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C L A S S A C T I O N R E P O R T E R
Monday, July 10, 2023, Vol. 25, No. 137
Headlines
3M COMPANY: Coulter Sues Over Exposure to Toxic Chemicals & Foams
3M COMPANY: Hall Sues Over Exposure to Toxic Film-Forming Foams
3M COMPANY: Hamilton Sues Over Exposure to Toxic Film-Forming Foams
3M COMPANY: Harrison Suit Removed to N.D. Alabama
3M COMPANY: Henrikson Sues Over Exposure to Toxic Aqueous Foams
3M COMPANY: Hockersmith Sues Over Exposure to Toxic Foams
3M COMPANY: Larossa Sues Over Exposure to Toxic Film-Forming Foams
3M COMPANY: Macdonald Sues Over Exposure to Toxic Film-Forming Foam
3M COMPANY: McGhee Sues Over Exposure to Toxic Chemicals & Foams
3M COMPANY: Off Sues Over Exposure to Toxic Chemicals & Foams
ADIDAS AMERICA: Herrera ADA Suit Removed to D. New Jersey
ADT PIZZA: Fails to Properly Pay Delivery Drivers, Hannon Alleges
ALEJANDRO MAYORKAS: Suit Seeks to Certify Class of Visa Applicants
ALIERA COMPANIES: Class Settlement in Duncan Gets Initial Nod
ALLEN UNIVERSITY: Bishop Files ADA Suit in S.D. New York
ALLSTATE LIFE: Class Certification Hearing Continued to August 16
ALLSTATE PROPERTY: Filing for Class Certification Bid Due Nov. 7
AMAZON.COM INC: Class Action Suit Over Unpaid Wages Pending
AMAZON.COM SERVICES: Stout Suit Removed to C.D. California
AMERICAN FAMILY: Court Tosses Bid to Amend Briefing Schedule
AMERICAN NATIONAL: Steen Bid to Certify Class Denied w/o Prejudice
APPLE INC: Barrett Suit Seeks to Certify Class & Subclasses
ARIZONA BEVERAGES: Court Narrows Claims in Iglesias Class Suit
ASHLAND UNIVERSITY: Bishop Files ADA Suit in S.D. New York
ASHLEY GLOBAL RETAIL: Hernandez Suit Removed to C.D. California
AUTOZONERS LLC: Rodriguez Suit Removed to C.D. California
BACUS FOODS: Seeks to Defer Ruling on Conditional Certification Bid
BIG CITY: Pineda Suit Seeks to Certify Rule 23 Class
BITFINEX: Filing of Class Certification Bid Due Nov. 20
BLUEGREEN VACATIONS: Seeks to File Class Cert Brief Supplement
BOWL AMERICA: Zucker Class Cert Bid Partly OK'd
BREVILLE USA: Faces Key Suit Over Oven's Undisclosed Defect
BRIGHT HORIZON: Filing for Class Certification Bid Due Sept. 7
BUTTERBALL LLC: Protective Order Bid in Figueroa Granted in Part
CAKE 5332: Filing for Conditional Certification Bid Due Oct. 27
CALIFORNIA: Davis v. Rettig Dismissed Without Leave to Amend
CALIFORNIA: Denial of Judicial Notice in People Suit Partly Upheld
CANADA: Fire Dep.'t Settles Sexual Harassment Suit for $285,000
CENLAR FSB: Court Junks Initial Class Settlement Bid in Kamrava
CHARLES BAKER: Defendants Must Oppose Class Cert. Bid by Sept. 28
CHRISTOPHER SUNUNU: Seeks Leave to File Memorandum Under Seal
CITADEL SERVICING: Class Cert Bid Deadline Modified to August 7
CLASSIC VACATIONS: Balabanoff Complaint Dismissed Without Prejudice
COINBASE INC: Refusal to Stay Bielski Suit Pending Appeal Flipped
COLGATE-PALMOLIVE CO: Court Narrows Claims in Schneider Class Suit
COMMUNITY HEALTH SYSTEMS: Ross Files Suit in E.D. Pennsylvania
CONTAINER STORE: Hernandez Suit Removed to C.D. California
DIVYAS KITCHEN: Black Files ADA Suit in E.D. New York
DNC PARKS: Class Cert. Hearing in Perez Suit Reset to August 16
EMORY UNIVERSITY: Schultz Class Certification Bid Partly OK'd
ENZO BIOCHEM: Mortensen Alleges Unauthorized Patients' Info Access
ERIE INSURANCE: Foringer Suit Removed to E.D. Pennsylvania
FIBROGEN INC: Reply to Bid for Spoliation Sanctions Due July 17
FIRST SOLAR: Court Tosses Palm Harbor's 2nd Amended Securities Suit
FRESENIUS MEDICAL: Underpays Registered Nurses, Laughlin Claims
GEORGIA STATE BOARD: Cunningham Files Suit in N.D. Georgia
GLOBE LIFE: Sends Unsolicited Marketing Calls, Slominski Claims
GOOGLE LLC: Faces Class Suit Over Invasion of Children's Privacy
HITRONS TECH INC: Delacruz Files ADA Suit in S.D. New York
INTERCONTINENTAL TERMINALS: Bryant's Bid to Certify Class Denied
J. M. SMUCKER: Nupp Sues Over Ground Coffee's Deceptive Labels
JACKSON COUNTY, KS: Faces Class Action Over Property Assessment
KALITTA AIR: Bid for Summary Judgment in Odell Suit Granted in Part
KELLY SERVICES: Can Compel Arbitration; Bazine Class Suit Stayed
L & L PRODUCTION: Lopez Sues Over Unpaid Minimum, Overtime Wages
LEBOS SHOE STORE: Alexandria Files ADA Suit in S.D. New York
LIFESTANCE HEALTH: McAfee Suit Seeks Unpaid Wages for Clinicians
LIOX CLEANERS INC: Morgan Files ADA Suit in S.D. New York
LITTLE CAESAR: Cuevas Suit Removed to N.D. California
LOS ANGELES HOUSING AUTHORITY: Azar Suit Removed to C.D. California
LOUISIANA: Little v. Parish Correctional Remanded for Dismissal
MANAGED CARE: Sheppard Files Suit in S.D. Florida
MARIN COUNTY FEDERAL: Johnson Files Suit in Cal. Super. Ct.
MDL 2925: Bid to Dismiss EPIC's Fuel Surcharge Antitrust Suit Nixed
METALTEK INT'L: Class Settlement in Herman Suit Wins Prelim. Nod
MINNEAPOLIS RAG STOCK: Hobbs Files ADA Suit in S.D. New York
NATIONS ROOF WEST: Pelayo Suit Removed to E.D. California
NEW JERSEY: Bid to Dismiss Jackson Complaint v. NJDOC Granted
RENTERS WAREHOUSE: Withholds Tenants' Security Deposit, Hansen Says
SAN DIEGO, CA: Order Sustaining Demurrer to Sanchez Suit Affirmed
SCWORX CORP: Court Dismisses Leeburn & Leonard Suits With Prejudice
SIRIUS XM: Faces Class Action Over "Deceptive Pricing Scheme"
STATE FARM: Bid to Dismiss 10 Plaintiffs From Williams Suit Granted
SYNERGY STEEL: Ramirez Suit Seeks Unpaid Overtime Wages for Workers
TECHNOLOGY CREDIT: Court Refuses to Amend Dismissal of Davis Suit
TRIDENT MARITIME: Williams Suit Removed to S.D. California
UNITED STATES: Summary Judgment Bid in Allen Suit Granted in Part
VANTAGE DELUXE: Couple Joins Class Action After Trip Canceled
VIO FRANCHISE: Weitz Sues Over Unwanted Texts to Promote Services
VIRGINIA: Bid to Compel Production of Docs in Thorpe v. DOC Denied
WHITWORTH UNIVERSITY: Fails to Protect Patients' Info, Loyola Says
*********
3M COMPANY: Coulter Sues Over Exposure to Toxic Chemicals & Foams
-----------------------------------------------------------------
Joshua Allen Coulter, and other similarly situated v. 3M COMPANY
(f/k/a Minnesota Mining and Manufacturing Company); AGC CHEMICALS
AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA,
INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION;
CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.;
CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA,
INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a
DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND
COMPANY; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM,
INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTSLP, as
successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Case No. 2:23-cv-02993-RMG (D.S.C., June 23,
2023), 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.
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 remain
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 during the Plaintiff's working career in the
military and/or as a civilian and was diagnosed with thyroid 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:
Douglass A. Kreis, Esq.
Bryan F. Aylstock, Esq.
Justin G. Witkin, Esq.
AYLSTOCK, WITKIN, KREIS & OVERHOLTZ, PLLC
17 East Main Street, Suite 200
Pensacola, FL 32502
Phone: (850) 202-1010
Email: dkreis@awkolaw.com
baylstock@awkolaw.com
jwitkin@awkolaw.com
3M COMPANY: Hall Sues Over Exposure to Toxic Film-Forming Foams
---------------------------------------------------------------
Daniel Hall, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS
INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE
FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN
PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY
FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE PLC;
NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS
COMPANY; TYCO FIRE PRODUCTS LP, as successor-in-interest to The
Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY
AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.), Case No.
2:23-cv-02780-RMG (D.S.C., June 16, 2023), 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.
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 remain
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
colorectal 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
3M COMPANY: Hamilton Sues Over Exposure to Toxic Film-Forming Foams
-------------------------------------------------------------------
Scott Hamilton, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS
INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE
FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN
PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY
FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE PLC;
NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS
COMPANY; TYCO FIRE PRODUCTSLP, as successor-in-interest to The
Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY
AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.), Case No.
2:23-cv-02675-RMG (D.S.C., June 14, 2023), 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.
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 remain
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 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:
Douglass A. Kreis, Esq.
Bryan F. Aylstock, Esq.
Justin G. Witkin, Esq.
AYLSTOCK, WITKIN, KREIS & OVERHOLTZ, PLLC
17 East Main Street, Suite 200
Pensacola, FL 32502
Phone: (850) 202-1010
Email: dkreis@awkolaw.com
baylstock@awkolaw.com
jwitkin@awkolaw.com
3M COMPANY: Harrison Suit Removed to N.D. Alabama
-------------------------------------------------
The case captioned as Billy Harrison, Jr., et al. v. 3M COMPANY, et
al., Case No. 01-CV-2023-901658.00 was removed from the Circuit
Court for the Tenth Judicial Circuit, Jefferson County, Alabama, to
the United States District Court for the Northern District of
Alabama on June 21, 2023, and assigned Case No. 2:23-cv-00800-NAD.
The Plaintiffs generally allege that certain Defendants, including
3M, have designed, manufactured, marketed, distributed, and/or sold
AFFF products and/or fluorinated surfactants used therein, which
contain PFAS, including PFOS, PFOA, and/or their precursors, and
allege that other Defendants have designed, manufactured, marketed,
distributed, and/or sold TOG products and/or fluorinated
surfactants used therein, which contain PFAS, including PFOS, PFOA,
and/or their precursors. Each of the Plaintiffs expressly alleges
that he "regularly used, and was thereby directly exposed to, AFFF
and TOG in training and to extinguish fires during his working
career as a military and/or civilian firefighter" and suffered
injury "as a result of exposure to Defendants' AFFF or TOG
products."[BN]
The Plaintiff is represented by:
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
The Defendant is represented by:
M. Christian King
Harlan I. Prater, IV
W. Larkin Radney, IV
Wesley B. Gilchrist
LIGHTFOOT, FRANKLIN & WHITE, L.L.C.
The Clark Building
400 North 20th Street
Birmingham, AL 35203-3200
Phone: (205) 581-0700
Email: cking@lightfootlaw.com
hprater@lightfootlaw.com
lradney@lightfootlaw.com
wgilchrist@lightfootlaw.com
3M COMPANY: Henrikson Sues Over Exposure to Toxic Aqueous Foams
---------------------------------------------------------------
Lawrence Rudolph Henrikson, and other similarly situated v. 3M
COMPANY (f/k/a Minnesota Mining and Manufacturing Company); AGC
CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.;
ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL
CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS,
INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.;
CORTEVA, INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC.
(f/k/a DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS
AND COMPANY; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL
FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTSLP, as
successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Case No. 2:23-cv-02676-RMG (D.S.C., June 14,
2023), 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.
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 remain
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 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:
Douglass A. Kreis, Esq.
Bryan F. Aylstock, Esq.
Justin G. Witkin, Esq.
AYLSTOCK, WITKIN, KREIS & OVERHOLTZ, PLLC
17 East Main Street, Suite 200
Pensacola, FL 32502
Phone: (850) 202-1010
Email: dkreis@awkolaw.com
baylstock@awkolaw.com
jwitkin@awkolaw.com
3M COMPANY: Hockersmith Sues Over Exposure to Toxic Foams
---------------------------------------------------------
Brad Alan Hockersmith, and other similarly situated v. 3M COMPANY
(f/k/a Minnesota Mining and Manufacturing Company); AGC CHEMICALS
AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA,
INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION;
CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.;
CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA,
INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a
DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND
COMPANY; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM,
INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTSLP, as
successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Case No. 2:23-cv-02677-RMG (D.S.C., June 14,
2023), 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.
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 remain
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 testicular 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:
Douglass A. Kreis, Esq.
Bryan F. Aylstock, Esq.
Justin G. Witkin, Esq.
AYLSTOCK, WITKIN, KREIS & OVERHOLTZ, PLLC
17 East Main Street, Suite 200
Pensacola, FL 32502
Phone: (850) 202-1010
Email: dkreis@awkolaw.com
baylstock@awkolaw.com
jwitkin@awkolaw.com
3M COMPANY: Larossa Sues Over Exposure to Toxic Film-Forming Foams
------------------------------------------------------------------
Jason M. Larossa, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS
INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE
FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN
PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY
FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE PLC;
NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS
COMPANY; TYCO FIRE PRODUCTSLP, as successor-in-interest to The
Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY
AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.), Case No.
2:23-cv-03031-RMG (D.S.C., June 26, 2023), 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.
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 remain
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 during the Plaintiff's working career in the
military and/or as a civilian and was diagnosed with hypothyroidism
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:
Douglass A. Kreis, Esq.
Bryan F. Aylstock, Esq.
Justin G. Witkin, Esq.
AYLSTOCK, WITKIN, KREIS & OVERHOLTZ, PLLC
17 East Main Street, Suite 200
Pensacola, FL 32502
Phone: (850) 202-1010
Email: dkreis@awkolaw.com
baylstock@awkolaw.com
jwitkin@awkolaw.com
3M COMPANY: Macdonald Sues Over Exposure to Toxic Film-Forming Foam
-------------------------------------------------------------------
Frank Michael Macdonald, and other similarly situated v. 3M COMPANY
(f/k/a Minnesota Mining and Manufacturing Company); AGC CHEMICALS
AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA,
INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION;
CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.;
CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA,
INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a
DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND
COMPANY; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM,
INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTSLP, as
successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Case No. 2:23-cv-02995-RMG (D.S.C., June 23,
2023), 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.
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 remain
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 during the Plaintiff's working career in the
military and/or as a civilian and was diagnosed with
hypothyroidism, and thyroid 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:
Douglass A. Kreis, Esq.
Bryan F. Aylstock, Esq.
Justin G. Witkin, Esq.
AYLSTOCK, WITKIN, KREIS & OVERHOLTZ, PLLC
17 East Main Street, Suite 200
Pensacola, FL 32502
Phone: (850) 202-1010
Email: dkreis@awkolaw.com
baylstock@awkolaw.com
jwitkin@awkolaw.com
3M COMPANY: McGhee Sues Over Exposure to Toxic Chemicals & Foams
----------------------------------------------------------------
James Wallace McGhee, and other similarly situated v. 3M COMPANY
(f/k/a Minnesota Mining and Manufacturing Company); AGC CHEMICALS
AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA,
INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION;
CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.;
CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA,
INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a
DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND
COMPANY; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM,
INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTSLP, as
successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Case No. 2:23-cv-02986-RMG (D.S.C., June 23,
2023), 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.
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 remain
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 during the Plaintiff's working career in the
military and/or as a civilian and was diagnosed with hypothyroidism
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:
Douglass A. Kreis, Esq.
Bryan F. Aylstock, Esq.
Justin G. Witkin, Esq.
AYLSTOCK, WITKIN, KREIS & OVERHOLTZ, PLLC
17 East Main Street, Suite 200
Pensacola, FL 32502
Phone: (850) 202-1010
Email: dkreis@awkolaw.com
baylstock@awkolaw.com
jwitkin@awkolaw.com
3M COMPANY: Off Sues Over Exposure to Toxic Chemicals & Foams
-------------------------------------------------------------
Ted Allen Off, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS
INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE
FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN
PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY
FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE PLC;
NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS
COMPANY; TYCO FIRE PRODUCTSLP, as successor-in-interest to The
Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY
AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.), Case No.
2:23-cv-03035-RMG (D.S.C., June 26, 2023), 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.
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 remain
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 during the Plaintiff's working career in the
military and/or as a civilian and 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:
Douglass A. Kreis, Esq.
Bryan F. Aylstock, Esq.
Justin G. Witkin, Esq.
AYLSTOCK, WITKIN, KREIS & OVERHOLTZ, PLLC
17 East Main Street, Suite 200
Pensacola, FL 32502
Phone: (850) 202-1010
Email: dkreis@awkolaw.com
baylstock@awkolaw.com
jwitkin@awkolaw.com
ADIDAS AMERICA: Herrera ADA Suit Removed to D. New Jersey
---------------------------------------------------------
The case styled as Carlos Herrera, on behalf of himself and all
others similarly situated v. Adidas America, Inc., Case No. HUD L
001806 23 was removed from the Superior Court of Hudson County, New
Jersey, to the U.S. District Court for the District of New Jersey
on June 23, 2023.
The District Court Clerk assigned Case No. 2:23-cv-03427 to the
proceeding.
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Adidas America Inc. -- https://www.adidas-group.com/en/ -- designs
and markets apparel products. The Company provides shoes, apparel,
and accessories for men, women, boys, girls, and infants and
toddlers, as well as offers sports collections including
basketball, football, and training shoes.[BN]
The Plaintiff appears pro se.
The Defendants is represented by:
Sean J. Kirby, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON LLP
30 Rockefeller Plaza, Suite 2400
New York, NY 10112
Phone: (212) 634-3023
Email: skirby@sheppardmullin.com
ADT PIZZA: Fails to Properly Pay Delivery Drivers, Hannon Alleges
-----------------------------------------------------------------
MONIQUE HANNON, individually and on behalf of all others similarly
situated, Plaintiff v. ADT PIZZA LLC, ADT MANAGEMENT LLC, ADAM
DIAMOND, DAVID TETENS, JOHN DOE 1–10, DOE CORPORATION 1–10,
Defendants, Case No. 2:23-cv-02020-ALM-CMV (S.D. Ohio, June 22,
2023) is a class action against the Defendants for unjust
enrichment and for failure to pay minimum wages and overtime wages
and untimely payment of wages in violation of the Fair Labor
Standards Act and the Ohio Constitution.
The Plaintiff worked as a pizza delivery driver at the Defendants'
Pizza Hut stores from December 2020 through March 2021.
ADT Pizza LLC is an owner and operator of Pizza Hut franchise
stores, with its principal place of business in Connecticut.
ADT Management LLC is an owner and operator of Pizza Hut franchise
stores in Ohio. [BN]
The Plaintiff is represented by:
Andrew P. Kimble, Esq.
Andrew R. Biller, Esq.
BILLER & KIMBLE, LLC
8044 Montgomery Rd., Ste. 515
Cincinnati, OH 45236
Telephone: (513) 715-8711
Facsimile: (614) 340-4620
E-mail: akimble@billerkimble.com
abiller@billerkimble.com
ALEJANDRO MAYORKAS: Suit Seeks to Certify Class of Visa Applicants
------------------------------------------------------------------
In the class action lawsuit captioned as FARANGIS EMAMI, et al., v.
ALEJANDRO MAYORKAS, et al., Case No. 3:18-cv-01587-JD (N.D. Cal.),
the Plaintiffs ask the Court to enter an order certifying a class
defined as follows:
"All applicants for visas who are nationals of Iran, Libya,
North
Korea, Somalia, Syria, Venezuela, and Yemen who
(1) were refused visas under INA 212(f) pursuant to Proclamation
9645 between December 8, 2017, and January 20, 2021;
(2) did not obtain a waiver of that refusal; and (3) have not
subsequently obtained a visa."
As raised at the February 9, 2023, and May 25, 2023, hearings, the
Plaintiffs move pursuant to Rule 23 to certify a class of the
individuals denied visas pursuant to Proclamation 9645, the Muslim
Ban ("the Proclamation" or "the Ban") who have still not obtained
their visas despite the Proclamation's rescission.
Class certification is necessary to address the ongoing and
pernicious effects of the Ban, which continue for many of the tens
of thousands of people denied visas under it.
Class certification is also necessary to remdiate the Defendants'
conduct and afford the victims of the Ban a fair measure of relief.
The need for this relief is clear: on January 20, 2021, some 29
months ago and on his first day in office, President Biden
rescinded the Muslim Ban, calling it "a stain on our national
conscience."
A copy of the Plaintiffs' motion dated June 15, 2023 is available
from PacerMonitor.com at https://bit.ly/44aZlAm at no extra
charge.[CC]
The Plaintiffs are represented by:
Chris Godshall-Bennett, Esq.
MUSLIM ADVOCATES
Washington, DC 20043
Telephone: (202) 897-1892
Facsimile: (202) 508-1007
E-mail: christopher@muslimadvocates.org
- and -
Shabnam Lotfi, Esq.
Veronica Sustic, Esq.
LOTFI LEGAL, LLC
Madison, WI 53701
Telephone: (608) 259-6226
Facsimile: (608) 646-4654
E-mail: shabnam@lotfilegal.com
veronica@lotfilegal.com
- and -
Eric B. Evans, Esq.
PERKINS COIE LLP
3150 Porter Drive
Palo Alto, CA 94304-1212
Telephone: (650) 838-4300
Facsimile: (650) 838-4350
E-mail: EEvans@perkinscoie.com
- and -
Glenn Katon, Esq.
Hammad A. Alam, Esq.
ASIAN AMERICANS ADVANCING
JUSTICE-ASIAN LAW CAUCUS
55 Columbus Ave.
San Francisco, CA 94111
Telephone: (415) 848-7711
E-mail: glennk@advancingjustice-alc.org
hammada@glennk@advancingjustice-alc.org
- and -
Max S. Wolson, Esq.
Joshua Stehlik, Esq.
NATIONAL IMMIGRATION LAW
CENTER
Washington, DC 20043
Telephone: (202) 216-0261
Facsimile: (202) 216-0266
E-mail: wolson@nilc.org
- and -
John A. Freedman, Esq.
Daniel B. Asimow, Esq.
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001-3743
Telephone: (202) 942-5316
Facsimile: (202-942-5999
E-mail: john.freedman@arnoldporter.com
daniel.asimow@arnoldporter.com
- and -
Zahra A. Billoo, Esq.
Brittney Rezaei, Esq.
COUNCIL ON AMERICAN-ISLAMIC
RELATIONS, CALIFORNIA
3160 De La Cruz Blvd., Suite 110
Santa Clara, CA 95054
Telephone: (408) 986-9874
E-mail: zbilloo@cair.com
brezaei@cair.com
- and -
Babak G. Yousefzadeh, Esq.
IRANIAN AMERICAN BAR
ASSOCIATION
5185 MacArthur Blvd. NW, Suite 624
Washington, DC 20016
Telephone: (415) 774-3191
E-mail: president@iaba.us
ALIERA COMPANIES: Class Settlement in Duncan Gets Initial Nod
-------------------------------------------------------------
In the class action lawsuit captioned as CORYLN DUNCAN and BRUCE
DUNCAN, v. THE ALIERA COMPANIES, INC., et al., Case No.
