/raid1/www/Hosts/bankrupt/CAR_Public/220203.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, February 3, 2022, Vol. 24, No. 19
Headlines
3M COMPANY: Stevenson Sues Over Exposure to Toxic Foams
ALLSTATE FIRE: First Amended Scheduling Order Entered in Keister
ANDR SERVICES: Case Mng't Plan, Sched Order Entered in Cervantes
BLACKBAUD INC: All Actions Stayed Pending Class Cert. Resolution
BUCKINGHAM PROPERTY: Class Deal in Ferrell Suit Wins Final Approval
CALIFORNIA PATIENTS: Ct. Enters Order on Class Status in Alonzo
CIRCLE K: Extension of Time to File Class Certification Sought
COLUMBUS REGIONAL: Court Narrows Claims in Goodman ERISA Class Suit
COMMUNITY HEALTH: Wells Seeks Conditional Cert. of FLSA Class
EMORTGAGE FUNDING: E.D. Michigan Stays Delgado TCPA Class Suit
FLEXSTEEL INDUSTRIES: Class Certification Bid Filing Due Feb. 28
HAWAII: Kanae Loses Bid to Certify Class of Inmates
HIGHMARK BCBSD: Specific Deadlines Stayed in Walker Class Suit
KELLER WILLIAMS: St. John, Penuela File Class Certification Bid
KINGDOM TRUST: Kentucky Court Narrows Claims in McNally Class Suit
MICHIGAN: Smith v. MDOC Dismissed for Failure to State a Claim
MICROSOFT CORP: Oral Argument on Summary Judgment Set for Feb. 7
MONEX DEPOSIT: Class Action Proceedings Stayed Until October 17
NEW YORK, NY: Order on General Pretrial Management Entered in Jones
OREGON STATE UNIVERSITY: Claims in Pranger Class Suit Narrowed
PEAK DEBT: Court Denies Phan's Bid for Entry of Judgment by Default
PRO CUSTOM: Parties Must Submit Briefing Schedule By Feb. 7
RAYMOND JAMES: Seeks Rescheduling of Class Cert. Bid Hearing
SCOPELY INC: Can Compel Arbitration in Ackies Suit, Court Rules
SCRIPPS HEALTH: S.D. California Dismisses Data Security Breach Suit
SKYWEST AIRLINES: Wilson's Bid for Class Certification Nixed
SWIFT TRANSPORTATION: Court Enters Judgment in Fritsch Class Suit
TALEN ENERGY: Durnack, et al., Seek Class Certification
UNITED STATES: California Court Finds Sharp a 3-Strike Litigant
UNIVERSAL PROTECTION: Penny Files Suit in Cal. Super. Ct.
VOYAGER DIGITAL: Cassidy Must File Class Cert. Bid by May 20
WASATCH ADVANTAGE: Class Certification Order in Terry Suit Modified
WFM PRIVATE: Revised Case Scheduling Order Entered in Kellman
WONOLO INC: Redd Suit Removed to N.D. Illinois
ZYNEX MEDICAL: Progressive Files "Placeholder" Class Cert. Bid
*********
3M COMPANY: Stevenson Sues Over Exposure to Toxic Foams
-------------------------------------------------------
Timothy Stevenson, and other similarly situated v. 3M COMPANY
(f/k/a Minnesota Mining and Manufacturing, Co.), AGC CHEMICALS
AMERICAS, INC., AMEREX CORPORATION, ARCHROMA MANAGEMENT, LLC,
ARCHROMA U.S., INC., ARKEMA, INC., individually and as
successor-in-interest to Atofina, S.A., BASF CORPORATION,
individually and as successor-in-interest to Ciba, Inc., BUCKEYE
FIRE EQUIPMENT CO., CARRIER GLOBAL CORPORATION, individually and as
successor-interest to Kidde-Fenwal, Inc., CHEMDESIGN PRODUCTS,
INC., CHEMGUARD, INC., CHEMICALS, INC., CHUBB FIRE, LTD., CLARIANT
CORPORATION, CORTEVA, INC., individually and as
successor-in-interest to DuPont Chemical Solutions Enterprise,
DEEPWATER CHEMICALS, INC., DUPONT DE NEMOURS, INC., individually
and as successor-in-interest to DuPont Chemical Solutions
Enterprise, DYNAX CORPORATION, E.I. DUPONT DE NEMOURS & COMPANY,
individually and as successor-in-interest to DuPont Chemical
Solutions Enterprise, KIDDE-FENWAL, INC., individually and as
successor-in-interest to Kidde Fire Fighting, Inc., KIDDE PLC,
INC., NATION FORD CHEMICAL COMPANY, NATIONAL FOAM, INC., THE
CHEMOURS COMPANY, individually and as successor-in-interest to
DuPont Chemical Solutions Enterprise, THE CHEMOURS COMPANY FC, LLC,
individually and as successor-in-interest to DuPont Chemical
Solutions Enterprise, TYCO FIRE PRODUCTS LP, as
successor-in-interest to The Ansul Company, UNITED TECHNOLOGIES
CORPORATION, and UTC FIRE & SECURITY AMERICAS CORPORATION (f/k/a GE
Interlogix, Inc.), Case No. 2:22-cv-00151-RMG (D.S.C., Jan. 18,
2022), is brought for damages for personal injury resulting from
exposure to aqueous film-forming foams ("AFFF") containing the
toxic chemicals collectively known as per and polyfluoroalkyl
substances ("PFAS"). PFAS includes, but is not limited to,
perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid
("PFOS") and related chemicals including those that degrade to PFOA
and/or PFOS.
According to the complaint, AFFF is a specialized substance
designed to extinguish petroleum-based fires. It has been used for
decades by military and civilian firefighters to extinguish fires
in training and in response to Class B fires. The Defendants
collectively designed, marketed, developed, manufactured,
distributed, released, trained users, produced instructional
materials, promoted, sold, and/or otherwise released into the
stream of commerce AFFF with knowledge that it contained highly
toxic and bio persistent PFASs, which would expose end users of the
product to the risks associated with PFAS. Further, the Defendants
designed, marketed, developed, manufactured, distributed, released,
trained users, produced instructional materials, promoted, sold
and/or otherwise handled and/or used underlying chemicals and/or
products added to AFFF which contained PFAS for use in
firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remains
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter and was diagnosed with
prostate cancer as a result of exposure to the Defendants' AFFF
products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr. , Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Phone: 631-600-0000
Facsimile: 631-543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Phone: 205-328-9200
Facsimile: 205-328-9456
ALLSTATE FIRE: First Amended Scheduling Order Entered in Keister
----------------------------------------------------------------
In the class action lawsuit captioned as CHONG KEISTER and RUSSELL
KEISTER On behalf of themselves and all others similarly situated,
v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Case No.
4:20-cv-00953-FJG (W.D. Mo.), the Hon. Judge Fernando J. Gaitan,
Jr. entered granting the parties joint motion to extend class
certification discovery and issuing the following amended
scheduling order:
-- Phase One
1. The last day to join Jan. 14 , 2022
additional parties shall be:
2. The last day to amend the Jan. 14, 2022
pleadings shall be:
3. Close of discovery related April 15, 2022
to class certification shall be:
4. Deadline for Plaintiffs to May 13, 2022
file their Motion for Class
Certification shall be:
5. The Deadline for Defendant to June 14, 2022
file a response to motion to
certify shall be:
6. Deadline for Plaintiffs to June 30, 2022.
file their Reply to the
Motion for Certification
shall be:
-- Phase Two
If the Court decides to certify a class, the parties shall
submit a proposed schedule for discovery on class member
damages and all remaining issues.
Allstate operates as an insurance firm.
A copy of the Court's order dated Jan. 31, 2021 is available from
PacerMonitor.com at https://bit.ly/3rh08iA at no extra charge.[CC]
ANDR SERVICES: Case Mng't Plan, Sched Order Entered in Cervantes
----------------------------------------------------------------
In the class action lawsuit captioned as DANIEL CERVANTES,
individually and on behalf of others similarly situated, v. ANDR
SERVICES GROUP INC., Case No. 1:21-cv-08099-JMF (S.D.N.Y.), the
Hon. Judge Jesse M. Furman entered a civil case management plan and
scheduling order as follows:
-- Any motion to amend or to join March 3, 2022
additional parties shall be
filed no later than:
-- Initial disclosures pursuant to March 17, 2022
Fed. R. Civ. P. 26(a)(1) shall
be completed no later than than:
-- All fact discovery shall be June 3, 2022
completed no later than:
-- The Plaintiffs shall file a motion Feb. 25, 2022
for/to collective action preliminary
certification no later than:
-- Any opposition shall be filed by: March 11, 2022
-- Any reply shall be filed by: March 18, 2022
ANDR Services is a roofing contractor.
A copy of the Court's order dated Jan. 31, 2021 is available from
PacerMonitor.com at https://bit.ly/3B4iff3 at no extra charge.[CC]
BLACKBAUD INC: All Actions Stayed Pending Class Cert. Resolution
----------------------------------------------------------------
In the class action lawsuit captioned as Allen, et al., v.
Blackbaud Inc., Case No. 3:20-cv-02930 (D.S.C), the Hon. Judge J.
Michelle Childs entered an order staying all actions against
non-Blackbaud defendants until after resolution of class
certification in the lead case.
The Court said, "Aside from the preference to litigate these
matters elsewhere, counsel did not indicate opposition to
continuing the stay of cases against non-Blackbaud defendants until
after resolution of class certification in the lead case (Phase
II). After careful consideration, the court determines that
continuing the stay will promote judicial economy by efficiently
streamlining the litigation and avoiding unnecessary duplication of
efforts and resources.
The nature of sui states torts -- personal injury -- other personal
injury.
The Allen case is consolidated in Lead Case with Case No.
3:20-mn-02972.
Blackbaud is a cloud computing provider that serves the social good
community -- nonprofits, foundations, corporations, education
institutions, healthcare organizations, religious organizations,
and individual change agents.[CC]
BUCKINGHAM PROPERTY: Class Deal in Ferrell Suit Wins Final Approval
-------------------------------------------------------------------
In the case, KEVIN FERRELL, et al., Plaintiffs v. BUCKINGHAM
PROPERTY MANAGEMENT, Defendant, Case No. 1:19-cv-00332-JLT-BAK
(EPG) (E.D. Cal.), Judge Jennifer L. Thurston of the U.S. District
Court for the Eastern District of California granted the
Plaintiffs' motion for final approval of their class-action
settlement agreement, and granted in part and denied in part their
motion for attorneys' fees and costs.
I. Background
Kevin Ferrell and Cheryl Baker, individually and on behalf of
others, filed renewed motions for final approval of their
class-action settlement agreement and for attorneys' fees and costs
on Oct. 19, 2021. These motions replace the previous motions, filed
on Jan. 6, 2021, which the Court denied because portions of the
Private Attorney General Act payment were scheduled to revert to
Defendant Buckingham. The Court's order noted the settlement
agreement could otherwise be approved.
In this formulation, the only changes to the settlement agreement
were the ones the Court found objectionable. Accordingly, Judge
Thurston will grant the motion for final approval of the
class-action settlement.
The Court's previous order did not address the original motion for
fees, costs and enhancements. The Plaintiffs have now filed a
revised motion. The Class counsel has requested 35% of the common
fund in attorneys' fees, amounting to $210,000.
II. Analysis
A. Attorneys' Fees
1. Percentage of the Fund
There is a three-step process to apply the percentage-of-the-fund
method: First, the court will ascertain the size of the fund
against which the percentage will be taxed. Second, the court will
review the percentage counsel seek, ensuring that the fee resulting
from application of that percentage is reasonable. Third, the court
will sometimes undertake a lodestar cross-check, comparing the
percentage award to the time counsel expended on the case at the
prevailing hourly rates, to further ensure the fee's
reasonableness.
After weighing the factors, Judge Thurston finds that the
circumstances do not warrant an upward departure from the 25%
benchmark. Although the reversionary portion of the settlement
agreement could warrant decreasing the percentage below the
benchmark, she will not because the counsel has litigated the case
for nearly eight years.
2. Lodestar Crosscheck
The counsel argues for a lodestar amount of $520,776, based on
500.1 hours at an hourly rate of $780 and 190.8 hours at an hourly
rate of $685.
In its order granting preliminary approval, the Court warned the
Plaintiff's counsel that "the assigned magistrate judge will
carefully re-examine the award of attorneys' fees and conduct a
final lodestar cross-check." The magistrate judge noted that the
difficulties of performing a cross-check because of the parties'
block billing. Nonetheless, the magistrate judge conducted a
cross-check at the initial approval stage -- which used the same
calculations for the lodestar crosscheck as at final approval --
and determined that the cross-check showed a lodestar amount of
$208,310.40 after discounting for block billing and excessive
rates. If the Court were conducting a full analysis, it would
likely find an even lower number because the Court finds that many
entries were excessively billed.
Moreover, it seems unreasonable to bill the class for the entirety
of drafting settlement agreements that courts determined were
unfair to class members. Accordingly, Judge Thurston finds that a
lodestar crosscheck does not warrant an increase from the Ninth
Circuit's benchmark.
B. Remaining Costs
The motion also contains requests for expenses of the class
counsel, the representative enhancements, and the settlement
administrator costs. Specifically, class counsel Lawyers for
Justice PC request $22,227.07 in costs and Protection Law Group,
LLP requests $385 in costs. Each of the two named Plaintiffs
requests $3,000 in representative enhancements. The settlement
administrator is set to be paid $16,000. These amounts were the
same in the original fee motion. The magistrate judge found them to
be reasonable and recommended approving them for the initial motion
for final approval. Judge Thurston agrees and will award those
amounts.
III. Conclusion
Judge Thurston granted the motion for final approval and granted in
part the motion for attorneys' fees and costs. Because the
attorneys' fees are being reduced below the requested amount to
$150,000, the remaining amounts being provided to the PAGA class
and the FLSA collective will change. Accordingly, Judge Thurston
ordered the Plaintiffs to file a revised proposed order. Within 21
days, the parties will file a revised proposed order.
A full-text copy of the Court's Jan. 25, 2022 Order is available at
https://tinyurl.com/5ykf3c3p from Leagle.com.
CALIFORNIA PATIENTS: Ct. Enters Order on Class Status in Alonzo
---------------------------------------------------------------
In the class action lawsuit captioned as THUY THANH ALONZO v.
CALIFORNIA PATIENTS ALLIANCE, INC., Case No. 2:21-cv-08593-FMO-AS
(C.D. Cal.), the Court entered an order regarding motions for class
certification as follows:
1. Joint Brief
The parties shall work cooperatively to create a single,
fully integrated joint brief covering each party's
position, in which each issue (or sub-issue) raised by a
party is immediately followed by the opposing
party's/parties' response.
2. Citation to Evidence
All citation to evidence in the joint brief shall be
directly to the exhibit and page number(s) of the
evidentiary appendix, or page and line number(s) of a
deposition.
3. Schedule for Preparation and Filing of Joint Brief
A. Meet and Confer: In order for a motion for class
certification to 14 be filed in a timely manner, the
meet and confer must take place no later 15 than 35
days before the deadline for class certification
motions set forth in the Court's Case Management and
Scheduling Order.
B. No later than seven days after the meet and confer, the
moving party shall personally deliver or e-mail to the
opposing party an electronic copy of the moving party's
portion of the joint brief, together with the moving
party's portion of the evidentiary appendix.
C. No later than 14 days after receiving the moving
party's papers, the opposing party shall personally
deliver or e-mail to the moving party an electronic
copy of the integrated motion, which shall include the
opposing party's portion of the joint brief, together
with the opposing party's portion of the evidentiary
appendix.
D. No later than two days after receiving the integrated
version of the motion and related papers, the moving
party shall finalize it for filing.
California Patients is in the computer software development and
applications business.
A copy of the Court's order dated Jan. 31, 2021 is available from
PacerMonitor.com at https://bit.ly/32OKiCf at no extra charge.[CC]
CIRCLE K: Extension of Time to File Class Certification Sought
--------------------------------------------------------------
In the class action lawsuit captioned as William Pettersen v.
