/raid1/www/Hosts/bankrupt/CAR_Public/210721.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, July 21, 2021, Vol. 23, No. 139
Headlines
ABBOTT LABORATORIES: Court Grants in Part Sanchez's Bids to Compel
AIM DIRECTIONAL: Hargrave Appeals Ruling in FLSA Suit to 5th Cir.
BOISE PIZZA: Telleria Sues Over Delivery Drivers' Unpaid Wages
CENTRAL TEMPERATURE: Springer Sues Over Technicians' Unpaid Wages
CLARK COUNTY, NV: Allison Has Until Sept. 7 to File Suit v. CCDC
CVS HEALTH: Retirement Trust Appeals Ruling in Securities Suit
DENTISTS INSURANCE: Germack Appeals Case Dismissal to 9th Cir.
DIGITAL INTELLIGENCE: Buchsbaum Suit Dismissed Without Prejudice
DISTRICT OF COLUMBIA: Appeal From Injunction in Banks Suit Nixed
DREYER'S GRAND: Rice Files Suit in N.D. Illinois
FLINT, MI: 6th Cir. Denies Writ of Mandamus Petition in Hall Suit
HEALTHCARE REVENUE: 3rd Cir. Flips Dismissal of Morales FDCPA Suit
KONINKLIJKE PHILIPS: Bossey Files Suit in W.D. Pennsylvania
LUCKIN COFFEE: Teamster Fund Appeals Cohen Securities Suit Ruling
MINIM PRODUCTIONS: Schwanke Appeals Judgment, Remand of Labor Suit
NCAA: Smith Suit Transferred to N.D. Illinois
NCAA: Sparksman Suit Transferred to N.D. Illinois
NCAA: Taylor Suit Transferred to N.D. Illinois
NCAA: Tingelhoff Suit Transferred to N.D. Illinois
NEW YORK: Second Circuit Appeal Filed in Gulino Suit re White
OHIO CASUALTY: Pacific Endodontics Appeals Insurance Suit Dismissal
STATE FARM: Appeals Ruling in Rumbaugh Insurance Suit in Texas
TRAVELERS CASUALTY: Nguyen Appeals Insurance Suit Dismissal
*********
ABBOTT LABORATORIES: Court Grants in Part Sanchez's Bids to Compel
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In the case, GRACIELA SANCHEZ, Plaintiff v. ABBOTT LABORATORIES,
Defendant, Case No. 2:20-cv-01436 TLN AC (E.D. Cal.), Magistrate
Judge Allison Claire of the U.S. District Court for the Eastern
District of California granted in part the Plaintiff's motions to
compel.
The case is before the court on the Plaintiff's three motions to
compel, each of which is briefed in a separate joint statement.
These motions collectively present approximately 70 pages of
briefing, exclusive of voluminous exhibits. They turn on a common
question regarding the scope of pre-certification discovery in the
putative class action: Whether the Plaintiff's pre-certification
discovery regarding the alleged wage and hour violations should (1)
be limited to the same job position at the same corporate
division/location as the Plaintiff's own employment (Abbot
Nutrition division of Abbot Laboratories in Fairfield, CA), or (2)
include all hourly-paid or non-exempt California employees of the
named defendant Abbott Laboratories.
Judge Claire states that the common underlying question could have
been resolved via an informal discovery call. The parties are
reminded to review her "Standing Orders" posted on the Court
webpage
(http://www.caed.uscourts.gov/caednew/index.cfm/judges/all-judges/united-states-magistrate-judge-allison-claire-ac/).
Early resolution of discovery disputes outside the formal Local
Rule 251 procedures, via informal phone conference, is encouraged
for discrete discovery disputes or general guidance. Additional
information is available on the court's website linked.
Alternatively, the issue could have been presented in a single
motion. Although the Plaintiff chose to proceed with three
separate motions and extensive briefing, Judge Claire finds that
the interest of judicial economy dictates a simple ruling on the
central issue that cuts through all three motions: The scope of
pre-certification discovery.
The Plaintiff's motions to compel are granted in part, insofar as
the scope of pre-trial discovery will be limited to include all
hourly non-exempt employees of Abbot Foods (not limited to the
Plaintiff's exact job title) that worked in the Fairfield, CA
location. To the extent the Plaintiff or the Defendant believes
there are other issues presented in the motions that are not
resolved by this conclusion, the motions are denied without
prejudice subject to the parties' further meet and confer effort in
light of the Order.
The rule in federal court is that the scope of pre-certification
discovery lies within the court's discretion. The Plaintiffs bear
the burden of either making a prima facie showing that Rule 23
class action requirements are satisfied or that discovery is likely
to produce substantiation of the class allegations. The parties do
not appear to dispute that some level of pre-certification
discovery is appropriate in the case.
In wage and hour class actions, a plaintiff seeking to expand
pre-certification discovery into locations beyond that in which the
plaintiff personally works or worked must produce some evidence
that indicates company-wide violations. The Defendant argues that
the Plaintiff worked for Abbot Nutrition in Fairfield, California,
a distinct division of Abbot Laboratories. It asserts the
Plaintiff has not presented evidence of company-wide violation to
justify company-wide pre-certification discovery.
Though the Plaintiff argues that the Defendant's contention
regarding the lack of evidence of company-wide violations is
"ludicrous," Judge Claire cannot find in the briefing or exhibits
any evidence submitted by the Plaintiff that does, in fact,
indicate company-wide violations. The Plaintiff argues that
donning/doffing off the clock due to the physical location of the
clock impacted all hourly employees at her work site.
The Judge agrees this would likely be the case. However, she
disagrees that this building-specific issue necessarily implicates
the entire company. Nor does she the agree with the Plaintiff's
assertion that the timekeeping issues are company-wide on the
ground that the company uses the same timekeeping software for all
employees; the Plaintiff presents no evidence to support this
assertion. Based on the evidence presented by the Plaintiff,
pre-certification discovery going to the entire company would be
over-broad and unduly burdensome.
In light of the foregoing, Judge Claire granted in part the
Plaintiff's motions to compel insofar the scope of her
pre-certification discovery will include all hourly/non-exempt
employees of Abbot Foods (not limited to her exact job title) that
worked in the Fairfield, CA location. The motions are otherwise
denied without prejudice.
Each party will bear its own fees and costs with respect to these
motions, though the parties are cautioned that if future discovery
motions are brought without adequate attempts to meet and confer
the Court will not hesitate to impose sanctions.
A full-text copy of the Court's July 6, 2021 Order is available at
https://tinyurl.com/25a53yfn from Leagle.com.
AIM DIRECTIONAL: Hargrave Appeals Ruling in FLSA Suit to 5th Cir.
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Plaintiff Marcus Hargrave filed an appeal from a court ruling
entered in the lawsuit styled MARCUS HARGRAVE, individually and on
behalf of all others similarly situated v. AIM DIRECTIONAL
SERVICES, LLC, Case No. 2:18-CV-449, in the United States District
Court for the Southern District of Texas, Corpus Christi.
As previously reported in the Class Action Reporter, the lawsuit
alleges violations of the Fair Labor Standards Act.
Mr. Hargrave alleges that he and other workers like him, were
typically scheduled for 12 hour shifts, seven days a week, for
weeks at a time. He contends that AIM does not pay all workers
overtime for hours worked in excess of 40 hours in a single
workweek.
The appellate case is captioned as Hargrave v. AIM Directional
Services, Case No. 21-40496, in the United States Court of Appeals
for the Fifth Circuit, filed on June 25, 2021.[BN]
Plaintiff-Appellant Marcus Hargrave, Individually and on behalf of
all others similarly situated, is represented by:
Michael A. Josephson, Esq.
JOSEPHSON DUNLAP LAW FIRM
11 Greenway Plaza
Houston, TX 77046
Telephone: (713) 352-1100
E-mail: mjosephson@mybackwages.com
Defendant-Appellee AIM Directional Services, L.L.C. is represented
by:
Andrea M. Johnson, Esq.
KANE RUSSELL COLEMAN & LOGAN, P.C.