2:20-cv-00867-TLN-KJN (E.D. Cal.), the Hon. Judge Troy L. Nunley
entered an order granting the Plaintiffs' Motion for certification
of settlement class preliminary approval of class action
settlement:
In connection with considering approval of the class settlement,
the Court further finds that the following proposed Settlement
Class meets the requirements for class certification under Federal
Rule of Civil Procedure 23(b)(3):
"All individuals who purchased a plan from both Aliera
Healthcare,
Inc. and Unity Healthshare LLC at any time on or before August
10,
2018."
The claims to be resolved class-wide for the Settlement Class are
the Settlement Class Released Claims, as defined in the Agreement.
The Court appoints the following the Plaintiffs identified in the
Second Amended Complaint as Class representatives: Corlyn and Bruce
Duncan, Rebecca White, Ellen Larson, Jaime and Jared Beard, Hanna
Albina and Austin Willard.
The Court concludes that each are adequate representatives of the
proposed settlement class.
Pursuant to Federal Rule of Civil Procedure 23(g), the Court
appoints Sirianni Youtz Spoonemore Hamburger, PLLC; Feinberg,
Jackson, Worthman and Wasow, LLP; Handley Farah & Anderson, PLLC;
Myers & Co., PLLC; Mehri & Skalet, PLLC; Garmer & Prather, PLLC;
and Varellas & Varellas PLLC as Class Counsel for the Settlement
Class.
BMC Group Inc. is appointed to serve as the Settlement
Administrator and is authorized to receive protected health
information and therwise confidential information, including claims
information, from OneShare, Aliera or other third parties in order
to effectuate the class notice and claims process, to email and
mail the approved Notice to Settlement Class members and further
administer the settlement in accordance with the Agreement and this
Order.
The Defendants OneShare and Aliera and/or their affiliates are
ordered to provide any HIPAAprotected health information required
by BMC to effectuate class notice and the claims process.
The Court finds that the provisions for notice to the Settlement
Class set forth in the Agreement and its exhibits satisfy the
requirements of due process and Federal Rule of Civil Procedure 23
and will provide the best notice practicable under the
circumstances, including individual notice to all members who can
be identified through reasonable effort
The Court will hold a hearing on entry of final approval of the
settlement, an award of fees and expenses to Class Counsel, and
service awards to the Class Representatives at 2:00 p.m., January
11, 2024, in Courtroom 2, at the Robert T. Matsui United States
Courthouse, 501 I Street, Sacramento, CA 95814.
A copy of the Court's order dated June 15, 2023, is available from
PacerMonitor.com at https://bit.ly/44gqhyE at no extra charge.[CC]
ALLEN UNIVERSITY: Bishop Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Allen University. The
case is styled as Cedric Bishop, on behalf of himself and all other
persons similarly situated v. Allen University, Case No.
1:23-cv-05373 (S.D.N.Y., June 23, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Allen University -- https://allenuniversity.edu/ -- is a private
historically black university in Columbia, South Carolina.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: nyjg@aol.com
michael@gottlieb.legal
ALLSTATE LIFE: Class Certification Hearing Continued to August 16
-----------------------------------------------------------------
In the class action lawsuit captioned as SUSAN L. HOLLAND-HEWITT,
v. ALLSTATE LIFE INSURANCE COMPANY, Case No. 1:20-cv-00652-ADA-SAB
(E.D. Cal.), the Hon. Judge Stanley A. Boone entered an order
continuing hearing on the Plaintiff's motion for class
certification.
The Plaintiff's motion for class certification was initially heard
on March 22, 2023, and is currently set for a second hearing on
June 21, 2023.
Accordingly, pursuant to the parties' stipulation, the Court
ordered that the hearing on the plaintiff's motion for class
certification is continued from June 21, 2023, to August 16, 2023.
Allstate Life offers a full range of life insurance products.
A copy of the Court's order dated June 16, 2023, is available from
PacerMonitor.com at https://bit.ly/3r67xn9 at no extra charge.[CC]
ALLSTATE PROPERTY: Filing for Class Certification Bid Due Nov. 7
----------------------------------------------------------------
In the class action lawsuit captioned as PAGGIWA CUMMINGS v.
ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Case No.
3:22-cv-00247-JWD-EWD (M.D. La.), the Hon. Judge Erin Wilder-Doomes
entered an order
amended limited scheduling order.
1. The deadline to join other parties or to file a motion for
leave
to amend the pleadings is expired. Regardless of whether
leave
is timely under this provision, a party seeking to amend must
comply with the requirements of Fed. R. Civ. Proc.
2. Discovery must be completed as follows:
a. Exchanging initial disclosures required by F.R.C.P.
26(a)(1):
expired.
b. Filing all discovery motions and completing all discovery
except experts: August 14, 2023
c. Disclosure of identities and resumes of experts. Experts
relevant to class certification are governed by this
order;
any further experts will be addressed after a ruling on
class
certification:
the Plaintiff(s): Expired
the Defendant(s): Expired
d. Expert reports must be submitted to opposing parties as
follows:
the Plaintiff(s): July 31, 2023
the Defendant(s): October 2, 2023
Rebuttal experts: November 6, 2023
e. Discovery from experts must be completed by December 7,
2023.
3. Filing of Motion for Class Certification: November 7, 2023
Response to Motion for Class Certification: December 7, 2023
Reply in Support of Motion for Class Certification: January 8,
2024
4. Deadline to file dispositive motions and Daubert motions:
February 12, 2024
A copy of the Court's order dated June 14, 2023 is available from
PacerMonitor.com at https://bit.ly/3NtMIJL at no extra charge.[CC]
AMAZON.COM INC: Class Action Suit Over Unpaid Wages Pending
-----------------------------------------------------------
Lauren Magarino and Emily Sen, writing for WMAR, report that the
labor force continues to evolve as freelance and part-time work
popularity is on the rise, with just over a third of us workers now
partaking in one of the two.
But it's not just a means to an end for those out of work. Many
workers are gladly leaving full-time jobs for part-time or gig
work.
Government data released in early June shows 21.8 million Americans
work part-time for non-economic reasons—in other words, by
choice. The number of people working part-time for economic reasons
has declined over the past year. That rise of freelance work isn't
new to the pandemic; a survey from UpWork and the Freelancers Union
shows a trend upward over the past decade.
"We as a society have come to depend on these acts. And, you know,
to have a labor pool that's available on demand to get us groceries
or packages, and things like that. So really, this gig work is here
to stay," said Lindsey Cameron, Assistant Professor of Management
at the Wharton School of the University of Pennsylvania. "But I
think the bigger thing to think about is that these companies are
predicated on having their workforce be independent contractors
because they're on-demand companies, because you can access the
labor on demand whenever you want to. It's much harder to have that
for employees because then you're having to pay for all the unpaid
waiting time."
The strong labor market has enabled workers to pursue more flexible
work schedules and lifestyles. After employers added more jobs for
the spring, the Labor Department reported there were nearly two
openings for every worker seeking a job. Megan Bryant works
part-time in addition to teaching as a host for SudShare, an online
service that connects households with gig workers able to take on
laundry needs. The flexibility of part-time or freelance work has a
huge appeal. "This is where it's at. Nobody wants to go sit and do
an office job, and you know that there's no flexibility. This works
around my own schedule," Bryant told Scripps News.
But historically, there have been concerns about the overall
security of gig economy jobs, namely fair pay and a lack of
benefits like healthcare. As Cameron explained, "It's roughly about
a 30 to 40% increase to have someone as an employee as opposed to
an independent contractor, because an employee here in the States
gets a lot of additional protection, and unemployment insurance,
worker's comp, access to health insurance."
Some independent contractors may have a more complicated tax system
as well, paying an estimated quarterly tax on their income rather
than once a year. This confusion can lead to reporting mistakes.
And because taxes are not automatically withheld from paychecks, as
they would be for full-time employees, the salaries might look
higher at first glance than they actually are. Employers like
Amazon Flex andInstacart have been hit with class action lawsuits
for withholding pay or a lack of pay transparency.
In 2022, the city of Washington, D.C., sued the delivery service
Shipt for allegedly misclassifying their employees as freelance
contractors. This would allow the company to avoid paying benefits,
to shift basic costs to the workers, and to avoid paying the
minimum wage.
But there has been some momentum for legislation to protect
workers. The Freelancers Union helped pass laws in these cities
that allow freelancers to reach out to their municipality for help
if they're not getting paid on time. This year, New Jersey and
Illinois passed laws making it easier for temporary workers to
speak up about dangerous working conditions.
"I often feel like some of this legislative action we're having
around these types of workers are revisiting policies that were put
in place during the New Deal in the thirties," Cameron noted. "I
think unfairly people often call these laws like Prop 22, AB-5 the
Uber laws, but they're not Uber laws. I mean, they're just much
bigger legal conversations about where employee protections should
lie and what does control looks like and affects a much bigger
swath of workers than just folks who are using their phone, you
know, to access a job."
Americans' relationship with the nine-to-five is changing, and
that's only accelerated with the pandemic and rise of remote work.
There are pros and cons to part-time jobs or freelance gigs, but
above all, it's clear that the gig economy as we know it is here to
stay. [GN]
AMAZON.COM SERVICES: Stout Suit Removed to C.D. California
----------------------------------------------------------
The case captioned as Keith Stout, as an individual and on behalf
of all employees similarly situated v. AMAZON.COM SERVICES LLC, a
Delaware limited Liability Company; and DOES 1 through 50,
inclusive, Case No. CIVSB2309743 was removed from the San
Bernardino County Superior Court, State of California, to the
United States District Court for the Central District of California
on June 23, 2023, and assigned Case No. 5:23-cv-01216.
In his Complaint, Plaintiff alleges eight causes of action against
Amazon: Failure to Pay All Wages for All Hours Worked; Failure to
Provide Meal Periods or Compensation in Lieu Thereof; Failure to
Provide Rest Periods or Compensation in Lieu Thereof; Failure to
Provide Accurate Itemized Wage Statements; Failure to Pay Wages
Upon Termination of Employment; Failure to Reimburse for Necessary
Business Expenditures; Failure to Provide Employees with Warehouse
Quotas and Work Speed Data; and Unfair Business Practices.[BN]
The Defendant is represented by:
Megan Cooney, Esq.
Katie M. Magallanes, Esq.
Natalie D. Dygert, Esq.
GIBSON, DUNN & CRUTCHER LLP
3161 Michelson Drive
Irvine, CA 92612-4412
Phone: 949.451.3800
Facsimile: 949.451.4220
Email: MCooney@gibsondunn.com
KMagallanes@gibsondunn.com
NDygert@gibsondunn.com
AMERICAN FAMILY: Court Tosses Bid to Amend Briefing Schedule
------------------------------------------------------------
In the class action lawsuit captioned as CONNOR McCLUSKEY, JANEACE
McCLUSKEY, MANI GOLE, and BUDHI GOLE, v. AMERICAN FAMILY MUTUAL
INSURANCE COMPANY, S.I and AMERICAN FAMILY INSURANCE COMPANY, Case
No. 3:20-cv-01002-jdp (W.D. Wis.), the Hon. Judge James D. Peterson
entered an order that:
1. The order staying this case is lifted.
2. The motion to amend the briefing schedule is denied.
3. the Plaintiffs' motions for leave to amend the complaint, are
granted.
4. The motion to intervene, and motion for a status conference,
are
denied as moot.
5. The Plaintiffs may have until June 23, 2023, to either:
(a) file an amended complaint that both reflects the proposed
amendments and removes the Ohio claims and plaintiffs;
(b) file an amended complaint that reflects the proposed
amendments and show cause why the Ohio plaintiffs and
claims
should not be dismissed.
The case involves property insurance policies issued by defendants
American Family Mutual Insurance Company, S.I. and American Family
Insurance Company. The Plaintiffs contend that the way American
Family calculates the "actual cash value" of damaged property
violates American Family's own policies. Specifically, the
plaintiffs say that American Family is wrongly depreciating the
cost of labor when it determines the property's actual cash value.
American Family offers auto, home, life, umbrella, business,
health, and farm and ranch insurance products and services.
A copy of the Court's order dated June 15, 2023, is available from
PacerMonitor.com at https://bit.ly/3NuNPsI at no extra charge.[CC]
AMERICAN NATIONAL: Steen Bid to Certify Class Denied w/o Prejudice
------------------------------------------------------------------
In the class action lawsuit captioned as MYRA STEEN et al., v.
AMERICAN NATIONAL INSURANCE COMPANY, Case No. 2:20-cv-11226-ODW-SK
(C.D. Cal.), the Hon. Judge Otis D. Wright, II entered an order
denying without prejudice the Plaintiffs' motion to certify class.
The Court will not certify a class at this time and will provide
Steen and Williams with an opportunity to file a revised class
certification motion that addresses the Court's concerns. Given
that a revised motion is possible, the Court will conclude by
articulating two additional concerns it has about the class
definition.
The putative class action arises from the alleged failure of the
Defendant American National Insurance Company to comply with the
pretermination safeguards of California Insurance Code sections
10113.71 and 10113.72 before terminating its insureds' life
insurance policies.
The Plaintiffs move to certify an injunction class pursuant to
Federal Rule of Civil Procedure 23(b)(2) and a damages class
pursuant to Rule 23(b)(3), or, in the alternative, an issue class
pursuant to Rule 23(c)(4). Having carefully considered the papers
filed in connection with the Motion, the Court deemed the matter
appropriate for decision without oral argument.
Steen and Williams move to certify the following class:
"All vested owners and beneficiaries of life insurance policies
issued or delivered by the Defendant in California before 2013,
and
which, after January 1, 2013, were lapsed or terminated for
nonpayment of premium without the Defendant first providing all
the
protections required by Insurance Code [s]ections 10113.71 and
10113.72."
The Plaintiff Myra Steen is the mother of the Plaintiff Janet
Williams. Steen is also the mother of nonparty Janice Williams, who
passed away on June 10, 2020. Steen owns five life insurance
policies purchased from American National, a life insurance
company.
Williams owns four life insurance policies purchased from American
National. Steen and Williams purchased each of their policies prior
to January 1, 2013.
American National is engaged in providing life insurance. The
Company also offers individual and group health insurance and
annuities.
A copy of the Court's order dated June 14, 2023 is available from
PacerMonitor.com at https://bit.ly/3JwgRqR at no extra charge.[CC]
APPLE INC: Barrett Suit Seeks to Certify Class & Subclasses
-----------------------------------------------------------
In the class action lawsuit captioned as CARL BARRETT, MICHEL
POLSTON, NANCY MARTIN, MICHAEL RODRIGUEZ, MARIA RODRIGUEZ, and
ANDREW HAGENE individually, and on behalf of all others similarly
situated, v. APPLE INC., a California Corporation; APPLE VALUE
SERVICES LLC; and DOES 1 Through 10, inclusive, Case No.
5:20-cv-04812-EJD (N.D. Cal.), the Plaintiffs ask the Court to
enter an order certifying the class and subclasses, appointing
Michael Rodriguez, Maria Rodriguez, and Andrew Hagene as the class
representatives, and appointing their counsel as class counsel.
Specifically, the Plaintiffs move for an Order:
1. Determining that class certification is proper as to Count I
of
the First Amended Class Action Complaint (Unfair Practices in
Violation of the California Consumers Legal Remedies Act Cal.
Civil Code section 1750, et seq.) pursuant to Federal Rule of
Civil Procedure 23(b)(3);
2. Determining that class certification is proper as to Count II
of
the First Amended Class Action Complaint (Unfair Practices in
Violation of the California Unfair Competition Law Cal. Bus.
&
Prof. Code section 17200) pursuant to Federal Rule of Civil
Procedure 23(b)(3);
3. Determining that class certification is proper as to Count
III
of the First Amended Class Action Complaint (Unlawful
Practices
in Violation of the California Consumers Legal Remedies Act
Cal.
Civil Code section 1750, et seq.) pursuant to Federal Rule of
Civil Procedure 23(b)(3);
4. Determining that class certification is proper as to Count IV
of
the First Amended Class Action Complaint (Unlawful Practices
in
Violation of the California Unfair Competition Law Cal. Bus.
&
Prof. Code section 17200) pursuant to Federal Rule of Civil
Procedure 23(b)(3);
5. Determining that class certification is proper as to Count
VIII
of the First Amended Class Action Complaint (Receiving,
Retaining, Withholding or Concealing Stolen Property Cal.
Penal
Code section 496 (on behalf of the Contact Subclass, only))
pursuant to Federal Rule of Civil Procedure 23(b)(3);
6. Determining that class certification is proper as to Count IX
of
the First Amended Class Action Complaint (Conversion (on
behalf
of the Contact Subclass, only)) pursuant to Federal Rule of
Civil Procedure 23(b)(3);
7. Determining that class certification is proper as to Count XI
of
the First Amended Class Action Complaint (Declaratory
Judgment)
pursuant to Federal Rule of Civil Procedure 23(b)(2);
8. Determining that class certification is proper, in the
alternative and only if any of the relief sought above is
denied, under Federal Rule of Civil Procedure 23(c)(4);
9. Certifying the following classes:
a. Class -- All persons in the United States and its
territories
who, at any point from January 1, 2015, through and
including
July 31, 2020 ("the Class Period"), purchased one or more
gift cards redeemable on iTunes or the App Store at the
direction of people whose identities they did not know and
did not redeem the gift cards for themselves or give them
as
a gift but instead provided the redemption codes to the
people whose identities they did not know (the "Scam") and
were not refunded the money they paid for the gift cards
by
Apple or any other source;
b. Contact Subclass -- All Class members who contacted Apple
and
reported the Scam.
c. Non-Contact Subclass -- All Class members who did not
contact
Apple to report the Scam.
d. Excluded from the Class are: (a) the Defendants; (b) the
Defendants' affiliates, agents, employees, officers, and
directors; (c) the Plaintiffs’ counsel and the
Defendant's
counsel; and (d) the judge assigned to this matter, the
judge's staff, and any member of the judge’s immediate
family.
10. Finding the Plaintiffs Michael Rodriguez, Maria Rodriguez and
Andrew Hagene to be typical and adequate representatives of
the
Class, finding the Plaintiff Hagene to be a typical and
adequate
representative of the Contact Subclass, finding the
Plaintiffs
Michael Rodriguez and Maria Rodriguez to be typical and
adequate
representatives of the Non-Contact Subclass, pursuant to
Federal
Rule of Civil Procedure 23(a)(3)-(4); and
11. Finding the Plaintiffs' counsel and their firms, namely
Nyran
Rose Rasche and Nickolas J. Hagman of Cafferty Clobes
Meriwether
& Sprengel LLP, Anthony F. Fata and Sarah E. Flohr of Kirby
McInerney LLP, and Joseph P. Guglielmo, Hal D. Cunningham,
and
Amanda M. Rolon of Scott+Scott Attorneys at Law LLP, as
adequate
class counsel pursuant to Federal Rule of Civil Procedure
23(g)
and so appointing them pursuant to Federal Rule of Civil
Procedure 23(g)(1) This motion is supported by the Memorandum
of
Points and Authorities, Declaration of Anthony F. Fata,
Declaration of Eric Schachter, the expert reports of Bruce
McFarlane and Claudiu Dimofte, Ph.D., the compendium of
evidence, and any additional arguments and evidence permitted
by the Court.
Apple Inc. is an American multinational technology company
headquartered in Cupertino, California.
A copy of the Plaintiffs' motion dated June 15, 2023 is available
from PacerMonitor.com at https://bit.ly/3Nmraii at no extra
charge.[CC]
The Plaintiffs are represented by:
Nyran Rose Rasche, Esq.
Nickolas J. Hagman, Esq.
CAFFERTY CLOBES MERIWETHER
& SPRENGEL LLP
135 South LaSalle Street, Suite 3210
Chicago, IL 60603
Telephone: (312) 782-4880
E-mail: nrasche@caffertyclobes.com
nhagman@caffertyclobes.com
- and –
Anthony F. Fata, Esq.
Sarah E. Flohr, Esq.
KIRBY MCINERNEY LLP
211 West Wacker Drive, Suite 550
Chicago, IL 60606
Telephone: (312) 767-5180
E-mail: afata@kmllp.com
sflohr@kmllp.com
- and –
Joseph P. Guglielmo, Esq.
Amanda M. Rolon, Esq.
Hal D. Cunningham, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Telephone: (212) 223-6444
E-mail: jguglielmo@scott-scott.com
arolon@scott-scott.com
hcunningham@scott-scott.com
ARIZONA BEVERAGES: Court Narrows Claims in Iglesias Class Suit
--------------------------------------------------------------
In the class action lawsuit captioned as THOMAS IGLESIAS, v.
ARIZONA BEVERAGES USA, LLC, Case No. 4:22-cv-09108-JSW (N.D. Cal.),
the Hon. Judge Jeffrey S. White entered an order granting in part
and denying in part motion to dismiss:
Should the Plaintiff choose to amend the allegations regarding
equitable relief and the adequacy of his remedy at law, the Court
GRANTS the Plaintiff until July 17, 2023, to file a second amended
complaint.
The Court concludes the California Consumers Legal Remedies Act
(CLRA) notice requirement has been satisfied, and accordingly,
denies the Defendant’s motion to dismiss the Plaintiff’s CLRA
damages claim for lack of notice.
Punitive damages the Defendant also moves to dismiss the
Plaintiff's request for punitive damages on the basis that such
relief is unavailable under the California's False Advertising Law
(FAL) and California's Unfair Competition Law (UCL). Punitive
damages are not available under the UCL or FAL. Roper v. Big Heart
Pet Brands, Inc., 510 F. Supp. 3d 903, 926 (E.D. Cal. 2020).
Thus, to the extent the Plaintiff seeks punitive damages under the
UCL or FAL, the motion is granted, and those claims are dismissed.
The Plaintiff Thomas Iglesias brings this action alleging that the
Defendant falsely advertises its Products as "100% Natural," "100%
All Natural, " and "All Natural" when in reality the Products
contain at least one of the following ingredients that are not
natural: added coloring (beta carotene, fruit and vegetable juices,
and annatto); ascorbic acid, high fructose corn syrup (HFCS); malic
acid; erythritol; and natural flavors.
The Plaintiff alleges that the added coloring agents, ascorbic
acid, HFCS, malic acid, erythritol, and natural flavors render the
"all natural" label claims false and misleading.
The Plaintiff purchased the Mucho Mango Fruit Juice Cocktail
Product from a Foods Co. in San Francisco, CA on several occasions
beginning in 2017.
Arizona Beverages is a producer of many flavors of iced tea, juice
cocktails, and energy drinks based in Woodbury, New York.
A copy of the Court's order dated June 16, 2023, is available from
PacerMonitor.com at https://bit.ly/3NnLb80 at no extra charge.[CC]
ASHLAND UNIVERSITY: Bishop Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Ashland University.
The case is styled as Cedric Bishop, on behalf of himself and all
other persons similarly situated v. Ashland University, Case No.
1:23-cv-05374 (S.D.N.Y., June 23, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Ashland University -- https://www.ashland.edu/ -- is a private
Christian university in Ashland, Ohio.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: nyjg@aol.com
michael@gottlieb.legal
ASHLEY GLOBAL RETAIL: Hernandez Suit Removed to C.D. California
---------------------------------------------------------------
The case captioned as Gabriella Hernandez, individually and on
behalf of all others similarly situated v. ASHLEY GLOBAL RETAIL,
LLC, a Delaware Limited Liability Company, Case No. 23STCV11683 was
removed from the Superior Court of California for the County of Los
Angeles, to the United States District Court for the Central
District of California on June 26, 2023, and assigned Case No.
2:23-cv-05066.
On May 24, 2023, the Plaintiff filed a purported class action
complaint setting forth a single claim for violation of the Video
Privacy Protection Act ("VPPA").[BN]
The Defendant is represented by:
Jeffrey B. Margulies, Esq.