Circle K Stores Inc., et al., Case No. 3:21-cv-00237 (S.D. Cal.),
the Parties asks the Court to enter an order granting their joint
motion for extension of time to file motion for class
certification.
The case is assigned to Hon. Judge Marilyn L. Huff. The nature of
suit states contract -- diversity action.
Circle K owns and operates convenience stores.[CC]
COLUMBUS REGIONAL: Court Narrows Claims in Goodman ERISA Class Suit
-------------------------------------------------------------------
In the case, BARBARA GOODMAN, et al., Plaintiffs v. COLUMBUS
REGIONAL HEALTHCARE SYSTEM, INC., Defendant, Case No. 4:21-CV-15
(CDL) (M.D. Ga.), Judge Clay D. Land of the U.S. District Court for
the Middle District of Georgia, Columbus Division, denied the
Defendant's Motion to Dismiss as to Counts I and II of the
Plaintiffs' complaint.
I. Background
The Court has been awaiting the Supreme Court's decision in Hughes
v. Northwestern University, No. 19-1401, 2022 WL 199351 (U.S. Jan.
24, 2022) before ruling on the Defendant's pending motion to
dismiss. That decision was recently issued, and the pending motion
is now ripe for resolution.
The Plaintiffs were participants in a defined contribution plan
sponsored by their employer, Columbus Regional. They brought the
putative class action against Columbus Regional, alleging that
Columbus Regional breached its fiduciary duties under the Employee
Retirement Income Security Act, 29 U.S.C. Section 1001 et seq.
("ERISA").
Columbus Regional moved to dismiss all of the Plaintiffs' claims,
arguing that the Plaintiffs are merely second-guessing Columbus
Regional's investment decisions with the benefit of hindsight.
II. Discussion
The Plaintiffs were participants in Columbus Regional's defined
contribution plan. In this type of plan, participating employees
maintain individual investment accounts funded by their
contributions. The participants determine how to invest their
funds, although they may choose only from the menu of investment
options selected by the plan administrator. Each participant's
success is determined by the performance of the chosen investments
minus any associated fees.
ERISA plan fiduciaries like Columbus Regional "must discharge their
duties 'with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct of
an enterprise of a like character and with like aims.'"
The Plaintiffs claim that Columbus Regional violated its duty of
prudence by (1) not providing its plan participants with a menu of
prudently monitored investment options, and (2) failing to
prudently monitor plan administrative expenses resulting in the
payment of excessive recordkeeping fees. Columbus Regional argues
that these claims fail as a matter of law.
Judge Land holds that they do not. First, he finds that the
Plaintiffs adequately allege that some of Columbus Regional's
investment decisions were imprudent. The fact that the Plaintiffs
in the action had some lower cost index fund options is not
dispositive of whether Columbus Regional satisfied its duty of
prudence as a matter of law. Dismissing this claim would not
comport with recent Supreme Court precedent.
Second, Judge Land finds that the complaint adequately alleges that
Columbus Regional breached its duty to prudently manage
administrative costs. The Plaintiffs allege that Columbus
Regional's recordkeeper received fees that were nearly double what
a reasonable recordkeeping fee would have been for a similarly
sized ERISA plan. They further allege that Columbus Regional's
recordkeeper received additional indirect compensation that was
excessive and should have been more carefully scrutinized by a
prudent plan fiduciary.
III. Conclusion
Judge Land denied Columbus Regional's Motion to Dismiss as to
Counts I and II of the Plaintiffs' complaint. The Plaintiffs
withdrew Counts III and IV, so those claims are dismissed.
A full-text copy of the Court's Jan. 25, 2022 Order is available at
https://tinyurl.com/2p8nb4ua from Leagle.com.
COMMUNITY HEALTH: Wells Seeks Conditional Cert. of FLSA Class
-------------------------------------------------------------
In the class action lawsuit captioned as LISA WELLS, Individually
and on behalf of all others similarly situated, v. COMMUNITY HEALTH
SYSTEMS, INC., et al., Case No. 3:21-cv-00865 (M.D. Tenn.), the
Plaintiff asks the Court to enter an order:
1. Conditionally certifying the proposed collective Fair
Labor Standards Act (FLSA) class;
2. Implementing a procedure whereby Court-approved Notice of
Plaintiff's FLSA claims are sent (via U.S. Mail, e-mail,
and text-message) to:
"All Care Providers who worked for Community Health
Systems, Inc.; Knoxville HMA Holdings, LLC; Jefferson
County HMA, LLC; Campbell County HMA, LLC; Cocke County
HMA, LLC; Metro Knoxville HMA, LLC; and/or Cleveland
Tennessee Hospital Company, LLC, at any time from November
17, 2018, through the final disposition of this matter
("Putative Class Members");
3. Approving the form and content of Plaintiff's proposed
judicial Notice and Consent Form;
4. Approving the Notice Schedule, and authorizing a 60-day
notice period for Putative Class Members to join the case;
5. Approving a Reminder Notice to be sent via Email and Text-
Message to Putative Class Members halfway through the 60-
day notice period;
6. Requiring Notice to be posed at all Defendants locations;
7. Allowing Putative Class Members to execute their Consent
Corms on-line through an electronic signature service; and
8. Requiring Defendants to, within 14 days of this Court's
order, identify all Putative Class Members by providing a
list in electronic and importable format, of the names,
addresses, phone numbers, cell phone numbers, e-mail
addresses, and dates of employment, position of
employment, and location of employment of all Putative
Class Members who worked for Defendants at any time from
beginning three years immediately preceding the filing of
the Original Complaint through the present.
Community Health owns, leases, and operates hospitals.
A copy of the Plaintiff's motion to certify class dated Jan. 31,
2021 is available from PacerMonitor.com at https://bit.ly/3GeK70F
at no extra charge.[CC]
The Plaintiff is represented by:
Clif Alexander, Esq.
Austin W. Anderson, Esq.
ANDERSON ALEXANDER , PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Telephone: (361) 452-1279
Facsimile: (361) 452-1284
E-mail: clif@a2xlaw.com
austin@a2xlaw.com
- and -
Charles P. Yezbak, III, Esq.
YEZBAK LAW OFFICES
2021 Richard Jones Rd., Suite 310-A
Nashville, TN 37215
Telephone:(615) 250-2000
Facsimile:(615) 250-2020
E-mail: yezbak@yezbaklaw.com
EMORTGAGE FUNDING: E.D. Michigan Stays Delgado TCPA Class Suit
--------------------------------------------------------------
In the case, JAQUELINE DELGADO, Plaintiff v. EMORTGAGE FUNDING LLC,
Defendant, Civil Action No. 21-CV-11401 (E.D. Mich.), Judge Bernard
A. Friedman of the U.S. District Court for the Eastern District of
Michigan, Southern Division, granted the Defendant's motion for
certification and stay.
The Defendant sought certification of the Court's Nov. 8, 2021,
order for interlocutory appeal pursuant to 28 U.S.C. Section
1292(b) and for a stay of proceedings.
I. Background
The case is a Telephone Consumer Protection Act (TCPA) case. The
Plaintiff alleges that between May 4 and May 14, 2021, she received
22 unsolicited calls on her home telephone, which has been
registered on the National Do Not Call Registry since June 2006.
All of the calls were from the same number. The Plaintiff did not
answer many of the calls and many others disconnected following a
short period of silence. However, on the two occasions when the
Plaintiff did speak with the caller, he or she attempted to promote
mortgage services.
The Plaintiff alleges that on one of these two occasions she
feigned interest in the services being promoted and was transferred
to a second individual who indicated that he or she worked for
defendant and provided plaintiff with defendant's telephone number
and street address. She further alleges that she received 12 of the
22 calls after she requested that the calls stop. Her experience
allegedly mirrors that of other consumers.
The Plaintiff's complaint includes two claims on behalf of herself
and two proposed classes. Count I asserts a violation of 47 C.F.R.
Section 64.1200(c) (DNC registry claim) and Count II asserts a
violation of Section 64.1200(d) (internal DNC claim).
On Oct. 13, 2021, the Court issued an opinion and order denying the
Defendant's motion to dismiss and/or strike certain allegations
from the Plaintiff's amended complaint.
The Defendant subsequently requested that the Court reconsiders its
ruling only "with respect to whether the Plaintiff's FAC
sufficiently alleges facts supporting claims of direct and
vicarious liability under the TCPA." The Court denied that motion
in a November 8 opinion and order. It is this order that the
Defendant now seeks to appeal.
II. Discussion
Interlocutory review pursuant to Section 1292(b)1 is warranted only
if "(1) the order involves a controlling question of law, (2) a
substantial ground for difference of opinion exists regarding the
correctness of the decision, and (3) an immediate appeal may
materially advance the ultimate termination of the litigation."
In the instant motion, the Defendant contends that the Court's
November 8 opinion and order warrants immediate appellate review.
It argues that (1) the Court's order involves controlling questions
of law; (2) substantial differences of opinion exist as to these
questions of law; and (3) an immediate appeal would advance the
ultimate resolution of the case, as it might be subject to
dismissal under Fed. R. Civ. P. 12(b)(6) and/or 12(b)(1). The
Defendant contends that an interlocutory appeal is therefore
warranted in the case. It further requests that if the Court grants
its motion for certification for interlocutory review, the case be
stayed pending the outcome of the appellate proceedings.
In response, the Plaintiff concedes that the Court's order involves
controlling questions of law. However, she argues that "there are
no exceptional circumstances warranting immediate appellate review
and immediate appellate review will not advance resolution of this
case because there is no substantial ground for difference of
opinion regarding the Court's findings that the Plaintiff
adequately alleges eMortgage's direct or vicarious liability under
the TCPA." The Plaintiff contends that for these reasons,
interlocutory review would be inappropriate in the case.
Because the Plaintiff does not dispute that the Court's November 8
opinion and order involves controlling questions of law, Judge
Friedman begins with the second prong of the three-prong test for
certification for interlocutory appeal: Whether a substantial
ground for difference of opinion exists regarding the correctness
of the Court's decision.
He finds that although the Plaintiff contends that "a Lexis Nexis
search for the terms 'TCPA' and 'vicarious liability' returns over
500 results, including more than 75 opinions from the Sixth
Circuit," she has failed to cite additional binding precedent on
the particular issue before the Court. Nor is the Court aware of
any. Because there is so little relevant precedent on the pleading
standard for TCPA call/text claims, Judge Friedman concludes that a
substantial ground for difference of opinion exists in the case.
Judge Friedman also concludes that an interlocutory appeal will
materially advance the ultimate termination of the litigation. An
interlocutory appeal materially advances the litigation when it
saves judicial resources and litigant expense." Interlocutory
appeal is favored where reversal would substantially alter the
course of the district court proceedings or relieve the parties of
significant burdens. The role of interlocutory appeal is diminished
when a case is nearing trial and large expenditures have already
been made."
Judge Friedman finds that the present case is only at the pleading
stage. The parties have not engaged in discovery, nor is the case
nearing trial. If the Sixth Circuit finds that plaintiff has failed
to meet the TCPA's pleading standard for alleged unlawful calls or
texts, the case would be subject to dismissal, thereby materially
advancing the ultimate termination of the litigation. "It would be
a waste of resources for the parties to engage in extensive,
costly, and time-consuming class action discovery on a claim or
claims that may ultimately be dismissed." The third and final
factor for certification for interlocutory appeal is therefore
met.
III. Conclusion
Accordingly, Judge Friedman granted the Defendant's motion for
certification of the Court's Nov. 8, 2021, order for interlocutory
appeal. The case be stayed pending the outcome of the appellate
proceedings.
A full-text copy of the Court's Jan. 25, 2022 Opinion & Order is
available at https://tinyurl.com/mu46ma26 from Leagle.com.
FLEXSTEEL INDUSTRIES: Class Certification Bid Filing Due Feb. 28
----------------------------------------------------------------
In the class action lawsuit captioned as RODNEY CARROLL, TODD VAN
DER JAGT, JERRY RAY, TONY JELINEK, STEPHEN ANDERSON, and FRED
MINOR, v. FLEXSTEEL INDUSTRIES, INC., JERALD K. DITTMER, and DERECK
P. SCHMIDT, Case No. 2:21-cv-01005-CJW-MAR (N.D. Iowa), the Hon.
Judge Mark A. Roberts ordered that the motion for preliminary
approval of settlement, class certification, and notice to the
class must be filed by February 28, 2022.
The motion must also include a proposed schedule of the remaining
deadlines that will be needed for completion of the case, says
Judge Schmidt.
Flexsteel manufactures and sells wooden and upholstered furniture
for the retail, contract, and recreational vehicle (RV) furniture
markets.
A copy of the Court's order dated Jan. 28, 2021 is available from
PacerMonitor.com at https://bit.ly/34flmEq at no extra charge.[CC]
HAWAII: Kanae Loses Bid to Certify Class of Inmates
---------------------------------------------------
In the class action lawsuit captioned as Keola Nathan Kanae, v. Max
N. Otani, et al., Case No. 2:22-cv-00113-ROS-ESW (D. Ariz.), the
Hon. Judge Roslyn O. Silver entered an order:
1. denying the Plaintiff's motion to certify class of:
"State of Hawaii Inmates, currently housed at CoreCivic's
Saguaro Correctional Center ("SCC"), in Eloy, Arizona,
under contract between the Hawaii Department of Public
Safety ("DPS") and CoreCivic, who were transferred to SCC
within a year to their possible parole date, and/or who
are currently housed at SCC with less than a year to their
next possible parole date, who were required by the
Hawaii Paroling Authority ("HPA") to complete reentry
programs to be eligible for parole, on their said parole
date, and who are currently participating in -- and/or are
recommended to participate in -- the Special Housing
Incentive Program ("SHIP");"
2. directing the Plaintiff, within 30 days of the date this
Order, to either pay the $350.00 filing fee and $52.00
administrative fee or file a complete Application to
Proceed In Forma Pauperis and a certified six-month trust
account statement; and
3. directing the Clerk of Court, if Plaintiff fails to either
pay the $350.00 filing fee and $52.00 administrative
fee or file a complete Application to Proceed In Forma
Pauperis within 30 days, to enter a judgment of dismissal
of this action without prejudice and without further
notice to Plaintiff and deny any pending unrelated motions
as moot;
4. directing the Clerk of Court to mail the Plaintiff a
court-approved form for filing an Application to Proceed
In Forma Pauperis (Non-Habeas).
On January 21, 2022, Plaintiff Keola Nathan Kanae, who is confined
in CoreCivic's Saguaro Correctional Center, filed a pro se civil
rights Complaint pursuant to 42 U.S.C. section 1983 and a Motion to
Certify Class. The Plaintiff did not pay the $350.00 civil action
filing fee and $52.00 administrative fee or file an Application to
Proceed In Forma Pauperis. The Court will deny the Motion to
Certify Class and give Plaintiff 30 days to pay the filing and
administrative fees or file a complete Application to Proceed In
Forma Pauperis.
The Plaintiff contends his due process rights, and those of the
other similarly situated inmates, are violated by being held
outside of Hawaii within a year of their possible parole dates.
Saguaro Correctional Center is a privately-run correctional center
run by the CoreCivic Corporation.
A copy of the Court's order dated Jan. 31, 2021 is available from
PacerMonitor.com at https://bit.ly/3ITpgBU at no extra charge.[CC]
HIGHMARK BCBSD: Specific Deadlines Stayed in Walker Class Suit
--------------------------------------------------------------
In the class action lawsuit captioned as WALKER v. HIGHMARK BCBSD
HEALTH OPTIONS, INC., Case No. 2:20-cv-01975 (W.D. Pa.), the Hon.
Judge Christy Criswell Wiegand entered an order granting the joint
motion to stay specific deadlines pending disposition of Cotiviti,
Inc.s motion to dismiss.
-- The deadlines set by the Court's prior scheduling order and
which are currently pending, are hereby VACATED pending
resolution of Defendant Cotiviti, Inc.'s motion to dismiss.