5051 Westheimer Road
Galleria Tower II
Houston, TX 77056
Telephone: (713) 425-7433
E-mail: ajohnson@krcl.com
BOISE PIZZA: Telleria Sues Over Delivery Drivers' Unpaid Wages
--------------------------------------------------------------
VENENCIO TELLERIA, individually and on behalf of similarly situated
persons, Plaintiff v. BOISE PIZZA, INC., and PHIL MIKELONIS,
Defendants, Case No. 1:21-cv-00271-DCN (D. Idaho, June 24, 2021) is
brought by the Plaintiff as a collective action under the Fair
Labor Standards Act to recover unpaid minimum wages and overtime
hours owed to himself and similarly situated delivery drivers
employed by Defendants at their Domino's stores.
According to the complaint, the Defendants employ delivery drivers
who use their own automobiles to deliver pizza and other food items
to their customers. However, instead of reimbursing delivery
drivers for the reasonably approximate costs of the business use of
their vehicles, Defendants allegedly use a flawed method to
determine reimbursement rates that provides such an unreasonably
low rate beneath any reasonable approximation of the expenses they
incur that the drivers' unreimbursed expenses cause their wages to
fall below the federal minimum wage during some or all workweeks.
Mr. Telleria has been employed by the Defendants from approximately
September 2020 to January 2021 as a delivery driver at Defendants'
Domino's store in Nampa, Idaho.
The Defendants operate several Domino's Pizza franchise
stores.[BN]
The Plaintiff is represented by:
Steven Fisher, Esq.
CRAIG SWAPP & ASSOCIATES
3071 E. Franklin Road, Ste. 302
Meridian, ID 83642
Telephone: (208) 331-0167
Facsimile: (208) 375-2005
E-mail: steven.fisher@craigswapp.com
CENTRAL TEMPERATURE: Springer Sues Over Technicians' Unpaid Wages
-----------------------------------------------------------------
CASEY SPRINGER, on behalf of himself and all others similarly
situated, Plaintiff v. CENTRAL TEMPERATURE EQUIPMENT SERVICE, INC.
and PETER JOCH, Defendants, Case No. 21-cv-783 (E.D. Wis., June 24,
2021) is a collective and class action brought pursuant to the Fair
Labor Standards Act of 1938 and the Wisconsin's Wage Payment and
Collection Law for unpaid overtime compensation, unpaid agreed upon
wages, liquidated damages, costs, attorneys' fees, and declaratory
and/or injunctive relief.
The complaint alleges that the Defendants operated (and continue to
operate) an unlawful compensation system that deprived and failed
to compensate Plaintiff and all other current and former
hourly-paid, non-exempt employees for all hours worked and work
performed each workweek, including at an overtime rate of pay for
each hour worked in excess of 40 hours in a workweek, by: (1)
shaving time from Plaintiff's and all other hourly-paid, non-exempt
employees' weekly timesheets for pre-shift hours worked and/or work
performed, to the detriment of said employees and to the benefit of
Defendants, in violation of the FLSA and WWPCL; and (2) making
deductions from Plaintiff's and all other hourly-paid, non-exempt
employees' previously-earned wages even though said employees did
not authorize the deduction in writing and immediately prior to the
deduction, in violation of the WWPCL.
The Defendants hired Plaintiff as an hourly-paid, non-exempt
employee in the position of technician in Defendants' Neenah,
Wisconsin facility from approximately March 2021 to June 2021.
Neenah, Wisconsin-based Central Temperature provides residential
and commercial HVAC services.[BN]
The Plaintiff is represented by:
James A. Walcheske, Esq.
Scott S. Luzi, Esq.
WALCHESKE & LUZI, LLC
235 N. Executive Drive, Suite 240
Brookfield, WI 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-mail: jwalcheske@walcheskeluzi.com
sluzi@walcheskeluzi.com
CLARK COUNTY, NV: Allison Has Until Sept. 7 to File Suit v. CCDC
----------------------------------------------------------------
In the case, RONALD J. ALLISON, Plaintiff v. CLARK COUNTY DETENTION
CENTER, Defendant, Case No. 2:21-cv-01226-GMN-NJK (D. Nev.),
Magistrate Judge Nancy J. Koppe of the U.S. District Court for the
District of Nevada orders the Plaintiff to submit a complaint to
the Court by Sept. 7, 2021.
On June 28, 2021, the Plaintiff, an inmate in the custody of the
Clark County Detention Center ("CCDC"), submitted a document titled
"One Trillion Dollar Class Action Lawsuit for Mass Murder of the
Inmates in CCDC and Clark County Jails." The Plaintiff has not
filed a complaint or an application to proceed in forma pauperis in
the matter.
Under Federal Rule of Civil Procedure 3, "a civil action is
commenced by filing a complaint with the court." As such, Judge
Koppe grants the Plaintiff until Sept. 7, 2021 to submit a
complaint to the Court.
Under 28 U.S.C. Section 1915(a)(2) and Local Rule LSR 1-2, an
inmate seeking to begin a civil action in the Court may apply to
proceed in forma pauperis in order to file the civil action without
prepaying the full $402 filing fee. To apply for in forma pauperis
status, the inmate must submit all three of the following documents
to the Court: (1) a completed Application to Proceed in Forma
Pauperis for Inmate, this Court's approved form (i.e. pages 1
through 3 with the inmate's two signatures on page 3), (2) a
Financial Certificate properly signed by both the inmate and a
prison or jail official (i.e. page 4 of this Court's approved
form), and (3) a copy of the inmate's prison or jail trust fund
account statement for the previous six-month period.
Judge Koppe grants the Plaintiff a one-time opportunity to file a
complaint and a fully complete application to proceed in forma
pauperis containing all three of the required documents, or in the
alternative, pay the full $402 filing fee for this action by Sept.
7, 2021. Absent unusual circumstances, she will not grant any
further extensions of time. If the Plaintiff is unable to file a
complaint and a fully complete application to proceed in forma
pauperis with all three required documents or pay the full $402
filing fee by Sept. 7, 2021, the case will be subject to dismissal
without prejudice for the Plaintiff to file a new case with the
Court when the Plaintiff is able to file a complaint and able to
acquire all three of the documents needed to file a fully complete
application to proceed in forma pauperis or pay the full $402
filing fee.
A dismissal without prejudice means the Plaintiff does not give up
the right to refile the case with the Court, under a new case
number, when the Plaintiff is able to file a complaint and has all
three documents needed to submit with an application to proceed in
forma pauperis. Alternatively, the Plaintiff may choose not to
file an application to proceed in forma pauperis and instead pay
the full filing fee of $402 by Sept. 7, 2021 to proceed with the
case.
For the foregoing reasons, Judge Koppe orders the Plaintiff to
submit a complaint to the Court by Sept. 7, 2021.
The Clerk of the Court will send to the Plaintiff the approved form
for filing a 42 U.S.C. Section 1983 complaint and instructions for
the same. The Clerk of the Court will also send the Plaintiff a
copy of his "One Trillion Dollar Class Action Lawsuit for Mass
Murder of the Inmates in CCDC and Clark County Jails."
The Clerk of the Court will send the Plaintiff the approved form
application to proceed in forma pauperis by an inmate, as well as
the document entitled information and instructions for filing an in
forma pauperis application.
By Sept. 7, 2021, the Plaintiff will either pay the full $402
filing fee for a civil action (which includes the $350 filing fee
and the $52 administrative fee) or file with the Court all three of
the required documents.
If the Plaintiff does not file a complaint and a fully complete
application to proceed in forma pauperis with all three documents
or pay the full $402 filing fee for a civil action by Sept. 7,
2021, the case will be subject to dismissal without prejudice for
Plaintiff to refile the case with the Court, under a new case
number, when the Plaintiff is able to file a complaint and has all
three documents needed to file a complete application to proceed in
forma pauperis or pays the full $402 filing fee.
A full-text copy of the Court's July 6, 2021 Order is available at
https://tinyurl.com/5nx4dcvd from Leagle.com.
CVS HEALTH: Retirement Trust Appeals Ruling in Securities Suit
--------------------------------------------------------------
Lead Plaintiffs City of Miami Fire Fighters' and Police Officers'
Retirement Trust and International Union of Operating Engineers
Pension Fund of Eastern Pennsylvania and Delaware filed an appeal
from a court ruling entered in the lawsuit styled CITY OF MIAMI
FIRE FIGHTERS' AND POLICE OFFICERS' RETIREMENT TRUST and
INTERNATIONAL UNION OF OPERATING ENGINEERS PENSION FUND OF EASTERN
PENNSYLVANIA AND DELAWARE, Plaintiffs v. CVS HEALTH CORPORATION,
LARRY J. MERLO, DAVID M. DENTON, JONATHAN C. ROBERTS, ROBERT O.