Eva Yang, Esq.
NORTON ROSE FULBRIGHT US LLP
555 South Flower Street
Forty-First Floor
Los Angeles, CA 90071
Phone: (213) 892-9200
Facsimile: (213) 892-9494
Email: jeff.margulies@nortonrosefulbright.com
eva.yang@nortonrosefulbright.com
AUTOZONERS LLC: Rodriguez Suit Removed to C.D. California
---------------------------------------------------------
The case captioned as Margarita Rodriguez, on behalf of herself and
others similarly situated v. AUTOZONERS, LLC; and DOES 1 to 100,
inclusive, Case No. CIVSB2306266 was removed from the San
Bernardino County Superior Court, State of California, to the
United States District Court for the Central District of California
on June 26, 2023, and assigned Case No. 5:23-cv-01236.
In the Complaint, Plaintiff alleges 7 causes of action against
Defendants for: failure to pay wages for all time worked at minimum
wage in violation of Labor Code; failure to pay overtime wages for
daily overtime worked in violation of Labor Code; failure to
authorize or permit meal periods in violation of Labor Code;
failure to authorize or permit rest periods in violation of Labor
Code; failure to provide complete and accurate wage statements in
violation of Labor Code; failure to timely pay all earned wages and
final paychecks due at time of separation in violation of Labor
Code; and unfair business practices in violation of Business and
Professions Code.[BN]
The Defendant is represented by:
Evan R. Moses, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART PC
400 South Hope Street, Suite 1200
Los Angeles, CA 90071
Phone: (213) 239-9800
Fax: (213) 239-9045
Email: evan.moses@ogletreedeakins.com
- and -
Alexandra M. Asterlin, Esq.
Eric E. Suits, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
500 Capitol Mall, Suite 2500
Sacramento, CA 95814
Phone: (916) 840-3150
Facsimile: (916) 840-3159
Email: alexandra.asterlin@ogletree.com
eric.suits@ogletree.com
BACUS FOODS: Seeks to Defer Ruling on Conditional Certification Bid
-------------------------------------------------------------------
In the class action lawsuit captioned as Michael Holder, on behalf
of himself and those similarly situated, v. Bacus Foods Corp.;
BFCJJS106, LLC; Brandt Bacus; Jared Bacus; John Doe Corp. 1-10; and
John Doe 1-10 Case No. 2:23-cv-00763-JJT (D. Ariz.), the Defendants
asks the Court to enter an order deferring ruling on the
Plaintiff's motion for conditional certification of FLSA Collective
Action pending resolution of the their motion to dismiss for
improper venue, or alternatively, to compel arbitration.
The Plaintiff filed this lawsuit seeking to certify a collective
action under the Fair Labor Standards Act (FLSA), the Nebraska Wage
and Hour Act (NWHA), and the Nebraska Wage Payment and Collection
Act (NWPCA) on May 3, 2023.
Six days later, on May 9, 2023, he filed a First Amended Complaint
(FAC) and a motion asking this Court to conditionally certify a
collective action class under the FLSA.
In lieu of answering the FAC, the Defendants filed a motion to
dismiss the FAC or, in the alternative, to compel arbitration
pursuant to Federal Rule of Civil Procedure 12(b)(2), (3), and (6).
As the Defendants' Dispositive Motion explains, the Plaintiff's
claims are subject to binding arbitration, and the Court is not the
proper venue for the action.
Accordingly, the Defendants request this Court exercise its
inherent power to control its docket and promote the efficient use
of judicial resources to defer ruling on the Conditional
Certification Motion until it first resolves whether this Court is
the proper venue for the Plaintiff's claims and whether the
Plaintiff's claims are subject to binding arbitration.
Bacus Foods is in the Sandwiches and Submarines Shop business.
A copy of the Defendants' motion dated June 15, 2023 is available
from PacerMonitor.com at https://bit.ly/3NNSw2h at no extra
charge.[CC]
The Defendants are represented by:
Laura Pasqualone, Esq.
Nicole G. True, Esq.
Katie Derrig, Esq.
LEWIS ROCA ROTHGERBER CHRISTIE LLP
201 East Washington Street, Suite 1200
Phoenix, AZ 85004-2595
Telephone: (602) 262-5311
Direct Dial: (602) 262-5362
E-mail: lpasqualone@lewisroca.com
NTrue@lewisroca.com
kderrig@lewisroca.com
BIG CITY: Pineda Suit Seeks to Certify Rule 23 Class
----------------------------------------------------
In the class action lawsuit captioned as JUAN PINEDA, on behalf of
himself and all others similarly situated, v. BIG CITY REALTY
MANAGEMENT, LLC, CFF CONSULTING INC., 3427 BROADWAY BCR, LLC, 3440
BROADWAY BCR, LLC, 3660 BROADWAY BCR, LLC, 633 WEST 152 BCR, LLC,
605 WEST 151 BCR, LLC, 545 EDGECOMBE BCR, LLC, 535-539 WEST 155
BCR, LLC, 408-412 PINEAPPLE, LLC, 106-108 CONVENT BCR, LLC, 510-512
YELLOW APPLE, LLC, 513 YELLOW APPLE, LLC, 145 PINEAPPLE LLC, 2363
ACP PINAPPLE, LLC, 580 ST. NICHOLAS BCR, LLC, 603-607 WEST 139 BCR,
LLC, 559 WEST 156 BCR, LLC, 3750 BROADWAY BCR, LLC, KOBI ZAMIR, and
FERNANDO ALFONSO, Case No. 1:22-cv-05428-BMC (E.D.N.Y.), the
Plaintiff asks the Court to enter an order:
-- certifying the proposed class;
-- designating him as the class representative;
-- designating the Plaintiff’s counsel as Class Counsel
pursuant to
FRCP 23(g); and
-- granting leave to amend the Complaint pursuant to FRCP 15(a).
Further, contrary to the Defendants' contention, the Plaintiff has
presented evidence of how the Defendants subjected employees other
than the Plaintiff to the same pay practices, including porters,
and including employees at other locations (the Plaintiff worked at
the Defendants' buildings at 3440 Broadway and 3427 Broadway)
The Defendants have unambiguously admitted that they violated the
law and did so uniformly for workers across all Big City Buildings,
and the Defendants’ records corroborate this. Therefore, the
Plaintiff respectfully requests that the Court certify the proposed
FRCP 23 Class.
Big City Realty offers brokerage services like buying, selling,
property management, leasing, and real estate consultation.
A copy of the Plaintiff's motion dated June 16, 2023, is available
from PacerMonitor.com at https://bit.ly/3NTPklU at no extra
charge.[CC]
The Plaintiff is represented by:
Marc A. Rapaport, Esq.
RAPAPORT LAW FIRM, PLLC
80 Eighth Avenue, Suite 206
New York, NY 10011
Telephone: (212) 382-1600
- and –
Meredith R. Miller, Esq.
MILLER LAW, PLLC
167 Madison Avenue, Suite 503
New York, NY 10016
Telephone: (347) 878-2587
BITFINEX: Filing of Class Certification Bid Due Nov. 20
-------------------------------------------------------
In the class action lawsuit re Tether and Bitfinex Crypto Asset
Litigation Case No. 1:19-cv-09236-KPF (S.D.N.Y.), the Hon. Judge
Katherine Polk Failla entered a management plan and scheduling
order as follows:
-- Parties shall produce a final privilege log June 22,
2023
corresponding to document productions by:
-- Fact discovery shall be substantially March 22,
2023
Completed no later than:
-- All fact discovery shall be completed no October 23,
2023
later than:
-- The Plaintiffs' motion for class Nov. 20,
2023
Certification and supporting expert
reports are due:
-- The Defendants' deadline to depose the Jan. 22,
2024
Plaintiffs' class certification experts
is:
-- The Defendants' opposition to class Feb. 20,
2024.
certification and supporting expert
reports are due:
-- The Plaintiffs' deadline to depose April 22,
2024
the Defendants' class certification
experts is:
-- The Plaintiffs' reply in support of May 22, 2024
class certification is due:
All parties do not consent to conducting all further proceedings
before a United States Magistrate Judge, including motions and
trial. The parties are free to withhold consent without adverse
substantive consequences.
The parties are to conduct discovery in accordance with the Federal
Rules of Civil Procedure and the Local Rules of United States
District Courts for the Southern and Eastern Districts of New
York.
On December 20, 2021, the Court so-ordered a Stipulation and Order
Governing the Exchange of Electronically Stored Information.
A copy of the Court's order dated June 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3pf1eNK at no extra charge.[CC]
The Plaintiffs are represented by:
Philippe Z. Selendy, Esq.
Andrew R. Dunlap, Esq.
Oscar Shine, Esq.
SELENDY GAY ELSBERG PLLC
1290 Sixth Avenue
New York, NY 10104
E-mail: pselendy@selendygay.com
adunlap@selendygay.com
oshine@selendygay.com
- and –
Todd M. Schneider, Esq.
Matthew S. Weiler, Esq.
SCHNEIDER WALLACE COTTRELL
KONECKY LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
E-mail: tschneider@schneiderwallace.com
jkim@schneiderwallace.com
mweiler@schneiderwallace.com
The Defendants are represented by:
Maeve L. O'Connor, Esq.
Michael Schaper, Esq.
Elliot Greenfield, Esq.
DEBEVOISE & PLIMPTON LLP
66 Hudson Boulevard
New York, NY 10001
E-mail: mloconnor@debevoise.com
mschaper@debevoise.com
egreenfield@debevoise.com
- and –
Michael Jason Lee, Esq.
LAW OFFICES OF MICHAEL JASON LEE, APLC
4660 La Jolla Village Drive, Suite 100
San Diego, CA 92122
E-mail: michael@mjllaw.com
- and –
Sunjina K. Ahuja, Esq.
Christopher J. Beal
DILLON MILLER AHUJA & BOSS, LLP
5872 Owens Ave., Suite 200
San Diego, CA 92008
E-mail: sahuja@dmablaw.com
cbeal@dmablaw.com
- and –
Charles D. Cording, Esq.
WILLKIE FARR & GALLAGHER LLP
787 Seventh Avenue
New York, NY 10019-6099
E-mail: ccording@willkie.com
- and –
Abby F. Rudzin, Esq.
William K. Pao, Esq.
Eamonn W. Campbell, Esq.
O'MELVENY & MYERS LLP
Seven Times Square
New York, NY 10026
E-mail: arudzin@omm.com
wpao@omm.com
ecampell@omm.com
- and –
Greg J. Hollon, Esq.
Timothy B. Fitzgerald, Esq.
MCNAUL EBEL NAWROT & HELGREN PLLC
600 University Street, Suite 2700
Seattle, WA 98101
E-mail: ghollon@mcnaul.com
tfitzgerald@mcnaul.com
- and –
Matthew G. Lindenbaum, Esq.
NELSON MULLINS RILEY &
SCARBOROUGH LLP
One Financial Center, Suite 3500
Boston, MA 02111
E-mail: matthew.lindenbaum@nelsonmullins.com
robert.lindholm@nelsonmullins.com
BLUEGREEN VACATIONS: Seeks to File Class Cert Brief Supplement
--------------------------------------------------------------
In the class action lawsuit captioned as SHAUNDRE and KIMBERLY
LASKEY, et al., v. BLUEGREEN VACATIONS UNLIMITED, INC., et al.,
Case No. 6:22-cv-03194-MDH (W.D. Mo.), the Defendants Bluegreen
Vacations Unlimited, Inc. and Resort Title Agency, Inc. file a
motion for leave to submit supplemental suggestions in opposition
to plaintiffs' motion to modify class definition or class
certification.
On May 15, 2023, the Plaintiffs filed their motion to modify class
definition or class certification.
The Defendants timely filed their Opposition to the Plaintiffs'
motion on May 30, 2023.
The Plaintiffs filed their Reply in support of their Motion on June
8, 2023.
In their Reply, the Plaintiffs for the first time make certain
arguments and cite to deposition testimony from four witnesses who
had only been recently deposed.
The Defendants thus seek leave to file brief Supplemental
Suggestions in Opposition to the Plaintiffs' Motion.
The Defendants understand that the Court has already received
briefing on the Plaintiffs' Motion in excess of that normally
permitted by the Local Rules and have limited their proposed
Supplemental Suggestions to only five pages.
Bluegreen Vacations is a leisure, travel, and tourism company.
A copy of the Court's order dated June 14, 2023 is available from
PacerMonitor.com at https://bit.ly/3NzwC1A at no extra charge.[CC]
The Defendants are represented by:
Michael L. Jente, Esq.
LEWIS RICE LLC
600 Washington Avenue, Suite 2500
St. Louis, MO 63101
Telephone: (314) 444-7600
Facsimile: (314) 241-6056
E-mail: mjente@lewisrice.com
- and -
Grace L. Mead, Esq.
Andrea N. Nathan, Esq.
Veronica L. De zayas, Esq.
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON, P.A.
Museum Tower, Suite 2200
150 West Flagler Street
Miami, FL 33130
Telephone: (305) 789-3200
Facsimile: (305) 789-3395
E-mail: gmead@stearnsweaver.com
anathan@stearnsweaver.com
vdezayas@stearnsweaver.com
BOWL AMERICA: Zucker Class Cert Bid Partly OK'd
-----------------------------------------------
In the class action lawsuit captioned as ANITA G. ZUCKER, TRUSTEE
OF THE ANITA G. ZUCKER TRUST DATED APRIL 4, 2007, AS SUBSEQUENTLY
AMENDED OR RESTATED, et al., v. BOWL AMERICA, INC., et al., Case
No. 1:21-cv-01967-SAG (D. Md.), the Hon. Judge Stephanie A.
Gallaghmr entered an order granting in part and denying in part
Plaintiffs' motion for class certification, appointment of class
representatives, and appointment of class counsel as follows:
The following Class is certified pursuant to Federal Rule of Civil
Procedure 23(a) and 23(b)(3):
"All holders of Bowl America Class A common stock who, as of
May
27, 2021:
(1) were entitled to vote on the Merger; and
(2) continued to hold such stock until the closing of the Merger
on
August 18, 2021;"
Excluded from the Class are the Defendants, their family
members,
heirs, and any person, firm, trust, corporation, or other entity
related to, or affiliated with, any of the Defendants;
Pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3), the
Plaintiffs Sheryl Cohen Fine and John Risner are appointed as Class
Representatives.
Pursuant to Federal Rule of Civil Procedure 23(g), Co-Lead Counsel
Cohen Milstein Sellers & Toll PLLC and Kohrman Jackson & Krantz LLP
are appointed as Class Counsel.
Bowl America Inc is engaged in the entertainment business.
A copy of the Court's order dated June 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3NmrKwu at no extra charge.[CC]
BREVILLE USA: Faces Key Suit Over Oven's Undisclosed Defect
-----------------------------------------------------------
CHRISTINA KEY, individually and on behalf of all others similarly
situated, Plaintiff v. BREVILLE USA, INC., Defendant, Case No.
4:23-cv-03099-DMR (N.D. Cal., June 22, 2023) is a class action
against the Defendant for violations of the Magnuson-Moss Warranty
Act, California Unfair Competition Law, Consumer Legal Remedies
Act, Song-Beverly Consumer Warranty Act, and California False
Advertising Law and for breach of implied warranties, unjust
enrichment/restitution, fraudulent omission or concealment, and
declaratory relief.
The Plaintiff brings this consumer class action lawsuit against the
Defendant, which manufactured, marketed, distributed, and sold the
Breville Smart Oven Air Fryer Pro without disclosing to purchasers
that the Oven's glass window has a propensity to explode
spontaneously and without external impact. The defect creates a
serious safety issue and renders the Oven unusable after
manifestation. Despite numerous customer complaints, the Defendant
has refused to act in the form of a recall or refund of the full
purchase price. As a result of the Defendant's conduct, owners of
the Oven, including the Plaintiff, have suffered an ascertainable
loss of money, and/or property, and/or loss in value, says the
suit.
Breville USA, Inc. is a manufacturer of kitchen and cooking
appliances, with its principal place of business located at 19400
South Western Avenue, Torrance, California. [BN]
The Plaintiff is represented by:
Matthew A. Smith, Esq.
MIGLIACCIO & RATHOD LLP
201 Spear Street, Suite 1100
San Francisco, CA 94105
Telephone: (831) 687-8255
E-mail: msmith@classlawdc.com
- and -
Nicholas A. Migliaccio, Esq.
Jason S. Rathod, Esq.
Mark D. Patronella, Esq.
MIGLIACCIO & RATHOD LLP
412 H. Street NE
Washington, DC 20002
Telephone: (202) 470-3520
E-mail: nmigliaccio@classlawdc.com
jrathod@classlawdc.com
mpatronella@classlawdc.com
- and -
Dan E. Gustafson, Esq.
David A. Goodwin, Esq.
Kaitlyn L. Dennis, Esq.
GUSTAFSON GLUEK PLLC
120 South Sixth Street, Suite 2600
Minneapolis, MN 55402
Telephone: (612) 333-88844
E-mail: dgustafson@gustafsongluek.com
dgoodwin@gustafsongluek.com
kdennis@gustafsongluek.com
- and -
Scott David Hirsch, Esq.
SCOTT HIRSCH LAW GROUP PLLC
6810 N. State Road 7
Coconut Creek, FL 33073
Telephone: (561) 569-7062
E-mail: scott@scotthirschlawgroup.com
BRIGHT HORIZON: Filing for Class Certification Bid Due Sept. 7
--------------------------------------------------------------
In the class action lawsuit captioned as CHELSEA RUTTER,
individually and on behalf of all others similarly situated, v.
BRIGHT HORIZONS FAMILY SOLUTIONS INC., d/b/a Bright Horizons
Childrens Centers Inc., Case No. 2:23-cv-00233-TL (W.D. Wash.), the
Hon. Judge Tana Lin entered an order setting jury trial date and
related dates as follows:
-- Deadline for joining additional parties: July 14, 2023
-- Deadline for filing amended pleadings: Aug. 11, 2023
-- The Plaintiff's Motion for Class Sept. 7, 2023
Certification filed by:
-- The Defendant's Response to the Sept. 29,
2023
Plaintiffs Motion for Class
Certification filed by:
-- The Plaintiff's Reply in Support Oct. 13, 2023
of Motion for Class Certification
filed by:
-- Disclosure of expert testimony under Nov. 13, 2023
FRCP 26(a)(2) due:
-- Disclosure of rebuttal expert Dec. 13, 2023
testimony under FRCP 26(a)(2) due:
-- All motions related to discovery Dec. 13, 2023
must be filed by:
-- Discovery completed by: Jan. 10, 2024
-- All dispositive motions and motions Feb. 8, 2024
challenging expert witness testimony
must be filed by this date:
-- Settlement Conference, if mediation March 11,
2024
has been requested by the parties
per LCR 39.1, held no later than:
Bright Horizons offers preschools, childcare, tuition program
management, student loan repayment programs, advisory, and other
educational services.
A copy of the Court's order dated June 16, 2023, is available from
PacerMonitor.com at https://bit.ly/433ok7x at no extra charge.[CC]
BUTTERBALL LLC: Protective Order Bid in Figueroa Granted in Part
----------------------------------------------------------------
In the case, OSVALDO FIGUEROA, Plaintiff v. BUTTERBALL, LLC,
Defendant, Case No. 5:20-CV-585-D (E.D.N.C.), Magistrate Judge
Robert B. Jones, Jr., of the U.S. District Court for the Eastern
District of North Carolina, Western Division:
a. grants in part and denies in part the Defendant's motion
for a protective order;
b. denies the Defendant's motion for sanctions;
c. grants the Plaintiff's motion to extend Phase I discovery
deadlines; and
d. denies the Plaintiff's motion to compel.
The Plaintiff, a former employee, who worked as a loader/catcher in
the Defendant's turkey department, brought this action for unpaid
minimum wages, unpaid overtime compensation, liquidated damages,
and all related penalties and damages under the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. Section 201 et seq., for failing
to pay him promised straight-time compensation, premium
compensation, and all owed, earned, and/or promised wages, on his
regular pay date, in direct contravention of the North Carolina
Wage and Hour Act ("NCWHA"), N.C. Gen. Stat. Section 95-25.1, et
seq., and for discrimination and wrongful termination in violation
of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C.
Section 12101, et. seq., and North Carolina Public Policy.
In response to a motion to dismiss, the Plaintiff filed a first
amended complaint, on behalf of himself and all others similarly
situated, asserting a collective action for violation of the Fair
Labor Standards Act under Section 216(b), and a representative
action under the NCWHA pursuant to Fed. R. Civ. P. 23. The amended
complaint did not assert ADA or wrongful termination claims.
Thereafter, the Plaintiff filed a notice of consent for Francisco
Vasquez to join the suit as an opt-in plaintiff.
The Defendant moved to dismiss the Plaintiff's amended complaint
and to strike his collective action and class action allegations,
or in the alternative, for him to provide a more definite
statement. The Court dismissed the Plaintiff's amended complaint
without prejudice for failure to state claims under the FLSA and
NCWHA and allowed him to file an amended complaint.
The Plaintiff filed a second amended complaint, on behalf of
himself and all others similarly situated, again asserting a
collective action for violation of the FLSA under Section 216(b),
and a representative action under the North Carolina Wage and Hour
Act pursuant to Fed. R. Civ. P. 23, which the Defendant moved to
dismiss.
The Court dismissed with prejudice the Plaintiff's NCWHA claims and
allowed him to proceed with his FLSA claim after finding it
narrowly eked across the plausibility line. It also declined to
address the collective action allegations, noting that the
Plaintiff had yet to file a motion to certify a collective action.
The Defendant then answered the second amended complaint.
On Oct. 13, 2022, the Plaintiff filed a motion to conditionally
certify the matter as a collective action and for court-authorized
notice to be issues under Section 216(b) of the FLSA, in which he
sought: (1) conditional certification of the action and for
court-authorized notice pursuant to Section 216(b) of the FLSA; (2)
approval of the proposed FLSA notice of the action and the consent
form; (3) a production of names, last known mailing addresses,
last-known cell phone numbers, email addresses, work locations, and
dates of employment of all putative plaintiffs within 15 days of
the Order; and (4) the ability to distribute the Notice and Opt-in
Form via first class mail, email, text message, and a posting at
the Defendant's facilities to all putative plaintiffs of the
conditionally certified collective, with a reminder mailing to be
sent 45-days after the initial mailing to all non-responding
putative plaintiffs.
The parties filed a joint notice stating that Defendant would not
oppose the Plaintiff's conditional certification motion, and the
parties later agreed on the relevant time period for conditional
certification purposes, the group definition and notice form, and
the content and substance of the notice and opt-in form to be
issued to the putative Plaintiffs. On Jan. 25, 2023, the Plaintiff
filed a consent motion to amend/correct the motion to certify. The
certification motions remain pending before the Court.
On Nov. 29, 2022, the Court entered a Scheduling Order, which
approved the parties' discovery plan and set relevant deadlines of
March 31, 2023 to complete Phase I discovery and Dec. 1, 2023 to
complete phase II discovery. The parties defined "Phase I
discovery" to include, but were not limited to, the Defendant's
time-keeping practices, the Defendant's pay practices, the steps
taken, if any, to ensure that the Plaintiff and any opt-in
plaintiffs received all sums due and owing under the FLSA, whether
the Defendant acted in good faith, the Defendant's willfulness or
lack thereof, hours worked by the Plaintiff and any opt-in
plaintiffs, dates of employment worked by the Plaintiff any opt-in
plaintiffs, the nature of the Plaintiff's and any opt-in plaintiffs
job duties and work activities, any defenses raised by the
Defendant in its answer to the second amended complaint and any
other defenses that may become applicable during discovery, and all
facts that may affect the claims of the Plaintiff or any opt-in
plaintiff or the Defendant's defenses.