-- Within 7 days following the resolution of Cotiviti, Inc.'s
motion, the parties (including Cotiviti, if it has not been
dismissed) shall submit a joint proposed case management
order regarding (1) deadlines for class certification
discovery, including expert discovery and (2) a briefing
schedule for Plaintiff's motion for class certification.
The nature of suit states other statutes - other statutory
actions.
Highmark is a health and wellness organization.[CC]
KELLER WILLIAMS: St. John, Penuela File Class Certification Bid
---------------------------------------------------------------
In the class action lawsuit captioned as DANNA ST JOHN AND LUIS
PENUELA, individually and on behalf of all others similarly
situated, v. KELLER WILLIAMS REALTY, INC., Case No.
6:19-cv-01347-PGB-DCI (M.D. Fla.), the Plaintiff asks the Court to
enter an order:
1. certify the class defined as:
"All persons in the United States who from four years
prior to the filing of this action through class
certification (1) one or more KW realtors called on their
National Do Not Call Registry (NDNCR) registered
residential number, (2) two or more times total in a
twelve month period starting at least 31 days after the
number was registered with the NDNCR, (3) using a Vulcan7
dialer and/or a Mojo dialer, (4) resulting in a call with
a duration of greater than zero seconds and, (a) if using
the Vulcan7 dialer, a disposition of "Answer,"
"Contacted," "Good Number," "Just Hung Up," "Not
Interested," "Relisted," or "Voicemail," and/or, (b) if
using the Mojo dialer, a disposition of "Contact," "DNC
Contact," "DNC Number," "Drop Message," or "Left Message,"
and (5) for whom the lead source for the call is
identified as either Vulcan7, Mojo, Landvoice, RedX, Data
Concierge Services, or Cole Realty;"
2. appointing her as class representative;
3. appointing Kaufman P.A. and Law Offices of Stefan Coleman,
P.A. as class counsel; and
4. establishing a deadline for submitting a proposed notice
plan.
This case is similar to another Telephone Consumer Protection Act
case against a different national real estate brokerage in which
this Court recently certified a class based on calls made by the
brokerage's affiliated realtors using no-consent leads and dialers
purchased from companies Vulcan7, Mojo, and Landvoice, the lawsuit
says.
The same outcome is warranted here for essentially the same
reasons. Keller Williams's realtors purchased no-consent leads of
potential property sellers or buyers from the same companies as in
the other case (Vulcan7, Mojo, and Landvoice), and a few other
similar companies selling the same types of leads generated in the
same manner (RedX, Data Concierge Services, and Cole Realty), and
called them with Vulcan7 and Mojo dialers regardless of whether the
phone numbers were registered with NDNCR.
Neither KW, KW's realtors, nor the companies that sold the leads
had consent of any kind from, or a relationship with, any of the
consumers whose leads were sold.
To the contrary, without consumers' knowledge, the lead sellers
generated the leads by aggregating public records data (including
names, addresses, and telephone numbers) linked to properties that
(1) were listed on the Multiple Listing Services and were removed
from the MLS without a sale ("expireds"); (2) were listed for sale
by owner ("FSBOs"); and/or (3) were within a certain zip code or
radius of another specific property such as one that recently
listed or sold ("circle prospecting"). The call records and other
data provided by Vulcan7 and Mojo in discovery reflect that during
the class period (1) more than 6,000 KW realtors subscribed to
Vulcan7 and made more than 12 million calls using the Vulcan7
dialer to leads purchased from Vulcan7 (including nine to Plaintiff
St John); and (2) more than 13,000 KW realtors subscribed to Mojo
and made more than 200 million calls using the Mojo dialer,
including (a) more than 40 million calls to leads purchased from
Mojo, (b) more than 16 million calls to leads purchased from
Vulcan7, (c) more than 12 million calls to leads purchased from
RedX, (d) more than 4 million calls to leads purchased from Data
Concierge Services, (e) more than 1 million calls to leads
purchased from Landvoice (including at least one call to Plaintiff
St John), and (f) more than 1 million calls to leads purchased from
Cole Realty, , the lawsuit adds.
The Plaintiff's expert analyzed a sample of 119,900 of these Mojo
and Vulcan7 call records and determined that 35,171 of the calls
(29%) were made to 9,219 consumers whose residential telephone
numbers were registered with the NDNCR and who otherwise satisfy
the criteria for class membership.
KW is a "real estate franchise company" "focused on training,
coaching, and technology."
A copy of the Plaintiff's motion to certify class dated Jan. 31,
2021 is available from PacerMonitor.com at https://bit.ly/3ISNOLp
at no extra charge.[CC]
The Plaintiffs are represented by:
Avi R. Kaufman, Esq.
Rachel E. Kaufman, Esq.
KAUFMAN P.A.
237 S Dixie Hwy, 4 th Flr
Coral Gables, FL 33133
Telephone: (305) 469-5881
E-mail: kaufman@kaufmanpa.com
rachel@kaufmanpa.com
- and -
Stefan Coleman, Esq.
LAW OFFICES OF STEFAN COLEMAN, P.A.
201 S. Biscayne Blvd, 28th Floor
Miami, FL 33131
Telephone: (877) 333-9427
Facsimile: (888) 498-8946
E-mail: law@stefancoleman.com
KINGDOM TRUST: Kentucky Court Narrows Claims in McNally Class Suit
------------------------------------------------------------------
In the case, DANIEL McNALLY, individually and on behalf of all
others similarly situated, Plaintiff v. THE KINGDOM TRUST COMPANY,
Defendant, Case No. 5:21-cv-0068 (TBR) (W.D. Ky.), Judge Tomas B.
Russell of the U.S. District Court for the Western District of
Kentucky, Paducah Division, granted in part and denied in part
Defendant Kingdom Trust's Motion to Dismiss.
I. Background
The case is a chapter in a long legal story. That story began in
2010 when William Jordan, a financial advisor living in California,
started organizing investment funds ("WJA Funds"). According to the
Complaint, the WJA Funds consisted of 16 private investment funds,
including the PMB Fund, LLC, the Urban Produce Fund, LLC, and the
Whirl Fund, LLC, just to name a few. The Complaint states that the
WJA Funds were structured as "independent and separate entities"
designed to pool investor money for investments in real estate,
private equity, and other securities. Along with the WJA Funds,
Jordan formed 13 limited liability companies that were also used to
raise money from investors, such as William Jordan Investments and
WJA Asset Management, LLC.
Starting in 2011, Jordan began soliciting funding. As part of that
process, Jordan told potential investors that the WJA funds were
"independent and separate entities" and encouraged potential
investors to purchase WJA Fund securities to capitalize on Jordan's
investing expertise. As the Complaint describes it, investors
flocked to the WJA Funds. Over the next six years, the Complaint
alleges that Jordan raised more than $71 million from investors
through securities offerings organized by the WJA Funds. One of
those investors, Daniel McNally, a resident of California, made
several investments in the WJA Funds between 2015 and 2016. In
total, McNally claims that he invested $450,000 in the WJA Funds.
The record indicates that McNally specifically invested in the PMB
Fund, though it is possible that McNally also invested in other
funds.
Then, in 2014, with the WJA Funds growing, Jordan contracted with
Kingdom Trust, a public trust company. Kingdom Trust served as the
custodian for documents evidencing ownership of each individual WJA
Fund and as the custodian for money associated with each individual
WJA Fund. Because of that, the Complaint describes Kingdom Trust as
a "de facto bank" for the WJA Funds, though Kingdom Trust chooses
instead to describe itself as a "non-depository" company..
McNally alleges that Jordan used Kingdom Trust to help create the
impression that the WJA Funds were safely in the custody of a
third-party custodian. The Complaint further asserts that Jordan's
claims about Kingdom Trust made sense to potential investors,
because the investors were required to pay custodial fees to
Kingdom Trust. And in the investors' minds, their fees were for
Kingdom Trust to safeguard the investments.
According to the Complaint, however, Jordan induced McNally and
other investors to invest in the WJA Funds through material
misrepresentations and omissions. The Complaint states that Jordan
prepared subscription agreements and operating agreements and
distributed those documents to investors as part of his investment
pitches. Allegedly, those documents "grossly overstated the
expertise of those involved in managing the investors' money,"
"disclosed only a fraction of the fees levied on investors," and
"wholly mischaracterized the use of the investors' funds and how
Kingdom Trust would maintain and supposedly safeguard the
investors' funds." This mischaracterization, the Complaint asserts,
was that the subscription agreements and operating agreements
indicated investors' money would be deposited in a particular WJA
Fund and kept separate and distinct from the other WJA Funds.
However, the Complaint maintains that, in reality, investors' money
was commingled, treated as one pool of money, misappropriated, and
used for payments resembling a Ponzi scheme. The Complaint asserts
that Jordan retained "personal control" over each WJA Fund, and in
order to meet cash flow needs, Jordan would transfer money between
the WJA Funds and other companies that he controlled. The Complaint
further asserts that, for its part, Kingdom Trust knew about
Jordan's alleged wrongdoings and actively participated in his
scheme. Thus, the Complaint concludes, Kingdom Trust misrepresented
the true value of the WJA Fund investments and received
"substantial compensation" for "turn[ing] a blind eye."
According to the Complaint, Kingdom Trust's conduct, which was a
substantial departure from the typical activities of a custodian,
violated its own contractual obligations and standard of conduct.
Further reinforcing Kingdom Trust's responsibilities and
obligations, the Complaint goes on to cite similar language from
Kingdom Trust's website.
All of this alleged wrongdoing eventually came to light in what the
Complaint refers to as the collapse of Jordan's scheme. On Aug. 16,
2017, Jordan was permanently barred from the securities and
commodities industries by California regulators. On May 15, 2018,
the Securities and Exchange Commission filed a Complaint against
Jordan alleging three counts of fraud. That same day, Jordan
consented to an entry of Judgment, and on June 7, 2018, the court
in that case entered judgment against him.
On April 29, 2020, McNally filed the Complaint on his behalf and on
behalf of the other investors in the U.S. District Court for the
Central District of California. The court there dismissed the case
on the basis of a forum selection clause that required the lawsuit
to be "instituted in the county courts of Calloway County,
Kentucky."
On April 13, 2021, McNally filed the lawsuit in Calloway County
court, and Kingdom Trust removed the case to the Western District
of Kentucky. The Court previously concluded that removal was
proper.
II. Analysis
McNally brings seven counts against Kingdom Trust. They are as
follows: (1) violations of the Kentucky Securities Act; (2) aiding
and abetting breach of fiduciary duty; (3) aiding and abetting
fraud; (4) civil conspiracy; (5) breach of fiduciary duty; (6)
fraud; and (7) negligent misrepresentations and omissions.
A. Rule 19 Joinder
Kingdom Trust argues that the Court must dismiss all of McNally's
claims for failure to join Jordan; William Jordan Investments; WJA
Asset Management, LLC; the PMB managed Fund, LLC; the other
individual investment funds managed by Jordan; and Jordan's
investment companies.
Judge Russell finds that McNally seeks relief from Kingdom Trust.
McNally does not seek relief from Jordan or his investment
companies and funds. Therefore, the Court can accord complete
relief among existing parties, which means that the absent parties
are not necessary under Fed. R. Civ. P. 19(a)(1)(A). In addition,
the absent parties are not necessary under Fed. R. Civ. P.
19(a)(1)(B).
Because the absent parties are not necessary under Rule 19(a),
Juduge Russell does not proceed to the second and third steps of
the Rule 19 analysis. McNally's failure to join Jordan, Jordan's
companies, and Jordan's funds is not fatal to the litigation. To
the extent that Kingdom Trust argues otherwise, that part of its
motion to dismiss is denied.
B. The Kentucky Securities Act
Like most states, Kentucky regulates securities sales and offers
"through 'blue sky' laws, so named because they initially targeted
swindlers so brazen and so shameless they would peddle shares of
anything, including (allegedly) shares of the sky." McNally alleges
that Kingdom Trust violated Kentucky's blue sky laws, specifically
KRS Sections 292.320 and 292.480.
Judge Russell opines that McNally's allegations under the Kentucky
Securities Act survive Kingdom Trust's motion to dismiss. He finds
that (i) at this stage of the litigation, where a plaintiff's
allegations must be taken as true, and reasonable inferences drawn
therefrom, McNally makes a plausible claim that under KRS Section
292.313 Kentucky's blue sky laws apply to this dispute; (ii)
Section 292.480(4) imposes aiding and abetting liability on those
who materially assist others in violating Kentucky's securities
laws; and (iii) he not persuaded by Kingdom Trust's argument that
McNally does not allege that Kingdom Trust "actively assisted in
offering securities for sale, solicited offers to buy, or actually
performed the sale."
C. Aiding and Abetting Breach of Fiduciary Duty
McNally next alleges that Jordan and other wrongdoers owed
fiduciary duties to McNally and other investors, and that Kingdom
Trust aided and abetted Jordan and those wrongdoers in breaching
their fiduciary duty to investors. Kingdom Trust disputes each
element of this claim, asserting that McNally does not allege
existence and breach of a fiduciary duty, substantial assistance,
or actual knowledge on its part.
Judge Russell holds that (i) allegations regarding a financial
advisor investing McNally's money are sufficient to indicate that a
fiduciary relationship existed between McNally and Jordan; (ii)
McNally has set out a plausible claim that Kingdom Trust's actions
were a substantial factor in Jordan and the other wrongdoers
breaching their fiduciary duties to investors; (iii) McNally's
allegations of aiding and abetting breach of fiduciary duty, and
the reasonable inferences therefrom, are sufficient to survive
Kingdom Trust's motion to dismiss; (iv) McNally's aiding and
abetting fraud claim survives Kingdom Trust's motion to dismiss;
(v) McNally's claim of civil conspiracy against Kingdom Trust is
barred by the statute of limitations set forth in KRS Section
413.140(1)(c); (vi) McNally's allegations of breach of fiduciary
duty, which in reality are no more than allegations of breach of
the generalized obligation of good faith and fair dealing, do not
survive Kingdom Trust's motion to dismiss; (vii) Kingdom Trust's
attempt to introduce new facts does not require dismissal of
McNally's fraud claim; and (viii) the allegations support the
conclusion that McNally has pled enough particularity for the
negligent misrepresentation claims to survive a motion to dismiss.
III. Conclusion
For the stated reasons, Judge Russell granted in part and denied in
part Defendant Kingdom Trust's Motion to Dismiss.
Federal Rule of Civil Procedure 23(c)(1)(A) directs the Court to
determine "at an early practicable time" whether to certify an
action as a class action. Therefore, in order to advance the
matter, the parties will submit a proposed scheduling order by Feb.
7, 2022. A telephonic conference is set for Feb. 14, 2022, at 12:00
p.m. CST. Counsel and parties must call 1-877-848-7030 then give
the Access Code 2523122 and #, then when prompted press # again to
join the call.
A full-text copy of the Court's Jan. 25, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/47yz64vv from
Leagle.com.
MICHIGAN: Smith v. MDOC Dismissed for Failure to State a Claim
--------------------------------------------------------------
In the case, DERRICK LEE SMITH, Plaintiff v. JAMES SCHIEBNER, et
al., Defendants, Case No. 1:21-cv-878 (W.D. Mich.), Judge Hala Y.
Jarbou of the U.S. District Court for the Western District of
Michigan, Southern Division, entered an Opinion:
a. dismissing the Plaintiff's complaint for failure to state a
claim; and
b. denying the Plaintiff's request for class certification,
request to honor the Eastern District of Michigan's
referral to the early mediation program, and his various
pending motions seeking to unseal a document and
challenging the judicial assignments.
I. Introduction
The lawsuit is a civil rights action brought by a state prisoner
under 42 U.S.C. Section 1983. The Plaintiff initiated the suit in
the U.S. District Court for the Eastern District of Michigan; that
court transferred the matter to the present Court for further
proceedings on Oct. 12, 2021. The Plaintiff paid the full filing
fee to the Eastern District of Michigan before the case was
transferred.