KRAFT, AND EVA C. BORATTO, Defendants, Case No. 19-437-MSM-PAS, in
the United States District Court for the District of Rhode Island.
As reported in the Class Action Reporter on June 7, 2021, Judge
Mary S. McElroy of the U.S. District Court for the District of
Rhode Island denied the Plaintiffs' Motion for Partial
Reconsideration and Motion to Amend.
On Feb. 11, 2021, the Court granted the Defendants' motion to
dismiss the securities fraud action, finding that the Plaintiffs
had failed in their Amended Complaint to meet the heightened
pleading requirement of the Private Securities Litigation Reform
Act (PSLRA), 15 U.S.C.A. Section 78u-4. The Court's Order also
denied leave to amend, which the Plaintiffs had requested in their
opposition to the Motion to Dismiss if the Court were to grant any
portion of the Motion. Judgment was entered that day.
Twenty-eight days later, the Plaintiffs filed a Motion for Partial
Reconsideration, requesting that the Court "partially" reconsider
by altering the dismissal to be without prejudice and allowing
leave to amend. They proffered a Proposed Second Amended Class
Action Complaint (PSAC).
Judge McElroy held that the Plaintiffs invite the Court to travel
with them down either of two roads leading to leave to amend the
Amended Complaint. However, she finds that both are dead ends.
First, the pre-judgment contingent "request" to amend made in the
last paragraph of their Memorandum in Opposition to dismissal is
not in the Circuit considered a "real" motion for leave to amend.
It was a tagalong paragraph in the Memorandum, attempting to
reserve the option of amending if and only if the Court ordered, or
felt inclined to order, dismissal. For obvious reasons, the
Plaintiffs failed to attach a Proposed Amended Complaint, as
required by Local Rule of Civil Procedure 15. They manifested no
actual desire to amend; any wish to amend was wholly contingent,
materializing only if the Court determined that the Amended
Complaint were inadequate.
The second road leads to the request to amend conjoined to the
Motion for Reconsideration, made post-judgment, and accompanied by
a Proposed Second Amended Complaint. The problem the Plaintiffs
face, according to Judge McElroy, is that post-judgment leave to
amend is not possible: in the words of the First Circuit, once
judgment enters, the case is a "dead letter" and the Complaint can
no longer be amended. The law is clear that the judgment must be
vacated first, pursuant to either Fed. R. Civ. P. 59(e) or 60 to
put a post-judgment request to amend in a position to be ruled
upon. Alternatively, the judgment could be altered under Rule 59(e)
to be without prejudice and allow amendment. The Motion invokes
Rule 59(e) and is brought timely, within 28 days of the entry of
judgment.
Based on the foregoing, Judge McElroy concluded that neither of the
Plaintiffs' requests for leave to amend have merit. The "passing
request" made in its opposition to dismissal was of no legal effect
in the Circuit. As for the post-judgment request, there is
insufficient basis to vacate the judgment such as to revive the
Complaint in order to amend it for a second time. Therefore, the
Motion for Partial Reconsideration and the Motion to Amend were
denied.
The Lead Plaintiffs seek a review of Judge McElroy's ruling.
The appellate case is captioned as Anarkat v. CVS Health Corp., et
al., Case No. 21-1479, in the United States Court of Appeals for
the First Circuit, filed on June 25, 2021.[BN]
Lead Plaintiffs-Appellants City of Miami Fire Fighters' and Police
Officers' Retirement Trust and International Union of Operating
Engineers Pension Fund of Eastern Pennsylvania and Delaware are
represented by:
Jeremy A. Lieberman, Esq.
Brian Calandra, Esq.
POMERANTZ LLP
600 Third Avenue
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
E-mail: jalieberman@pomlaw.com
bcalandra@pomlaw.com
- and -
Patrick V. Dahlstrom, Esq.
POMERANTZ LLP
10 South LaSalle Street, Suite 3505
Chicago, IL 60603
Telephone: (312) 377-1181
Facsimile: (312) 377-1184
E-mail: pdahlstrom@pomlaw.com
- and -
James E. Miller, Esq.
MILLER SHAH, LLP
65 Main St.
Chester, CT 06412
Telephone: (860) 526-1100
Facsimile: (866) 300-7367
E-mail: jemiller@millershah.com
- and -
Eric L. Young, Esq.
Jayne A. Goldstein, Esq.
MILLER SHAH, LLP
1845 Walnut St. Suite 806
Philadelphia, PA 19103
Telephone: (610) 891-9880
Facsimile: (866) 300-7367
E-mail: elyoung@millershah.com
jagoldstein@millershah.com
- and -
Robert D. Klausner, Esq.
Stuart Kaufman, Esq.
KLAUSNER, KAUFMAN, JENSEN & LEVINSON
7080 NW 4th Street
Plantation, FL 33317
Telephone: (954) 916-1202
Facsimile: (954) 916-1232
E-mail: bob@robertdklausner.com
stu@robertdklausner.com
- and -
Stephen Cypen, Esq.
CYPEN & CYPEN
975 Arthur Godfrey Road Suite 500
Miami Beach, FL 33140
DENTISTS INSURANCE: Germack Appeals Case Dismissal to 9th Cir.
--------------------------------------------------------------
Plaintiff Mark Germack, DDS, filed an appeal from a court ruling
entered in the lawsuit styled Mark Germack, DDS, individually and
on behalf of all others similarly situated v. THE DENTISTS
INSURANCE COMPANY, Case No. 2:20-cv-00661-BJR, in the U.S. District
Court for the Western District of Washington, Seattle.
As previously reported in the Class Action Reporter, the lawsuit is
brought against the Defendant to ensure that the Plaintiff and
other similarly-situated policyholders receive the insurance
benefits to which they are entitled and for which they paid.
Due to COVID-19 and a state-ordered mandated closure, the Plaintiff
cannot provide dental services, according to the complaint. The
Plaintiff intended to rely on its business insurance to keep its
business as a going concern. TDIC issued one or more insurance
policies to Plaintiff, including an "all risk" Businessowners
Property Coverage and related endorsements, insuring the
Plaintiff's property and business practice and other coverages at
all relevant times.
TDIC Businessowners Property Coverage promises to pay the Plaintiff
for risks of "all risk of direct physical loss" to covered property
and includes coverage for risks of both "loss of or damage to"
covered property. TDIC's Businessowners Property Coverage provides
the Plaintiff with Business Income Coverage, Extra Expense
Coverage, Extended Business Income Coverage and Civil Authority
Coverage. The Plaintiff paid all premiums for the coverage when
due.
According to the complaint, the Plaintiff's property sustained
direct physical loss and/or damages related to COVID-19 and/or the
proclamations and orders. The Plaintiff's property will continue to
sustain direct physical loss or damage covered by the Sentinel
policy or policies, including but not limited to business
interruption, extra expense, interruption by civil authority, and
other expenses.
The Plaintiff now seeks a review of the Court's Order and Judgment
dated May 28, 2021, granting Defendant's motion for summary
judgment, denying as moot Dentists' Motion to Dismiss. The Court
dismissed this matter with prejudice.
The appellate case is captioned as Mark Germack v. The Dentists
Insurance Company, Case No. 21-35491, in the United States Court of
Appeals for the Ninth Circuit, filed on June 24, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellant Mark Germack Mediation Questionnaire was due July
1, 2021;
-- Appellant Mark Germack opening brief is due on August 23,
2021;
-- Appellee The Dentists Insurance Company answering brief is
due on September 22, 2021; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant MARK GERMACK, DDS, individually and on behalf
of all others similarly situated, is represented by:
Ian S. Birk, Esq.
Gretchen Freeman Cappio, Esq.
Irene M. Hecht, Esq.
Lynn Lincoln Sarko, Esq.
Amy Williams-Derry, Esq.
KELLER ROHRBACK LLP
1201 Third Avenue, Suite 3200
Seattle, WA 98101
Telephone: (206) 623-1900
E-mail: ibirk@kellerrohrback.com
gcappio@kellerrohrback.com
ihecht@kellerrohrback.com
lsarko@kellerrohrback.com
awilliams-derry@kellerrohrback.com
Defendant-Appellee THE DENTISTS INSURANCE COMPANY is represented
by:
Thomas Lether, Esq.
Eric J. Neal, Esq.