The instant discovery motions were filed because of the parties'
disagreement over whether putative plaintiff discovery is included
in Phase I, the scope of the Defendant's 30(b)(6) deposition, and
the Plaintiff and opt-in plaintiff's failure to appear for
deposition.
In the motion for protective order, the Defendant asks the court to
(1) prohibit discovery during Phase I into the merits of any claims
held by putative plaintiffs who were not named or had not opted in;
(2) strike topics from the Plaintiff's Rule 30(b)(6) deposition
notice that are disproportionate to the relevant issues, call for
privileged information, or are not reasonably particular; and (3)
limit the scope of the 30(b)(6) deposition to topics for which the
representative is designated to testify.
In the motion to compel, the Plaintiff asks the Court to find the
Defendant improperly limited the scope of its discovery responses
by failing to produce requested information for putative
plaintiffs.
Judge Jones allows the Defendants' motion for protective order and
denies the Plaintiff's motion to compel with respect to Phase I
discovery related to putative plaintiffs. He finds that the
Plaintiff has already filed a motion and amended motion for
conditional certification, and the parties' discovery plan did not
address a need for pre-certification discovery. The Court has
previously limited putative plaintiff discovery prior to
conditional certification.
In addition, the parties' Rule 26(f) plan contemplates that Phase I
discovery would include topics such as hours worked, dates of
employment, job duties and work activities, and facts affecting
claims of the Plaintiff and any opt-in plaintiffs rather than
putative plaintiffs. Moreover,
The Defendant objects to the following topics in the Rule 30(b)(6)
notice the Plaintiff issued to Butterball: Topic 5 related to
previous litigation, which Butterball contends seeks
attorney-client or work product protected information; Topic 8
related to compensation practices applied to the Plaintiff, opt-in
Plaintiffs, and/or putative Plaintiffs, which Butterball contends
prematurely seeks putative plaintiff discovery; and Topic 9 related
to affirmative defenses, which Butterball contends is overly broad
and not particularized.
The Plaintiff contends that Topic 5 only seeks information
regarding the effects of previous litigation on Defendants' pay
practices and policies if any and is relevant to willfulness, Topic
8 is appropriate in seeking putative plaintiff discovery, and Topic
9 only seeks the factual basis for the Defendant's affirmative
defenses, which is appropriate.
Judge Jones declines to issue a blanket protective order as to
Topic 5, but the defense counsel may instruct the deponent not to
answer a question that strays into privileged or protected
information, consistent with Rule 30(c)(2). As for Topic 8, he says
the related to variation between compensation practices applied to
the Plaintiff, the opt-in Plaintiffs, and/or putative plaintiffs, a
protective order is not warranted where the parties' Phase I
discovery topics included the "Defendant's pay practices." Finally,
Butterball's objection to Topic 9, that it is overly broad and not
reasonably particularized in seeking the factual basis for
Defendant's asserted affirmative defenses, is sustained.
The Defendant also moves for sanctions based on the named
Plaintiff's and opt-in Plaintiff's failure to appear at their
depositions, which Butterball has noticed several times, but the
Plaintiff's counsel has failed to agree to the date and produce the
witnesses for deposition. The Plaintiff contends that the failure
to schedule the depositions was not in bad faith and there has been
no prejudice to the Defendant.
Judge Jones finds this is a scheduling dispute that does not
warrant sanctions where there is no evidence of bad faith on the
part of the Plaintiffs and no apparent prejudice to Defendants
caused by the delay. Accordingly, the motion for sanctions is
denied. However, he orders counsel to confer and schedule these
depositions to take place within 30 days.
Lastly, the Plaintiff asks the Court to extend the deadlines to
conduct Phase I discovery, which expired on March 31, 2023, in
light of the pending discovery motions. The Defendant does not
oppose a thirty-day extension of the deadline. For good cause
shown, the motion is allowed and the deadline to complete Phase I
discovery is extended to July 21, 2023.
For the reasons he stated, Judge Jones allows in part and denies in
part the Defendant's motion for protective order, allows the
Plaintiff's motion to extend deadlines, denies the Defendant's
motion for sanctions, and denies the Plaintiff's motion to compel.
A full-text copy of the Court's June 21, 2023 Order is available at
https://tinyurl.com/yeyr4zff from Leagle.com.
CAKE 5332: Filing for Conditional Certification Bid Due Oct. 27
---------------------------------------------------------------
In the class action lawsuit captioned as ROSANGELICA ALVAREZ, et
al., On behalf of themselves and all others similarly situated, v.
CAKE 5332, LLC, et al., Case No. 4:22-cv-00697-FJG (W.D. Mo.), the
Hon. Judge Fernando J. Gaitan, Jr. entered a scheduling order as
follows:
1. Close of discovery: September 27, 2023
2. Motion to join additional parties: September 1, 2023
3. Motion to amend pleadings: September 1, 2023
4. Motion for Conditional October 27, 2023
Certification:
5. Opposition to Conditional November 17, 2023
Certification:
6. Reply Memorandum: December 1, 2023
7. Asserting party's expert August 8, 2023
report(s):
8. Defending party's expert September 27, 2023
report(s):
9. Challenges/Daubert motions: October 27, 2023
10. Status reports: August 27, 2023
A copy of the Court's order dated June 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3JuAMX6 at no extra charge.[CC]
CALIFORNIA: Davis v. Rettig Dismissed Without Leave to Amend
------------------------------------------------------------
In the case, D'ANGELO DAVIS, Plaintiff v. CHARLES RETTIG, et al.,
Defendants, Case No. 23-cv-01861-PJH (N.D. Cal.), Judge Phyllis J.
Hamilton of the U.S. District Court for the Northern District of
California dismisses the complaint without leave to amend.
The Plaintiff, a West Virginia federal prisoner, proceeds with a
pro se civil action against a governmental entity. He has been
granted leave to proceed in forma pauperis. The Plaintiff seeks
court intervention in obtaining his economic impact payment ("EIP")
pursuant to the Coronavirus Aid, Relief, and Economic Security Act
(The "CARES Act"), Pub. L. No. 116-136, 134 Stat. 281 (2020).
In Scholl v. Mnuchin, 494 F.Supp.3d 661 (N.D. Cal. 2020) (Scholl
II), the Court summarized the underlying issue that is central to
the Plaintiff's complaint. It preliminarily certified the following
class: All United States citizens and legal permanent residents
who: (a) are or were incarcerated (i.e., confined in a jail,
prison, or other penal institution or correctional facility
pursuant to their conviction of a criminal offense) in the United
States, or have been held to have violated a condition of parole or
probation imposed under federal or state law, at any time from
March 27, 2020 to the present; (b) filed a tax return in 2018 or
2019, or were exempt from a filing obligation because they earned
an income below $12,000 (or $24,400 if filing jointly) in the
respective tax year; (c) were not claimed as a dependent on another
person's tax return; and (d) filed their taxes with a valid Social
Security Number, and, if they claimed qualifying children or filed
jointly with another person, those individuals also held a valid
Social Security Number.
The Court granted final certification of this class and entered
declaratory relief. It finds and declares that title 26 U.S.C.
Section 6428 does not authorize the Defendants to withhold advance
refunds or credits from class members solely because they are or
were incarcerated. It further finds and declares that the
Defendants' policy that persons who are or were incarcerated at any
time in 2020 were ineligible for advance refunds under the Act is
both arbitrary and capricious and not in accordance with law.
With respect to specific payments, the Court stated that it takes
no position on whether the plaintiffs or the class members are in
fact owed advance refund payments or the amount of those payments.
Indeed, its Rule 23(b)(2) finding was premised on the indivisible
nature of the injunctive or declaratory remedy warranted but not an
individualized award of monetary damages.
The Plaintiff is incarcerated and part of the Scholl class. He
seeks the Court to compel the IRS to stop denying EIPs due to
individuals being incarcerated and to compel the IRS to provide his
EIPs.
To the extent the Plaintiff argues that his EIP was denied due to
his incarcerated status, Judge Hamilton holds that the Plaintiff is
already a member of the Scholl class; therefore, he is not entitled
to separate individual relief. An individual suit for injunctive
and equitable relief may be dismissed when it duplicates an
existing class action's allegations and prayer for relief.
Nor is the Plaintiff entitled to relief to the extent he seeks the
court to compel the IRS to provide his EIPs pursuant to Scholl or
the CARES Act. The Court in Scholl found that the EIP could not be
denied only because an individual was incarcerated. However, it was
clear that it took no position on whether individual incarcerated
plaintiffs were owed the EIP, which is the relief sought in the
instant case. That responsibility fell to the IRS to make an
individual determination. More importantly, funds cannot now be
distributed pursuant to the CARES Act. As noted, the CARES Act
imposed a deadline of Dec. 31, 2020, for EIPs to be made or
allowed. That deadline has passed, and no more funds may be issued.
So, the Plaintiff cannot obtain the relief he seeks.
For all these reasons, Judge Hamilton holds that the Plaintiff
fails to state a claim for relief. He dismisses the complaint
without leave to amend because no amount of amendment would cure
the deficiencies noted. The Clerk will close the case.
A full-text copy of the Court's June 20, 2023 Order is available at
https://tinyurl.com/yckvas2n from Leagle.com.
CALIFORNIA: Denial of Judicial Notice in People Suit Partly Upheld
------------------------------------------------------------------
In the case, THE PEOPLE, Plaintiff and Respondent v. LAWRENCE
JAMAAL McGIRT, Defendant and Appellant, Case No. B320579 (Cal.
App.), the Court of Appeals of California for the Second District,
Division Two, modifies in part and affirms in part the trial
court's denial of McGirt's motion to take judicial notice of two
federal court orders.
McGirt contends the trial court erred in denying his motion to take
judicial notice of two federal court orders in a class action
lawsuit in which he was a member, and by admitting testimony he
claims was character evidence. The Defendant adds that cumulative
prejudice from these errors requires reversal. He also contends,
and the People agree, the trial court erred in staying the great
bodily injury enhancement in count 3, battery by a prisoner on a
non-confined person.
The Defendant was charged with six felony counts alleging offenses
occurring on two occasions while he was confined in California
State Prison. In count 3 it was alleged he committed battery by a
prisoner on a non-confined person, Officer M. Morataya, and count 4
alleged battery by a prisoner on a non-confined person, Officer L.
Martinez, in violation of Penal Code section 4501.5. It was also
alleged as to count 3 that the Defendant personally inflicted great
bodily injury upon Officer M. Morataya within the meaning of
section 12022.7, subdivision (a); and under section 667,
subdivision (a)(1) that defendant had suffered three serious or
violent felonies as defined in sections 667, subdivision (d) and
1170.12, subdivision (b).
Count 5 alleged attempted battery by a prisoner on a non-confined
person, Officer A. Rodriguez, in violation of sections 664/4501.5,
on Aug. 19, 2020; and count 6 alleged battery by a person confined
in a local detention facility upon a peace officer, Officer P.
Castellanos, in violation of section 243.9, subdivision (a), also
on Aug. 19, 2020. It was alleged the three prior convictions were
serious or violent felonies under the Three Strikes Law, section
667, subdivisions (b)-(j) and section 1170.12.
A jury found the Defendant guilty of counts 3, 4, and 6 as charged,
and found true the allegation that he personally inflicted great
bodily injury upon Officer Morataya. The jury was unable reach a
verdict on count 5, that was then dismissed.
At the May 18, 2022 sentencing hearing, the Defendant waived jury
trial on the allegations of prior convictions. The trial court
struck two allegations pursuant to section 1385, and the Defendant
admitted he suffered a prior robbery conviction in 2014. The court
dismissed the two serious felony enhancements and stayed the great
bodily injury enhancement, and sentenced the Defendant to six years
in prison comprised of the low term of two years for counts 3
doubled to four years as a second strike, and one year (one-third
the midterm) as to each of counts 4 and 6, doubled to two years as
a second strike. The court stayed the term imposed as to count 6
pursuant to section 654.
The Defendant filed a timely notice of appeal from the judgment.
First, after conducting a hearing pursuant to Evidence Code section
402, the trial court denied the Defendant's motion in limine for
judicial notice of two orders dated March 11, 2021 (the Armstrong
orders), issued by the U.S. District Court for the Northern
District of California in Armstrong v. Newsome, 94-CV-02307-CW, a
class action lawsuit brought by disabled prisoners in which
defendant claimed to be a class member. In particular, the motion
sought to introduce the remedial measures ordered by the federal
court in the two orders, including the installation of cameras, and
the directive against retaliation against inmate class members,
which the Defendant alleged was the motive for the assaults upon
him on Dec. 3, 2019 and Aug. 19, 2020.
The trial court refused to take judicial notice of the facts and
conclusions of law recited in the orders, as the Defendant had not
made a showing of the preliminary facts sufficient to satisfy
issues of relevance or issues arising under section 352.
Nevertheless, the Defendant suggests the trial court was required
under section 453 to take notice of the Armstrong orders solely
because he gave the prosecution sufficient notice of his request
and furnished the court with sufficient information.
The Court of Appeals agrees with the trial court that the Defendant
failed to show the orders were relevant to his defense that the
correctional officers attacked him in retaliation for the Armstrong
lawsuit. As the Defendant's arguments have failed to produce facts
showing the relevance of the orders and he has failed to
demonstrate the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner, the Court of
Appeals finds no error or abuse of discretion.
Further, the Defendant has not met his burden to demonstrate a
miscarriage of justice. The Defendant's showing consists of arguing
the orders supported his theory that the guards were motivated to
retaliate against him, followed by his conclusion that had the
evidence been admitted, it is reasonably probable that the jury
would have reached a more favorable verdict. As the Court of
Appeals has already found the evidence was not relevant to prove
his theory of defense, it rejects the Defendant's conclusory
prejudice argument.
Next, the Defendant objects to testimony elicited by the prosecutor
that was inadmissible "character evidence" under section 1101,
subdivision (a).
The Court of Appeals agrees with the People that the Defendant has
not preserved this issue for review. A challenge to the
admissibility of evidence is generally not cognizable on appeal in
the absence of a specific and timely objection or motion to strike
the evidence in the trial court on the ground urged on appeal. An
objection on one ground does not preserve a challenge based upon a
different ground. Given the Defendant's failure to provide a
reasoned argument or relevant authority for any of the points made
relating to his character-evidence claim, it is deemed waived and
forfeited.
The Defendant also contends that reversal is required due to the
cumulative prejudice from all the errors he claims to have
established. Because the Court of Appeals has the Defendant's
claims of error and have found none of the alleged errors to be
prejudicial, it rejects his claim of cumulative prejudice.
Finally, the Defendant contends that although the trial court was
authorized to dismiss or strike the great bodily injury enhancement
found true as to count 3, it was not authorized to stay the
enhancement. The People agree, but the parties disagree whether
this court should modify the judgment by striking the enhancement
or by remanding the matter to the trial court to exercise its
discretion.
The Court of Appeals finds that the trial court did in fact give
reasons for its treatment of the great bodily injury enhancement
but was mistaken in how to strike the enhancement while keeping the
conviction and the true finding of great bodily injury. Hence, it
finds that the appropriate remedy is to vacate the order staying
the section 12022.7 enhancement and replace it with the order
intended by the trial court. As there is no need to remand, it
exercises its power under section 1260 to modify the judgment, and
the Defendant's sentence will remain the term intended by the
court.
For these reasons, the Court of Appeals modifies the judgment to
vacate the stay of the Penal Code section 12022.7, subdivision (a)
enhancement imposed as to count 3, and to instead order the
additional punishment imposed due to Penal Code section 12022.7,
subdivision (a) be stricken. The trial court is directed to forward
to the Department of Corrections and Rehabilitation a new abstract
of judgment reflecting this modification. In all other respects,
the judgment is affirmed.
A full-text copy of the Court's June 21, 2023 Opinion is available
at https://tinyurl.com/4yvhn3t2 from Leagle.com.
Heather J. Manolakas -- heather@rfvlaw.com -- under appointment by
the Court of Appeal, for the Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney
General, Scott A. Taryle and Stephanie Yee, Deputy Attorneys
General, for the Plaintiff and Respondent.
CANADA: Fire Dep.'t Settles Sexual Harassment Suit for $285,000
---------------------------------------------------------------
Curt Varone, writing for Fire Law Blog, reports that a class action
sexual harassment lawsuit brought against a Canadian fire
department has resulted in a novel settlement that will award
victims between $10,000 and $285,000. The suit was brought last
year by two female firefighters against the Leduc Fire Services, in
Ontario.
Christa Steele and Mindy Smith reported sexual misconduct, sexual
assaults, and systemic harassment, bullying and discrimination to
their bosses, but no action was taken to address the problem. After
their concerns became public, an independent investigation found a
"psychologically unsafe and harmful culture [. . . Existed within
the department, and that] serious, systemic and long-standing
misconduct [. . . occurred that management] failed to provide a
duty of care to its employees." The fire chief resigned and two
other members left the department.
The settlement is the first of its kind in Canada where a fire
department will pay damages to a class of employees for sexual
harassment. The class consists of female employees over the past
twenty (20) years. According to Global News, the city will pay most
class members between $10,000 and $95,000. However, members who
experienced "exceptional harm" may receive up to $285,000.
Global News quoted attorney Robert Martz as saying:
Once the settlement is approved, the women will have an opportunity
to make a claim.
It's a confidential process that's done on paper, no interviews or
anything like that, and an independent third party will decide
where they fit within the different categories and what their
compensation would be.
There's an opportunity for women to participate in what we've
called a restorative engagement process, where they can meet
privately with leadership at Leduc to explain what's happened and
how things need to change or can change.
There's also requirements for Leduc to consider implementing a
whistle-blower policy, to make further changes to its respectful
workplace policy that the plaintiffs have flagged.
The goal of the settlement and the case was to get real
compensation for the women who had suffered and to affect some real
change at Leduc and at fire departments and municipalities across
Canada, and I think the settlement does that.
The legal system needs to evolve to hold employers accountable who
tolerate this type of systemic sexual misconduct, and to encourage
women who suffer this type of workplace abuse to come forward. [GN]
CENLAR FSB: Court Junks Initial Class Settlement Bid in Kamrava
---------------------------------------------------------------
In the class action lawsuit captioned as SHAYAN KAMRAVA, v. CENLAR
FSB, Case No. 2:20-cv-11465-TJH-E (Court), the Hon. Judge Terry J.
Hatter, Jr. entered an order denying the motion for class
certification and preliminary approval of the class settlement with
leave to renew.
-- Incentive Award
Kamrava seeks an incentive award of $3,000.00. Incentive
awards
are acceptable, provided that they are reasonable.
-- Attorney's Fees and Litigation Costs
The Ninth Circuit's benchmark for reasonable attorneys' fees
in a
class action is 25% of the common fund; any departure from the
benchmark must be justified by special circumstances. In re
Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935, 942 (9th
Cir.
2011).
-- Administrative Costs
Kamrava selected Simpluris, Inc., a third party claims
administrator, to administer the proposed settlement.
Simpluris's
proposed fee to administer the proposed class settlement is
21,935.00.
The following facts were alleged in the First Amended Complaint
[FAC]. Before 2019, Kamrava took out a home mortgage with the
Defendant Cenlar FSB, a federally chartered wholesale bank.
Throughout 2020, Cenlar made monthly automated telephone calls to
Kamrava's cell phone reminding him to make his loan payments.
On November 5, 2020, Kamrava faxed Cenlar a letter requesting
Cenlar to stop contacting him. Nevertheless, on November 7, 2020,
and November 9, 2020, Cenlar made additional automated telephone
calls to Kamrava.
On November 10, 2020, Cenlar mailed Kamrava a letter explaining
that if he wanted Cenlar to cease communicating with him, he needed
to sign and return the document enclosed with the letter.
On February 10, 2023, Kamrava filed a motion for conditional class
certification and preliminary approval of a class action
settlement. On March 28, 2023, Kamrava filed a supplemental
declaration to correct the number of class members that were solely
in the sub-class. The proposed main settlement class will include:
"All persons within the United States who received an automated
call in violation of the Telephone Consumer Protection Act from
Cenlar FSB or its loan servicer, employees or agents, to a class
member’s cellular telephone, after the member revoked consent,
between December 18, 2016, and December 18, 2021."
The proposed sub-class will include:
"All persons with addresses in the State of California who
requested in writing that Cenlar FSB or its loan servicer stop
contacting them and thereafter, in violation of the Rosenthal
Fair
Debt Collection Practices Act, between December 18, 2019, and
December 18, 2021 (1) received a letter asking them to sign and
return a form confirming their cease-and-desist request or (2)
received another telephone call."
Cenlar provides loan servicing and subservicing services to banks,
thrifts, credit unions, mortgage companies and other participants
in the financial industry.
A copy of the Court's order dated June 16, 2023, is available from
PacerMonitor.com at https://bit.ly/3NTPQjQ at no extra charge.[CC]
CHARLES BAKER: Defendants Must Oppose Class Cert. Bid by Sept. 28
-----------------------------------------------------------------
In the class action lawsuit captioned as Simmons et al., v. Charles
Baker, et al., Case No. 1:22-cv-11715 (D. Mass., Filed Oct. 11,
2022), the Hon. Judge Patti B. Saris entered an order regarding
motion for extension of time to file response/reply to certify
class:
-- The Defendants' Opposition due by: Sept. 28, 2023
-- The Plaintiffs' Reply due by: Aug. 25, 2023
-- The Defendants' Sur-Reply due by: Sept. 30, 2023
The suit alleges violation of the American with Disabilities Act.
CHRISTOPHER SUNUNU: Seeks Leave to File Memorandum Under Seal
-------------------------------------------------------------
In the class action lawsuit captioned as G.K, by their next friend,
Katherine Cooper, et al. v. Christopher Sununu, in his official
capacity as the Governor of New Hampshire, et al., Case No.
1:21-cv-00004-PB (D.N.H.), the Defendants move the Court to enter
an order granting them to file under seal the un-redacted portions
of the Defendants' Memorandum of Law in Opposition to the
Plaintiffs' Motion for Class Certification, as well as Exhibits 17,
18, 19, 20, 21, 25, 27, 28, 29, 30, 31, 33, 37, 38, 39, 40, 41, and
42 to the same.
The documents contain information designated as confidential and
subject to the Protective Order entered in this case and/or the
documents contain confidential court records and individual
identifying information, which is prohibited from disclosure.
The Plaintiffs generally designated the deposition testimony
contained in Exhibits 21, 25, 33, 41, and 42 to the Defendants'
Memorandum as confidential on the record. Accordingly, the
Defendants seek to seal Exhibits 21, 25, 33, 41, and 42 in their
entirety.
The Defendants seek to redact sensitive information from the
Defendants' Memorandum and seal the exhibits in their entirety.
Sealing these documents is necessary because redaction is
impractical.
A copy of the Court's order dated June 14, 2023, is available from
PacerMonitor.com at https://bit.ly/3pwv4gx at no extra charge.[CC]
The Defendants are represented by:
John M. Formella, Esq.
Nathan W. Kenison-Marvin, Esq.
Jennifer S. Ramsey, Esq.
NEW HAMPSHIRE DEPARTMENT OF JUSTICE
33 Capitol Street
Concord, NH 03301-6397
Telephone: (603) 271-3650
E-mail: jennifer.s.ramsey@doj.nh.gov
nathan.w.kenison-marvin@doj.nh.gov
- and -
Philip J. Peisch, Esq.
Paige Jennings, Esq.
Julia M. Siegenberg, Esq.
Lara Rosenberg, Esq.
BROWN & PEISCH PLLC
1233 20th St. NW, Suite 505
Washington, DC 20036
E-mail: ppeisch@brownandpeisch.com
CITADEL SERVICING: Class Cert Bid Deadline Modified to August 7
---------------------------------------------------------------
In the class action lawsuit captioned as FALON BALLARD AND MATTHEW
BALLARD, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY
SITUATED, v. CITADEL SERVICING CORPORATION, A/K/A ACRA LENDING; AND
DOES 1-5, Case No. 8:22-cv-01679-FWS-ADS (C.D. Cal.), the Hon.