II. Background
The Plaintiff is presently incarcerated with the Michigan
Department of Corrections (MDOC) at the Muskegon Correctional
Facility (MCF) in Muskegon, Muskegon County, Michigan. The events
about which he complains occurred at that facility. The Plaintiff
sues MDOC Director Heidi Washington, MCF Warden James Schiebner,
and Resident Unit Manager (RUM) April McLaughlin.
The Plaintiff asserts that he is suing on behalf of all 37,000 MDOC
prisoners who are "similarly situated." He is the Warden's Forum
Representative for Unit 5 at MCF. He meets with the RUM and Warden
each month "for presentation and exhaustion of all remedies and all
issues for the [p]opulation."
On June 16, 2021, and July 27, 2021, the Plaintiff made the
Defendants aware of an ongoing situation where "the entire prison
population has been placed in the position of not being able to
utilize the prison phones upstairs in the upper wings of each unit
even though the phones are there for 'the use of prisoners in the
housing units.'" He avers that there are a limited number of phones
in each housing unit, and, generally, inmates "have to wait for the
phones to open and the only way to do that is to stand in the area
where they can see the phones are open and to be used." The
Plaintiff alleges that these phone restrictions "placed unnecessary
hardship and burdens" upon him and other prisoners, resulting in
them not being able to freely utilize the phones.
The Plaintiff avers that Defendants McLaughlin and Schiebner have
"taken it upon themselves to frame and set up the inmates for
misconducts" by not allowing them to wait for the phones. He
believes that the only purpose for which the Defendants have
imposed this new rule is that they wish to frame inmates to convict
them of misconduct charges that will "result in a severe
deprivation and loss of a right that is protected by the First and
Fourteenth Amendments." He also claims that this new system amounts
to cruel and unusual punishment because it is "such a horrific type
of governing and administration and management of prisoners." The
Plaintiff suggests that the Defendants "have failed to even honor
the rights of those prisoners to use the prison phones upstairs to
make legal phone calls or make other emergency phone calls."
Based on the foregoing, the Plaintiff asserts violations of his
First, Eighth, and Fourteenth Amendment rights. He seeks
declaratory and injunctive relief. He also seeks $60,000 in
damages.
III. Analysis
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110
Stat. 1321 (1996) (PLRA), the Court is required to dismiss any
prisoner action brought under federal law if the complaint is
frivolous, malicious, fails to state a claim upon which relief can
be granted, or seeks monetary relief from a defendant immune from
such relief. The Court must read Plaintiff's pro se complaint
indulgently, and accept the Plaintiff's allegations as true, unless
they are clearly irrational or wholly incredible.
To state a claim under 42 U.S.C. Section 1983, a plaintiff must
allege the violation of a right secured by the federal Constitution
or laws and must show that the deprivation was committed by a
person acting under color of state law. Because Section 1983 is a
method for vindicating federal rights, not a source of substantive
rights itself, the first step in an action under Section 1983 is to
identify the specific constitutional right allegedly infringed.
A. First Amendment Claims
Judge Jarbou opines that the Plaintiff's complaint fails to
plausibly allege a violation of his First Amendment right to free
speech. At no time does he allege that he was completely cut off
from communication with the outside world. Rather, the Plaintiff
merely takes issue with limitations placed upon use of the
telephones in the housing units. The Plaintiff's First Amendment
free speech/communication claim will, therefore, be dismissed.
Judge Jarbou also finds that the Plaintiff merely alleges the
ultimate fact of retaliation in the action. He has not presented
any facts to suggest that the Defendants retaliated against him for
engaging in protected activity. Indeed, the Plaintiff's complaint
is devoid of any facts regarding protected activity. Moreover, the
Plaintiff's conclusory allegations that the Defendants are
attempting to frame him and other inmates for using the phones by
issuing misconduct tickets simply fails to set forth a plausible
retaliation claim. At no point does the Plaintiff allege that he
has attempted to use the phones or grieved the new policy and
received a misconduct ticket in response. The Plaintiff's
speculative allegations clearly fail to state a plausible claim for
relief. Hence, the Plaintiff's retaliation claims against the
Defendants will, therefore, be dismissed.
Lastly, there are simply no facts in the Plaintiff's complaint to
support an inference that his right to access the courts was
violated. The Plaintiff does not allege that he himself was
prohibited from pursuing a direct appeal of his criminal
convictions, a habeas corpus application, or a civil rights claim
because of the limitations placed upon phone use. Moreover, nothing
in the complaint suggests that the Defendants impeded upon
Plaintiff's general interest in protecting the attorney-client
privilege. Thus, the Plaintiff's access to the courts claims will,
therefore, be dismissed.
B. Eighth Amendment Claims
The Eighth Amendment imposes a constitutional limitation on the
power of the states to punish those convicted of crimes. Punishment
may not be "barbarous," nor may it contravene society's "evolving
standards of decency." The Amendment, therefore, prohibits conduct
by prison officials that involves the "unnecessary and wanton
infliction of pain."
Judge Jarbou finds that limitations on telephone privileges, while
unpleasant, do not amount to a denial of basic human needs. The
Plaintiff's allegations fall well short of meeting the objective
prong of the Eighth Amendment standard. His Eighth Amendment claims
against the Defendants will, therefore, be dismissed.
C. Fourteenth Amendment Claims
The Plaintiff also asserts that the Defendants' actions violated
his Fourteenth Amendment due process rights by infringing upon his
privilege and right to use the phones.
Judge Jarbou finds that the Plaintiff vaguely suggests that the
Defendants' action violate MDOC policy regarding phone usage and
access to the courts. Courts, however, routinely have recognized
that a prisoner does not enjoy any federally protected liberty or
property interest in state procedure. Moreover, the Plaintiff's
claim that his Fourteenth Amendment rights were violated because he
could not access the phones as freely as he would like lacks merit.
The Plaintiff's inability to use the phones as often as he would
like simply does not reach the level of an atypical and significant
hardship sufficient to trigger his due process rights. His
Fourteenth Amendment claims will, therefore, be dismissed.
D. Class Certification
The Plaintiff purports to bring the same constitutional claims on
behalf of all 37,000 MDOC prisoners who are similarly situated.
Because the appropriateness of class action status must be
determined by the Court under Rule 23 of the Federal Rules of Civil
Procedure, Judge Jarbou construes the Plaintiff's statement as a
request for class certification. For a case to proceed as a class
action, the Court must be satisfied on a number of grounds,
including the adequacy of class representation. The Plaintiff bears
the burden of establishing the right to class certification.
Judge Jarbou finds that it is well established that pro se
litigants are "inadequate class representatives." Because the
Plaintiff is an incarcerated pro se litigant, and because his
claims lack merit, she finds that he is not an appropriate
representative of a class. Therefore, she will deny the Plaintiff's
request for class certification.
E. Motion to Unseal
The Plaintiff has filed a "motion to unseal restricted records
(specifically docket #5 attachments) sent with transfer order
transferring case to the Western District in the case at bar." He
argues that the attachment to the fifth docket entry is sealed and
believes that "someone, or some party is involved in the case and
is influencing the outcome and decision-making process of the Court
to enter judgment against the Plaintiff."
Judge Jarbou opines that the docket sheet contains all the
information available on the public docket sheet. If the Plaintiff
wishes to obtain a copy of this docket sheet, he can contact the
Eastern District of Michigan's Clerk's office to do so. Judge
Jarbou will deny his motion to unseal this attachment.
F. Motions Regarding Case Assignment (ECF Nos. 12, 13, 14)
The Plaintiff has also filed three motions regarding the assignment
of the matter to Judge Jarbou and referral of the matter to
Magistrate Judge Berens.
Judge Jarbou holds that the Plaintiff simply disagrees with rulings
made against him by the undersigned and Magistrate Judge Berens.
However, "judicial rulings alone almost never constitute a valid
basis" for recusal or disqualification. They are not a valid basis
here, and the Sixth Circuit has previously advised the Plaintiff of
such. The Plaintiff has failed to show any extrajudicial conduct
from which the Court could conclude that a personal bias against
the Plaintiff exists. The Plaintiff's motions to have Judge Jarbou
and Magistrate Judge Berens removed from the case will, therefore,
be denied. Moreover, the Plaintiff's motion for a stay pending
resolution of the assignment matter will be denied.
G. Request to Honor Referral to Early Mediation
The Plaintiff has also filed a request for the Court to honor the
Eastern District of Michigan's prior referral of the matter to its
early mediation program. According to him, Judge Davis referred the
matter to the early mediation program, and he "would like to know
if the Court will actually keep that original referral for the
claims raised in the complaint, or not and if not, please tell me
why."
The Plaintiff's request, however, is based upon a misreading of the
Eastern District of Michigan's notice of mediation program, Judge
Jarbou holds. She says, the notice specifically stated that the
case, "if not dismissed or transferred, and if eligible, will be
stayed and referred for participation in the Pro Se Early Prisoner
Mediation Program." The Plaintiff's case, therefore, was not
actually referred to the Eastern District's mediation program
because it was transferred to the Court. Moreover, Judge Jarbou
will not refer the case to its early mediation program because the
Court has concluded that the Plaintiff's entire complaint fails to
state a claim for relief. The Plaintiff's request to honor the
referral to mediation will, therefore, be denied.
IV. Conclusion
Having conducted the review required by the Prison Litigation
Reform Act, Judge Jarbou determines that the Plaintiff's complaint
will be dismissed for failure to state a claim, under 28 U.S.C.
Section 1915A(b), and 42 U.S.C. Section 1997e(c). Moreover, the
Plaintiff's request for class certification, request to honor the
Eastern District of Michigan's referral to early mediation, and
various motions will be denied.
The Court must next decide whether an appeal of the action would be
in good faith within the meaning of 28 U.S.C. Section 1915(a)(3).
Although Judge Jarbou concludes that the Plaintiff's claims are
properly dismissed, she does not conclude that any issue the
Plaintiff might raise on appeal would be frivolous. Accordingly,
she does not certify that an appeal would not be taken in good
faith. Should the Plaintiff appeal this decision, the Court will
assess the $505 appellate filing fee pursuant to Section
1915(b)(1), unless the Plaintiff is barred from proceeding in forma
pauperis, e.g., by the "three-strikes" rule of Section 1915(g). If
he is barred, he will be required to pay the $505 appellate filing
fee in one lump sum. This is a dismissal as described by 28 U.S.C.
Section 1915(g).
A judgment consistent with the Opinion will be entered.
A full-text copy of the Court's Jan. 25, 2022 Opinion is available
at https://tinyurl.com/3syufd6v from Leagle.com.
MICROSOFT CORP: Oral Argument on Summary Judgment Set for Feb. 7
----------------------------------------------------------------
In the class action lawsuit captioned as STEVEN VANCE, et al., v.
MICROSOFT CORPORATION, Case No. 2:20-cv-01082-JLR (W.D. Wash.), the
Hon. Judge James L. Robart entered an order setting an oral
argument on Monday, February 7, 2022, at 2:00 p.m., regarding
Plaintiffs Steven Vance and Tim Janecyk's Federal Rule of Civil
Procedure to deny or strike Defendant Microsoft Corporation's
motion for summary judgment to allow time for additional
discovery.
The parties shall also be prepared to discuss Microsoft's motion to
supplement the record regarding Plaintiffs' motion for class
certification and case management issues. The hearing will be held
over Zoom.
Each party shall select one attorney who will speak for that party.
All other attendees shall have their microphones on mute and their
cameras turned off during the hearing.
Microsoft Corporation is an American multinational technology
corporation which produces computer software, consumer electronics,
personal computers, and related services.
A copy of the Court's order dated Jan. 31, 2021 is available from
PacerMonitor.com at https://bit.ly/3sccHej at no extra charge.[CC]
MONEX DEPOSIT: Class Action Proceedings Stayed Until October 17
---------------------------------------------------------------
In the class action lawsuit captioned as BRADLEY BERGERON,
Individually and On Behalf of All Others Similarly Situated, v.
MONEX DEPOSIT COMPANY, MONEX CREDIT COMPANY, NEWPORT SERVICES
CORPORATION, LOUIS CARABINI, and MICHAEL CARABINI, Case No.
8:17-cv-01968-JVS-DFM (C.D. Cal.), the Hon. Judge James V. Selna
entered an order that all proceedings in this putative class action
are stayed until October 17, 2022, commencing on the business day
following entry of this Order.
The Parties are to meet and confer no later than 15 days prior to
the expiration of this Stay to propose a new schedule for class
certification briefing and other deadlines. The Parties shall file
with this Court an Amended Proposed Schedule no later than October
18, 2022, the Court says.
Monex retails jewelry. The Company offers gold, silver, palladium,
metal, and platinum products.
A copy of the Court's order dated Jan. 31, 2021 is available from
PacerMonitor.com at https://bit.ly/3s5v04R at no extra charge.[CC]
The Defendants are represented by:
Jeffrey M. Fisher, Esq.
Karen P. Kimmey, Esq.
Elizabeth A. Dorsi, Esq.
FARELLA BRAUN + MARTEL LLP
235 Montgomery Street, 17th Floor
San Francisco, CA 94104
Telephone: (415) 954-4400
Facsimile: (415) 954-4480
E-mail: jfisher@fbm.com
kkimmey@fbm.com
edorsi@fbm.com
NEW YORK, NY: Order on General Pretrial Management Entered in Jones
-------------------------------------------------------------------
In the class action lawsuit captioned as TRACY JONES, on helaf of
her minor son, M.J., v. CITY OF NEW YORK, et al.,Case No.
1:20-cv-04368-VSB-BCM (S.D.N.Y.), the Court entered an order
regarding general pretrial management including scheduling,
discovery, non-dispositive pretrial motions, and settlement,
pursuant to 28 U.S.C. section 636(b)(1)(A).
1. All discovery must be initiated in time to be concluded by
the deadlines set forth in the Order or otherwise set by
the Court.
2. Discovery applications, including letter-motions
requesting discovery conferences, must be made promptly
after the need for such an application arises and must be
made to Judge Moses in compliance with Local Civil Rule
37.2 and section 2(b) of Judge Moses's Individual
Practices.
3. 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.
4. Requests to adjourn a court conference or other court
proceeding (including a telephonic court conference) or to
extend a deadline must be made in writing and in
compliance with section 2(a) of Judge Moses's Individual
Practices. Telephone requests for adjournments or
extensions will not be entertained.
A copy of the Court's order dated Jan. 31, 2021 is available from
PacerMonitor.com at https://bit.ly/3uhEz3e at no extra charge.[CC]
OREGON STATE UNIVERSITY: Claims in Pranger Class Suit Narrowed
--------------------------------------------------------------
In the case, DANIELLE PRANGER and GARRETT HARRIS, individually and
on behalf of all others similarly situated, Defendant(s) Plaintiffs
v. OREGON STATE UNIVERSITY, a public body of the State of Oregon;
F. KING ALEXANDER, in his capacity as member of the Board of
Trustees; MIKE BAILEY, in his capacity as member of the Board of
Trustees; PATRICIA M. BEDIENT, in her capacity as member of the
Board of Trustees; RANI BORKAR, in her capacity as member of the
Board of Trustees; JULIA BRIM-EDWARDS, in her capacity as member of
the Board of Trustees; DARALD W. CALLAHAN, in his capacity as
member of the Board of Trustees; MICHELE LONGO EDER, in her
capacity as member of the Board of Trustees; LAMAR HURD, in his
capacity as member of the Board of Trustees; PAUL J. KELLY, JR., in
his capacity as member of the Board of Trustees; JULIE MANNING, in
her capacity as member of the Board of Trustees; PRESTON PULLIAMS,
in his capacity as member of the Board of Trustees; KIRK E.
SCHUELER, in his capacity as member of the Board of Trustees;
STEPHANIE SMITH, in her capacity as member of the Board of
Trustees; and MICHAEL G. THORNE, in his capacity as member of the
Board of Trustees, Defendants, Case No. 3:21-cv-00656-HZ (D. Or.),
Judge Marco A. Hernandez of the U.S. District Court for the
District of Oregon granted in part and denied in part the
Defendants' Motion to Dismiss.