LETHER LAW GROUP
1848 Westlake Avenue N, Suite 100
Seattle, WA 98109
Telephone: (206) 467-5444
E-mail: tlether@letherlaw.com
eneal@letherlaw.com
DIGITAL INTELLIGENCE: Buchsbaum Suit Dismissed Without Prejudice
----------------------------------------------------------------
In the case, BERNARDO BUCHSBAUM, individually and on behalf of all
others similarly situated, Plaintiffs v. DIGITAL INTELLIGENCE
SYSTEMS, LLC, et al., Defendants, Case No. 20-cv-00706-BAS-AGS
(S.D. Cal.), Judge Cynthia Bashant of the U.S. District Court for
the Southern District of California grants the Plaintiff's request
for dismissal under Rule 41(a)(2) and dismisses without prejudice
the action.
Plaintiff Buchsbaum requests dismissal of the action without
prejudice due to the Court's Dec. 2, 2020 order granting Defendant
Digital Intelligence Systems' Motion to Compel Arbitration, staying
the action, and administratively closing the case. The Defendant
has filed a Notice of Non-Opposition to Plaintiff's request.
Because the Defendant has filed an Answer to Plaintiff's Complaint
in the case, Judge Bashant states that dismissal is governed by
Federal Rule of Civil Procedure 41(a)(2), which provides that an
action may only be dismissed at a plaintiff's request by court
order "on terms that the court considers proper." The purpose of
this rule, she says, "is to permit a plaintiff to dismiss an action
without prejudice so long as the defendant will not be prejudiced
or unfairly affected by dismissal." In exercising its discretion,
the Court must make three separate determinations: (1) whether to
allow the dismissal at all; (2) whether the dismissal should be
with or without prejudice; and (3) what terms and conditions, if
any, should be imposed."
Under the first prong, Judge Bashant "must consider whether the
defendant will suffer some plain legal prejudice as a result of the
dismissal." The Defendant's non-probation to the dismissal
vitiates any concern the Court may have regarding prejudice.
Similarly, as to the second prong, the Plaintiff has requested
dismissal without prejudice and Defendant does not oppose this
request. Thus, Judge Bashant finds dismissal without prejudice
appropriate.
Third, Judge Bashant finds no terms or conditions need be imposed
on the dismissal. Although costs and attorney fees are often
imposed upon a plaintiff who is granted a voluntary dismissal under
Fed. R. Civ. P. 41(a)(2), the Ninth Circuit has held that ordering
payment of costs and attorney fees is not a prerequesite to
granting voluntary dismissal without prejudice under this
provision. Although the Court ultimately found in the Defendant's
favor on the issue of arbitration, the Plaintiff raised legitimate
claims and, as such, Judge Bashant does not find the imposition of
fees and costs necessary.
Accordingly, Judge Bashant lifts the stay, grants the Plaintiff's
request for dismissal under Rule 41(a)(2) and dismisses without
prejudice the action. Each party will bear its own costs and
attorney fees. The Clerk is instructed to close the case.
A full-text copy of the Court's July 6, 2021 Order is available at
https://tinyurl.com/3kp5yzy7 from Leagle.com.
DISTRICT OF COLUMBIA: Appeal From Injunction in Banks Suit Nixed
----------------------------------------------------------------
In the case, EDWARD BANKS, ET AL., Appellees v. QUINCY L. BOOTH, IN
HIS OFFICIAL CAPACITY AS DIRECTOR OF THE DISTRICT OF COLUMBIA DEPT
OF CORRECTIONS AND LENNARD JOHNSON, IN HIS OFFICIAL CAPACITY AS
WARDEN, D.C. DEPT. CORRECTIONS, Appellants, Case No. 20-5216,
Consolidated with No. 21-5033 (D.C. App.), the U.S. Court of
Appeals for the District of Columbia Circuit dismisses the
Appellants' appeal from an order imposing preliminary injunction.
The appeal was filed by the Director and Warden of the District of
Columbia Department of Corrections from the district court's order
of a preliminary injunction requiring the Department of Corrections
to take certain actions to reduce the threat of COVID-19 within its
correctional facilities.
On March 11, 2020, the mayor of the District of Columbia declared a
public health emergency due to the COVID-19 pandemic. The
Department of Corrections responded by instituting policies
intended to protect its employees and inmates from the
coronavirus.
On March 30, pretrial and post-conviction inmates at D.C.
correctional facilities filed a class action complaint and habeas
petition, seeking relief on behalf of all inmates in D.C.
facilities. The Plaintiffs' complaint asserted causes of action
under 28 U.S.C. Section 2241 and 42 U.S.C. Section 1983 for
violations of the Fifth and Eighth Amendments. The Plaintiffs
immediately moved for a temporary restraining order, a preliminary
injunction, and for the district court to certify the class.
Before ruling on the motions for preliminary relief, the district
court appointed two amici to investigate and report on the
conditions at D.C. correctional facilities. Amici reported that
while suspected-positive inmates were appropriately quarantined,
quality-of-life in quarantine units was substantially worse than
for the general population. Moreover, inmates had delays in
receiving care, personal protective equipment was scarce, social
distancing was not enforced, cleanliness varied by unit, and
inmates lacked access to confidential legal phone calls.
Incorporating the amici's report in its findings of fact, the
district court granted the Plaintiffs' motion for a temporary
restraining order on April 19. The order generally required
Corrections to address the problems amici identified. After
granting the temporary restraining order, the district court
ordered amici to reevaluate the facilities to determine compliance
with its order and provide further recommendations. Amici reported
that Corrections had taken several appropriate steps, but not all
reasonable precautions, to protect inmates. Although COVID cases
in the correctional facilities decreased following mid-April,
significant problems remained. For example, sanitation remained
deficient and social distancing remained imperfect.
Two months later, on June 18, 2020, the district court granted the
Plaintiffs' motion for a preliminary injunction. The preliminary
injunction ordered the Defendants, inter alia, to ensure inmates
receive medical attention within 24 hours after reporting of
medical problems, to contract for COVID-19 cleaning services,
ensure quarantine isolation units are nonpunitive, and provide
access to confidential legal calls. Corrections immediately took
steps to comply with the order.
One month later, Corrections filed a motion to vacate the
preliminary injunction due to changed circumstances under Federal
Rules of Civil Procedure 54(b), 59(e), and 60(b). In response, the
court asked amici once again to report on conditions in D.C. jails.
Amici reported substantial improvement in Corrections' COVID
protocols, but also imperfect compliance with the district court's
preliminary injunction. Based on that report, the district court
determined that changed factual circumstances did not justify
vacating the injunction.
On appeal, Corrections argue that their appeal is moot because the
preliminary injunction expired after 90 days under the Prison
Litigation Reform Act. In the alternative, they challenge the
district court's grant of a preliminary injunction in the first
instance and its failure to vacate the injunction based on changed
circumstances.
Although the Appellants also argue that the district court made
distinct errors in the issuance of the preliminary injunction,
because the Appellants' mootness argument is dispositive, the Court
of Appeals need not address the other issues. It must determine
whether the Prison Litigation Reform Act's 90-day expiration period
for preliminary relief applies to the order under review. If it
does, the appeal is moot and the Court of Appeals must order
dismissal.
The Court of Appeals holds that the allegations attempting to
allege habeas may not be sufficient to clearly state a habeas
corpus claim. Habeas corpus tests the fact or duration of the
confinement, rather than conditions. Again, though, the Court of
Appeals need not decide anything with reference to that claim. It
only determines that such a claim cannot change the nature of the
actions to which it is attached.
Therefore, the Court of Appeals holds that the Appellants' claim of
mootness is well taken, and it dismisses the appeals of the order
imposing the preliminary injunction and the order denying the
motion to vacate the injunction based on changed circumstances.
It, however, remands the cases for any further proceedings that may
be necessary to determine the viability of any remaining claims.
A full-text copy of the Court's July 6, 2021 Order is available at
https://tinyurl.com/4scjxj2a from Leagle.com.
Carl J. Schifferle, Deputy Solicitor General, Office of the
Attorney General for the District of Columbia, argued the cause for
Appellants. With him on the briefs were Karl A. Racine, Attorney
General, Loren L. Alikhan, Solicitor General, and Caroline S. Van
Zile, Principal Deputy Solicitor General.
Steven Marcus, argued the cause for appellees. With him on the
brief were Scott Michelman -- mmichelman@shb.com -- Arthur B.