Judge Fred W. Slaughter entered an order modifying the "February
2023 Scheduling Order" as follows:
Event Date
Final Pretrial Conference & Hearing Feb. 29, 2024
on Motions in Limine:
Last Date to Hear Motion to Amend Sept. 14, 2023
Pleadings/Add Parties:
Deadline for the Plaintiff's Class Aug. 7, 2023
Certification Motion:
Deadline for the Defendants' Opposition to Aug. 31, 2023
Class Certification:
Deadline for the Plaintiff's Reply to Sept. 14, 2023
Opposition:
Hearing on Class Certification Motion: Oct. 5, 2023
Non-Expert Discovery Cut-Off: Sept. 1, 2023
Expert Disclosure (Initial): Sept. 1, 2023
Expert Disclosure (Rebuttal): Sept. 29, 2023
Expert Discovery Cut-Off: Nov. 1, 2023
Last Date to Hear Motions: Dec. 7, 2023
Citadel Servicing provides non-prime loans for residential
properties on both an owner occupied and non-owner occupied basis.
A copy of the Court's order dated June 14, 2023 is available from
PacerMonitor.com at https://bit.ly/3JzR6Ge at no extra charge.[CC]
CLASSIC VACATIONS: Balabanoff Complaint Dismissed Without Prejudice
-------------------------------------------------------------------
Judge Maxine Chesney of the U.S. District Court for the Northern
District of California dismisses without prejudice the complaint
and any and all claims for relief in the case, SASHA BALABANOFF, on
behalf of herself and others similarly situated, Plaintiff v.
CLASSIC VACATIONS, LLC, a Nevada limited liability company;
EXPEDIA, INC., a Washington corporation; EXPEDIA GROUP, an entity
of unknown form; CLASSIC CUSTOM VACATIONS, an entity of unknown
form; and DOES 1 through 50, inclusive, Defendants, Case No. 3:21
cv 08362 MMC (N.D. Cal.).
A full-text copy of the Court's June 20, 2023 Order is available at
https://tinyurl.com/4x6svkm5 from Leagle.com.
DAVID YEREMIAN & ASSOCIATES, INC., David Yeremian --
david@yeremianlaw.com -- Roman Shkodnik -- roman@yeremianlaw.com --
La Crescenta, California, DAVTYAN LAW FIRM, INC., Emil Davtyan --
emil@davtyanlaw.com -- Glendale, CA, Attorneys for Plaintiff SASHA
BALABANOFF.
SEYFARTH SHAW LLP, Eric M. Steinert -- esteinert@seyfarth.com --
Elizabeth J. MacGregor -- emacgregor@seyfarth.com -- Sean P. Piers
-- spiers@seyfarth.com -- Isabella D. Reyes -- ireyes@seyfarth.com
-- San Francisco, California, Attorneys for Defendant CLASSIC
VACATION, LLC.
K&L GATES LLP, Todd L. Nunn -- todd.nunn@klgates.com -- San
Francisco, California, Attorneys for Defendant Expedia, Inc. and
Expedia Group, Inc.
COINBASE INC: Refusal to Stay Bielski Suit Pending Appeal Flipped
-----------------------------------------------------------------
In the case, COINBASE, INC., Petitioner v. ABRAHAM BIELSKI, Case
No. 22-105 (U.S.), Judge Brett M. Kavanaugh of the Supreme Court of
the United States:
1. reverses the judgment of the Court of Appeals denying
Coinbase's motion to stay District Court proceedings
pending resolution of the arbitrability issue on appeal;
and
2. remands the case for further proceedings consistent with
his Opinion.
Coinbase operates an online platform on which users can buy and
sell cryptocurrencies and government-issued currencies. When
creating a Coinbase account, individuals agree to the terms in
Coinbase's User Agreement. As relevant in the case, the User
Agreement contains an arbitration provision, which directs that
disputes arising under the agreement be resolved through binding
arbitration.
The case concerns a putative class action filed against Coinbase in
the U. S. District Court for the Northern District of California.
Bielski sued on behalf of Coinbase users who allege that Coinbase
failed to replace funds fraudulently taken from the users'
accounts.
The District Court denied Coinbase's motion to compel arbitration.
Coinbase then filed an interlocutory appeal to the U. S. Court of
Appeals for the Ninth Circuit under 9 U. S. C. Section 16(a).
Section 16(a) authorizes an interlocutory appeal from the denial of
a motion to compel arbitration.
Coinbase also moved to stay District Court proceedings pending
resolution of the arbitrability issue on appeal. The District Court
declined to stay its proceedings. After receiving Coinbase's motion
for a stay, the Ninth Circuit likewise declined to stay the
District Court's proceedings. The Ninth Circuit followed its
precedent, under which an appeal from the denial of a motion to
compel arbitration does not automatically stay district court
proceedings. By contrast, however, most other Courts of Appeals to
address the question have held that a district court must stay its
proceedings while the interlocutory appeal on the question of
arbitrability is ongoing.
To resolve that disagreement among the Courts of Appeals, the
Supreme Court granted certiorari. The sole question before the
Court is whether a district court must stay its proceedings while
the interlocutory appeal on arbitrability is ongoing.
Judge Kavanaugh opines that the answer is yes. He explains that
Section 16(a) does not say whether the district court proceedings
must be stayed. But Congress enacted Section 16(a) against a clear
background principle prescribed by the Supreme Court's precedents:
An appeal, including an interlocutory appeal, divests the district
court of its control over those aspects of the case involved in the
appeal, citing Griggs v. Provident Consumer Discount Co., 459 U.S.
56, 58 (1982).
That Griggs principle reflects a longstanding tenet of American
procedure. Griggs dictates that the district court must stay its
proceedings while the interlocutory appeal on arbitrability is
ongoing. As Bielski acknowledges, courts have held that the Griggs
principle applies to those aspects of the case involved in a
certified interlocutory appeal under 28 U. S. C. Section 1292(b).
The common practice in Section 16(a) cases, therefore, is for a
district court to stay its proceedings while the interlocutory
appeal on arbitrability is ongoing.
To overcome the Griggs principle, Bielski advances five main
arguments. First, Bielski contends that an automatic stay would
encourage frivolous appeals that would improperly delay district
court proceedings. Second, he contrasts Section 16(a) with two
other statutory provisions that contain an explicit stay
requirement -- Section 3 of the Federal Arbitration Act and Section
1292(d)(4) of Title 28. Third, Third, Bielski contends that
requiring an automatic stay would create a special,
arbitration-preferring procedural rule. Fourth, he suggests that
there is no need for an automatic stay because the ordinary
discretionary stay factors would adequately protect parties' rights
to an interlocutory appellate determination of arbitrability.
Fifth, he relies on this Court's statement in Moses H. Cone
Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 21 (1983),
that questions of arbitrability are severable from the merits of
the underlying disputes.
None is persuasive, Judge Kavanaugh finds. First, he opines that
(1) Bielski has not established that frivolous appeals frequently
occur in the Circuits that have long applied the Griggs principle
in arbitration cases; (2) no background principle requires
automatic stays of district court proceedings pending arbitration
and unusual circumstance does not diminish the operation of the
Griggs rule in the context of arbitrability appeals; (3) a stay in
the forum selection context could be required only in those cases
where there is a certified Section 1292(b) interlocutory appeal of
the forum selection issue; (4) the background Griggs rule applies
regardless of how often courts might otherwise grant stays under
the ordinary discretionary stay factors; and (5) the district
court's authority to consider a case is "involved in the appeal"
when an appellate court considers the threshold question of
arbitrability and Moses H. Cone says nothing to the contrary.
Judge Kavanaugh concludes that, after Coinbase appealed from the
denial of its motion to compel arbitration, the District Court was
required to stay its proceedings. On remand, he anticipates that
the Ninth Circuit here, as the Supreme Court anticipate in Section
16(a) appeals more generally, will proceed with appropriate
expedition when considering Coinbase's interlocutory appeal from
the denial of the motion to compel arbitration. Judge Kavanaugh
reverses the judgment of the Court of Appeals and remands the case
for further proceedings consistent with his Opinion.
A full-text copy of the Court's June 23, 2023 Opinion is available
at https://tinyurl.com/yym2rzcr from Leagle.com.
COLGATE-PALMOLIVE CO: Court Narrows Claims in Schneider Class Suit
------------------------------------------------------------------
In the class action lawsuit captioned as AMY SCHNEIDER and ERIKA
OPGENORTH, on behalf of themselves and all others similarly
situated, v. COLGATE-PALMOLIVE COMPANY and CP SKIN HEALTH GROUP,
INC., Case No. 5:22-cv-01294-DNH-TWD (N.D.N.Y.), the Hon. Judge
David N. Hurd entered an order:
1. Granting in part and denying in part the Defendants' motion
to
dismiss;
2. Dismissing the Plaintiffs' Breach of Implied Warranty claim
(Count VII);
3. Remaining the Plaintiffs' claims for violation of New York
General Business Law section 349 (Count I), violation of New
York General Business Law section 350 (Count II), violation
of
California's Consumers Legal Remedies Act (Count III),
violation
of California's False Advertising Law (Count IV), violation
of
California's Unfair Competition Law (Count V), Breach of
Express
Warranty (Count VI), and Quasi Contract/Unjust
Enrichment/Restitution (Count VIII); and
4. Directing the Defendants to file and serve an answer to the
complaint on or before Wednesday, July 5, 2023.
The Clerk of The Court is directed to terminate the pending motion.
The Plaintiffs have not specified what state law governs their
claim on behalf of the nationwide class. The failure to identify
the relevant law makes it difficult to provide an analysis of
plaintiffs' unjust enrichment claim on behalf of the nationwide
class
On December 2, 2022, Amy Schneider and Erika Opgenorth filed this
putative class action against Colgate-Palmolive Company and CP Skin
Health Group, Inc. The Plaintiffs' eight-count complaint asserts
that defendants engaged in false and deceptive practices in the
marketing, distribution, and sale of EltaMD sunscreens.
On January 26, 2023, defendants moved to dismiss the complaint
pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6),
and 9(b).
The Plaintiffs bring this action on behalf of four putative
classes.
-- First, a nationwide class defined as all residents of the U.S.
who purchased any of the products within the applicable
statute
of limitation.
-- Second, a California class defined as all residents of
California
who purchased any of the products within the applicable
statute
of limitation.
-- Third, a "California Consumer Subclass" defined as all
residents
of California who purchased any of the products for personal,
family, or household purposes, within the applicable statute
of
limitations period. Id. Lastly, a New York class defined as
all
residents of New York who purchased any of the products within
the applicable statute of limitation.
Colgate owns EltaMD and oversees the formulation, manufacturing,
labeling, advertising, distribution, and sale of EltaMD products.
EltaMD is a professional skincare brand.
A copy of the Court's order dated June 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3Xp0Zw7 at no extra charge.[CC]
The Plaintiffs are represented by:
Benjamin Heikali, Esq.
TREEHOUSE LAW, LLP
10250 Constellation Blvd., Suite 100
Los Angeles, CA 90067
- and -
Robert Abiri, Esq.
CUSTODIO & DUBEY LLP
445 S. Figueroa St. Suite 2520
Los Angeles, CA 90071
The Defendant is represented by:
Keith E. Smith, Esq.
Nilda M. Isidro, Esq.
GREENBERG TRAURIG, LLP
1717 Arch Street, Suite 400
Philadelphia, PA 19103
COMMUNITY HEALTH SYSTEMS: Ross Files Suit in E.D. Pennsylvania
--------------------------------------------------------------
A class action lawsuit has been filed against Community Health
Systems, Inc., et al. The case is styled as Dennis Ross, on behalf
of himself and all others similarly situated v. Community Health
Systems, Inc., CHSPSC, LLC, Case No. 2:23-cv-02435 (E.D. Pa., June
26, 2023).
The nature of suit is stated as Other P.I. for Tort Negligence.
Community Health Systems -- https://www.chs.net/ -- is one of the
nation's leading healthcare providers..[BN]
The Plaintiff is represented by:
Richard E. Shenkan, Esq.
SHENKAN INJURY LAWYERS LLC
6550 Lakeshore Street
West Bloomfield, MI 48323
Phone: (412) 716-5800
Email: rshenkan@shenkanlaw.com
CONTAINER STORE: Hernandez Suit Removed to C.D. California
----------------------------------------------------------
The case captioned as Gabriella Hernandez, individually and on
behalf of all others similarly situated v. THE CONTAINER STORE,
INC., a Texas corporation, Case No. 23STCV11364 was removed from
the Superior Court of California for the County of Los Angeles, to
the United States District Court for the Central District of
California on June 26, 2023, and assigned Case No. 2:23-cv-05067.
The Plaintiff asserts a claim against TCS for a violation of the
Video Privacy Protection Act ("VPPA"). The Plaintiff's Complaint
asserts claims on behalf of herself and "all persons in the United
States who played video content on any website owned, operated or
controlled by Defendant and whose PII was disclosed by Defendant to
any third party during the two years preceding the filing of this
action."[BN]
The Defendant is represented by:
Amy P. Lally, Esq.
SIDLEY AUSTIN LLP
1999 Avenue of the Stars, 17th Floor
Los Angeles, CA 90067
Phone: (310) 595-9500
Fax: (310) 595-9501
Email: alally@sidley.com
DIVYAS KITCHEN: Black Files ADA Suit in E.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Divyas Kitchen, LLC.
The case is styled as Jahron Black, on behalf of himself and all
others similarly situated v. Divyas Kitchen, LLC, Case No.
1:23-cv-04695 (E.D.N.Y., June 23, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Divyas Kitchen, LLC -- https://divyas.com/ -- is a vegetarian,
largely gluten-free eatery following Ayurvedic principles in a
tranquil setting.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
DNC PARKS: Class Cert. Hearing in Perez Suit Reset to August 16
---------------------------------------------------------------
In the class action lawsuit captioned as Perez v. DNC Parks &
Resorts at Asilomar, Inc., et al., Case No. 1:19-cv-00484 (E.D.
Cal.), the Hon. Judge Stanley A. Boone entered an order resetting
hearing for motion to certify class from Aug. 9, 2023, to Aug. 16,
2023.
The nature of suit states labor litigation.[CC]
EMORY UNIVERSITY: Schultz Class Certification Bid Partly OK'd
-------------------------------------------------------------
In the class action lawsuit captioned as MARC SCHULTZ, individually
and on behalf of all others similarly situated, the Plaintiff, v.
EMORY UNIVERSITY, Case No. 1:20-cv-02002-TWT (N.D. Ga.), the Hon.
Judge Thomas W. Thrash, Jr. entered an order granting in part and
denying in part the Plaintiff's motion for class certification:
-- It is granted as to the Court's amended class definition above
for the Plaintiff's implied contract claim, and it is denied
as
to the Plaintiff's money-had-and received claim. The Plaintiff
is
ordered to submit a detailed plan for notifying class members
of
the present action and for managing the case within 30 days of
the date of the Order.
The Court agrees with Schultz that the first three factors favor a
finding that a class action is the superior means of litigating the
present claims. The Court has no reason to believe that the
putative class members here have any particular interest in
controlling their own litigation, nor is the Court aware of other
class members separately pursuing the same claims in other cases.
In addition, the Northern District of Georgia seems to be the most
logical forum for litigating the present claims because Emory is
located within the forum district. The fourth and final factor,
however, merits a closer look.
Accordingly, the Court certifies the following class of individuals
as to Schultz's implied contract claim only:
"All people paying Emory tuition, in whole or in part, and
personally or on behalf of others, for in-person instruction
during the Spring 2020 academic term."
The case is a putative breach of contract class action. The case
arises from the closure of the Defendant Emory University's campus
upon the arrival of the COVID-19 pandemic in March 2020.
The Plaintiff Marc Schultz is the father of an Emory student who
was enrolled in classes in both the Spring and Fall 2020 semesters.
Schultz brings this suit under the Class Action Fairness Act, 28
U.S.C. section 1332(d)(2), on behalf of himself and others
similarly situated seeking redress for his allegedly lost benefit
of the bargain.
Emory refunded "student accounts with a calculated amount of unused
housing, dining, athletic fees, activity fees, parking fees, and
other fees unrelated to academic instruction," the university did
not refund tuition in the spring or prorate costs for lost services
in the fall.
Emory University is a private research university in Atlanta,
Georgia.
A copy of the Court's order dated June 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3NmrkpU at no extra charge.[CC]
ENZO BIOCHEM: Mortensen Alleges Unauthorized Patients' Info Access
------------------------------------------------------------------
KATHRYN MORTENSEN, individually and on behalf of all others
similarly situated, Plaintiff v. ENZO BIOCHEM, INC., ENZO CLINICAL
LABS, INC., and LAB CORPORATION OF AMERICAN HOLDINGS, Defendants,
Case No. 2:23-cv-04656 (E.D.N.Y., June 22, 2023) is a class action
against the Defendants for negligence, breach of confidence, breach
of fiduciary duty, unjust enrichment, bailment, breach of implied
contract, violations of New York General Business Law and
Connecticut Unfair Trade Practices Act, and declaratory and
injunctive relief.
The case arises from the Defendants' failure to properly secure and
safeguard the protected health information (PHI) and personally
identifiable information (PII) of the Plaintiff and similarly
situated individuals stored within their network following a data
breach between April 4, 2023, and April 6, 2023. The Defendants
also failed to timely notify the Plaintiff and similarly situated
individuals about the data breach. As a result, the PII and PHI of
the Plaintiff and Class Members were compromised and damaged
through access by and disclosure to an unknown and unauthorized
third party, says the suit.
Enzo Biochem, Inc. is a biotechnology company, with its principal
place of business at 81 Executive Blvd. Suite 3, Farmingdale, New
York.
Enzo Clinical Labs, Inc. is a clinical reference laboratory
operator, with its principal place of business at 28 Liberty
Street, New York, New York.
Lab Corporation of American Holdings is a provider of clinical
laboratory services, with its principal place of business at 531
South Spring Street, Burlington, North Carolina. [BN]
The Plaintiff is represented by:
Brian P. Murray, Esq.
GLANCY PRONGAY & MURRAY LLP
230 Park Avenue, Suite 358
New York, NY 10169
Telephone: (212) 682-5340
Facsimile: (212) 884-0988
E-mail: bmurray@glancylaw.com
ERIE INSURANCE: Foringer Suit Removed to E.D. Pennsylvania
----------------------------------------------------------
The case styled as Scott Foringer, in his personal capacity and as
executor of the Estate of Ann Foringer, individually and on behalf
of others similarly situated v. Erie Insurance Company, was removed
to the U.S. District Court for the Eastern District of Pennsylvania
on June 26, 2023.
The District Court Clerk assigned Case No. 2:23-cv-02425-KSM to the
proceeding.
The nature of suit is stated Insurance Contract.
Erie Insurance -- http://www.erieinsurance.com/-- is a property
and casualty insurance company offering auto, home, business and
life insurance through a network of independent insurance
agents.[BN]
The Plaintiff is represented by:
Anthony Joseph Diulio
WHEELER, DIULIO & BARNABEI, P.C.
1617 JFK Blvd., Ste. 1270
Philadelphia, PA 19103
Phone: (215) 971-1000
Fax: (215) 568-2901
Email: adiulio@wdblegal.com
The Defendant is represented by:
Matthew Malamud, Esq.
HORST KREKSTEIN & RUNYON, LLC
610 W Germantown Pike, Suite 350
Plymouth Meeting, PA 19462
Phone: (484) 243-6873
Email: mmalamud@hkr.law
FIBROGEN INC: Reply to Bid for Spoliation Sanctions Due July 17
---------------------------------------------------------------
In the case, IN RE FIBROGEN, INC., SECURITIES LITIGATION, Case No.
3:21-cv-02623-EMC (N.D. Cal.), Judge Edward M. Chen of the U.S.
District Court for the Northern District of California grants the
Parties' Stipulated Request and Proposed Order Changing Time
Pursuant to Local Rule 6-2.
Lead Plaintiffs Employees' Retirement System of the City of
Baltimore, City of Philadelphia Board of Pensions and Retirement,
and Plymouth County Retirement Association, and Defendants
FibroGen, Inc., Enrique Conterno, James Schoeneck, Mark Eisner, Pat
Cotroneo, and K. Peony Yu, submit their Stipulated Request and
Proposed Order Changing Time Pursuant to Local Rule 6-2.
On June 8, 2023, the Plaintiffs filed a Motion for Spoliation
Sanctions (the "Motion"). Under Local Rule 7-3, the Defendants'
Opposition to the Motion must be filed and served no later than
June 22, 2023, the Plaintiffs' Reply in support of their Motion
must be filed and served no later than June 29, 2023, and the
Plaintiffs noticed a hearing on the Motion for July 27, 2023.
The counsel for the Plaintiffs and the Defendants have mutually
agreed to an extension of the aforementioned deadlines. The
extension is necessary due to, among other things, the scope of the
Motion, which includes over one hundred exhibits, as well as
conflicts in the schedules of counsel for Yu.
Good cause exists for the requested extension given the Parties'
agreement, the complexity of the Motion, the scheduling conflicts
faced by the Parties and their respective counsel, and that no
other case deadlines will be affected by the extensions requested.
The Parties have met and conferred and agreed to the schedule set
forth for remaining briefing and argument on the Plaintiffs'
Motion.
Therefore, the Parties stipulated and agrees that:
1. The Defendants will file their opposition papers to the
Plaintiffs' Motion for Spoliation Sanctions by July 17, 2023;
2. The Plaintiffs will file their reply papers in support of
their Motion for Spoliation Sanctions by Aug. 11, 2023; and
3. The hearing on this matter will be held on Aug. 31, 2023 at
1:30 p.m. or on such other date as may be convenient for the
Court.
Judge Chen so ordered.
A full-text copy of the Court's June 20, 2023 Order is available at
https://tinyurl.com/zxsk7mph from Leagle.com.
COOLEY LLP, PATRICK E. GIBBS -- pgibbs@cooley.com -- TIJANA M.
BRIEN -- tbrien@cooley.com -- ZANETA J. KIM -- zkim@cooley.com --
AMIE L. SIMMONS -- asimmons@cooley.com -- Palo Alto, California,
Attorneys for Defendants FibroGen, Inc., Enrique Conterno, James
Schoeneck, Mark Eisner, and Pat Cotroneo.
SAXENA WHITE P.A., David R. Kaplan -- dkaplan@saxenawhite.com --
Emily Bishop -- ebishop@saxenawhite.com -- Solana Beach, Steven B.
Singer -- ssinger@saxenawhite.com -- Kyla Grant --
kgrant@saxenawhite.com -- (admitted pro hac vice) Sara DiLeo --
sdileo@saxenawhite.com -- (admitted pro hac vice) Joshua H.
Saltzman -- sdileo@saxenawhite.com -- (admitted pro hac vice) White
Plains, New York, Maya Saxena -- msaxena@saxenawhite.com --
(admitted pro hac vice) Lester R. Hooker -- lhooker@saxenawhite.com
-- Dianne M. Pitre -- dpitre@saxenawhite.com -- Boca Raton, FL,
Counsel for Lead Plaintiffs Employees' Retirement System of the
City of Baltimore, City of Philadelphia Board of Pensions and
Retirement, and Plymouth County Retirement Association, and Lead
Counsel for the Class.
PILLSBURY WINTHROP SHAW PITTMAN LLP, Bruce A. Ericson --
bruce.ericson@pillsburylaw.com -- Lee Brand --
lee.brand@pillsburylaw.com -- San Francisco, CA,
WEI GROUP LLP, Eric S. Wei -- ewei@wei-law.com -- (pro hac vice
forthcoming) New York, NY, Attorneys for Defendant K. Peony Yu,
M.D.