I. Background
In Spring 2020, universities across the country were forced to
shift from in-person classes to a remote learning environment in
the wake of the COVID-19 pandemic. The named Plaintiffs in the
case, Danielle Pranger and Garrett Harris, assert this class action
lawsuit on behalf of all similarly situated students against
Defendants Oregon State University ("OSU") and 14 members of OSU's
Board of Trustees ("Trustee Defendants") individually in their
official capacities. The Plaintiffs allege that the Defendants
violated the law by not providing students with refunds after OSU
stopped all in-person classes, closed on-campus services and
facilities, and shifted all classes online in response to the
COVID-19 pandemic.
On March 5, 2021, the Plaintiffs initiated the suit against the
Defendants, which was removed from Multnomah County Circuit Court
to this District Court. The Plaintiffs initially asserted six
claims for relief against the Defendants, and the Plaintiffs agreed
to voluntarily dismiss their fourth through sixth claims for relief
without prejudice. Accordingly, the remaining three claims are for
(1) breach of express contract against OSU; (2) breach of implied
contract against OSU; and (3) unjust enrichment against all
Defendants.
The case now comes on the Defendants' Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim on the Plaintiffs' remaining three claims for relief.
II. Discussion
The Plaintiffs base their breach of contract and unjust enrichment
claims on the premise that, in accepting admission to OSU, they
agreed to pay tuition and fees in exchange for in-person classes
and access to on-campus facilities and services, and OSU breached
that promise after shifting to a remote learning environment in
March 2020. They allege that they "paid OSU for opportunities and
services that they did not receive, including on-campus education,
facilities, services, and activities." Essentially, they contend
that OSU's shift to online classes "deprived students of access to
the facilities, materials, and opportunities afforded on OSU's
physical campus, including laboratory and research experience, use
of on-campus facilities, such as the gym and libraries, and use of
on-campus services and events such as sporting events, end-of-year
programs, lectures, and various student services."
The Defendants move to dismiss on three grounds. First, the
Defendants contend that the educational malpractice doctrine bars
the Plaintiffs' claims. Second, they argue that even if the
educational malpractice doctrine does not bar the Plaintiffs'
breach of contract claims, the Plaintiffs have still failed to
state claims for breach of an express or implied contract. Finally,
the Defendants argue that the Plaintiffs' unjust enrichment claim
should be dismissed against (1) OSU because it is entitled to
sovereign immunity, and Oregon has not waived sovereign immunity
for unjust enrichment claims, id. at 30-35, and (2) the Trustee
Defendants because sovereign immunity applies to them as official
capacity Defendants.
Judge Hernandez opines that the educational malpractice doctrine
does not bar the Plaintiffs' claims. He also opines that the
Plaintiffs have sufficiently plead facts that allege valid breach
of contract claims against OSU. However, because Oregon has not
waived sovereign immunity from quasi-contract unjust enrichment
claims, both OSU and the Trustee Defendants are entitled to
sovereign immunity on the unjust enrichment claim and that claim is
dismissed. Accordingly, the Defendants' motion is granted in part
and denied in part.
III. Conclusion
Judge Hernandez concludes that the question presented at this stage
in the proceedings is not whether OSU's decision to shift to an
online learning environment was reasonable or justified. For the
purpose of the Motion to Dismiss, the relevant question was whether
the Plaintiffs have sufficiently alleged facts in their complaint
that, when accepted as true and all reasonable inferences are drawn
in their favor, support their underlying legal claims. Judge
Hernandez concludes that the educational malpractice doctrine does
not bar the Plaintiffs' claims, and the Plaintiffs have
sufficiently alleged facts supporting their breach of contract
claims. However, the Plaintiffs' claims for unjust enrichment are
dismissed because both OSU and the Trustee Defendants are entitled
to sovereign immunity. Accordingly, the Defendants' Motion to
Dismiss is denied in part and granted in part.
A full-text copy of the Court's Jan. 25, 2022 Opinion & Order is
available at https://tinyurl.com/3f57fbuk from Leagle.com.
Alexander Graven -- alex@olsenbarton.com -- Neil N. Olson --
neil@olsenbarton.com -- Paul B. Barton -- paul@olsenbarton.com --
OLSEN BARTON LLP, Lake Oswego, OR.
Daniel Kurowski -- dank@hbsslaw.com -- HAGENS BERMAN SOBOL SHAPIRO
LLP, Chicago, IL.
Steve W. Berman -- steve@hbsslaw.com -- HAGENS BERMAN SOBOL SHAPIRO
LLP, Seattle, WA.
Kathleen P. Lally, LYNCH CARPENTER, LLP, Chicago, IL, Attorneys for
Plaintiffs.
Gregory J. Mina -- gmina@perkinscoie.com -- Nathan R. Morales --
nmorales@perkinscoie.com -- Sarah J. Crooks --
scrooks@perkinscoie.com -- Stephen F. English --
senglish@perkinscoie.com -- PERKINS COIE LLP, Portland, OR,
Attorneys for Defendants.
PEAK DEBT: Court Denies Phan's Bid for Entry of Judgment by Default
-------------------------------------------------------------------
In the case, VICKIE PHAN, et al., Plaintiffs v. PEAK DEBT
CONSUMPTION, LLC, et al., Defendants, Civil Action No.
1:19-CV-04613-JPB (N.D. Ga.), Judge J.P. Boulee of the U.S.
District Court for the Northern District of Georgia, Atlanta
Division, denied the Plaintiffs' Motion for Entry of Judgment by
Default.
I. Background
On Oct. 15, 2019, Plaintiff Phan, on behalf of herself and others
similarly situated, filed suit against seven different defendants.
On Jan. 30, 2020, after several of the defendants moved for
dismissal, Plaintiff Phan filed a First Amended Complaint in Class
Action for Damages. The First Amended Complaint was brought against
five defendants.
On Aug. 10, 2020, Plaintiff Kay Kalantari was added as a party. The
same day, the Plaintiffs filed their Second Amended Complaint in
Class Action for Damages. The Second Amended Complaint asserts
claims against Peak, Chris McCormick, Fisher Law Group, PLLC, and
David Fisher.
On Jan. 8, 2021, pursuant to the Court's direction, the Clerk
entered default against Peak, McCormick and Fisher Law
("Defendants"). Thereafter, on April 6, 2021, the Plaintiffs filed
the instant Motion for Entry of Judgment by Default against the
Defendants. The motion is now ripe for review.
II. Discussion
Judge Boulee explains that the Plaintiffs' Second Amended Complaint
asserts claims under the Credit Repair Organizations Act ("CROA"),
the Georgia Debt Adjustment Act ("GDAA") and the Georgia Fair
Business Practices Act ("Georgia FBPA"). Before analyzing whether
the Plaintiffs state a claim pursuant to each of the statutes, he
says it is important to acknowledge that the Plaintiffs' Second
Amended Complaint demonstrates some of the common characteristics
of a shotgun pleading.
The Plaintiffs' Second Amended Complaint contains vague and
immaterial facts not clearly connected to a particular cause of
action. This manner of pleading requires the Court to sift through
the lengthy factual section to determine which facts could possibly
apply to which cause of action.
The Plaintiffs' Second Amended Complaint also combines multiple
claims against multiple defendants without specifying which
defendant is responsible for which act or against which of the
defendants the claim is brought. Upon review of the Second Amended
Complaint, it is unclear whether each cause of action is brought
against each defendant or whether each cause of action only applies
to some defendants.
Because the Plaintiffs' Second Amended Complaint contains vague and
immaterial facts not clearly connected to a particular cause of
action and combines multiple claims against multiple defendants
without specifying which defendant is responsible for which act or
against which of the defendants the claim is brought, default
judgment is inappropriate. Judge Boulee nevertheless more
specifically analyze each of the Plaintiffs' causes of action.
A. Credit Repair Organizations Act
In their Second Amended Complaint, the Plaintiffs allege generally
that Defendants are credit repair organizations. It seems that they
assert violations of Section 1679b(a)(3) and Section 1679b(b).
As to Section 1679b(a)(3), the Plaintiffs provide the statutory
language and then allege that "HGI, Peak Debt, and Fisher
repeatedly made untrue and misleading representations to Plaintiffs
by informing them that Peak Debt and Fisher would settle their
debts with their creditors, but instead Peak Debt and Fisher lined
their pockets with Plaintiffs' money while doing little or nothing
to truly assist Plaintiffs." Judge Boulee finds that this
allegation is insufficient to state a claim as it is vague and
ambiguous. At a minimum, the Second Amended Complaint should have
identified precisely what untrue or misleading statements were
made. The Second Amended Complaint also should have identified
which defendant made the statements.
As to Section 1679b(b), the Plaintiffs' Second Amended Complaint
does nothing more than provide the statutory text. The Plaintiffs
must allege more than statutory language to state a claim to
relief.
At bottom, Judge Boulee finds that the Plaintiffs have not stated a
claim under the CROA, and therefore they are not entitled to a
default judgment. To the extent the Plaintiffs seek default as to
this cause of action, the motion is denied.
B. The Georgia Debt Adjustment Act
The Plaintiffs have also asserted a claim pursuant to the GDAA. In
their Second Amended Complaint, the Plaintiffs allege that the
Defendants provided debt adjusting services to the Plaintiffs while
the Plaintiffs resided in Georgia. They also allege that the
Defendants collected in excess of 7.5% of the amount they paid
monthly for distribution to Plaintiffs' creditors. Finally, they
allege that the Defendants retained their money for the payment of
the creditors for more than 30 days.
Judge Boulee finds that the Plaintiffs have failed to state a claim
for a violation of the GDAA because they have merely set forth a
formulaic recitation of the elements of the cause of action. In
sum, he finds that the Plaintiffs have not stated a claim under the
GDAA, and therefore they are not entitled to a default judgment. To
the extent the Plaintiffs seek default as to this cause of action,
the motion is denied
C. Georgia Fair Business Practices Act
The Plaintiffs also bring a claim pursuant to the Georgia FBPA. In
their Second Amended Complaint, they allege that because the
Defendants violated the GDAA, they also violated the Georgia FBPA.
The Plaintiffs further allege that the violation was intentional.
O.C.G.A. Section 18-5-4(d) provides that a violation of the GDAA
"shall additionally be a violation of" the Georgia FBPA. As he
explained, Judge Boulee holds that the Plaintiffs failed to allege
sufficient factual support to state a claim under the GDAA. Because
the Plaintiffs failed to state a claim under the GDAA, the
Plaintiffs have likewise failed to state a claim under the Georgia
FBPA. As a result, to the extent Plaintiffs seek default as to the
claim brought pursuant to the Georgia FBPA, their motion is
denied.
III. Conclusion
For the reasons he stated, Judge Boulee denied the Plaintiffs'
Motion for Entry of Judgment by Default. He granted the Plaintiffs
leave to file a third amended complaint to cure the deficiencies
discussed. The third amended complaint was due on Feb. 1, 2022. If
a third amended complaint is filed, the Plaintiffs must properly
serve it in accordance with the Federal Rules of Civil Procedure no
later than Feb. 22, 2022.
The Plaintiffs are notified that a failure to comply with the Order
may result in dismissal of the case. The Clerk is directed to
resubmit the matter after the applicable time period in the event a
third amended complaint is not filed.
A full-text copy of the Court's Jan. 25, 2022 Order is available at
https://tinyurl.com/5fuza7db from Leagle.com.
PRO CUSTOM: Parties Must Submit Briefing Schedule By Feb. 7
-----------------------------------------------------------
In the class action lawsuit captioned as NIEMCZYK v. PRO CUSTOM
SOLAR, Case No. 2:19-cv-07846, D.N.J.), the Hon. Judge Michael A.
Hammer entered an order that:
-- On or before February 7, 2022, the parties shall submit an
amended scheduling for completion of all fact and expert
discovery, and a proposed briefing schedule for any motion
for class certification.
-- On or before February 21, 2022, the parties will submit a
proposed form of order embodying the Court's rulings at
the January 31, 2022 conference.
-- Also by February 21, 2022, the parties will submit a joint
letter concerning any remaining issue re: discovery from
the Defendant's vendors.
The suit involves restrictions of use of telephone equipment.
Pro Custom provides renewable energy services.[CC]
RAYMOND JAMES: Seeks Rescheduling of Class Cert. Bid Hearing
------------------------------------------------------------
In the class action lawsuit captioned as KIMBERLY NGUYEN, On Behalf
of Herself and All Others Similarly Situated, v. RAYMOND JAMES &
ASSOCIATES, INC., Case No. 8:20-cv-00195-CEH-AAS (M.D. Fla.), the
Defendant asks the Court to enter an order rescheduling the hearing
on Plaintiff's Motion for Class Certification to February 24, 25,
or 28, 2022.
The parties also jointly request clarification on whether the Court
intends to hear the additional motions at the hearing.
The Defendant seeks rescheduling the hearing due to scheduling
conflicts of certain of their lead counsel. The Plaintiff Nguyen
does not oppose that request provided it does not result in undue
delay. The parties additionally jointly move for clarification on
whether the Court intends to hear the parties' respective Daubert
motions as well as Plaintiff's Motion to Strike the Declaration of
Alfred Caudullo at the upcoming hearing, as each of these motions
may aid in the Court's disposition of Plaintiff's Motion for Class
Certification but might require a longer hearing.
Raymond James & Associates, Inc. operates as a wealth management
firm.
A copy of the Defendant's motion dated Jan. 31, 2021 is available
from PacerMonitor.com at https://bit.ly/34sF0g5 at no extra
charge.[CC]
The Plaintiff is represented by:
Steven A. Schwartz, Esq.
Zachary P. Beatty, Esq.
CHIMICLES SCHWARTZ KRINER
& DONALDSON-SMITH LLP
361 W. Lancaster Avenue
Haverford, PA 19041
Telephone: (610) 642-8500
E-mail: sas@chimicles.com
zpb@chimicles.com
- and -
Steven W. Teppler, Esq.
MANDELBAUM SALSBURG
11891 U.S. Highway One, Suite 100
North Palm Beach, FL 33408
Telephone: (561) 328-4617
Facsimile: (561) 214-4130
E-mail: steppler@lawfirm.ms
- and -
Franklin D. Azar, Esq.
Margeaux Azar, Esq.
Paul R. Wood, Esq.
Michael Murphy, Esq.
Jordan Coley, Esq.
FRANKLIN D. AZAR &
ASSOCIATES, P.C.
14426 East Evans Ave
Aurora, CO 80014
Telephone: (303) 757-3300
Facsimile: (720) 213-5131
E-mail: azarf@fdazar.com
azarm@fdazar.com
woodp@fdazar.com
murphym@fdazar.com
coleyj@fdazar.com
The Defendant is represented by:
John E. Clabby, Esq.
Caycee D. Hampton, Esq.
CARLTON FIELDS, P.A.
4221 W. Boy Scout Blvd., Suite 1000
Tampa, FL 33601
Telephone: (813) 223-7000
Facsimile: (813) 229-4133
E-mail: jclabby@carltonfields.com
champton@carltonfields.com
- and -
Markham R. Leventhal, Esq.
CARLTON FIELDS, P.A.
1025 Thomas Jefferson Street, NW Suite 400 West
Washington, DC 20007-5208
Telephone: (202) 965-8100
Facsimile: (202) 965-8104
E-mail: mleventhal@carltonfields.com
- and -
Bernard R. Suter, Esq.
Bryce M. Cullinane, Esq.
KEESAL, YOUNG & LOGAN
450 Pacific Avenue
San Francisco, CA 94133
Telephone: (415) 398-6000
Facsimile: (415) 981-0136
E-mail: ben.suter@kyl.com
bryce.cullinane@kyl.com
SCOPELY INC: Can Compel Arbitration in Ackies Suit, Court Rules
---------------------------------------------------------------
In the case, VERNON ACKIES, Individually and on Behalf of All
Similarly Situated, Plaintiff v. SCOPELY, INC., Defendant, Civil
Action No. 19-cv-19247 (D.N.J.), Judge Claire C. Cecchi of the U.S.
District Court for the District of New Jersey granted the
Defendant's motion to compel individual arbitration or, in the
alternative, to dismiss the Plaintiff's First Amended Class Action
Complaint.