Spitzer, Jonathan W. Anderson, Jenna Cobb, Jonathan S. Meltzer --
Jonathan.Meltzer@mto.com -- Jeremy S. Kreisberg, Brendan B. Gants
-- Brendan.Gants@mto.com -- and Rachel G. Miller-Ziegler --
Rachel.Miller-Ziegler@mto.com.
David M. Shapiro was on the brief for amicus curiae the Roderick
and Solange MacArthur Justice Center in support of Appellees.
DREYER'S GRAND: Rice Files Suit in N.D. Illinois
------------------------------------------------
A class action lawsuit has been filed against Dreyer's Grand Ice
Cream, Inc. The case is styled as Lawrence Rice, individually and
on behalf of all others similarly situated v. Dreyer's Grand Ice
Cream, Inc., Case No. 1:21-cv-03814 (N.D. Ill., July 18, 2021).
The nature of suit is stated as Other Fraud.
Dreyer's Grand Ice Cream Holdings, Inc. -- https://www.dreyers.com/
-- is an American ice cream company, founded in 1928 in Oakland,
California, where its present-day headquarters office remains.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Road, Suite 409
Great Neck, NY 11021
Phone: (516) 260-7080
Email: Spencer@spencersheehan.com
FLINT, MI: 6th Cir. Denies Writ of Mandamus Petition in Hall Suit
-----------------------------------------------------------------
In the case, IN RE: RAYMOND HALL; ROBERT HEMPEL; ASHLEY JANKOWIAK;
LAWRENCE A. REYNOLDS; SHAMIYA CHAPMAN; DOROTHY CHAPMAN; HELEN
CHAPMAN; ELIZABETH FRANKLIN; LASHONDA JONES, Petitioners, Case No.
21-2655 (6th Cir.), the U.S. Court of Appeals for the Sixth Circuit
denied the petition for a writ of mandamus.
Objectors to a class action settlement in the In re Flint Water
Cases petition for a writ of mandamus, asking the Sixth Circuit to
compel the district court: "(1) to cease holding off-the-record
substantive ex parte meetings that exclude petitioners' counsel;
(2) to order the participants at the March 1 and May 3 conferences
to recount for the record their recollection of what transpired at
those conferences; (3) to order settling parties to identify any
other substantive unrecorded conferences since Feb. 26, 2021; and
(4) to refrain from continuing to prescribe or dictate the
litigation strategy of the parties in advocating for the
settlement."
The Petitioners raise serious allegations, especially as it relates
to off-the-record conferences that preceded the withdrawal of class
counsel's motion regarding "bone lead testing." The global
settlement of these cases proposes to increase the funds available
to participants who establish higher levels of lead exposure
through these bone scans. Yet Dr. Lawrence Reynolds, one of the
petitioners and the health advisor to the Mayor of Flint, objected
to the propriety of this testing. Other petitioners objected that
the testing has not been made equally available to all
participants. Soon after Dr. Reynolds filed his objection, class
counsel, including Michael Pitt, moved to suspend the testing. If
one takes the petition's allegations at face value, the district
court held an off-the-record conference without objectors, at which
it told Pitt that he would have to withdraw as class counsel if he
pursued this motion. Although Pitt claims the motion was in the
best interests of the absent class members, the court allegedly
indicated that it was inconsistent with the settlement.
Despite the seriousness of these allegations, the Sixth Circuit
finds that the Petitioners still must show that mandamus is the
appropriate remedy and they have not carried that burden. They
have also failed to show "a clear and indisputable right" to the
relief they seek. Moreover, the Petitioners' broad argument that a
nonnamed class member generally "is a party to the class-action
litigation before the class is certified," is -- to use the Supreme
Court's words -- "surely erroneous."
And even if one could raise colorable arguments why the
Petitioners' request for an invitation to certain conferences is
reasonable, the Sixth Circuit holds that this claimed right is not
clear and indisputable given the fluid nature of an objector's
party-status and the lack of any existing authority that recognizes
or supports it. Thus, the Petitioners have not shown a clear and
indisputable right to the relief they seek, which requires denying
their request for a writ.
The other circumstances of the case also do not merit the
extraordinary relief requested. As of now, the Petitioners raise
only speculative threats.
The Sixth Circuit's denial of the petition for a writ of mandamus
should not be mistaken for anything other than what it is: A ruling
that the "extraordinary remedy" of mandamus is not the proper route
by which to air the serious concerns that the petition raises. The
denial means only that the upcoming fairness hearing is the venue
to litigate those concerns -- with any later appeal taken to the
Sixth Circuit in the ordinary course.
A full-text copy of the Court's July 6, 2021 Order is available at
https://tinyurl.com/54bw8p7z from Leagle.com.
ON PETITION FOR WRIT OF MANDAMUS AND SUPPLEMENTAL BRIEF: Adam E.
Schulman -- adam.schulman@hlli.org -- HAMILTON LINCOLN LAW
INSTITUTE, in Washington, D.C.; Valdemar L. Washington, WASHINGTON
LEGAL, in Flint, Michigan; Mark R. Cuker -- mark@cukerlaw.com --
CUKER LAW FIRM, LLC, in Philadelphia, Pennsylvania, for
Petitioners.
ON RESPONSE: Hunter J. Shkolnik -- Hunter@NSPRLaw.com -- NAPOLI
SHKOLNIK PLLC, in Hato Rey, Puerto Rico, for Individual
Plaintiffs.
The Honorable Judith E. Levy, UNITED STATES DISTRICT COURT, in Ann
Arbor, Michigan, as Amica Curiae.
HEALTHCARE REVENUE: 3rd Cir. Flips Dismissal of Morales FDCPA Suit
------------------------------------------------------------------
The U.S. Court of Appeals for the Third Circuit reversed the
District Court's dismissal of the case, ALEJANDRO MORALES, On
behalf of himself and those similarly situated, Appellant v.
HEALTHCARE REVENUE RECOVERY GROUP, LLC; JOHN DOES 1 TO 10, Case No.
20-1827 (3d Cir.).
In DiNaples v. MRS BPO, LLC, 934 F.3d 275 (3d Cir. 2019), debt
collectors violate the Fair Debt Collection Practices Act (FDCPA),
15 U.S.C. Section 1692f(8), when they send consumers envelopes
showing certain quick reference (QR) codes. In the instant case,
Healthcare Revenue Recovery Group (HRRG) sent Morales a debt
collection letter in an envelope showing a barcode.
A smartphone could scan the envelope's barcode to reveal an
"Internal Reference Number" (IRN) -- UM###2 -- and the first 10
characters of Morales' street address. The letter listed his
account numbers with HRRG and his creditor -- but all of that was
hidden.
Mr. Morales filed a class action, claiming the letter violated the
FDCPA. After discovery, the District Court dismissed his
complaint. It decided Morales lacked standing because he lacked a
concrete injury in fact.
After the Third Circuit decided DiNaples, Morales filed a motion
for reconsideration. The District Court denied it, reasoning that
the DiNaples disclosure and this disclosure were different.
Mr. Morales appealed. He challenges the District Court's order
dismissing his complaint for lack of standing, its order denying
his motion to reconsider or amend, and its order denying his
discovery request for every putative class member's account
documents.
First, the Third Circuit must decide whether the IRN (UM###2) is
protected like the DiNaples account number (LU4.###1813.3683994).
To answer this question, it turns to the record. It begins by
acknowledging, as HRRG argues, that others may "potentially" share
Morales's IRN. Even so, the IRN's uses reveal its disclosure was a
concrete injury.
In sum, the Thid Circuit opines that just as the QR code in
DiNaples might disclose the debtor's financial predicament, so too
could Morales's barcode. In both cases, the numbers are only
assigned to debtors. And the IRN enabled identification in at
least three ways. In essence, the IRN is "a piece of information
capable of identifying Morales as a debtor," so its disclosure was
a concrete harm.
Next, HRRG makes three arguments to the contrary: IRNs are not
account numbers; Morales did not know how to use IRNs to unlock
private data; and material risk of harm was absent.
The Third Circuit holds that these arguments fall flat. Account
numbers are but one type of protected information. And Morales did
not need to know how to use IRNs to access accounts. Nor did he
need to show an increased risk of harm. Just as disclosing the
"meaningless string of numbers and letters" in Douglass was a
concrete harm, 765 F.3d at 305-06, so too here.