FIRST SOLAR: Court Tosses Palm Harbor's 2nd Amended Securities Suit
-------------------------------------------------------------------
In the case, Palm Harbor Special Fire Control & Rescue District
Firefighters Pension Plan, et al., Plaintiffs v. First Solar
Incorporated, et al., Defendants, Case No. CV-22-00036-PHX-MTL (D.
Ariz.), Judge Michael T. Liburdi of the U.S. District Court for the
District of Arizona grants the Defendants' Motion to Dismiss
Plaintiff's Second Amended Complaint and dismisses the Plaintiffs'
SAC.
The Court is asked to rule on Defendants First Solar, Mark Widmar,
Alexander R. Bradley, and Georges Antoun's Motion to Dismiss
Plaintiff's SAC. On Jan. 10, 2023, the Court dismissed the Lead
Plaintiffs Palm Harbor Special Fire Control & Rescue District
Firefighters' Pension Plan and Greater Pennsylvania Carpenters'
Pension Fund's Amended Complaint but granted leave to amend. The
Plaintiffs oppose dismissal, arguing that their SAC cures the
deficiencies previously identified by the Court.
The Plaintiffs bring this putative class action for violations of
the federal securities laws on behalf of themselves and a putative
class of all persons and entities who purchased or otherwise
acquired First Solar's common stock between Feb. 22, 2019 and Feb.
20, 2020. First Solar is a publicly traded Delaware corporation
headquartered in Tempe, Arizona that manufactures and sells solar
module and photovoltaic ("PV") solar power systems for commercial
and residential applications.
The Plaintiffs' fraud allegations concern two of First Solar's
business segments: (1) the PV solar power Modules Segment and (2)
the project development business within the PV solar power Systems
Segment. The Plaintiffs allege that the Defendants made
misrepresentations and omissions relating to First Solar's Modules
Segment and Systems Segment in violation of Section 10(b) and 20(a)
of the Securities Exchange Act of 1934, 15 U.S.C. Sections 78j(b),
78t(a), and SEC Rule 10b-5, promulgated thereunder.
In its previous Order, the Court granted the Defendants' motion to
dismiss because the Plaintiffs' Amended Complaint failed to meet
the Private Securities Litigation Reform Act's ("PSLRA") "exacting
standards and requirements for pleading loss causation and
scienter." In accordance with the Ninth Circuit's standard for
granting leave to amend, and the Plaintiffs' request, the Court
gave the Plaintiffs leave to file a SAC. The Defendants now move to
dismiss the SAC with prejudice under Federal Rule of Civil
Procedure 12(b)(6) for failing to comply with the pleading
standards of Rule 9(b) and the PSLRA, 15 U.S.C. Section 78u et
seq.
The Defendants maintain that the SAC merely "recycles the
Plaintiffs' two disjointed theories of fraud" and move to dismiss
it for failing to plead any corrective disclosure establishing loss
causation, failing to plead facts that support a strong inference
of scienter, and failing to allege any actionable misstatements or
omissions.
Judge Liburdi holds that the SAC comes short of curing its
previously identified deficiencies with its scienter and loss
causation allegations.
First, he explores the Section 10(b) claim of the SAC. She holds
that the insufficient allegations do not evidence the fraudulent
intent or deliberate recklessness necessary to lead to a strong
inference of scienter that is at least as cogent as any competing
inferences. Accordingly, the SAC fails to adequately plead
scienter.
Judge Liburdi further finds that the SAC restates the two
corrective disclosures alleged in the Amended Complaint -- the
January 2020 Barclays report and the February 2020 earnings call --
and adds a third, an October 2019 earnings call. He says the two
original disclosures remain deficient, and that the new allegation
cannot constitute a corrective disclosure.
Judge Liburdi finds that (1) the Plaintiffs fail to connect the
October 2019 disclosure to any allegedly fraudulent statements; (2)
Barclays report also does not constitute a corrective disclosure;
(3) the SAC fails to adequately plead loss causation as to the
February 2020 earnings call; and (4) the SAC is devoid of
particularized allegations of any specific risks concealed by
Defendants that ultimately materialized and played a role in the
diminished value of the share price. Therefore, the SAC's
materialization of the risk allegations do not alter Judge
Liburdi's conclusion.
Next, Judge Liburdi examines the Section 20(a) claim. To state a
claim of control person liability under Section 20(a), a plaintiff
must demonstrate a primary violation of federal securities law and
that the defendant exercised actual power or control over the
primary violator. The Plaintiffs failed to adequately plead a
primary violation of Section 10(b). Therefore, the Section 20(a)
control person claim necessarily fails.
Finally, the Plaintiffs' response to the Motion to Dismiss does not
request leave to amend. Although leave may be granted even if no
request was made, having previously granted leave to amend, and
considering the factors under Rule 15(a), Judge Liburdi finds that
leave to amend would be futile and unduly prejudicial the
Defendants' interests in finality. Therefore, he does not grant the
Plaintiffs leave to amend.
Accordingly, the Defendants' Motion to Dismiss is granted and the
Plaintiffs' SAC is dismissed. The Clerk of Court is directed to
close the case.
A full-text copy of the Court's June 23, 2023 Order is available at
https://tinyurl.com/2cb7dujy from Leagle.com.
FRESENIUS MEDICAL: Underpays Registered Nurses, Laughlin Claims
---------------------------------------------------------------
LINDA LAUGHLIN, individually and on behalf of all others similarly
situated, Plaintiff v. FRESENIUS MEDICAL CARE HOLDINGS, INC. d/b/a
FRESENIUS MEDICAL CARE NORTH AMERICA and RENAL CARE GROUP, INC.,
Defendants, Case No. 2:23-cv-00180 (E.D. Wash., June 22, 2023) is a
class action against the Defendants for failure to pay overtime
wages and willfully withholding earned wages under the Washington
Wage Rebate Act and for failure to provide bona fide meal breaks
under the Washington Administrative Code.
Ms. Laughlin worked for the Defendants as a registered nurse at
various hospitals in and around Spokane, Washington and Post Falls,
Idaho from approximately November 2016 until April 2023.
Fresenius Medical Care Holdings, Inc., doing business as Fresenius
Medical Care North America, is a healthcare company which provides
kidney dialysis services, headquartered in Waltham, Massachusetts.
Renal Care Group, Inc. is a wholly owned subsidiary of Fresenius,
with its headquarters in Waltham, Massachusetts. [BN]
The Plaintiff is represented by:
Nicholas D. Kovarik, Esq.
PISKEL YAHNE KOVARIK, PLLC
522 W. Riverside Ave., Suite 700
Spokane, WA 99201
Telephone: (509) 321-5930
Facsimile: (509) 321-5935
E-mail: nick@pyklawyers.com
- and -
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP, LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Telephone: (713) 877-8788
E-mail: rburch@brucknerburch.com
- and -
William C. (Clif) Alexander, Esq.
Austin W. Anderson, Esq.
101 N. Shoreline Blvd., Suite 610
Corpus Christi, TX 78401
Telephone: (361) 452-1279
E-mail: clif@a2xlaw.com
austin@a2xlaw.com
GEORGIA STATE BOARD: Cunningham Files Suit in N.D. Georgia
----------------------------------------------------------
A class action lawsuit has been filed against Georgia State Board
of Pardons And Paroles, et al. The case is styled as Jamie Walter
Cunningham, All Similarly-Situated Inmates v. Georgia State Board
of Pardons And Paroles, Terry E. Barnard, Meg Heap, Jacqueline
Bunn, David Herring, Timothy C. Ward, et. al. sued in their
official capacity, Case No. 1:23-cv-02857-MHC-CMS (N.D. Ga., June
26, 2023).
The nature of suit is stated as Prisoner Civil Rights.
The State Board of Pardons and Paroles grants paroles, pardons,
reprieves, remissions, and commutations.[BN]
The Plaintiff appears pro se.
GLOBE LIFE: Sends Unsolicited Marketing Calls, Slominski Claims
---------------------------------------------------------------
SHIRLEY ANN SLOMINSKI, individually and on behalf of all others
similarly situated, Plaintiff v. GLOBE LIFE INC. and UNITED
AMERICAN INSURANCE COMPANY, Defendants, Case No. 7:23-cv-01081-D
(E.D.N.C., June 22, 2023) is a class action against the Defendants
for violation of the Telephone Consumer Protection Act.
According to the complaint, the Defendants placed telemarketing
calls to consumers with numbers registered on the Do Not Call
Registry without obtaining prior express written consent. As a
result, the Plaintiff suffered damages, says the suit.
Globe Life Inc. is a life insurance company, headquartered in
McKinney, Texas.
United American Insurance Company is an insurance company,
headquartered in McKinney, Texas. [BN]
The Plaintiff is represented by:
Ryan Duffy, Esq.
THE LAW OFFICE OF RYAN P. DUFFY, PLLC
1213 W. Morehead Street
Suite 500, Unit #450
Charlotte, NC 28208
Telephone: (704) 741-9399
E-mail: ryan@ryanpduffy.com
- and -
Avi R. Kaufman, Esq.
KAUFMAN P.A.
237 S. Dixie Hwy., Floor 4
Coral Gables, FL 33133
Telephone: (305) 469-5881
E-mail: kaufman@kaufmanpa.com
GOOGLE LLC: Faces Class Suit Over Invasion of Children's Privacy
----------------------------------------------------------------
A.B., a minor, by and through his guardian JEN TURNER, C.D.1,
C.D.2, and C.D.3 minors, by and through their guardian KIRENDA
JOHNSON, E.F.1, and E.F.2, by and through their guardian BARABRA
HAYDEN-SEAMAN, individually and on behalf of all others similarly
situated, Plaintiffs v. GOOGLE LLC, ADMOB GOOGLE INC., and ADMOB,
INC., Defendants, Case No. 5:23-cv-03101-VKD (N.D. Cal., June 22,
2023) is a class action against the Defendants for intrusion upon
seclusion, unjust enrichment, and violations of the California
Unfair Competition Law, California Constitutional Right to Privacy,
Florida Deceptive and Unfair Trade Practices Act, and New York
Consumer Protection Law.
The case arises from the Defendants' unlawful invasion of privacy
and violation of the reasonable expectations of privacy of millions
of children under the age of 13. Through apps directed at children,
the Defendants knowingly and intentionally collected personal
information without parental consent to track and profile the
children using these apps and target them with highly lucrative
behavioral advertising at the expense of the children's privacy
rights and in violation of well-established privacy protections,
societal norms, and the laws embodying those protections. As a
result of the Defendants' conduct, the Plaintiffs and Class members
suffered actual damages based on the loss of the value of their
personal information and the lost profits from the use of their
personal information, says the suit.
Google, LLC is a technology company, with its principal place of
business in Mountain View, California.
AdMob Google Inc. is a wholly-owned subsidiary of Google, LLC, with
its principal place of business in Mountain View, California.
AdMob, Inc. is a wholly-owned subsidiary of Google, LLC, with its
principal place of business in Mountain View, California. [BN]
The Plaintiffs are represented by:
Patrick Carey, Esq.
Mark Todzo, Esq.
LEXINGTON LAW GROUP
503 Divisadero Street
San Francisco, CA 94105
Telephone: (415) 913-7800
E-mail: pcarey@lexlawgroup.com
mtodzo@lexlawgroup.com
- and -
David S. Golub, Esq.
Steven L. Bloch, Esq.
Ian W. Sloss, Esq.
Jennifer Sclar, Esq.
Johnathan Seredynski, Esq.
SILVER GOLUB & TEITELL LLP
One Landmark Square, 15th Floor
Stamford, CT 06901
Telephone: (203) 325-4491
E-mail: isloss@sgtlaw.com
sbloch@sgtlaw.com
jsclar@sgtlaw.com
jseredynski@sgtlaw.com
HITRONS TECH INC: Delacruz Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Hitrons Tech Inc. The
case is styled as Emanuel Delacruz, on behalf of himself and all
other persons similarly situated v. Hitrons Tech Inc., Case No.
1:23-cv-05342-ALC (S.D.N.Y., June 23, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
HiTRONS -- https://www.hitrons.com/ -- is a massage chair and home
appliance specialist since 2002.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Dana Lauren Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: nyjg@aol.com
INTERCONTINENTAL TERMINALS: Bryant's Bid to Certify Class Denied
----------------------------------------------------------------
In the cases, BRYANT, et al., Plaintiffs v. INTERCONTINENTAL
TERMINALS COMPANY LLC, et al., Defendants. IN RE: INTERCONTINENTAL
TERMINALS COMPANY, LLC DEER PARK FIRE LITIGATION, Case Nos.
4:19-cv-01708, 4:19-cv-01460 (S.D. Tex.), Magistrate Judge Dean
Hanovice Palermo of the U.S. District Court for the Southern
District of Texas, Houston Division:
a. denies the Plaintiffs' Motion for Class Certification;
b. denies as moot the Plaintiffs' Motion to Exclude Opinions
and Testimony of Defendants' Expert Paolo Zannetti;
c. denies as moot the Defendants' Motion to Exclude
Plaintiffs' Air Modeling Expert William Auberle; and
d. denies as moot the Defendants' Motion to Exclude
Plaintiffs' Toxicology Expert S. Thomas Dydek.
In this case, proposed class representatives Amanda Bryant, Harn
Lee, Silver's Andy Nails, Veronica Cantu, and Stephanie Ochoa seek
economic damages from Defendants Intercontinental Terminals Co.,
LLC ("ITC") and NSK Corp. for harms allegedly suffered from a fire
at the ITC Deer Park, Texas facility. The Plaintiffs have asserted
causes of action for trespass, negligence, nuisance, manufacturing
defect, design defect, and products liability.
The Plaintiffs ask the Court to certify a class "consisting of the
individuals residing in, and the businesses, governmental entities
and schools located in, the isopleth attached as Exhibit A2 during
the ITC fires." The parties also ask the Court to exclude expert
opinions submitted in support of and against class certification.
The primary issue before the Court is whether the Plaintiffs'
proposed class satisfies the requirements for certification under
Rule 23 of the Federal Rules of Civil Procedure. The Daubert
motions are relevant only to the extent the Plaintiffs rely on an
expert's report or testimony in support of the class certification
motion. The Court held two days of hearings on these motions.
The action concerns a fire at ITC's Deer Park, Texas facility that
burned from March 17, 2019 to March 20, 2019. During the fire, 15
storage tanks burned, containing a variety of chemicals, including
naphtha (a flammable liquid hydrocarbon mixture), xylene (a solvent
and cleaning agent), GBS (gas blend stock, a complex mixture of
hydrocarbons), and lubricant oils (a complex mixture of low and
high molecular weight hydrocarbons).
In response to the fire, the cities of Deer Park and Galena Park
issued shelter-in-place orders. Deer Park issued two separate
orders, one on March 17, 2019, and another on March 21, 2019. In
relevant part, the March 21, 2019 Deer Park shelter-in-place order
provided that there were reports of action levels of benzene or
other volatile organic compounds (VOCs) within city limits. It
further directed Deer Park residents to go inside immediately,
close all doors and windows, and take steps to prevent vapors from
entering residents' homes. Galena Park also issued a
shelter-in-place order on March 21, 2019.
Following the ITC Fire, the Plaintiffs filed a class action
complaint, asserting six causes of action: (1) trespass; (2)
negligence; (3) nuisance; (4) manufacturing defect; (5) design
defect; and (6) products liability (seller). They seek to recover
use and enjoyment damages, property damages, annoyance, and
inconvenience damages, as well as lost profits and wages. They do
not seek any recovery for personal injury. The Plaintiffs allege
that particulate matter from the ITC Fire was deposited on their
property -- both dwellings and places of businesses -- and that
they suffered damages as a result.
The Plaintiffs' motion asks the Court to certify a class consisting
of all individuals residing in, and the businesses, governmental
entities and schools located in, an area that they claim received a
ground-level concentration of particles at a rate of one gram per
square meter (the "Class Area"). The Class Area is 83.86 square
miles. Bergin & Mims Expert Rept. Approximately 190,000 individuals
reside in, and between 2,500 and 3,500 businesses are located
within, the Class Area. Less than 24% of individuals and 21% of
businesses in the Class Area were subject to shelter in place
orders.
Individuals residing within the Class Area are employed in a
variety of industries. The top three industries of employment are
services, construction, and manufacturing. There is also
significant diversity among the businesses in the class area.
The Plaintiffs' air modeling expert William Auberle opines that one
gram per square meter of particulate matter was deposited over an
84-square-mile area from the ITC Fire. Auberle, an environmental
engineer with over fifty years of experience, used AERMOD to model
the deposition of particulate matter from the ITC Fire.
The Defendants argue that Auberle's opinion is unreliable because
he (1) used arbitrary inputs for his model; (2) did not undertake
any sensitivity or uncertainty analyses; (3) ignored available data
from other sources; and (4) the one gram per square meter of
particulate matter threshold selected for the Class Area was
arbitrary. The Plaintiffs primarily respond that the Defendants'
complaints should go to weight and not admissibility.
Judge Palermo finds that (1) Auberle was unable to identify any
literature or studies that supported one gram per square meter as
the threshold for visibility; (2) Auberle's input of 12.5 meters
for stack diameter was based on an erroneous assumption of the
underlying facts; and (3) Auberle's inputs for the number of stacks
and their configuration into his model appears to be arbitrary.
Because the Plaintiffs' proposed class fails to satisfy Rule 23's
requirements even if Auberle's report is not excluded, Judge
Palermo denies the Defendants' motion to exclude Auberle as moot.
For the same reason, he also denies the Plaintiffs' motion to
exclude Zannetti and the Defendants' motion to exclude Dydek as
moot.
Judge Palermo now turns to the Plaintiffs' motion for class
certification. A district court must conduct a rigorous analysis of
the rule 23 prerequisites before certifying a class. Under the Rule
23 framework, the Plaintiffs must satisfy the four threshold
requirements of Rule 23(a) (numerosity, commonality, typicality,
and adequacy) (in the Fifth Circuit, there is an additional,
"implied prerequisite" under Rule 23 that the class of persons to
be represented is ascertainable), as well as the requirements of
Rule 23(b)(1), (2), or (3) (questions of law or fact common to
class members predominate over any questions affecting only
individual members, and that a class action is superior to other
available methods for fairly and efficiently adjudicating the
controversy).
Judge Palermo finds that (1) the Plaintiffs' proposed class is
ascertainable; (2) because the evidence shows that the class is
substantially larger than the 100-to-150-member threshold, the
Plaintiffs' proposed class satisfies the numerosity requirement;
(3) because to determine liability for the Plaintiffs' claims, the
trier of fact will have to answer how the ITC Fire started and who
was responsible, commonality requirement is satisfied; (4) the
class representatives and the proposed class "share the same
essential characteristics, share the same theory of liability and
are based on substantially the same facts; (5) claim splitting does
not create an inappropriate conflict of interest and Silver's Andy
Nails is an adequate class representative.
However, Judge Palermo finds that the Plaintiffs' proposed class
does not satisfy the requirements of Rule 23(b)(3). He says the
breadth of the recovery the Plaintiffs seek presents a multitude of
individualized inquiries across the class that must be answered to
determine causation and damages. First, the Plaintiffs' proposal
for a bifurcated trial plan cannot manufacture predominance.
Second, the Plaintiffs fail to carry their burden of showing that
common questions predominate over individual ones with respect to
causation. Finally, individual causation and damages inquiries
predominate over common questions regarding the Plaintiffs'
negligence claims. Hence, the Plaintiffs have failed to satisfy
their burden of demonstrating predominance under Rule 23(b)(3) and
Judge Palermo denies the Plaintiffs' request to certify a damages
class for design defect, manufacturer's defect, or seller
liability.
In sum, Judge Palermo concludes that the Plaintiffs have failed to
satisfy Rule 23's requirements for class certification and,
therefore, denies their Motion to Certify a Class. As a result, she
denies as moot the Plaintiffs' Motion to Exclude Opinions and
Testimony of Defendants' Expert Paolo Zannetti, the Defendants'
Motion to Exclude Plaintiffs' Air Modeling Expert William Auberle,
and the Defendants' Motion to Exclude Plaintiffs' Toxicology Expert
S. Thomas Dydek.
A full-text copy of the Court's June 21, 2023 Memorandum & Order is
available at https://tinyurl.com/455d9sf6 from Leagle.com.
J. M. SMUCKER: Nupp Sues Over Ground Coffee's Deceptive Labels
--------------------------------------------------------------
MARCIA NUPP, individually and on behalf of all others similarly
situated, Plaintiff v. THE J. M. SMUCKER COMPANY and THE FOLGER
COFFEE COMPANY, Defendants, Case No. 4:23-cv-00443-RK (W.D. Mo.,
June 22, 2023) is a class action against the Defendants for
violations of the New York General Business Law, breach of express
warranty, breach of implied warranty, common law fraud, and quasi
contract/unjust enrichment/restitution.
According to the complaint, the Defendants are engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
their Folgers ground coffee products. The Defendants have sold the
products to consumers based on the representation that they contain
enough ground coffee to make up to a specific number of servings.
However, by following the Defendants' own definitions and
instructions, the products do not contain enough ground coffee to
make the number of servings represented or even close to it. Had
the Plaintiff and other consumers known the truth that the products
do not contain enough coffee to make the specified number of
servings, they would have paid less for them, or would not have
purchased them at all. As a result, the Plaintiff and other
consumers have been deceived and have suffered economic injury, the
suit says.
The J. M. Smucker Company is a consumer-packaged goods company,
with its headquarters and principal place of business at One
Strawberry Lane, Orrville, Ohio.
The Folger Coffee Company is a coffee manufacturer, with its
headquarters and principal place of business at One Strawberry
Lane, Orrville, Ohio. [BN]
The Plaintiff is represented by:
Tim E. Dollar, Esq.
DOLLAR BURNS & BECKER, L.C.
1100 Main Street, Suite 2600
Kansas City, MO 64105
Telephone: (816) 876-2600
Facsimile: (816) 221-8763
E-mail: timd@dollar-law.com
- and -
Todd D. Carpenter, Esq.
Scott G. Braden, Esq.
Katrina Carroll, Esq.
CARLSON LYNCH, LLP
1350 Columbia St., Ste. 603
San Diego, CA 92101
Telephone: (619) 762-1900
Facsimile: (619) 756-6991
E-mail: tcarpenter@carlsonlynch.com
sbraden@carlsonlynch.com
kcarroll@carlsonlynch.com
- and -
Lubna M. Faruqi, Esq.
Timothy J. Peter, Esq.
Lisa T. Omoto, Esq.
FARUQI & FARUQI, LLP
685 Third Avenue, 26th Floor
New York, NY 10017
Telephone: (212) 983-9330
Facsimile: (212) 983-9331
E-mail: lfaruqi@faruqilaw.com
tpeter@faruqilaw.com
lomoto@faruqilaw.com
- and -
Bonner C. Walsh, Esq.
WALSH PLLC
1561 Long Haul Road
Grangeville, ID 83530
Telephone: (541) 359-2827
Facsimile: (866) 503-8206
E-mail: bonner@walshpllc.com
JACKSON COUNTY, KS: Faces Class Action Over Property Assessment
---------------------------------------------------------------
Tony's Kansas City reports that a lawsuit names Jackson County
Executive Frank White And the County assessor amongst others.
"This is a class action claim arising from Defendants' assessment
actions towards owners of property in Jackson County, Missouri. As
more fully set forth below, Defendants' actions resulted in illegal
and unlawful increases in the assessed value of real property
throughout Jackson County, thereby threatening class members with
imminent harm in the form of unlawful and illegal tax increases."
Here's a telling passage sent just moments ago to out
www.TonysKansasCity.com blog community . . .
"One out of three parcels in the county were considered high
assessment increases. This would make the 2023 property tax
assessment the largest percentage increase we have had in the
County's history.