I. Background
The instant action arises out of a dispute over the enforceability
of the Terms of Service ("TOS") for an online video game called
Star Trek Fleet Command ("STFC"). STFC is controlled and operated
by Defendant, and the game was released to the public on Nov. 29,
2018. STFC is available for download on smartphones and other
mobile devices, including on Android and Apple iOS platforms.
STFC is based on the Star Trek movie franchise. In the game,
players assume the role of a spaceship captain, and advance through
the game by completing missions and battling other players. While
STFC is free to play, players may, using actual currency, purchase
various upgrades to enhance their ability to succeed in the game.
THe Plaintiff alleges that the Defendant fraudulently induces
players to purchase these upgrades by representing that the
upgrades would improve a player's position in the game. However,
the Defendant would later decrease the value and effectiveness of
these upgrades to the detriment of STFC players.
The Plaintiff downloaded STFC to his mobile device on Nov. 29, 2018
at approximately 6:13 p.m. (EST). Upon downloading the game, STFC
presented the Defendant with an initial loading screen which
contained the following notice: "By continuing to play, you agree
to our Terms of Service." The Defendant's TOS govern the
relationship between Defendant and users who play its games,
including STFC. Importantly, the TOS contain the arbitration
agreement.
After being presented with this notice, the Plaintiff began to play
STFC. However, he states that he did not see the notice regarding
the Defendant's TOS on the initial launch page, and he also has not
seen the notice at any point while playing the game. In March and
April 2019, the Plaintiff met with lawyers before filing the
action, during which time they made him aware of the Defendant's
TOS, including the arbitration provision. While the Plaintiff
became aware of the terms, he did not read them for himself and has
never read them since. After learning that the TOS existed and
subsequently filing his Complaint, the Plaintiff has continued to
play STFC and make in-game purchases, without reading the TOS.
On Oct. 7, 2019, the Plaintiff filed a First Amended Class Action
Complaint alleging claims for: 1) violation of the New Jersey
Consumer Fraud Act ("CFA"), N.J.S.A. 56:8-1, et seq.; 2) breach of
contract; 3) breach of the implied covenant of good faith and fair
dealing; 4) conversion; 5) unjust enrichment; and 6) legal fraud.
The Defendant then timely removed the action to the Court on Oct.
23, 2019, pursuant to the Class Action Fairness Act of 2005, 28
U.S.C. Sections 1332(d), 1446, and 1453. Thereafter, it filed a
motion to compel individual arbitration, or in the alternative, to
dismiss the First Amended Class Action Complaint with prejudice for
failure to state a claim under Rules 8, 9(b), and 12(b)(6) of the
Federal Rules of Civil Procedure. The dismissed the motion without
prejudice because the TOS and arbitration agreement were first
substantively referenced in Defendant's briefing, and ordered the
Defendant to file a renewed motion upon completion of initial
discovery on the issue of arbitrability.
After conducting limited discovery, on June 25, 2021, the Defendant
filed its renewed motion to compel arbitration or, in the
alternative, to dismiss for failure to state a claim, pursuant to
Federal Rules of Civil Procedure 8(a), 9(b), and 12(b)(6). The
Plaintiff opposed the motion on July 19, 2021, and the Defendant
replied.
II. Discussion
The Plaintiff argues that he is not bound by the arbitration
agreement found in the Defendant's TOS because the agreement is
invalid and unenforceable and, even in the event it is valid, some
of his claims fall outside the scope of the arbitration agreement.
Specifically, he argues that the agreement is unenforceable because
he never assented to the agreement, and the terms of the agreement
are ambiguous, were fraudulently induced, and are unconscionable.
Assuming there is a valid agreement, he further argues that his CFA
claim exceeds the scope of the arbitration agreement, and thus
should be decided by the Court.
A. Plaintiff Assented to the Arbitration Agreement
Judge Cecchi finds that upon downloading the game and before
proceeding to game play, users can view in the initial launch page,
in the middle of the screen, appearing in white letters against a
black background, the Defendant's notice of its TOS. Failure to
read a TOS contract is insufficient grounds to excuse performance,
unless "fraud or misconduct prevented one from reading." Moreover,
after being placed on notice, the Plaintiff assented to the TOS by
continuing to play STFC. Where a terms of service notice
contemplates an action to assent, taking that action indicates that
a user assented to the terms. Accordingly, Judge Cecchi opines that
the Plaintiff assented to the TOS by continuing to play STFC.
B. The Arbitration Agreement is Unambiguous
Judge Cecchi holds that the the arbitration agreement is
unambiguous that a user must pursue its claims against the
Defendant through binding arbitration unless the claim satisfies an
exception enumerated in the agreement. Further, as the agreement
states that the parties waive their right to appear before a judge
or jury, and explains the meaning of arbitration, the agreement
contains sufficiently clear waiver. In sum, because the Plaintiff
assented to an unambiguous arbitration agreement, the agreement is
valid.
C. The Arbitration Agreement Was Not Fraudulently Induced
Judge Cecchi finds that although the Plaintiff alleges claims for
violations to the CFA and for legal fraud, he does not plead his
allegations as either fraud in the inducement or fraud in the
execution. While the Plaintiff challenges the enforceability of the
arbitration provisions, the Complaint and opposition submissions
focus on the parties' general relationship under the terms --
namely, the purchase of upgrades after a user agrees to play the
game -- not the terms of the arbitration agreement. Accordingly,
Judge Cecchi construes the Plaintiff's claims as fraud in the
inducement levied against the entire TOS, and, as a result, they
are for the arbitrator to consider. Thus, the Plaintiff's fraud
defense does not render the arbitration agreement invalid.
D. The Arbitration Agreement Is Not Unconscionable
Likewise, Judge Cecchi finds that even assuming that the
arbitration agreement is procedurally unconscionable because the
terms were offered in a take-it-or-leave-it fashion, making the TOS
an adhesion contract, not all adhesion contracts are
unconscionable. Faced with the TOS, the Plaintiff could have chosen
not to play STFC and later suffer none of the consequences he
alleges he ultimately did. Indeed, the Plaintiff's decision to play
the game was motivated by his Star Trek fandom, not due to any
economic compulsion or necessity. Accordingly, the Plaintiff's
procedural unconscionability argument fails.
E. Scope of the Arbitration Agreement
As she described, Judge Cecchi says, after determining that a valid
arbitration agreement exists, courts must determine "whether the
merits-based dispute in question falls within the scope of that
valid agreement." Notwithstanding an otherwise valid arbitration
agreement, a party may challenge the provision delegating
arbitrability to the arbitrator, but the party must do so
specifically.
Judge Cecchi holds that (i) it has been found that a valid
arbitration agreement exists between the parties; (ii) the TOS
contains a valid delegation clause, and any questions regarding the
scope of the agreement are to be decided first by the arbitrator;
and (iii) New Jersey courts have held that claims arising under the
CFA may be heard and resolved through arbitration, and, in any
event, whether the arbitration agreement covers the CFA claim is a
question of scope, which the parties have unambiguously delegated
to the arbitrator.
III. Conclusion
Judge Cecchi concludes that a valid arbitration agreement exists
between the parties, and that the parties agreed to delegate
questions regarding the scope of the arbitration agreement (i.e.
arbitrability), including whether the agreement covers the
Plaintiff's CFA claim, to the arbitrator. For these reasons, she
granted the Defendant's motion to compel arbitration is granted. An
appropriate Order accompanies the Opinion.
A full-text copy of the Court's Jan. 25, 2022 Opinion is available
at https://tinyurl.com/2p8387dx from Leagle.com.
SCRIPPS HEALTH: S.D. California Dismisses Data Security Breach Suit
-------------------------------------------------------------------
Judge Gonzalo P. Curiel of the U.S. District Court for the Southern
District of California granted the Defendant's motion to dismiss
the case, IN RE: SCRIPPS HEALTH DATA SECURITY BREACH LITIGATION,
Case No. 21cv1135-GPC (MSB) (S.D. Cal.).
Scripps Health moved to dismiss the lawsuit pursuant to Federal
Rule of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction under the Class Action Fairness Act ("CAFA").
I. Background
The case involves a consolidated purported class action complaint
against Defendant Scripps regarding a ransomware attack where
cybercriminals infiltrated the Defendant's network servers and
accessed highly sensitive personal and medical information around
April 29, 2021. The Plaintiffs allege that the Defendant failed to
properly secure and safeguard its patient's personally identifiable
information ("PII") and personal health information ("PHI") stored
within the Defendant's information networks and have been damaged.
The Plaintiffs seek to certify a nationwide class and a California
subclass defined as:
a. Nationwide Class: All individuals within the United States
of America whose PII/PHI was stored by Defendant and/or was exposed
to unauthorized third parties as a result of the compromise of
Scripps Health's data systems, as announced on or about June 1,
2021.
b. California Subclass: All individuals within the State of
California whose PII/PHI was stored by Defendant and/or was exposed
to unauthorized third parties as a result of the compromise of
Scripps Health's data systems, as announced on or about June 1,
2021.
The six state law causes of action alleged against Scripps are
negligence, invasion of privacy, breach of confidence and
declaratory relief on behalf of the Nationwide Class or,
alternatively, on behalf of the California Subclass, and violations
of the California Customer Records Act, Cal. Civil Code section
1798.80, and violation of California Confidentiality of Medical
Records Act, Cal. Civ. Code section 56 et seq. on behalf of the
California subclass.
Scripps Health moved to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction under
the Class Action Fairness Act ("CAFA") or, in the alternative,
moved to stay the action under the Colorado River doctrine. The
Plaintiffs filed a response and the Defendant replied.
II. Discussion
CAFA provides an independent basis for original jurisdiction. CAFA
jurisdiction requires that the case is a class action involving:
(1) minimal diversity, or in other words, that any member of the
class is a citizen of a state different from any defendant; (2) at
least 100 putative members; and (3) over $5 million in controversy
exclusive of interest and costs. Despite these requirements,
Congress also provided exceptions to CAFA jurisdiction, which
requires the district court to decline to exercise jurisdiction.
In its motion, the Defendant relies on the home-state controversy
exception. The consolidated purported class action complaint
alleges that "the amount in controversy exceeds the sum or value of
$5 million, exclusive of interest and costs, there are more than
100 members in the proposed class, and at least one other Class
Member is a citizen of a state different from Defendant as the
Defendant treats patients who are citizens of other states who come
to its facilities for medical care and from whom Defendant has
collected PII/PHI." The Plaintiffs have sufficiently alleged
diversity jurisdiction under CAFA.
In its motion, the Defendant seeks to defeat jurisdiction and
invokes the home-state controversy exception which requires it to
show, by a preponderance of the evidence, that two-thirds or more
of the proposed class are citizens of California. Neither party
disputes that the Defendant is a citizen of California.
First, Judge Curiel finds that while snowbirds do flock to San
Diego, the Plaintiffs have not offered any data that these
snowbirds include patients of Scripps. Second, Scripps also has
already provided "some evidence" showing that 96.3% of those that
received notices concerning the data breach have California
addresses. Without any evidence by the Plaintiffs to challenge the
Defendant's fact that 96.3% of the notices were sent to California
addresses, or that the recipients are not California citizens, the
Defendant has shown that the home-state controversy exception
applies, and thus, the Court lacks subject matter jurisdiction over
the case. The 96.3% establishes more than a "narrow cushion"
establishing a probability that more than two-thirds of the class
members are California citizens.
Accordingly, Judge Curiel will grant the Defendant's motion to
dismiss for lack of subject matter jurisdiction. As such, he will
also deny as moot the Defendant's alternative argument that the
Court stays the action pursuant to the Colorado River doctrine.
III. Conclusion
Based on the foregoing reasoning, Judge Curiel granted the
Defendant's motion to dismiss for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and
denied its motion to stay as moot. He vacated the Jan. 28, 2022
hearing.
A full-text copy of the Court's Jan. 25, 2022 Order is available at
https://tinyurl.com/mrxc6m9y from Leagle.com.
SKYWEST AIRLINES: Wilson's Bid for Class Certification Nixed
------------------------------------------------------------
In the class action lawsuit captioned as TREMAINE WILSON, et al.,
v. SKYWEST AIRLINES, INC., Case No. 3:19-cv-01491-VC (N.D. Cal.),
the Hon. Judge Vince Chhabria entered an order denying Wilson's
motion for class certification.
The plaintiffs' request that the Court enter a protective order
barring ex parte communications between SkyWest and its agents and
employees and class members and the corresponding request for
judicial notice are denied.
The motion to intervene remains pending until the next case
management conference, which is scheduled for February 16, at 1:00
p.m. The intervenors are invited to attend. A joint case management
statement is due by February 9.
The Court said, "The plaintiffs have not presented this case in a
way that common questions of law or fact answerable with common
proof predominate over individualized questions. The plaintiffs'
theory of the case is that SkyWest's policies and practices
prohibited flight attendants from taking in-flight off-duty breaks
and "regularly failed to allow for sufficient off-duty time
in-between flights to allow compliant meal and rest periods." But
they have not claimed that every flight leg, including the flight
attendant's on-duty boarding and deplaning time, was so long as to
have required a California-compliant meal or rest break during the
flight. They have also conceded that, during layovers between
flights, flight attendants sometimes received sufficient time for
meal and rest breaks. And the plaintiffs have made clear that their
lawsuit does not seek to impose liability in situations where an
attendant's flight was too short to trigger a break requirement or
an attendant's layover was long enough to potentially take a break
consistent with California law."
So under the plaintiffs' theory of the case, the only way to
determine SkyWest's liability to each flight attendant is to sift
through individual scheduling records to determine to whom, and in
which instances, SkyWest is liable. This is not, as plaintiffs'
counsel contends, solely an individualized damages calculation.
Examination of each flight attendant's records would be necessary
both to answer the liability question (whether the flight attendant
ever worked more than the requisite number of hours without an
opportunity for an off-duty break) and to calculate their damages
(how many times that occurred). In such a situation, common
questions of fact or law do not predominate, the Court adds.
SkyWest is an American regional airline headquartered in St.
George, Utah.
A copy of the Court's order dated Jan. 31, 2021 is available from
PacerMonitor.com at https://bit.ly/3okiygn at no extra charge.[CC]
SWIFT TRANSPORTATION: Court Enters Judgment in Fritsch Class Suit
-----------------------------------------------------------------
Judge Virginia A. Phillips of the U.S. District Court for the
Central District of California entered a judgment in the case,
GRANT FRITSCH, an individual; BILL BARKER, an individual; TAB
BACHMAN, and individual; WILLIAM YINGLING, an individual; for
themselves and those similarly-situated, Plaintiffs v. SWIFT
TRANSPORTATION CO. OF ARIZONA, LLC, a Delaware limited liability
company; and DOES 1 through 10, inclusive, Defendants, Case No.
5:17-cv-02226 VAP(KKx)(C.D. Cal.).
In accordance with the Court's Jan. 4, 2022 order granting final
approval to the Parties' class action and PAGA settlement, the
Judgment is entered in the action as follows: Plaintiffs Grant
Fritsch, Bill Barker, Tab Bachman and William Yingling, the
California Labor and Workforce Development Agency, and the
certified class (defined as all persons employed by the Defendant
as yard hostlers in California at any time from Dec. 7, 2011,
through Oct. 5, 2021) will take nothing from the Defendant except
in accordance with the approved settlement and the Court's orders
approving the settlement.
No class members are excluded from the certified class as no class
members timely and validly requested exclusion from the settlement.
Further, all the class members remain bound by the approved
settlement and the judgment.
The Court retains jurisdiction to ensure compliance with the
settlement and order approving the settlement.
The Judgment is a separate document for purposes of Federal Rule of
Civil Procedure 58(a).
A full-text copy of the Court's Jan. 25, 2022 Judgment is available
at https://tinyurl.com/yc5jekwb from Leagle.com.