HRRG also offers two district court cases in support. But the
envelopes in those cases did not disclose protected information.
Finally, HRRG urges the Third Circuit to distinguish In re Horizon
Healthcare Services Data Breach Litigation, 846 F.3d 625 (3d Cir.
2017). There, a data breach revealed information like addresses
and birthdays. HRRG claims the barcode's data is different from
the personal information in Horizon because the IRN is "meaningless
on its face" and not "private information." But the IRN is private
information, so Horizon supports our conclusion. Disclosing
"personal information" is a concrete injury.
The Third Circuit concludes that the envelope's barcode disclosed
Morales' protected information, which caused a concrete injury in
fact under the FDCPA. So it reverses the District Court's order
dismissing Morales' action for lack of standing and its order
denying Morales' motion to reconsider. It also affirms the
District Court's discovery order and remands the case for further
proceedings.
A full-text copy of the Court's July 6, 2021 Opinion is available
at https://tinyurl.com/2eppcfyz from Leagle.com.
Yongmoon Kim [argued] Philip D. Stern, KIM LAW FIRM LLC, in
Hackensack, New Jersey, Counsel for Appellant.
Sean X. Kelly -- skelly@moodklaw.com -- Christian M. Scheuerman --
CScheuerman@moodklaw.com -- [argued] Jonathan R. Stuckel, Marks
O'Neill O'Brien Doherty & Kelly, in Cherry Hill, New Jersey,
Counsel for Appellee.
KONINKLIJKE PHILIPS: Bossey Files Suit in W.D. Pennsylvania
-----------------------------------------------------------
A class action lawsuit has been filed against Koninklijke Philips
N.V. The case is styled as Mark Bossey, Hugo Barragan, on behalf of
themselves and all others similarly situated v. KONINKLIJKE PHILIPS
N.V., Case No. 2:21-cv-00930-MRH (W.D. Pa., July 16, 2021).
The nature of suit is stated as Personal Injury: Health
Care/Pharmaceutical Personal Injury.
Koninklijke Philips N.V. -- https://www.philips.com/global -- is a
Dutch multinational conglomerate corporation that was founded in
Eindhoven.[BN]
The Plaintiffs are represented by:
Kenneth J. Grunfeld, Esq.
GOLOMB & HONIK, P.C.
1835 Market Street, Suite 2900
Philadelphia, PA 19103
Phone: (215) 985-9177
Fax: (215) 985-4169
Email: TBenoit@GolombHonik.Com
LUCKIN COFFEE: Teamster Fund Appeals Cohen Securities Suit Ruling
------------------------------------------------------------------
State Class Plaintiffs Michael Bergenholtz, Teamsters Local 710
Pension Fund, City of Fort Myers Police Officers' Retirement
System, and Kimson Chemical, Inc., filed an appeal from a court
ruling entered in the lawsuit styled IN RE LUCKIN COFFEE INC.
SECURITIES LITIGATION, Case No. 20-cv-1293, in the U.S. District
Court for the Southern District of New York (New York City).
As reported in the Class Action Reporter on March 19, 2020, the
lawsuit seeks to recover compensable damages caused by violations
of the federal securities laws and to pursue remedies under the
Securities Exchange Act of 1934.
Luckin engages in the retail sale of freshly brewed drinks and
pre-made food, light meals and beverage items in China. Luckin
securities trade on the NASDAQ under the ticker symbol "LK."
Cohen, a holder of Luckin American Depository Shares (ADS), claims
that Luckin failed to disclose that its financial performance
metrics, including per-store per-day sales, net selling price per
item, advertising expenses and revenue contribution were inflated.
On this news, Luckin's ADS price fell $3.91 per share, or 10.74%,
to close at $32.49 per share on January 31, 2020.
Mr. Bergenholtz, et al., now seek a review of the Court's Order
dated July 6, 2021, denying his motion to intervene with respect to
the Stipulation and Proposed Order filed by Lead Plaintiffs Sjunde
AP-Fonden and Louisiana Sheriffs' Pension & Relief Fund and
Defendant Luckin Coffee Inc. regarding dissemination of class
notice. The court-approved stipulation appointed and authorized the
firm of Epiq Class Action & Claims Solutions, Inc. as Notice
Administrator to supervise and administer the notice procedure.
The appellate case is captioned as IN RE LUCKIN COFFEE INC.
SECURITIES LITIGATION, Case No. 21-1683, in the United States Court
of Appeals for the Second Circuit, filed on July 9, 2021.[BN]
Appellants Michael Bergenholtz, Teamsters Local 710 Pension Fund,
City of Fort Myers Police Officers' Retirement System, and Kimson
Chemical, Inc. are represented by:
Brian E. Cochran, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway
San Diego, CA 92101
Telephone: (619) 231-1058
E-mail: bcochran@rgrdlaw.com
Defendants-Appellees Thomas P. Meir, Credit Suisse Securities (USA)
LLC, Morgan Stanley & Co. LLC, Luckin Coffee Inc., China
International Captial Corporation Hong Kong Securities Limited,
Haitong International Securities Company Limited, KeyBanc Capital
Markets Inc., and Needham & Company, LLC are represented by:
Jason J. Mendro, Esq.
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
Telephone: (202) 887-3726
- and -
Adam Mintz, Esq.
CAHILL GORDON & REINDEL LLP
32 Old Slip
New York, NY 10005
Telephone: (212) 701-3981
- and -
Brian S. Weinstein, Esq.
DAVIS POLK & WARDWELL LLP
450 Lexington Avenue
New York, NY 10017
Telephone: (212) 450-4972
E-mail: brian.weinstein@dpw.com
MINIM PRODUCTIONS: Schwanke Appeals Judgment, Remand of Labor Suit
------------------------------------------------------------------
Plaintiff Paul Schwanke filed an appeal from a court ruling entered
in the lawsuit styled PAUL SCHWANKE, individually and on behalf of
all others similarly situated v. MINIM PRODUCTIONS, INC., and DOE 1
through and including DOE 10, Case No. 2:21-cv-00111-SVW-JPR, in
the U.S. District Court for the Central District of California, Los
Angeles.
As reported in the Class Action Reporter on Jan. 13, 2021, the
lawsuit was removed from the Superior Court of the State of
California for the County of Los Angeles to the U.S. District
Court for the Central District of California on January 6, 2021.
The Clerk of Court for the Central District of California assigned
Case No. 2:21-cv-00111 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to provide compliant wage statements,
failure to provide meal breaks, failure to provide rest breaks,
failure to provide pay proper overtime, failure to provide pay
proper minimum wages, failure to provide timely wages, and failure
to provide accurate payroll records.
Mr. Schwanke now seeks a review of the Court's Order dated May 24,
2021, granting in part Defendants' motion for judgment on the
pleadings and remanding his remaining claims to state court.
The appellate case is captioned as Paul Schwanke v. Minim
Productions, Inc., et al., Case No. 21-55669, in the United States
Court of Appeals for the Ninth Circuit, filed on June 25, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellant Paul Schwanke Mediation Questionnaire was due July
2, 2021;
-- Appellant Paul Schwanke opening brief is due on August 23,
2021;
-- Appellee Minim Productions, Inc. answering brief is due on
September 21, 2021; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant PAUL SCHWANKE, individually and on behalf of
all others similarly situated, is represented by:
David Covington Garrett, Esq.
HARRIS & RUBLE
655 N. Central Avenue, 17th Floor
Glendale, CA 91203
Telephone: (323) 962-3777
E-mail: dgarrett@harrisandruble.com
Defendant-Appellee MINIM PRODUCTIONS, INC., a California
Corporation, is represented by:
Stephen Berry, Esq.
PAUL HASTINGS LLP
695 Town Center Drive, 17th Floor
Costa Mesa, CA 92626
Telephone: (714) 641-1100
E-mail: stephenberry@paulhastings.com
NCAA: Smith Suit Transferred to N.D. Illinois
---------------------------------------------
The case styled as Branden Smith, individually and on behalf of all
others similarly situated v. National Collegiate Athletic
Association, Case No. 1:21-cv-01908, was transferred from the U.S.
District Court for the Southern District of Indiana to the U.S.
District Court for the Northern District of Illinois on July 14,
2021.
The District Court Clerk assigned Case No. 1:21-cv-03747 to the
proceeding.
The nature of suit is stated as Other P.I. for Personal Injury.