"Within about three hours of reviewing the report, I recognized
there were serious errors in the data." [GN]
KALITTA AIR: Bid for Summary Judgment in Odell Suit Granted in Part
-------------------------------------------------------------------
In the case, ROBERT W. ODELL, JR., et al., Plaintiffs v. KALITTA
AIR, LLC, and CONRAD KALITTA in his official capacity, Defendants,
Case No. 1:22-cv-12290 (E.D. Mich.), Judge Thomas L. Ludington of
the U.S. District Court for the Eastern District of Michigan,
Northern Division, overrules the Plaintiffs' objection to the
magistrate judge's report recommending partial entry of summary
judgment; and grants in part and denies in part the Defendants'
Motion for Summary Judgment.
In this class action, 11 former employees are suing Defendants
Kalitta Air and its owner, Conrad Kalitta, under Title VII and the
ADA, alleging they (1) refused to grant religious or medical
accommodations from a company-wide mandate requiring all employees
to receive the COVID-19 vaccine and then (2) terminated their
employment for requesting an accommodation.
In December 2022, the Defendants filed a motion to dismiss under
Civil Rule 12(b)(1), arguing the claims that the five Plaintiffs
who are pilots brought under Title VII and the ADA are preempted by
the Railway Labor Act, 45 U.S.C. Section 151 et seq., because they
require an interpretation of the collective bargaining agreement
between Kalitta Air and the Air Line Pilots Association that is in
effect from March 1, 2021, to March 1, 2025. The motion was
referred to Magistrate Judge Patricia T. Morris.
After the Parties completed briefing, Judge Morris notified them of
her intent to construe the motion to dismiss as a motion for
summary judgment because it raised a nonjurisdictional issue and
relied on materials outside the complaint. Both sides were
permitted to supplement their briefing or to seek additional time
to conduct discovery for the motion. The Defendants chose to rest
on its initial briefing, but the pilot Plaintiffs requested that
Judge Morris defer consideration pending additional discovery. The
Defendants opposed the pilot Plaintiffs' motion and asked for a
ruling on the motion for summary judgment.
On May 26, 2023, Judge Morris issued a report recommending that the
Defendants' motion for summary judgment be partially granted and
that the Plaintiffs' motion for additional discovery be denied. In
sum, Judge Morris concluded all of the pilot Plaintiffs' claims --
except their retaliation claims -- are preempted by the Railway
Labor Act as "minor disputes." Judge Morris provided 14 days to
object, but only the Plaintiffs did so. The Defendants have
therefore forfeited their right to appeal Judge Morris' findings.
Having conducted a de novo review, Judge Ludington concludes that
Judge Morris' factual conclusions are reasonably correct, that she
applied to correct law, and that her legal reasoning is sound. That
is, there is no clear error in the Magistrate Judge's
recommendations (1) to enter summary judgment against Plaintiffs
Webber, Hudnutt, Tougas, Galton, and McAllister on Counts I, III,
and V; (2) to deny summary judgment against Plaintiffs Webber,
Hudnutt, and Tougas on Counts II and IV; (3) to dismiss the
Plaintiffs Galton and McAllister from the case; or (4) to deny the
Plaintiff's motion for additional discovery.
For these reasons, the Plaintiffs' Objections are overruled, and
the Magistrate Judge's recommendations are adopted. The Defendants'
Motion for Summary Judgment is granted in part and denied in part.
It is granted to the extent that it seeks dismissal of Counts I,
III, and V with respect to Plaintiffs Webber, Hudnutt, Tougas,
Galton, and McAllister. It is denied in all other regards.
Further, the Plaintiffs' Motion to Deny or Alternatively to Defer
Consideration of Converted Motion is denied.
Plaintiffs Galton and McAllister are dismissed from the case.
The remaining claims are as follows:
1. Count I: Title VII, 42 U.S.C. Section 2000e et seq. (Odell,
Pingot, Kotula, Jones); Religious Discrimination - Failure to
Accommodate ((Verlander, Robertson)
2. Count II: Title VII, 42 U.S.C. Section 2000e et seq.
(Odell, Pingot, Kotula); Religious Discrimination - Retaliation
(Verlander, Webber, Hudnutt)
3. Count III: American With Disabilities Act, 42 U.S.C.
Section 12101 et Jones seq. (Jones); Disability Discrimination -
Failure to Accommodate (Jones)
4. Count IV: American With Disabilities Act, 42 U.S.C. Section
12101 et seq. (Jones, Tougas); Disability Discrimination -
Retaliation
5. Count V (Verlander, Robertson): American With Disabilities
Act, 42 U.S.C. Section 12101 et seq. (Odell, Pingot, Kotula,
Jones); Disability Discrimination - Perceived Disability
A full-text copy of the Court's June 20, 2023 Opinion & Order is
available at https://tinyurl.com/yr6b4h84 from Leagle.com.
KELLY SERVICES: Can Compel Arbitration; Bazine Class Suit Stayed
----------------------------------------------------------------
In the case, SAMY BAZINE, on behalf of himself and all others
similarly situated, Plaintiff v. KELLY SERVICES GLOBAL, LLC; KELLY
SERVICES USA, LLC; and MEDI MALL, INC., Defendants, Case No.
22-cv-07170-BLF (N.D. Cal.), Judge Beth Labson Freeman of the U.S.
District Court for the Northern District of California, San Jose
Division, grants Kelly's motion to compel arbitration and stays the
action pending completion of arbitration.
Bazine brings the putative class action against Defendants Kelly
Services Global, LLC and Kelly Services USA, LLC (collectively,
"Kelly"), and Defendant Medi Mall, asserting a single claim under
California's unfair competition law ("UCL"), Cal. Bus. & Prof. Code
Section 17200. The UCL claim is grounded in alleged violations of
California's wage and hour laws by Kelly and Medi Mall. Kelly has
filed a motion to compel arbitration and dismiss, or in the
alternative, stay the litigation pending completion of arbitration.
The motion is joined by Medi Mall and opposed by Bazine.
Kelly is a Michigan-based temporary employment agency that operates
throughout the United States. It uses an online eRegistration
process for onboarding Kelly temporary employee ("KTE") applicants.
Kelly's eRegistration process is a standardized process through
which applicants complete an employment application, releases for
drug screening and reference checks, a 'Dispute Resolution and
Mutual Agreement to Binding Arbitration' form, Form W-4, Employee
Handbook Acknowledgment, Kelly Handbook, Direct Deposit pay
options, and other hiring and onboarding forms.
Bazine, a California resident, completed Kelly's eRegistration
process twice, the first time on Oct. 10, 2018, and the second time
on July 17, 2020. During each registration, Bazine electronically
signed a version of Kelly's Arbitration Agreement. The two
versions, referred to as the 2020 Arbitration Agreement and the
2018 Arbitration Agreement, are substantially similar with one
significant difference on Covered Claims.
As relevant here, "Covered Claims" that are subject to arbitration
include "all common-law and statutory claims relating to my
employment, including, but not limited to, any claim for unpaid
wages." "Covered Claims" do not include unfair competition claims.
Both the 2020 Arbitration Agreement and the 2018 Arbitration
Agreement provide that the employment dispute resolution rules of
the American Arbitration Association ('AAA') effective at the time
of filing will apply, a copy of which is always available on
MyKelly.com or upon request from your Kelly Representative. Both
versions state that the Arbitration Agreement will be governed by
the Federal Arbitration Act and, for California applicants and
employees, by the California Arbitration Act as well. Finally, both
versions specify that any disputes related to Bazine's employment
relationship with Kelly Services will be governed by Michigan law.
There is one significant difference between the two versions of the
Arbitration Agreement, as the 2020 Arbitration Agreement contains
the following language that is not included in the 2018 Arbitration
Agreement: "This Agreement is not mandatory for people who reside
or work in California, and if I work or reside in California, I
understand that the decision to sign this Agreement to Arbitrate is
entirely my own, and that neither my hiring nor continued
employment with Kelly is conditioned upon signing this Agreement to
Arbitrate."
Bazine did not exercise his right to decline the 2020 Arbitration
Agreement when he registered with Kelly on July 17, 2020, and he
signed the 2020 Arbitration Agreement as part of that registration
process. On July 29, 2020, Kelly placed Bazine in a temporary
position with Medi Mall. Bazine's assignment with Medi Mall began
on July 29, 2020, and he provided services to Medi Mall until his
assignment ended on Feb. 24, 2021.
Bazine filed the complaint in the action in the Santa Clara County
Superior Court on Oct. 6, 2022, asserting a single UCL claim
against Kelly and Medi Mall. He alleges that Kelly and Medi Mall
are liable under California's UCL due to their violations of
California wage and hour laws governing minimum wages, overtime
pay, meal and rest periods, and business expenses.
He seeks appointment as the class representative for a putative
class defined as "All persons employed by Defendants directly or
indirectly, whether through any staffing agencies and/or any other
third parties in hourly or non-exempt positions in California
during the Relevant Time Period."
Kelly, with the consent of Medi Mall, removed the complaint to
federal district court pursuant to the Class Action Fairness Act
("CAFA"), 28 U.S.C. Section 1332(d)(2).
Applying the legal standards set forth above, Judge Freeman first
must determine whether the parties entered into an agreement to
arbitrate. Second, she must determine whether questions of validity
and arbitrability have been delegated to the arbitrator. Third, if
those questions have not been delegated to the arbitrator, she must
decide them.
Judge Freeman concludes that there is an agreement to arbitrate --
the 2020 Arbitration Agreement -- and that all the Defendants
properly may seek to compel arbitration under that agreement. The
two arbitration agreements are identical in several respects, but
the 2020 Arbitration Agreement provides that agreement to
arbitration is optional for California residents while the 2018
Arbitration Agreement does not include such a provision. Where
there is an inconsistency between two agreements both of which are
executed by all of the parties, the later contract supersedes the
former. Accordingly, the 2020 Arbitration Agreement supersedes the
2018 Arbitration Agreement.
Once the existence of an arbitration agreement has been determined,
the next question is whether the parties' dispute falls within the
scope of the agreement. The Defendants contend that the UCL claim
falls with the scope of "Covered Claims" that must be arbitrated,
while Bazine contends that the UCL claim does not fall within the
scope of arbitrable "Covered Claims" given express contractual
language excluding unfair competition claims from the definition of
"Covered Claims."
Judge Freeman holds that it is for the arbitrator to decide whether
Bazine's UCL claim is subject to arbitration under the 2020
Arbitration Agreement. She holds that (1) the 2020 Arbitration
Agreement effectively incorporates the AAA rules; (2) the AAA are
adequately identified and incorporated into the 2020 Arbitration
Agreement; (3) the 2020 Arbitration Agreement's incorporation of
the AAA rules is sufficient to delegate the arbitrability question
to the arbitrator, even accepting for purposes of this motion
Bazine's self-characterization as "unsophisticated"; and (4) where
arbitrability has been delegated to the arbitrator, any challenge
to the arbitration agreement based on unconscionability is for the
arbitrator to address, unless the unconscionability challenge is
directed specifically to the delegation provision.
For these reasons, Judge Freeman grants the Defendants' motion to
compel arbitration. She elects to stay, rather than dismiss, the
complaint pending arbitration. However, Judge Freeman directs the
Clerk to administratively close the case. Either party may request
that the case be reopened after arbitration, if appropriate.
A full-text copy of the Court's June 21, 2023 Order is available at
https://tinyurl.com/mshfcpw4 from Leagle.com.
L & L PRODUCTION: Lopez Sues Over Unpaid Minimum, Overtime Wages
----------------------------------------------------------------
Mauricio Lopez, and to all other similarly situated employees v. L
& L PRODUCTION INC. (DBA PLAYA CANCUN), ABRAHAM URRUTIA and NICOLAS
URRUTIA, Individually, Case No. 1:23-cv-05405 (S.D.N.Y., June 26,
2023), is brought pursuant to the Fair Labor Standards Act
("FLSA"), the New York Labor Law ("NYLL"), as recently amended by
the Wage Theft Prevention Act ("WTPA") for unpaid minimum wages and
unpaid overtime wages and the Defendants' failure to provide
written notice of wage rates in violation of said laws.
The Defendants were required, under relevant New York State law, to
compensate Plaintiff with overtime pay at one and one-half the
regular rate for work in excess of 40 hours per work week. However,
despite such mandatory pay obligations, Defendants only compensated
Plaintiff at a rate of $14 and failed to pay Plaintiff his lawful
overtime pay for that period from June 2021 until February 16,
2023, where he worked well in excess of 40 hours per workweek, says
the complaint.
The Plaintiff was employed for cleaning and helping in the
kitchen.
L & L PRODUCTION is, upon information and belief, a duly organized
New York Corporation.[BN]
The Plaintiff is represented by:
Lina Stillman, Esq.
STILLMAN LEGAL, P.C.
42 Broadway, 12t Floor
New York, NY 10004
Phone: (212) 203-2417
Web: www.StillmanLegalPC.com
LEBOS SHOE STORE: Alexandria Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Lebos Shoe Store,
Inc. The case is styled as Erika Alexandria, on behalf of herself
and all others similarly situated v. Lebos Shoe Store, Inc., Case
No. 1:23-cv-05365 (S.D.N.Y., June 23, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Lebo's -- https://www.lebos.com/ -- specializes in western boots
and apparel, dance apparel, casual shoes for women, men, and
children's shoes.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
LIFESTANCE HEALTH: McAfee Suit Seeks Unpaid Wages for Clinicians
----------------------------------------------------------------
JESSICA MCAFEE, LISA MILLER, HANNA NAUDE, ANGELA CHARLTON, CHERYL
MITCHELL, H.L. SMITH, DENISE TRENT, LYDIA POTOMA, and JACQUELINE
SILVA, individually and on behalf of all others similarly situated,
Plaintiffs v. LIFESTANCE HEALTH GROUP, INC., Defendant, Case No.
2:23-cv-01144-DJH (D. Ariz., June 22, 2023) is a class action
against the Defendant for failure to pay minimum wages and illegal
wage deductions in violation of the Fair Labor Standards Act.
The Plaintiffs worked for the Defendant as clinicians at any time
from January 2020.
LifeStance Health Group, Inc. is a mental healthcare company, with
its principal place of business in Scottsdale, Arizona. [BN]
The Plaintiffs are represented by:
Jason P. Hoelscher, Esq.
SICO HOELSCHER HARRIS, LLP
802 N. Carancahua Street, Ste. 900
Corpus Christi, TX 78401
Telephone: (361) 653-3300
E-mail: teamhoelscher@shhlaw.com
- and -
Kevin K. Ross-Andino, Esq.
ECLAT LAW, PA
307 Cranes Roost Blvd., # 2010
Altamonte Springs, FL 32710
Telephone: (407) 636-7004
LIOX CLEANERS INC: Morgan Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Liox Cleaners Inc.
The case is styled as Paradise Morgan, individually and as the
representative of a class of similarly situated persons v. Liox
Cleaners Inc., Case No. 1:23-cv-05396 (S.D.N.Y., June 26, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Liox Cleaners Inc. -- https://www.lioxclean.com/ -- is a dry
cleaning with pickup and delivery, laundry service in New
York.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
LITTLE CAESAR: Cuevas Suit Removed to N.D. California
-----------------------------------------------------
The case captioned as Jose Cuevas, on behalf of himself, all others
similarly situated, and on behalf of the general public v. LITTLE
CAESAR ENTERPRISES, INC., and DOES 1 through 10, inclusive, Case
No. 23CV416083 was removed from the Superior Court of the State of
California, County of Santa Clara, to the United States District
Court for the Northern District of California on June 26, 2023, and
assigned Case No. 5:23-cv-03166.
The Complaint purports to assert eleven class-wide causes of action
against Defendant stemming from the employment of Plaintiff and
putative class members. Specifically, the Complaint alleges causes
of action for: recovery of unpaid minimum wages; recovery of unpaid
overtime wages; failure to provide and properly record meal periods
and pay premiums; failure to provide rest periods and pay premiums;
failure to timely pay during employment; failure to timely pay upon
termination; failure provide compliant wage statements; failure to
reimburse business expenses; failure to pay sick leave; secret
underpayment of wages; and unfair business competition.[BN]
The Defendant is represented by:
Danielle Hultenius Moore, Esq.
Bret Martin, Esq.
Jason A. Fischbein, Esq.
Christopher M. Champine, Esq.
FISHER & PHILLIPS LLP
4747 Executive Drive, Suite 1000
San Diego, CA 92121
Phone: (858) 597-9600
Facsimile: (858) 597-9601
Email: dmoore@fisherphillips.com
bmartin@fisherphillips.com
jfischbein@fisherphillips.com
cchampine@fisherphillips.com
LOS ANGELES HOUSING AUTHORITY: Azar Suit Removed to C.D. California
-------------------------------------------------------------------
The case styled as Michael Azar, individually and on behalf of all
others similarly situated v. Housing Authority of the City of Los
Angeles, Does 1 through 20, inclusive, Case No. 23STCV11304 was
removed from the Los Angeles Superior Court, to the U.S. District
Court for the Central District of California on June 23, 2023.
The District Court Clerk assigned Case No. 2:23-cv-05001-SPG-JPR to
the proceeding.
The nature of suit is stated Other P.I.
The Housing Authority of the City of Los Angeles --
http://www.hacla.org/en-- is a state-chartered public agency.[BN]
The Plaintiff is represented by:
Yana A. Hart, Esq.
Ryan J. Clarkson, Esq.
Tiara Avaness, Esq.
Valter Malkhasyan, Esq.
CLARKSON LAW FIRM PC
22525 Pacific Coast Highway
Malibu, CA 90265
Phone: (213) 788-4050
Fax: (213) 788-4070
Email: yhart@clarksonlawfirm.com
rclarkson@clarksonlawfirm.com
tavaness@clarksonlawfirm.com
vmalkhasyan@clarksonlawfirm.com
The Defendant is represented by:
Danielle E. Stierna, Esq.
Brant H. Dveirin, Esq.
Jon P. Kardassakis, Esq.
LEWIS BRISBOIS BISGAARD AND SMITH LLP
633 West 5th Street Suite 4000
Los Angeles, CA 90071
Phone: (213) 250-1800
Fax: (213) 250-7900
Email: danielle.stierna@lewisbrisbois.com
brant.dveirin@lewisbrisbois.com
jon.kardassakis@lewisbrisbois.com
LOUISIANA: Little v. Parish Correctional Remanded for Dismissal
---------------------------------------------------------------
In the case, EDWARD LITTLE, on behalf of himself and all others
similarly situated, Plaintiff-Appellant, SHELIA ANN MURPHY,
Intervenor Plaintiff-Appellant v. ANDRE' DOGUET; LAURIE HULIN; MARK
GARBER, Defendants-Appellees, Case No. 20-30159 (5th Cir.), the
U.S. Court of Appeals, Fifth Circuit, remands the case so that the
district court may dismiss it.
The litigation challenges the bail practices of Lafayette Parish
Correctional Center. The claim is that money bail is required for
pretrial detainees without consideration of alternatives, violating
the rights of indigents to substantive due process and equal
protection. The district court denied all relief.
While the appeal was pending, the Fifth Circuit en banc held that
district courts must abstain from suits contesting a local
jurisdiction's bail practices when there is an opportunity in state
court to present constitutional challenges to bail, citing Daves v.
Dallas Cnty., 64 F.4th 616, 631 (5th Cir. 2023) (en banc). The
parties agree there exists an opportunity.
In 2017, Little was arrested on a felony-theft charge. Bail was set
at $3,000, which Little could not pay. After spending several days
in jail, Little had his first appearance before a judicial officer.
There was no inquiry as to whether he could afford the prior
amount, and it was not reduced. No finding was made that pretrial
detention was necessary. Little, who had no counsel, had no
opportunity to present or contest evidence.
Little filed the action while in jail awaiting his first
appearance. The Defendants, who were sued in their official
capacities only, were the Sheriff, Mark Garber; the then-Parish
Commissioner, Thomas Frederick; and the former Chief Judge of the
15th Judicial District Court, Kristian Earles. Little filed the
suit as a class action, and the district court granted Little's
motion to certify the class. Alleging substantive and procedural
constitutional violations, Little sought equitable relief to
prevent the Defendants from using secured-money-bail to detain
anyone unless a court provides various procedural protections.
The Defendants argued the district court should abstain under
Younger v. Harris, 401 U.S. 37 (1971). In March 2018, the district
court accepted the Magistrate Judge's recommendation that the court
reject abstention. Only the sheriff was dismissed before trial. The
parties stipulated to most of the facts, including that the
commissioner generally sets bond amounts during daily calls to the
jail and never reduces those amounts at first-appearance hearings.
The commissioner also testified in a deposition that he routinely
set secured-money-bail (of at least $500) without considering
individuals' ability to pay.
The district court held a one-day bench trial in August 2019. The
Defendants introduced into evidence the form labeled "Release Order
in Lieu of/as Modification to Money Bond." That form allows the
commissioner to order release on personal surety, to reduce the
secured-money bail required for a person's release, or to have
people evaluated for a work-release program in lieu of paying
bail.
After trial, the district court entered judgment for the
Defendants. Relying on the modification form, it found that the
commissioner was taking a detainee's ability to pay into account in
some circumstances. That change rendered moot the Plaintiffs'
claims regarding the Defendants' pre-litigation bail practices. The
court also concluded that the Defendants' current practices, such
as considering ability to pay and alternatives to detention,
satisfy equal protection and due process requirements.
The Plaintiffs timely appealed. In April 2020, the Fifth Circuit
granted the Plaintiffs' unopposed motion to stay the appeal pending
resolution of a case with similar issues. It would be three years
before that similar case was concluded. The Fifth Circuit will
explain those rulings in due course.
The Fifth Circuit explains that the abstention doctrine applied in
Daves requires that federal courts decline to exercise jurisdiction
over a state criminal defendant's claims when three conditions are
met: (1) the federal proceeding would interfere with an ongoing
state judicial proceeding; (2) the state has an important interest
in regulating the subject matter of the claim; and (3) the
plaintiff has an adequate opportunity in the state proceedings to
raise constitutional challenges.
In this case, the only analysis of abstention in the district court
record is by the Magistrate Judge. In December 2017, he issued a
Report and Recommendation on Sheriff Garber's Rule 12(b)(1) motion
to dismiss for reasons that included abstention. One of the
conclusions was that abstention was inapplicable because the
challenge was not directed at the state prosecutions as such, but
only at the legality of pretrial detention without a judicial
hearing, an issue that could not be raised in defense of their
criminal prosecutions. Categorically, the Magistrate Judge seemed
to conclude, Younger does not apply to a challenge to pretrial
detention. Further, the Plaintiff does not have an adequate
opportunity to raise his constitutional challenges in state court.
The district judge accepted the recommendation to deny the
Sheriff's Rule 12(b)(1) motion to dismiss.
The Fifth Circuit's factual review has already summarized changes
in Lafayette Parish procedures regarding bail since the lawsuit was
filed. It discovers no analysis by the district court of whether
the new procedures provide an "adequate opportunity" to present
constitutional challenges. It agrees with the implication in the
post-Daves v. Dallas filings by the parties that it can make the
needed determination her.
The Fifth Circuit holds that Texas courts are neither unable nor
unwilling to reconsider bail determinations under the proper
circumstances, thus providing state court detainees the chance to
raise federal claims without the need to come to federal court.
Similarly, the Plaintiffs have failed to show that Louisiana is
unable or unwilling to reconsider bail determinations. How quickly
those can be reconsidered is irrelevant because arguments about
delay and timeliness pertain not to the adequacy of a state
proceeding, but rather to conventional claims of bad faith.
The Fifth Circuit closes with what the Plaintiffs concede: Given
the analogous remedies technically available in Louisiana and Texas
and the breadth of Daves' Younger reasoning (including the
irrelevance under Daves of the actual availability in practice of
state-law remedies), Daves requires a remand of this case for
dismissal.
Hence, writing for the Fifth Circuit, Judge Leslie H. Southwick,
concludes that all three Younger conditions are satisfied.
Abstention is mandated. The Fifth Circuit remands in order that the
district court may dismiss the suit.
A full-text copy of the Court's June 21, 2023 Order is available at
https://tinyurl.com/36muvbhk from Leagle.com.