TALEN ENERGY: Durnack, et al., Seek Class Certification
-------------------------------------------------------
In the class action lawsuit captioned as ANNETTE M. DURNACK, et
al., v. RETIREMENT PLAN COMMITTEE OF TALEN ENERGY CORPORATION, et
al., Case No. 5:20-cv-05975-JLS (E.D. Pa.), the Plaintiffs ask the
Court to enter an orde granting their motion for certification of
this action as a class action pursuant to Rules 23(a) and (b) of
the Federal Rules of Civil Procedure.
The Plaintiffs include Annette M. Durnack, Anne W. Fiore, Timothy
G. Wales, and Jeffrey S. Weik.
Talen is an independent power producer founded in 2015. It was
formed when the competitive power generation business of PPL
Corporation was spun off and immediately combined with competitive
generation businesses owned by private equity firm Riverstone
Holdings.
A copy of the Plaintiffs' motion to certify class dated Jan. 31,
2021 is available from PacerMonitor.com at https://bit.ly/348kodq
at no extra charge.[CC]
The Plaintiffs are represented by:
Alan M. Sandals, Esq.
SANDALS & ASSOCIATES, P.C.
4 Green Hill Road
P.O. Box 385
Washington Depot, CT 06794
Telephone: (860) 868-1140
- and -
A. Richard Feldman, Esq.
BAZELON LESS & FELDMAN, P.C.
One South Broad Street
Philadelphia, PA 19107
Telephone: (215) 568-1155
The Defendants are represented by:
Jeremy P. Blumenfeld, Esq.
Brandon P. Brigham, Esq.
MORGAN, LEWIS & BOCKIUS, LLP
1701 Market Street
Philadelphia, PA 19103
Telephone: (215) 963-5000
UNITED STATES: California Court Finds Sharp a 3-Strike Litigant
---------------------------------------------------------------
Magistrate Judge Stanley A. Boone of the U.S. District Court for
the Eastern District of California issued his Findings and
Recommendations in the case, ANTHONY A. SHARP, Plaintiff v. BOLIN,
et al., Defendants, Case No. 1:21-cv-01549-NONE-SAB (E.D. Cal.).
Judge Boone recommends to declare the Plaintiff to be a
three-strike litigant and revoke the Plaintiff's in forma pauperis
status under 28 U.S.C. Section 1915(g).
I. Background
On Oct. 8, 2021, Plaintiff Sharp, a state prisoner proceeding pro
se and in forma pauperis (K-41609), initiated the civil rights
action in the Northern District of California pursuant to 42 U.S.C.
Section 1983, against the Defendants in their individual and
official capacities as employees for the Internal Revenue Service
("IRS"). The Plaintiff alleges he was supposed to receive a Federal
Stimulus check of $1,200 but he never received the check, that the
check was instead sent to an unknown address with his personal
identifying information, and that the IRS Defendants refused to
investigate or remedy the situation.
On Oct. 21, 2021, the case was transferred from the Northern
District to the present Court. On Oct. 22, 2021, the Court granted
the Plaintiff's application to proceed IFP.
II. Discussion
The Court previously granted the Plaintiff leave to proceed IFP.
Nevertheless, IFP status may be revoked at any time, either on
motion or sua sponte, if the Court determines that such status
should not have been granted. Indeed, Andrews v. King (King), 398
F.3d 1113, 1120 (9th Cir. 2005), implicitly allows the Court to sua
sponte raise the Section 1915(g) problem, so long as the court
notifies the prisoner of the earlier dismissals considered to
support a revocation of IFP status and provides the prisoner an
opportunity to be heard on the matter before dismissing the action.
This is because IFP status "is not a constitutional right." Rather,
it may be acquired and lost during the course of litigation.
The plain language of the statute, known as the "Three Strikes"
provision of the Prison Litigation Reform Act (PLRA), makes clear
that a prisoner is precluded from bringing a civil action or an
appeal IFP if he has brought three actions or appeals (or any
combination thereof totaling three) that were previously dismissed
as frivolous, malicious, or for failure to state a claim. If a
prisoner has "three strikes" under Section 1915(g), he may not
proceed without paying the full filing fee unless "the complaint
makes a plausible allegation" that the prisoner "faced 'imminent
danger of serious physical injury'" at the time his complaint was
filed.
A. Plaintiff has Three or More Qualifying Strikes
As an initial matter, Judge Boone notes that the Plaintiff's IFP
status was revoked at least once before in a prior prisoner
litigation case on the basis that the Plaintiff had accumulated
three or more strikes. While that Court did not order the Plaintiff
be declared a three-strike litigant, the four cases previously
identified as strikes continue to constitute strikes for purposes
of the instant findings and recommendations. Moreover, an
independent review of the record of actions filed by the Plaintiff
in the United States District Courts reveals additional actions
that were dismissed and qualify as strikes as under Section
1915(g), and which also support Judge Boone's recommendation to
declare the Plaintiff a three-strike litigant and to revoke his IFP
status.
Judge Boone takes judicial notice of the following cases which it
deems to be strikes: Sharp v. Cal. State Prison Corcoran Med.
Staff, No. 1:99-cv-05550-OWW-DLB (E.D. Cal. 1999); Sharp v. Cnty.
of San Diego, No. 3:99-cv-01685-J-AJB (S.D. Cal. 1999); Sharp v.
Mueller, No. 2:03-cv-01354-EJG-DAD (E.D. Cal. 2003); Sharp v. Mims,
No. 1:13-cv-00534-AWI-BAM (E.D. Cal. 2013); Sharp v. Weber, No.
1:17-cv-00160-DAD-EPG (E.D. Cal. 2017); Sharp v. Kelso, No.
2:17-cv-01528-KJN-P (E.D. Cal. 2017); and Sharp v. Cueva, No.
2:02-cv-01686-FCD-GGH (E.D. Cal. 2002).
Among other things, in Sharp v. Kelso, No. 2:17-cv-01528-KJN-P
(E.D. Cal. 2017), on June 12, 2017, the Plaintiff filed the
purported class action lawsuit, as representative plaintiff, while
incarcerated at Salinas Valley State Prison. The magistrate judge
recommended summary dismissal of the complaint for failure to state
a claim, as well as denial of the request to proceed as a class. On
Sept. 28, 2017, the district judge adopted all recommendations in
full and dismissed the action. Judgment was entered the following
day. The dismissal of the action for failure to state a claim
constitutes a strike.
B. The Imminent Danger Exception Does Not Apply
Because the Plaintiff has filed at least three cases that
constitute strikes under Section 1915(g), he is precluded from
proceeding IFP in the action unless he can demonstrate he was
"under imminent danger of serious physical injury." The
availability of the imminent danger exception turns on the
conditions a prisoner faced at the time the complaint was filed,
not at some earlier or later time."
Judge Boone has reviewed the Plaintiff's complaint against the IRS
and finds that he has not alleged any facts which suggest he was
under imminent danger of serious physical injury at the time he
filed his pleading. Accordingly, the imminent danger exception is
inapplicable in the instant matter.
III. Conclusion and Recommendation
Judge Boone recommended that:
1. The Plaintiff be declared a three-strikes litigant
pursuant to 28 U.S.C. Section 1915(g);
2. The Plaintiff's in forma pauperis status be revoked
pursuant to 28 U.S.C. Section 1915(g);
3. The Court's Oct. 22, 2021 order, which directed the
Director of the California Department of Corrections and
Rehabilitation or designee to deduct the filing fee from the
Plaintiff's trust account whenever the balance exceeds $10 be
vacated;
4. The Clerk of the Court be directed to serve a copy of the
Order on: (1) the Financial Department, U.S. District Court,
Eastern District of California, Fresno Division; and (2) the
Director of California Department of Corrections and Rehabilitation
or designee via the Court's electronic case filing system (CM/ECF);
and
5. The Plaintiff be ordered to submit, within 3) days from
any order by the District Court adopting these findings and
recommendations, the appropriate filing fee, and the Plaintiff be
warned that his failure to comply with such order will result in a
recommendation that the action be dismissed.
These findings and recommendations are submitted to the district
judge assigned to the action, pursuant to 28 U.S.C. Section
636(b)(1)(B) and the Court's Local Rule 304. Within 14 days of
service of the recommendation, any party may file written
objections to these findings and recommendations with the Court and
serve a copy on all parties. Such a document should be captioned
"Objections to Magistrate Judge's Findings and Recommendations."
The district judge will review the magistrate judge's findings and
recommendations pursuant to 28 U.S.C. Section 636(b)(1)(C). The
parties are advised that failure to file objections within the
specified time may result in the waiver of rights on appeal.
A full-text copy of the Court's Jan. 25, 2022 Findings &
Recommendations is available at https://tinyurl.com/2p8nr6jt from
Leagle.com.
UNIVERSAL PROTECTION: Penny Files Suit in Cal. Super. Ct.
---------------------------------------------------------
A class action lawsuit has been filed against Universal Protection
Service, LP, et al. The case is styled as Tim Penny, on behalf of
all similarly situated v. Universal Protection Service, LP, Does
1-100, Case No. 34-2022-00314013-CU-OE-GDS (Cal. Super. Ct.,
Sacramento Cty., Jan. 18, 2022).
The case type is stated as "Other Employment - Civil Unlimited."
Universal Protection Service was a private security company in the
United States.[BN]
The Plaintiff is represented by:
Cody Alexander Bolce, Esq.
COLE & VAN NOTE
555 12th St, Ste 1725
Oakland, CA 94607-5009
Phone: 510-891-9800
Fax: 510-891-7030
Email: cab@colevannote.com
VOYAGER DIGITAL: Cassidy Must File Class Cert. Bid by May 20
------------------------------------------------------------
In the class action lawsuit captioned as MARK CASSIDY, v. VOYAGER
DIGITAL LTD., et al., Case No. 1:21-cv-24441-CMA (S.D. Fla.), the
Hon. Judge Cecilia M. Altonaga entered an order setting trial and
pre-trial schedule, requiring mediation, and referring certain
matters to Magistrate Judge.
The parties shall adhere to the following schedule:
-- The parties shall select a mediator Feb. 22, 2022
in accordance with Local Rule 16.2;
schedule a time, date, and place
for mediation; and jointly file a
proposed order scheduling mediation:
-- All motions to amend pleadings March 14, 2022
or join parties are filed:
-- Parties exchange expert witness April 11, 2022
summaries or reports on issues
of class certification:
-- Parties exchange rebuttal expert April 25, 2022
witness summaries or reports on
issues of class certification:
-- Deadline for completing class May 9, 2022
certification discovery:
-- The Plaintiff files motion May 20, 2022
for class certification:
-- Parties exchange expert witness Sept. 6, 2022
summaries or reports:
-- Parties exchange rebuttal expert Sept. 19, 2022
witness summaries or reports:
-- All discovery, including expert Oct. 3, 2022
discovery, is completed:
-- The Parties must have completed Oct. 11, 2022
mediation and filed a mediation
report:
-- All pre-trial motions and Oct. 18, 2022
Daubert motions (which include
motions to strike experts) are
filed:
A copy of the Court's order dated Jan. 31, 2021 is available from
PacerMonitor.com at https://bit.ly/3geEYuW at no extra charge.[CC]
WASATCH ADVANTAGE: Class Certification Order in Terry Suit Modified
-------------------------------------------------------------------
In the case, UNITED STATES OF AMERICA, ex rel. DENIKA TERRY, ROY
HUSKEY III, and TAMERA LIVINGSTON, and each of them for CLASS
ACTION themselves individually, and for all other persons similarly
situated and on behalf of the UNITED STATES OF AMERICA,
Plaintiffs/Relators v. WASATCH ADVANTAGE GROUP, LLC, WASATCH
PROPERTY MANAGEMENT, INC., WASATCH POOL HOLDINGS, LLC, CHESAPEAKE
APARTMENT HOLDINGS, LLC, LOGAN PARK APARTMENTS, LLC, LOGAN PARK
APARTMENTS, LP, ASPEN PARK HOLDINGS, LLC, BELLWOOD JERRON HOLDINGS,
LLC, BELLWOOD JERRON APARTMENTS, LP, BENT TREE APARTMENTS, LLC,
CALIFORNIA PLACE APARTMENTS, LLC, CAMELOT LAKES HOLDINGS, LLC,
CANYON CLUB HOLDINGS, LLC, COURTYARD AT CENTRAL PARK APARTMENTS,
LLC, CREEKSIDE HOLDINGS, LTD, HAYWARD SENIOR APARTMENTS, LP,
HERITAGE PARK APARTMENTS, LP, OAK VALLEY APARTMENTS, LLC, OAK
VALLEY HOLDINGS, LP, PEPPERTREE APARTMENT HOLDINGS, LP, PIEDMONT
APARTMENTS, LP, POINT NATOMAS APARTMENTS, LLC, POINT NATOMAS
APARTMENTS, LP, RIVER OAKS HOLDINGS, LLC, SHADOW WAY APARTMENTS,
LP, SPRING VILLA APARTMENTS, LP, SUN VALLEY HOLDINGS, LTD, VILLAGE
GROVE APARTMENTS, LP, WASATCH QUAIL RUN GP, LLC, WASATCH PREMIER
PROPERTIES, LLC, WASATCH POOL HOLDINGS III, LLC, and DOES 1-4,
Defendants, Case No.: 2:15-CV-00799-KJM-DB (E.D. Cal.), Judge
Kimberly Mueller of the U.S. District Court for the Eastern
District of California, Sacramento Division, issued a stipulated
order modifying the Class Certification Order entered by the Court
on Jan. 15, 2020.
On July 30, 2018, the Court granted the Plaintiffs' motion for
class certification as to the Rule 23(b)(3) Reimbursement Class and
conditionally granted their motion for class certification as to
the Rule 23(b)(2) Injunctive Relief Class.
Pursuant to the Class Certification Order, Defendants Wasatch
Advantage Group, LLC, Wasatch Property Management, Inc., Wasatch
Pool Holdings, LLC, Chesapeake Commons Holdings, LLC, Logan Park
Apartments, LLC, Logan Park Apartments, LP ("Originally Identified
Defendants") and the Plaintiffs filed a Joint Stipulation to Amend
Complaint to substitute Tamera Livingston as the new class
representative for the Rule 23(b)(2) class, which the Court granted
on Sept. 5, 2018. The Plaintiffs filed their Fourth Amended
Complaint, substituting Tamera Livingston as the new class
representative for the Rule 23(b)(2) class on Sept. 20, 2018.
The Court certified the Rule 23(b)(3) "Reimbursement Class" as
follows: "All persons who, in the time period starting four years
prior to the date of filing this Complaint through the final
resolution of this matter, (1) have been tenants at any of
Defendants' California properties; (2) have participated in the
Section 8 Housing Choice Voucher Program in connection with their
tenancies at the California properties; and (3) have paid
additional charges set forth in Additional Services Agreements in
excess of their individual portions of the contract set forth in
the HAP Contracts."
The Court certified the Rule 23(b)(2) "Injunctive Relief Class" as
follows: "All persons who: (1) are or will become tenants at any of
Defendants' California properties; (2) participate or will
participate in the Section 8 Housing Choice Voucher Program in
connection with their tenancies at the California properties; and
(3) pay or will pay additional charges set forth in Additional
Services Agreements in excess of their individual portions of the
contract rent set forth in the HAP Contracts."
On May 21, 2019, the Court granted the Originally Identified
Defendants' and the Plaintiffs' Joint Stipulation and Order for
Appointment of Class Counsel ordering that the "law firm of
Goldstein, Borgen, Dardarian & Ho is adequate to serve as the class
counsel and are appointed as the Class Counsel for the Classes
previously certified by the Court on July 30, 2018."
On Jan. 15, 2020, the Court granted the Plaintiffs' Motion for
Clarification, and ordered that the class period for the
Reimbursement Class, as defined in the Class Certification Order,
"begins on April 14, 2011, four years prior to the filing of the
initial complaint in this action."
In its Order Granting Motion for Clarification, the Court appointed
KCC Class Action Services as the class action administrator for the
case and approved the Plaintiffs' proposed class notice form and
procedures and ordered class notice to proceed. The class notice
was mailed on March 11, 2020 and May 6, 2020, notifying
Reimbursement Class Members of their right to opt out by April 15,
2020 and June 10, 2020, respectively. A single Class Member
requested to be excluded from the Reimbursement Class.