The National Collegiate Athletic Association --
https://www.ncaa.org/ -- is a non-profit organization which
regulates athletes of 1,268 North American institutions and
conferences.[BN]
The Plaintiff is represented by:
Jeffrey L. Raizner, Esq.
RAIZNER SLANIA, LLP
2402 Dunlavy Street
Houston, TX 77006
Phone: (713) 554-9099
Fax: (713) 554-9098
Email: jraizner@raiznerlaw.com
NCAA: Sparksman Suit Transferred to N.D. Illinois
-------------------------------------------------
The case styled as Joseph Sparksman, individually and on behalf of
all others similarly situated v. National Collegiate Athletic
Association, Case No. 1:21-cv-01909, was transferred from the U.S.
District Court for the Southern District of Indiana to the U.S.
District Court for the Northern District of Illinois on July 14,
2021.
The District Court Clerk assigned Case No. 1:21-cv-03748 to the
proceeding.
The nature of suit is stated as Other P.I. for Personal Injury.
The National Collegiate Athletic Association --
https://www.ncaa.org/ -- is a non-profit organization which
regulates athletes of 1,268 North American institutions and
conferences.[BN]
The Plaintiff is represented by:
Jeffrey L. Raizner, Esq.
RAIZNER SLANIA, LLP
2402 Dunlavy Street
Houston, TX 77006
Phone: (713) 554-9099
Fax: (713) 554-9098
Email: jraizner@raiznerlaw.com
NCAA: Taylor Suit Transferred to N.D. Illinois
----------------------------------------------
The case styled as Sharoye Taylor, individually and on behalf of
all others similarly situated v. National Collegiate Athletic
Association, Case No. 1:21-cv-01859, was transferred from the U.S.
District Court for the Southern District of Indiana to the U.S.
District Court for the Northern District of Illinois on July 14,
2021.
The District Court Clerk assigned Case No. 1:21-cv-03740 to the
proceeding.
The nature of suit is stated as Other P.I. for Personal Injury.
The National Collegiate Athletic Association --
https://www.ncaa.org/ -- is a non-profit organization which
regulates athletes of 1,268 North American institutions and
conferences.[BN]
The Plaintiff is represented by:
Jeffrey L. Raizner, Esq.
RAIZNER SLANIA, LLP
2402 Dunlavy Street
Houston, TX 77006
Phone: (713) 554-9099
Fax: (713) 554-9098
Email: jraizner@raiznerlaw.com
NCAA: Tingelhoff Suit Transferred to N.D. Illinois
--------------------------------------------------
The case styled as Martin Tingelhoff, individually and on behalf of
all others similarly situated v. National Collegiate Athletic
Association, Case No. 1:21-cv-01815, was transferred from the U.S.
District Court for the Southern District of Indiana, to the U.S.
District Court for the Northern District of Illinois on July 14,
2021.
The District Court Clerk assigned Case No. 1:21-cv-03734 to the
proceeding.
The nature of suit is stated as Other P.I. for Personal Injury.
The National Collegiate Athletic Association --
https://www.ncaa.org/ -- is a non-profit organization which
regulates athletes of 1,268 North American institutions and
conferences.[BN]
The Plaintiff is represented by:
Jeffrey L. Raizner, Esq.
RAIZNER SLANIA, LLP
2402 Dunlavy Street
Houston, TX 77006
Phone: (713) 554-9099
Fax: (713) 554-9098
Email: jraizner@raiznerlaw.com
NEW YORK: Second Circuit Appeal Filed in Gulino Suit re White
-------------------------------------------------------------
Defendant Board of Education of the City School District of the
City of New York filed an appeal from the District Court's Judgment
dated June 1, 2021, entered in the lawsuit styled GULINO, ET AL. v.
THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF
NEW YORK, Case No. 96-cv-8414, in the U.S. District Court for the
Southern District of New York (New York City).
As previously reported in the Class Action Reporter, the
Plaintiffs, a group of African-American and Latino teachers in the
New York City public school system, alleged that the Defendant, the
Board of Education of the City School District of the City of New
York, violated Title VII of the Civil Rights Act of 1964, 42 U.S.C.
Section 2000e et seq., by requiring Plaintiffs to pass certain
racially discriminatory standardized tests in order to obtain a
license to teach in New York City public schools. Judge Constance
Baker Motley, to whom the case was originally assigned, certified
the plaintiff class on July 13, 2001, pursuant to Federal Rule of
Civil Procedure 23(b)(2).
On December 5, 2012, the Court decertified the Plaintiff class to
the extent it sought damages and individualized injunctive relief
in light of the Supreme Court's decision in Wal-Mart Stores, Inc.
v. Dukes, 131 S.Ct. 2541 (2011). The class survived, however, to
the extent Plaintiffs sought relief that may be awarded under Rule
23(b)(2), including a declaratory judgment regarding liability and
class-wide injunctive relief.
The Defendant seeks a review of the Court's Judgment, classifying
Kimberly White as a member of the Plaintiff class in this action,
and holding that the Plaintiff is entitled to monetary and
injunctive relief from Defendant as compensation for the injuries
she suffered as a result of what the Court found to be the
Defendant's discrimination.
The appellate case is captioned as In re: New York City Board of
Education, Case No. 21-1601, in the United States Court of Appeals
for the Second Circuit, filed on June 29, 2021.[BN]
Defendant-Appellant Board of Education of the City School District
of the City of New York is represented by:
James Edward Johnson, Esq.
CORPORATION COUNSEL
NEW YORK CITY LAW DEPARTMENT
100 Church Street
New York, NY 10007
Telephone: (212) 356-2500
Plaintiff-Appellee Kimberly White is represented by:
Joshua S. Sohn, Esq.
STROOCK & STROOCK & LAVAN LLP
180 Maiden Lane
New York, NY 10038
Telephone: (212) 806-1245
E-mail: jsohn@stroock.com
OHIO CASUALTY: Pacific Endodontics Appeals Insurance Suit Dismissal
-------------------------------------------------------------------
Plaintiffs Pacific Endodontics, PS, et al., filed an appeal from a
court ruling entered in the lawsuit entitled Pacific Endodontics,
P.S., individually and on behalf of all others similarly situated
v. THE OHIO CASUALTY INSURANCE COMPANY, Case No. 2:20-cv-00620-BJR,
in the U.S. District Court for the Western District of Washington,
Seattle.
As reported in the Class Action Reporter on May 5, 2020, the
lawsuit is brought against the Defendant to ensure that the
Plaintiff and other similarly-situated policyholders receive the
insurance benefits to which they are entitled and for which they
paid.
Due to COVID-19 and a state-ordered mandated closure, the Plaintiff
says it cannot provide dental endodontist services. The Plaintiff
intended to rely on its business insurance to keep its business as
a going concern. The Defendant issued one or more insurance
policies to the Plaintiff, including Business Owners Coverage and
related endorsements, insuring the Plaintiff's property and
business practice and other coverages, with effective dates of June
21, 2019, to June 21, 2020.
The Defendant's insurance policy issued to the Plaintiff promises
to pay the Plaintiff for "DIRECT PHYSICAL LOSS" to covered property
and includes coverage for risks of both "loss of or damage to"
covered property. The Defendant OCIC's insurance policy issued to
Plaintiff includes Business Income Coverage, Extended Business
Income Coverage, Extra Expense Coverage and Civil Authority
Coverage. The Plaintiff paid all premiums for the coverage when
due.
According to the complaint, the Plaintiff's property sustained
direct physical loss and/or damages related to COVID19 and/or the
proclamations and orders. The Plaintiff's property will continue to
sustain direct physical loss or damage covered by the OCIC policy
or policies, including business interruption, extra expense,
interruption by civil authority, and other expenses. The
Plaintiff's property cannot be used for its intended purposes.
As a result, the Plaintiff has experienced and will experience loss
covered by the OCIC policy or policies. The Plaintiff submitted a
claim to OCIC for the direct physical loss or damage to the
Plaintiff's property covered under the OCIC policy related to
COVID-19 and/or the proclamations and orders; OCIC denied the
Plaintiff's claim for coverage, says the complaint.
The Plaintiffs now seek a review of the Court's Order and Judgment
dated May 28, 2021, granting Defendant's motion for judgment on the
pleadings and dismissing the case with prejudice.
