffs filed a second motion
for equitable tolling, which the Court denied. The parties then
requested, and the Court granted, an extension of time to complete
discovery. It also scheduled a post-discovery status conference for
Nov. 4, 2021, whereupon the parties raised a discovery dispute,
prompting additional briefing and an Order resolving the dispute,
On Dec. 30, 2021, the Defendants filed a first motion for partial
summary judgment, a statement of undisputed facts, an appendix of
supporting documents, and a brief in support of the motion. On Feb.
10, 2022, after the Court granted them an extension to do so, the
Plaintiffs filed a counterstatement of material facts and a brief
in opposition to the Defendants' motion. The Plaintiffs also
submitted an additional "opposition" responding to the factual
averments asserted in the Defendants' motion itself.
After the Defendants filed a reply brief on Feb. 23, 2022, the
Court issued an Order denying their first motion without prejudice,
as it was based on factual averments not contained in their
statement of undisputed material facts, in violation of Middle
District of Pennsylvania Local Rules of Court, Local Rule 56.1.
The Defendants filed their second, pending motion for summary
judgment in April 2022, along with a Concise Statement of
Undisputed Facts and a brief in support of their motion. In May
2022, the Plaintiffs filed a Counterstatement of Material Facts, a
brief in opposition to the Defendants' motion, and an additional
"opposition" to the motion. The Defendants having filed a reply
brief on May 16, 2022, their motion is ripe for disposition.
The Defendants argue that the undisputed material facts establish
that all of the Named and Opt-In Plaintiffs' FLSA claims are
time-barred, with the exception of Opt-In Plaintiff Zachary Keim,
whose claims are partially time-barred. Assuming the Court would
grant judgment in the Defendants' favor as to all FLSA claims
asserted by the Named Plaintiffs, the Defendants further argue that
the Court should decline to exercise supplemental jurisdiction over
the Named Plaintiffs' state law claims, leaving Plaintiff Keim as
the sole remaining Plaintiff in thie action.
Judge Kane first addresses the Defendants' motion as it pertains to
the Plaintiffs' FLSA collective action. She then turns to the Named
Plaintiffs' state law claims under Pennsylvania's Minimum Wage Act
and Wage Payment and Collection Law.
Judge Kane finds that the Court has been presented with no basis
upon which to conclude that the Named Plaintiffs provided notice
that they clearly intended to pursue a dual-capacity FLSA claim. To
be sure, there are references in the complaint to "individually,"
and the Named Plaintiffs are described as pursuing claims
"individually" and on behalf of others, but the two complaints
filed in this action indicate that the Named Plaintiffs chose to
pursue a FLSA collective action only.
For all these reasons, Judge Kane declines to conclude that Named
Plaintiffs provided notice that they clearly intended to proceed in
both individual and representative capacities, and she therefore
grants the Defendants' motion for summary judgment as to the Named
Plaintiffs' FLSA claims.
With respect to the Plaintiffs' state law claims against the Named
Plaintiffs, Judge Kane could properly conclude that the Defendants
have waived any contention that they raised in challenging the
Named Plaintiffs' FLSA claims asserted, i.e., that the claims are
untimely. Nevertheless, any challenge to the Named Plaintiffs'
state law claims on the basis of untimeliness would be unavailing.
Moreover, the Named Plaintiffs' state law claims -- asserted under
Pennsylvania's Minimum Wage Act and Wage Payment and Collection Law
-- are "so related" to the FLSA collective claims remaining in the
case that they form part of the same case or controversy. Several
Opt-In Plaintiffs' federal claims are still viable, and both the
Opt-In Plaintiffs' FLSA collective claims and the Named Plaintiffs'
state law claims involve overlapping issues, facts, and parties,
and turn on the same issue, i.e., the extent to which the
Defendants required their delivery drivers to share tips in
violation of the FLSA and whether they did so willfully.
Accordingly, Judge Kane exercises discretion to retain jurisdiction
over the Named Plaintiffs' state law claims under Section 1367(a).
For all these reasons, Judge Kane grants the Defendants' motion for
summary judgment as to the FLSA claims asserted by the Named
Plaintiffs and Opt-In Plaintiffs Amundson, Butterbaugh, Crosier,
Floris, Galantino, Gardner, Gast, Henshaw, Hoffman, Jr., Kepler,
Londõno, Munoz, Reap, Sangare, Smoyer, Stouffer, and Troxwell. She
also denies the Defendants' motion for summary judgment as to the
FLSA claims asserted by Opt-In Plaintiffs Braucht, Gilmore, Keim,
Lamb, Lieberman, Steele, and Symosky.
Thus, the claims that remain are as follows: (1) the FLSA claims
asserted by Opt-In Plaintiffs Braucht, Gilmore, Keim, Lamb,
Lieberman, Steele, and Symosky; and (2) the state law claims
asserted by the Named Plaintiffs under Pennsylvania's Minimum Wage
Act and Wage Payment and Collection Law.
An appropriate Order follows.
A full-text copy of the Court's Jan. 24, 2023 Memorandum is
available at https://tinyurl.com/rs5mduz from Leagle.com.
*********
S U B S C R I P T I O N I N F O R M A T I O N
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