The Third Amended Complaint and the Fourth Amended Complaint made
allegations against the Originally Identified Defendants and
Defendants identified as Does 1-30.
Based on information disclosed in discovery after the class was
certified, the Plaintiffs learned the following entities are or
were direct or indirect owners in the relevant Wasatch properties
in California and are proper Defendants to the Reimbursement and/or
Injunctive Relief Class Claims: Aspen Park Holdings, LLC, Bellwood
Jerron Apartments, LP, Bellwood Jerron Holdings, LLC, Bent Tree
Apartments, LLC, California Place Apartments, LLC, Camelot Lakes
Holdings, LLC, Canyon Club Holdings, LLC, Courtyard at Central Park
Apartments, LLC, Creekside Holdings, LTD, Hayward Senior
Apartments, LP, Heritage Park Apartments, LP, Oak Valley
Apartments, LLC, Oak Valley Holdings, LP, Peppertree Apartment
Holdings, LP, Piedmont Apartments, LP, Point Natomas Apartments,
LP, Point Natomas Apartments, LLC, River Oaks Holdings, LLC, Shadow
Way Apartments, LP, Spring Villa Apartments, LP, Sun Valley
Holdings, LTD, Village Grove Apartments, LP, Wasatch Quail Run GP,
LLC, Wasatch Premier Properties, LLC, Wasatch Pool Holdings III,
LLC ("the Newly Identified Defendants");
Due to changes in property ownership, Wasatch Property Management
no longer manages the properties owned, or formerly owned, by
Defendants Bellwood Jerron Apartments LP, Bellwood Jerron
Apartments, LLC, Camelot Lakes Holdings, LLC, Oak Valley
Apartments, LLC, Oak Valley Holdings, LP, Point Natomas Apartments,
LP, Point Natomas Apartments, LLC, and Wasatch Quail Run GP, LLC.
The Defendants clarified that the relevant legal entity that
owns/manages the property Chesapeake Common Holdings LLC is
correctly identified as "Chesapeake Apartment Holdings, LLC."
On Aug. 16, 2021, the Court adopted the Plaintiffs and the
Originally Identified Defendants' Stipulation and Proposed Order
for Leave to File Fifth Amended Complaint, Bifurcating the Case for
Discovery and Trial, and Vacating Case Deadlines. In its Order
Adopting the Stipulation and Proposed Order, the Court bifurcated
the case into two phases for both discovery and trial.
Phase 1 of the proceedings will address: Whether Wasatch Property
Management is liable under the False Claims Act; whether Wasatch
Property Management's practices violate Class members' rights under
the Housing Assistance Payments (HAP) Contract, the Unfair
Competition Law, and the Consumer Legal Remedies Act ("Class
Claims"); and if so, the amount of actual damages and restitution,
if any, to remedy any and all violations under the False Claims Act
and Class Claims.
Phase 2 of the proceedings will address (as applicable in light of
the determinations reached in Phase 1): The liability of all and
various Defendant entities for the Class Claims based on alter ego
liability, the single enterprise doctrine, agency principles, and
the Defendants' receipt of a benefit from the unlawful charges; any
vicarious liability attributable to other Defendants named as to
the False Claims Act claim; and penalties and treble damages under
the False Claims Act.
On Aug. 17, 2021, the Plaintiffs filed the operative Fifth Amended
Complaint, (a) replacing Doe 5-30 Defendants with the newly
discovered entities listed above for all the certified claims, and
not the False Claims Act, (b) adding a new section to the Complaint
entitled "Defendants' Corporate Structure: Alter Ego, Single
Enterprise, and Joint Venture," (c) correcting the name of
Defendant Chesapeake Common Holdings LLC to Chesapeake Apartments
Holdings, LLC, and (d) making explicit the April 14, 2011 start
date for the class period confirmed by the Court.
The Fifth Amended Complaint provides the true name of Doe
Defendants that are entities Defendants use or previously used to
own the properties concerned in this litigation and that are
parties to the lease documents and Housing Assistance Payment
Contracts ("HAP Contracts") executed and administered on their
behalf by Wasatch property management.
Wasatch Property Management is the entity that signs all leases,
Additional Services Agreements, and HAP Contracts, manages the
properties where Defendants' Section 8 tenants live, and charges
and collects the additional service charges whose legality is at
issue in each of the claims. Therefore, the claims in the case turn
on Wasatch Property Management's conduct. The claims regarding all
other Defendants' liability result from their contractual and
corporate relationships to Wasatch Property Management.
All Defendants agree that it would be proper to modify the Class
Certification Order to add the Newly Identified Defendants.
In their Joint Status Report, filed Sept. 30, 2021, the Parties
agreed to issue a supplemental class notice, if necessary,
following the Court's ruling on summary judgment motions and prior
to the Phase 1 of trial.
Judge Meuller finds that Federal Rules of Civil Procedure Rule
23(a) criteria and Rule 23(b)(3) criteria are satisfied as to the
Newly Identified Defendants and that the claims of the
Reimbursement Class may properly be certified as to the Newly
Identified Defendants.
The Reimbursement Class will continue to have the same definition,
that is: "All persons who, in the time period starting April 14,
2011 through the final resolution of this matter, (1) have been
tenants at any of Defendants' California properties; (2) have
participated in the Section 8 Housing Choice Voucher Program in
connection with their tenancies at the California properties; and
(3) have paid additional charges set forth in Additional Services
Agreements in excess of their individual portions of the contract
set forth in the HAP Contracts."
Judge Mueller finds that Federal Rules of Civil Procedure Rule
23(a) criteria and Rule 23(b)(2) criteria are satisfied as to the
Newly Identified Defendants who continue to be direct or indirect
owners of properties managed by Wasatch Property Management in
California and that the claims of the Injunctive Relief Class may
properly be certified as to Aspen Park Holdings, LLC, Bent Tree
Apartments, LLC, California Place Apartments, LLC, Canyon Club
Holdings, LLC, Courtyard at Central Park Apartments, LLC, Creekside
Holdings, LTD, Hayward Senior Apartments, LP, Heritage Park
Apartments, LP, Peppertree Apartment Holdings, LP, Piedmont
Apartments, LP, River Oaks Holdings, LLC, Shadow Way Apartments,
LP, Spring Villa Apartments, LP, Sun Valley Holdings, LTD, Village
Grove Apartments, LP, Wasatch Premier Properties, LLC, and Wasatch
Pool Holdings III, LLC.
The Injunctive Relief Class will continue to have the same
definition, that is: "All persons who: (1) are or will become
tenants at any of Defendants' California properties; (2)
participate or will participate in the Section 8 Housing Choice
Voucher Program in connection with their tenancies at the
California properties; and (3) pay or will pay additional charges
set forth in Additional Services Agreements in excess of their
individual portions of the contract rent set forth in the HAP
Contracts."
Accordingly, Judge Mueller modified the Class Certification order
previously entered in this case to add Aspen Park Holdings, LLC,
Bellwood Jerron Holdings, LLC, Bellwood Jerron Apartments, LP, Bent
Tree Apartments, LLC, California Place Apartments, LLC, Camelot
Lakes Holdings, LLC, Canyon Club Holdings, LLC, Courtyard at
Central Park Apartments, LLC, Creekside Holdings, LTD, Hayward
Senior Apartments, LP, Heritage Park Apartments, LP, Oak Valley
Apartments, LLC, Oak Valley Holdings, LP, Peppertree Apartment
Holdings, LP, Piedmont Apartments, LP, Point Natomas Apartments,
LLC, Point Natomas Apartments, LP, River Oaks Holdings, LLC, Shadow
Way Apartments, LP, Spring Villa Apartments, LP, Sun Valley
Holdings, LTD, Village Grove Apartments, LP, Wasatch Quail Run GP,
LLC, Wasatch Premier Properties, LLC, Wasatch Pool Holdings III,
LLC as Defendants to the claims of the Reimbursement Class.
Furthermore, Judge Mueller modified the Class Certification order
previously entered in the case to add Aspen Park Holdings, LLC,
Bent Tree Apartments, LLC, California Place Apartments, LLC, Canyon
Club Holdings, LLC, Courtyard at Central Park Apartments, LLC,
Creekside Holdings, LTD, Hayward Senior Apartments, LP, Heritage
Park Apartments, LP, Peppertree Apartment Holdings, LP, Piedmont
Apartments, LP, River Oaks Holdings, LLC, Shadow Way Apartments,
LP, Spring Villa Apartments, LP, Sun Valley Holdings, LTD, Village
Grove Apartments, LP, Wasatch Premier Properties, LLC, and Wasatch
Pool Holdings III, LLC as Defendants to the claims of the
Injunctive Relief Class.
A full-text copy of the Court's Jan. 25, 2022 Order is available at
https://tinyurl.com/yckp2v62 from Leagle.com.
Anne P. Bellows -- abellows@gbdhlegal.com -- GOLDSTEIN, BORGEN,
DARDARIAN & HO, Attorneys for the Plaintiffs and Relators.
Ryan Matthews -- Ryan.Matthews@lewisbrisbois.com -- LEWIS BRISBOIS
BISGAARD & SMITH LLP, Attorneys for the Defendants.
Laura L. Ho -- lho@gbdhlegal.com -- Anne Bellows GOLDSTEIN, BORGEN,
DARDARIAN & HO, Oakland, CA, Andrew Wolff -- andrew@awolfflaw.com
-- LAW OFFICES OF ANDREW WOLFF, PC, Oakland, CA, Jesse Newmark
CENTRO LEGAL DE LA RAZA, in Oakland, California, Jocelyn Larkin
Lindsay Nako THE IMPACT FUND, in Berkeley, California, Attorneys
for the Plaintiffs and Relators and the Certified Classes.
WFM PRIVATE: Revised Case Scheduling Order Entered in Kellman
-------------------------------------------------------------
In the class action lawsuit captioned as SHOSHA KELLMAN, on behalf
of herself and all others similarly situated, v. WFM PRIVATE LABEL,
L.P., WHOLE FOODS MARKET CALIFORNIA, INC., 14 WHOLE FOODS MARKET
SERVICES, INC., and WHOLE FOODS MARKET 15 DISTRIBUTION, INC., Case
No. 3:17-cv-06584-LB (N.D. Cal.), the Hon. Judge Laurel Beeler
entered an order granting the parties' revised case schedule as
follows:
Case Event Filing Date/Disclosure
Date/HearingDate
-- ADR Completion Date TBD
-- Completion of depositions April 15, 2022
of previously noticed witnesses:
-- Class Certification opening May 13, 2022
expert reports:
-- Class Certification rebuttal June 13, 2022
expert reports:
-- Class Certification expert July 1, 2022
depositions:
-- Motions for class certification: July 15, 2022
-- Oppositions to motions for class August 12, 2022
certification:
-- Replies to motions for class September 9, 2022
certification:
-- Hearing date for motions for September 29, 2022
class certification and/or
further case-management conference:
-- Further case-management conference: November 17, 2022
-- Last hearing date for dispositive February 16, 2023
motions and/or further
case-management conference:
-- Final Pretrial Conference: May 11, 2023
-- Jury Selection: May 22, 2023
A copy of the Court's order dated Jan. 31, 2021 is available from
PacerMonitor.com at https://bit.ly/32OKxNF at no extra charge.[CC]
WONOLO INC: Redd Suit Removed to N.D. Illinois
----------------------------------------------
Cynthia Redd, individually and on behalf of all others similarly
situated v. WONOLO, INC., Case No. 2021-CH-06120 was removed from
the Illinois Circuit Court of Cook County to the United States
District Court for the Northern District of Illinois on Jan. 18,
2022, and assigned Case No. 1:22-cv-00292.
The Plaintiff alleges that Wonolo violated the Illinois Biometric
Information Privacy Act. The Plaintiff alleges that Defendant
violated her rights and the rights of the Class under BIPA by:
failing to institute, maintain, and adhere to a publicly-available
retention schedule, in violation of BIPA; failing to obtain
informed written consent and release before obtaining biometric
identifiers or information, in violation of the BIPA; and failing
to obtain consent before disclosing biometric identifiers and
information, in violation of.[BN]
The Defendant is represented by:
Kwabena A. Appenteng, Esq.
Jennifer L. Jones, Esq.
LITTLER MENDELSON, P.C.
321 North Clark Street, Suite 1100
Chicago, IL 60654
Phone: (312) 372-5520
Email: kappenteng@littler.com
jeljones@littler.com
- and -
Patricia J. Martin, Esq.
LITTLER MENDELSON, P.C.
600 Washington Avenue, Suite 900
St. Louis, Missouri 63101
Phone: (314) 659-2000
Email: pmartin@littler.com
ZYNEX MEDICAL: Progressive Files "Placeholder" Class Cert. Bid
--------------------------------------------------------------
In the class action lawsuit captioned as PROGRESSIVE HEALTH AND
REHAB CORP., an Ohio corporation, individually and as the
representative of a class of similarly-situated persons, v. ZYNEX
MEDICAL, INC., a Colorado corporation, and ZYNEX, INC., a Nevada
corporation, Case No. 1:22-cv-00261-KLM (D. Colo.), the Plaintiff
files "placeholder" motion for class certification and request for
status conference.
The Plaintiff submits its motion for class Certification pursuant
to Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011)
(holding plaintiffs "can move to certify the class at the same time
that they file their complaint" and "[t]he pendency of that motion
protects a putative class from attempts to buy off the named
plaintiffs"), overruled in part by Chapman v. First Index, Inc.,
796 F.3d 783, 787 (7th Cir. 2015) (overruling Damasco "to the
extent [it] hold[s] that a defendant's offer of full compensation
moots the litigation or otherwise ends the Article III case or
controversy" but not commenting on effect of a "placeholder" motion
if plaintiff's individual claim becomes moot for some other
reason); Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (Jan. 20,
2016) (holding "an unaccepted settlement offer or offer of judgment
does not moot a plaintiff's case," and "a would-be class
representative with a live claim of her own must be accorded a fair
opportunity to show that certification is warranted").
The Plaintiff proposes the following class definition:
"All persons who (1) on or after four years prior to the
filing of this action, (2) were sent telephone facsimile
messages of material advertising the commercial availability
or quality of any property, goods, or services by or on
behalf of the Defendants, (3) from whom the Defendants did
not obtain "prior express invitation or permission" to send
fax advertisements, or (4) with whom Defendants did not have
an established business relationship, or (5) where the fax
advertisements did not include an opt-out notice compliant
with 47 C.F.R. section 64.1200(a)(4)(iii)."
The Defendants sent the Plaintiff and others a standardized form
advertisement. The Plaintiff anticipates that the proposed class
definition will change after discovery defines the precise contours
of the class and the advertisements that were sent. The Plaintiff
requests leave to submit a brief and other evidence in support of
this motion after discovery about the class elements has been
completed.
The proposed class meets the requirements of Rules 23(a), (b)(3)
and (g). The Plaintiff requests that the Court certify the class,
appoint Plaintiff as the class representative, and appoint
Plaintiff's attorneys as class counsel.
Progressive Health is a multi-disciplinary health care practice
specializing in Chiropractic Care and Physical Therapy.
Zynex is a medical device manufacturer that produces and markets
electrotherapy devices for use in pain management, physical
rehabilitation, neurological diagnosis and cardiac monitoring.
A copy of the Plaintiff's motion dated Jan. 31, 2021 is available
from PacerMonitor.com at https://bit.ly/3s7M9uG at no extra
charge.[CC]
The Plaintiff is represented by:
Ryan M. Kelly, Esq.
ANDERSON + WANCA
3701 Algonquin Road, Suite 500
Rolling Meadows, IL 60008
Telephone: (847) 368-1500
Facsimile: (847) 368-1501
E-mail: rkelly@andersonwanca.com
- and -
Max G. Margulis, Esq.
MARGULIS LAW GROUP
Old Belle Monte Road
Chesterfield, MO 63017
Telephone: (636) 536-7022
E-mail: MaxMargulis@MargulisLaw.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
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Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2022. All rights reserved. ISSN 1525-2272.
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