The appellate case is captioned as Pacific Endodontics, PS, et al.
v. Ohio Casualty Insurance Co., et al., Case No. 21-35500, in the
United States Court of Appeals for the Ninth Circuit, filed on June
25, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellants Cascadia Dental Specialists, Inc., Pacific
Endodontics, PS and Hirbod H. Rowshan Mediation Questionnaire was
due July 2, 2021;
-- Appellants Cascadia Dental Specialists, Inc., Pacific
Endodontics, PS and Hirbod H. Rowshan opening brief is due on
August 23, 2021;
-- Appellees American Fire and Casualty Company, Ohio Casualty
Insurance Company and Ohio Security Insurance Company answering
brief is due on September 22, 2021; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellants PACIFIC ENDODONTICS, PS, individually and on
behalf of all others similarly situated; HIRBOD H. ROWSHAN, DDS,
PS; and CASCADIA DENTAL SPECIALISTS, INC. are represented by:
Ian S. Birk, Esq.
Gretchen Freeman Cappio, Esq.
Irene M. Hecht, Esq.
Lynn Lincoln Sarko, Esq.
Amy Williams-Derry, Esq.
KELLER ROHRBACK LLP
1201 Third Avenue, Suite 3200
Seattle, WA 98101
Telephone: (206) 623-1900
E-mail: ibirk@kellerrohrback.com
gcappio@kellerrohrback.com
ihecht@kellerrohrback.com
lsarko@kellerrohrback.com
awilliams-derry@kellerrohrback.com
Defendants-Appellees OHIO CASUALTY INSURANCE COMPANY, OHIO SECURITY
INSURANCE COMPANY, and AMERICAN FIRE AND CASUALTY COMPANY are
represented by:
Carolyn Robbs Bilanko, Esq.
James Morrison, Esq.
BAKER HOSTETLER LLP
999 3rd Avenue, Suite 3600
Seattle, WA 98104
Telephone: (206) 332-1380
E-mail: jmorrison@bakerlaw.com
- and -
Cari Katrice Dawson, Esq.
ALSTON & BIRD LLP
1201 West Peachtree Street
Atlanta, GA 30309-3424
Telephone: (404) 881-7000
E-mail: cari.dawson@alston.com
STATE FARM: Appeals Ruling in Rumbaugh Insurance Suit in Texas
--------------------------------------------------------------
Defendant State Farm Mutual Automobile Insurance Co. and State Farm
County Mutual Insurance Co. of Texas filed an appeal from a court
ruling entered in the lawsuit styled Greg Rumbaugh, Individually
and on Behalf of all Others Similary Situated v. State Farm Mutual
Automobile Insurance Co. and State Farm County Mutual Insurance Co.
of Texas.
The lawsuit arises from insurance-related violations.
The appellate case is captioned as State Farm Mutual Automobile
Insurance Co. and State Farm County Mutual Insurance Co. of Texas
v. Greg Rumbaugh, Individually and on Behalf of all Others Similary
Situated, Case No. 06-21-00065-CV, in the Texas Sixth District
Court of Appeals, filed on July 9, 2021.
The briefing schedule in the Appellate Case states that docketing
statement was due July 19, 2021.[BN]
Appellant State Farm Mutual Automobile Insurance Co. & State Farm
County Mutual Insurance Co. of Texas is represented by:
S. Vance Wittie, Esq.
Jude Hickland, Esq.
Wayne B. Mason, Esq.
FAEGRE DRINKER BIDDLE & REATH LLP
1717 Main St., Ste. 5400
Dallas, TX 75201-7367
Telephone: (469) 357-2537
E-mail: vance.wittie@faegredrinker.com
jude.hickland@faegredrinker.com
wayne.mason@faegredrinker.com
Appellee Greg Rumbaugh, Individually and on Behalf of all Others
Similarly Situated, is represented by:
James A. Holmes, Esq.
LAW OFFICE OF JAMES HOLMES
212 S Marshall St.
Henderson, TX 75654
Telephone: (903) 657-2800
TRAVELERS CASUALTY: Nguyen Appeals Insurance Suit Dismissal
------------------------------------------------------------
Plaintiffs Jennifer Nguyen, et al., filed an appeal from a court
ruling entered in the lawsuit styled JENNIFER B NGUYEN, et al.,
Plaintiffs v. TRAVELERS CASUALTY INSURANCE COMPANY OF AMERICA, et
al., Defendants, Case No. 2:20-cv-00597-BJR, in the U.S. District
Court for the Western District of Washington, Seattle.
As reported in the Class Action Reporter on May 4, 2020, the
lawsuit is brought by the Plaintiff to ensure that she and other
similarly-situated policyholders receive the insurance benefits to
which they are entitled and for which they paid.
The Defendant issued one or more insurance policies to the
Plaintiff, including Businessowners Property Coverage and related
endorsements, insuring the Plaintiff's property and business
practice and other coverages, with effective dates of November 1,
2019, to November 1, 2020. The Plaintiff's business property
includes property owned and leased by the Plaintiff and used for
general business purposes for the specific purpose of dentistry and
other business activities.
Due to COVID-19 and a state-ordered mandated closure, the Plaintiff
cannot provide dentistry services. The Plaintiff intended to rely
on her business insurance to keep her business alive, says the
complaint.
The Plaintiff contends that Travelers promises to pay her for risks
of "Direct Physical Loss" to covered property and includes coverage
for risks of both "loss of or damage to" covered property. She adds
that she contacted Travelers about her losses but was verbally told
by telephone that her losses would not be covered under her
Travelers Businessowners' Policy.
Ms. Nguyen now seeks a review of the Court's Order and Judgment
dated May 28, 2021, granting Defendants' motion to dismiss the case
with prejudice.
The appellate case is captioned as Jennifer Nguyen, et al. v.
Travelers Casualty Insurance, et al., Case No. 21-35496, in the
United States Court of Appeals for the Ninth Circuit, filed on June
25, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellants Sunseet S. Bath, Ryan M. Fox, Khuzi Hsue, Jeffrey
E. Kashner, Jennifer B. Nguyen and Stan's Bar-B-Q, LLC Mediation
Questionnaire was due July 2, 2021;
-- Appellants Sunseet S. Bath, Ryan M. Fox, Khuzi Hsue, Jeffrey
E. Kashner, Jennifer B. Nguyen and Stan's Bar-B-Q, LLC opening
brief is due on August 23, 2021;
-- Appellees The Charter Oak Fire Insurance Company and
Travelers Casualty Insurance Company of America answering brief is
due on September 22, 2021; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellants JENNIFER B. NGUYEN; RYAN M. FOX, DDS; KHUZI
HSUE, DDS, PS; JEFFREY E. KASHNER, DDS, MSD; STAN'S BAR-B-Q, LLC;
and SUNSEET S. BATH, DDS, PS, individually and on behalf of others
similarly situated, DBA Impressions, are represented by:
Ian S. Birk, Esq.
Gretchen Freeman Cappio, Esq.
Irene M. Hecht, Esq.
Lynn Lincoln Sarko, Esq.
Amy Williams-Derry, Esq.
KELLER ROHRBACK LLP
1201 Third Avenue, Suite 3200
Seattle, WA 98101
Telephone: (206) 623-1900
E-mail: ibirk@kellerrohrback.com
gcappio@kellerrohrback.com
ihecht@kellerrohrback.com
lsarko@kellerrohrback.com
awilliams-derry@kellerrohrback.com
- and -
Mark A. Wilner, Esq.
GORDON TILDEN THOMAS & CORDELL LLP
600 University Street, Suite 2915
Seattle, WA 98101
Telephone: (206) 467-6477
E-mail: mwilner@gordontilden.com
Defendants-Appellees TRAVELERS CASUALTY INSURANCE COMPANY OF
AMERICA, an insurance company, and THE CHARTER OAK FIRE INSURANCE
COMPANY are represented by:
Wystan M. Ackerman, Esq.
Stephen E. Goldman, Esq.
ROBINSON & COLE LLP
280 Trumbull Street
Hartford, CT 06103
Telephone: (860) 275-8236
E-mail: wackerman@rc.com
sgoldman@rc.com
- and -
Daniel Rahn Bentson, Esq.
BULLIVANT HOUSER BAILEY PC
925 Fourth Avenue, Suite 3800
Seattle, WA 98104
Telephone: (206) 292-8930
E-mail: dan.bentson@bullivant.com
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2021. All rights reserved. ISSN 1525-2272.
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