MANAGED CARE: Sheppard Files Suit in S.D. Florida
-------------------------------------------------
A class action lawsuit has been filed against Managed Care of North
America, Inc. The case is styled as Matthew Sheppard, on behalf of
themselves and a class of similarly situated persons v. Community
Health Systems, Inc., CHSPSC, LLC, Case No. 0:23-cv-61222-RKA (S.D.
Fla., June 26, 2023).
The nature of suit is stated as Other Personal Property.
Managed Care of North America, Inc. doing business as MCNA Dental
-- https://www.mcna.net/ -- provides dental plans. The Company
offers medicare, long term, and commercial plan.[BN]
The Plaintiff is represented by:
David Buckner, Esq.
BUCKNER AND MILES, P.A.
2020 Salzedo Street, Suite 302
Coral Gables, FL 33134
Phone: (305) 964-8003
Fax: (786) 523-0485
Email: David@bucknermiles.com
MARIN COUNTY FEDERAL: Johnson Files Suit in Cal. Super. Ct.
-----------------------------------------------------------
A class action lawsuit has been filed against Marin County Federal
Credit Union, et al. The case is styled as Ahmari Johnson, on
behalf of himself and all others similarly situated v. Marin County
Federal Credit Union, Does 1 To 10, Inclusive, Case No. CGC23607251
(Cal. Super. Ct., San Francisco Cty., June 26, 2023).
The case type is stated as "Business Tort."
Marin County Federal Credit Union -- https://www.marincu.org/ --
operates as a financial cooperative. The Union provides financial
solutions such as loans, investment, savings, credit and debit
cards, online banking, and other related services.[BN]
The Plaintiff is represented by:
David D. Bibiyan, Esq.
BIBIYAN LAW GROUP PC
8484 Wilshire Boulevard Suite 500
Beverly Hills, CA 90211
Phone: (310) 438-5555
Fax: (310) 300-1705
Email: david@tomorrowlaw.com
MDL 2925: Bid to Dismiss EPIC's Fuel Surcharge Antitrust Suit Nixed
-------------------------------------------------------------------
In the case, N RE: RAIL FREIGHT FUEL SURCHARGE ANTITRUST LITIGATION
(NO. II). This document relates to: Environmental Protection &
Improvement Company, LLC v. Union Pacific Railroad Company, et al.,
No. 1:22-cv-02587 (BAH), Misc. No. 20-00008 (BAH), MDL Docket No.
2925 (D.D.C.), Judge Beryl A. Howell of the U.S. District Court for
the District of Columbia denies the Defendants' motion to dismiss.
Over 300 rail freight shippers, who are the Plaintiffs in this
multidistrict litigation ("MDL II"), claim that the Defendants, the
four largest railroads operating in the United States, engaged in a
multi-year price-fixing conspiracy to increase the price of rail
freight transport through their coordinated efforts to cause an
industry trade group to adopt a new cost index that excluded the
cost of fuel and then to implement, in lockstep, artificially
inflated fuel surcharges, in violation of Section 1 of the Sherman
Act, 15 U.S.C. Section 1, and Section 4 of the Clayton Act, 15
U.S.C. Section 15.
This claim was originally pressed in another multidistrict
litigation pending in this District, In re Rail Freight Fuel
Surcharge Antitrust Litigation ("MDL I"), Case No.
07-mc-00489-PLF-GMH, MDL No. 1869 (D.D.C.), in which a putative
class of direct purchasers of unregulated rail freight services
alleged the same conspiracy, occurring from 2003 to 2008, against
the same defendants. Certification of that class was ultimately
denied, and subsequently, former putative class members in MDL I
brought individual complaints consolidated into MDL II.
Nearly all of these complaints trickled into MDL II between 2020
and 2021, but a single lagging case was filed by Plaintiff
Environmental Protection & Improvement Company, LLC ("EPIC") on
July 29, 2022 -- nearly three years after the D.C. Circuit affirmed
the denial of class certification, and more than thirteen years
after the conclusion of the alleged conspiracy. This
latest-consolidated case is subject to the Defendants' pending
motion to dismiss, which urges that EPIC's complaint is time-barred
under the Clayton Act's statute of limitations because EPIC has
'slept on its rights' for far too long to avail itself of class
action tolling under American Pipe & Construction Co. v. Utah
("American Pipe"), 414 U.S. 538 (1974).
EPIC directly purchased unregulated rail freight transportation --
in which rates are set by private contracts rather than rate
regulation under federal law -- from the Defendants between 2003
and 2008. The Defendants named in the complaint, CSX
Transportation, Inc., Norfolk Southern Railway Co., and Union
Pacific Railroad C. are, as already noted, major freight railroads
in the United States and together accounted for "the majority of
all rail shipments within the United States" between 2003 and 2008.
Those Defendants, together with BNSF Railway Co., operate more than
90 percent of all railroad track in the United States. CSXT and
Norfolk Southern operate primarily in the eastern United States and
Canada, while Union Pacific is concentrated in the western United
States. All three railroads connect with partners in other markets
to facilitate freight throughout the country.
The Defendants' instant challenge to the complaint as time-barred
substantially relies on the procedural history of MDL I and MDL II,
which is extensively recounted in the Court's earlier Memorandum
Opinion denying the Defendants' motions to dismiss 10 other cases
consolidated in MDL II. Rather than retread the same ground, only
the most relevant details of this history.
The first complaint in what would become MDL I was filed on May 14,
2007. Soon after, in November 2007, the Multidistrict Litigation
Panel consolidated thirteen separate class actions, then pending in
six districts, that alleged common antitrust violations against
defendants for pretrial proceedings in this District.
The putative class plaintiffs filed an initial consolidated class
complaint in April 2008. The Defendants unsuccessfully sought to
dismiss this complaint as inadequately pled.
The putative class plaintiffs filed the operative class complaint
in MDL I in February 2010. The Class Complaint alleges that in
early 2003, the Defendants "conspired to increase their total
revenues through the use of standardized, uniform, and
supra-competitive fuel surcharges."
In March 2010, the putative class moved for certification of a
class including: All entities or persons that at any time from July
1, 2003 until Dec. 31, 2008 (the Class Period) purchased
rate-unregulated rail freight transportation services directly from
one or more of the Defendants, as to which Defendants assessed a
standalone rail freight fuel surcharge applied as a percentage of
the base rate for the freight transport (or where some or all of
the fuel surcharge was included in the base rate through a method
referred to as rebasing).
This proposed class was subsequently certified. On appeal, the U.S.
Court of Appeals for the District of Columbia Circuit vacated the
class certification. The panel chose to exercise jurisdiction over
defendants' interlocutory appeal largely because of the Supreme
Court's intervening decision in Comcast Corp. v. Behrend, 569 U.S.
27 (2013). It held that, without a finding by the district court
regarding the "soundness" of the statistical model, the model could
not satisfy Rule 23's predominance requirement. The case was
remanded for the district court to take a "hard look" at the
damages model in light of Behrend.
On remand, the district court denied class certification in October
2017. The D.C. Circuit affirmed this ruling on Aug. 16, 2019.
Once class certification in MDL I was denied, some absent putative
former class members began filing individual actions in district
courts across the country to pursue the conspiracy claim advanced
by the putative class against the Defendants. On Feb. 6, 2020, the
Multidistrict Litigation Panel consolidated 26 such cases for
pretrial proceedings in this Court in MDL II. Since then, dozens of
cases initiated by former putative class members have been
consolidated into the multidistrict litigation pending before the
Court, for a total of 108 cases currently pending in MDL II.
The latest case to be consolidated into the multidistrict
litigation pending before the Court, in August 2022, is EPIC, Case
No. 22-cv-2587 (BAH) -- the same case subject to the Defendants'
pending motion to dismiss. EPIC commenced the suit on July 29,
2022, alleging a slightly narrower version of the same conspiracy
described by the putative class in MDL I.
Namely, EPIC alleged that, beginning in 2003 and continuing until
2008, three of the four Defendants named in MDL I -- Union Pacific,
CSX, and Norfolk Southern -- conspired to increase their profits by
artificially raising the price of rail freight services on
unregulated rail freight transport traffic in the United States.
The three Defendants in that action responded with the pending
motion to dismiss EPIC's complaint, which motion is now ripe for
the Court's review.
When EPIC filed its complaint, and when the Defendants moved to
dismiss, fact discovery was still ongoing in MDL II. The Court had
extended fact discovery to Oct. 1, 2022, and subsequently, to Feb.
1, 2023. Fact discovery is now complete for all cases except EPIC.
The parties, except for EPIC, are now conducting expert discovery.
EPIC and the Defendants have exchanged some fact discovery --
described as "all documents and data produced by the Defendants in
MDL I and MDL II, as well as certain documents produced by EPIC --
but agreed to stay the remainder of fact discovery until the
resolution of the Defendants' pending motion to dismiss.
The Defendants challenge EPIC's complaint as time-barred. EPIC
alleges that it paid artificially inflated prices for rail freight
services from "at least" July 1, 2003 until "at least" Dec. 31,
2008. Consequently, for the Plaintiff's claims to be timely, they
would have had to be brought by Dec. 31, 2012, at the latest. Since
EPIC's lawsuit was filed nearly a decade later, the timeliness of
the complaint rests on whether the Plaintiff has plausibly pled an
exception to the running of the statute of limitations.
Judge Howell states that the timeliness of EPIC's complaint turns
on whether the exception to the statute of limitations for former
putative class members provided in American Pipe applies. The
Supreme Court in American Pipe held that the commencement of a
class action suspends the applicable statute of limitations as to
all putative class members through the class certification stage.
The limitations period is tolled for all members of the putative
class until class certification is denied, at which time class
members may choose to bring a separate lawsuit or to file a motion
to intervene in the former class action.
The Defendants urge that EPIC should not enjoy the benefit of
American Pipe tolling at this late date because the tolling
doctrine is available only to diligent plaintiffs.
Judge Howell opines that EPIC's complaint is not time-barred. She
says the limitations period was tolled, as provided by American
Pipe, because the Plaintiff is a former putative class member of
earlier class proceedings in MDL I and its claims fall within the
scope of the class sought to be certified in MDL I. Thus, the
Defendants received adequate notice of the subject matter, such
that they were aware of the need to preserve relevant evidence, and
continued litigation of those allegations at this late date poses
no unfair surprise. The tolling suspended the running of EPIC's
statute of limitations for the duration of the tolling period,
resulting in EPIC having the same amount of time remaining under
the statute of limitations that it did at the commencement of MDL
I.
Accordingly, Judge Howell denies the Defendants' motion for the
dismissal of EPIC's complaint and denies as moot its request for a
stay of discovery pending a ruling on this motion.
An Order consistent with Judge Howell's Memorandum Opinion will be
entered contemporaneously.
A full-text copy of the Court's June 21, 2023 Memorandum Opinion is
available at https://tinyurl.com/459un47e from Leagle.com.
METALTEK INT'L: Class Settlement in Herman Suit Wins Prelim. Nod
----------------------------------------------------------------
In the case, Keith Herman, individually and on behalf others
similarly situated, Plaintiffs v. MetalTek International, Inc.,
Defendant, Case No. 3:22-cv-1476 (N.D. Ohio), Judge Jeffrey J.
Helmick of the U.S. District Court for the Northern District of
Ohio, Western Division, grants the Joint Motion for Preliminary
Approval of Class Action Settlement.
Plaintiff Herman and Defendant MetalTek, pursuant to the Fair Labor
Standards Act, 29 U.S.C. Section 216(b), and Rule 23(e) of the
Federal Rules of Civil Procedure, have jointly moved for an order:
(a) preliminarily approving the FLSA settlement and class action
settlement, as described in the Class Action Settlement Agreement
and Release found at Exhibit 1 ("Settlement Agreement"); (b)
conditionally certifying a settlement class regarding claims under
the Ohio Minimum Fair Wage Standards Act and the Ohio Prompt Pay
Act pursuant to Fed. R. Civ. P. 23 for purposes of proceeding in
connection with the final approval of the settlement agreement; (c)
appointing Plaintiff's counsel as Class Counsel; (d) appointing
Plaintiff as the Class Representative; (e) appointing Analytics
Consulting, LLC as the Claims Administrator; (f) preliminarily
approving the service payment to Plaintiff; (g) preliminarily
approving Class Counsel's request for attorneys' fee and litigation
expenses; (h) approving the form, content, and manner of notice to
the proposed settlement class; and (i) scheduling a final approval
hearing.
After reviewing the Settlement Agreement, the parties' joint motion
for approval, the declaration of the Plaintiff's counsel, and the
other filings in this matter, Judge Helmick grants the motion.
On Aug. 17, 2022, the Plaintiff filed the action alleging the
Defendant violated the FLSA and similar Ohio statutes by failing to
pay him and other similarly situated employees all their unpaid
wages and overtime pay. The proposed Settlement Class includes
Class Representative and 56 employees.
Judge Helmick appoints (i) Herman as the Class Representative; (ii)
Bryant Legal, LLC and Coffman Legal, LLC as the Class; and (iii)
Analytics Consulting, LLC as the Claims Administrator.
Judge Helmick finds that there is sufficient basis to conclude
preliminarily that the proposed settlement is fair, reasonable, and
adequate.
For settlement purposes only and for no other purpose and with no
other effect on this litigation, he certifies that the Settlement
Class defined as: "All manufacturing/production employees (1) who
were employed by Defendant in its Sandusky, Ohio facility during
the time period of August 17, 2020 through May 8, 2023; (2) worked
forty or more hours in one or more workweeks during the Calculation
Period; and (3) whose payroll and time clock data was included in
the Settlement." The definition of the Settlement Class encompasses
persons with like factual circumstances and like claims to that of
Plaintiff Herman.
Judge Helmick preliminarily approves the service award for Herman
in recognition of her services in the litigation. He provisionally
approves the payment of attorneys' fees and litigation expenses to
the Class Counsel as provided in the Settlement Agreement.
The Court approves the form, substance, and manner of distribution
of the notices of class action and orders that it be distributed to
the Settlement Class in the manner described in the Settlement
Agreement. The Settlement Class will be notified of the pendency of
this matter, the proposed settlement, and the date of the hearing
at which final approval of the proposed settlement may be
considered.
Judge Helmick approves the following procedure and timeline:
a. Within 14 calendar days of entry of the Order, the
Defendant will provide an Excel spreadsheet with the names and last
known addresses for the Settlement Class to the Claims
Administrator;
b. Within 14 days of receipt of the information at subsection
(a), the Claims Administrator will distribute the approved notice
via First Class U.S. Mail;
c. If the notice is returned as undeliverable, the Claims
Administrator will attempt to locate a new address for the
individual through other reasonable means. If a new address is
located the Claims Administrator will re-send the notice by First
Class U.S. Mail. If no new address can be located within five
calendar days of receiving the notice of undeliverable mail, the
Claims Administrator will advise both the Class and the Defense
Counsel.
d. The notice will inform the Class of their right to request
exclusion from the Settlement or to submit written objections to
the Settlement, and the procedure for doing so in either instance;
e. The Plaintiffs will have 60 days after the date of mailing
of the notice to submit a request for exclusion or objections to
the Settlement;
f. The Class counsel will file a Joint Motion for Final
Approval of the Settlement, along with a proposed Final Order and
Judgment Entry, no later than 10 days prior to the Final Approval
Hearing, accompanied by a Declaration from Analytics Consulting,
LLC verifying that the notice was properly and timely distributed
to the Settlement Class;
g. On Oct. 19, 2023, at 10:00 a.m., a Final Approval Hearing
will be held at the James M. Ashley and Thomas W.L. Ashley U.S.
Courthouse, 1716 Spielbusch Avenue, Toledo, Ohio, 43604. The Court
reserves the right to adjust the date of the Final Approval Hearing
and related deadlines without further notice to the Settlement
Class.
All proceedings and all litigation of the matter, other than those
pertaining to the administration of the Settlement, are stayed
pending the Final Approval Hearing.
A full-text copy of the Court's June 20, 2023 Order is available at
https://tinyurl.com/4rp3btk3 from Leagle.com.
MINNEAPOLIS RAG STOCK: Hobbs Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Minneapolis Rag Stock
Company. The case is styled as Alexandra Hobbs, on behalf of
herself and all other persons similarly situated v. Minneapolis Rag
Stock Company, Case No. 1:23-cv-05375 (S.D.N.Y., June 23, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Ragstock -- https://ragstock.com/ -- is one of America's
longest-running retailers of vintage and recycled clothing.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: nyjg@aol.com
michael@gottlieb.legal
NATIONS ROOF WEST: Pelayo Suit Removed to E.D. California
---------------------------------------------------------
The case captioned as Juan Pablo Ramirez Pelayo, individually, and
on behalf of all others similarly situated v. NATIONS ROOF WEST,
LLC, a Delaware limited liability company; and DOES 1 through 10,
inclusive, Case No. 23CECG01236 was removed from the Superior Court
for the County of Fresno, to the United States District Court for
the Eastern District of California on June 23, 2023, and assigned
Case No. 1:23-cv-00948-EPG.
The removed case is a civil action and was originally filed on
April 3, 2023, alleging as a putative class action violations of
California's Labor Code including without limitations causes of
action for the failure to pay wages, failure to provide meal
periods and rest breaks, and failure to pay overtime.[BN]
The Defendant is represented by:
Christina C. Tillman, Esq.
MCCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP
7647 North Fresno Street
Fresno, CA 93720
Phone: (559) 433-1300
Facsimile: (559) 433-2300
Email: christina.tillman@mccormickbarstow.com
NEW JERSEY: Bid to Dismiss Jackson Complaint v. NJDOC Granted
-------------------------------------------------------------
In the case, KEVIN JACKSON, Plaintiff v. PHILIP D. MURPHY, et al.,
Defendants, Civ. No. 22-1630 (RMB/AMD) (D.N.J.), Judge Renee Marie
Bumb of the U.S. District Court for the District of New Jersey,
Camden Vicinage, grants the Defendants' motion to dismiss the
complaint.
The matter comes before the Court upon Defendants John Powell,
Jonathan Gramp and Marcus O. Hicks' motion to dismiss the
complaint. The Plaintiff's response in opposition. Judge Bumb
decides the motion on the briefs without an oral hearing, pursuant
to Federal Rule of Civil Procedure 78(b).
The case arises out of the alleged destruction of Jackson's newly
purchased legal reference book in South Woods State Prison, and his
allegations that other mailroom supervisors illegally confiscated
or destroyed legal reference materials purchased by prisoners in
the New Jersey Department of Corrections. The Plaintiff and three
other inmates filed the putative class action against prison
mailroom supervisors and administrators of the prisons and New
Jersey Department of Corrections ("NJDOC").
This Court administratively terminated from the action Plaintiffs
Anthony Casale, Dano Tokley and Ariel Fernandez for failing to pay
the filing fee or submit an IFP application under 28 U.S.C. Section
1915(a). These plaintiffs were given an opportunity to cure the
filing fee defect but failed to do so. Therefore, Plaintiff Kevin
Jackson is the sole remaining plaintiff.
By order dated March 24, 2022, the Court granted the Plaintiff's
application to proceed without prepayment of fees pursuant to 28
U.S.C. Section 1915(a). Pursuant to 28 U.S.C. Section
1915(e)(2)(B), it sua sponte screened the complaint for dismissal
for frivolity, failure to state a claim, or immunity of the
defendants.
The Court dismissed the claims against Governor Philip D. Murphy
and otherwise permitted the complaint to proceed beyond screening
for sua sponte dismissal. The Plaintiff filed a request for a
temporary restraining order ("TRO") with his complaint, but he
failed to establish that a hearing on the TRO should proceed
without notice to the Defendants. The Court reserved judgment on
the TRO motion until the Defendants were notified and provided an
opportunity to respond.
After preliminary attempts at service of the summons, complaint,
and motion for TRO upon the Defendants failed, over the course of
June through September 2022, summonses were returned as executed on
Defendants John Powell, Marcus O. Hicks, Sergeant Cisrow, and
Jonathan Gramps. On Nov. 23, 2022, in lieu of an answer, the
Defendants filed a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). The Plaintiff filed a response in opposition to
the Defendants' motion to dismiss. The Defendants filed a reply
brief and the Plaintiff filed a sur-reply brief. The propriety of a
class action is not at issue in the Defendants' motion to dismiss.
In their motion to dismiss, the Defendants challenge the
Plaintiff's First Amendment retaliation, First Amendment access to
courts and First Amendment freedom of speech claims raised in the
First, Third and Fourth Claims/Counts of his complaint. Thus, Judge
Bumb limits her review to those claims.
The Plaintiff alleges that Sergeant Cisrow, a mailroom supervisor
at South Woods State Prison, confiscated law books and legally
authorized reference books/documents contrary to central office's
banned books list for 2019, and 2020, 2021. Specifically, Sergeant
Cisrow destroyed a copy of the N.J. Lawyer's Diary Manual 2021 that
the Plaintiff purchased by mail, while his appeal of Sergeant
Cisrow's confiscation of the book was pending before the
administrator of South Woods State Prison, John Powell. This book
was not on the NJDOC banned book list, and the Plaintiff was not
required to obtain advance permission to purchase the book.
For his first claim for relief, the Plaintiff alleges the
Defendants confiscated and destroyed law books, legal reference
books and documents in retaliation for the Plaintiffs filing
lawsuits against the New Jersey Department of Corrections
("NJDOC"). He further alleges that the Defendants' confiscation of
law books, legal reference books and legal documents were a
deliberate attempt to disrupt his preparation of legal documents,
in violation of his First Amendment right of access to courts.
With respect to his freedom of speech claim, the Plaintiff alleged
neither the New Jersey Administrative Code nor the South Woods
State Prison nor New Jersey State Prison Rule Books notified him of
any restriction on possession of law books or other legal reference
books they were permitted to purchase. It is the Plaintiff's
contention that he (and the alleged Class Plaintiffs) have a
constitutional right to possess law books, legal reference books,
and legal reference documents, which was violated by an arbitrary
and capricious, unidentified mailroom policy.
For relief, the Plaintiff seeks costs, fees, and damages, and a TRO
preventing the Defendants from seizing his legal papers,
documentary evidence, and legal reference books where no
institutional policy exists specifically limiting the amount of
legal materials a prisoner is allowed to retain or possess.
The Defendants, sued in their roles as supervisors, challenge the
Plaintiff's claims of First Amendment retaliation, First Amendment
access to courts, and First Amendment freedom of speech. First, the
Defendants argue that his complaint is devoid of any facts
suggesting that they personally engaged in any retaliatory action
against him. Second, the Defendants contend that the Plaintiff
failed to allege that he suffered an actual injury. Therefore, he
fails to state a First Amendment right of access to the courts
claim. Third, they argue he failed to allege they were personally
involved in a de facto ban on his possession of a law book.
Therefore, he fails to state a First Amendment free speech claim.
In opposition to the Defendants' motion to dismiss, the Plaintiff
asserts there is no legitimate security reason to restrict inmates
from possessing books that are not on the NJDOC banned books list.
He argues that Defendant John Powell is liable for Sergeant
Cisrow's confiscation and destruction of his New Jersey Lawyer's
Diary and Manual because Powell was aware of Cisrow's alleged
constitutional violations from his grievance letter. He also
contends that they are responsible for all policies enacted in the
NJDOC.
Judge Bumb grants the Defendants' motion to dismiss the Plaintiff's
First Amendment claims that are premised on their liability as
policymakers and failure to supervise. She finds that even if the
Defendants had given Sergeant Cisrow a "stern warning" after being
advised that she arbitrarily or capriciously confiscated a book
that the Plaintiff was permitted to possess, this could not
possibly have prevented Sergeant Cisrow from confiscating the book
in the first instance. Furthermore, the Plaintiff's blanket
allegation that the Defendants failed to make "a reasonable
modification" or change the prisons' rule books does not establish
what modification or change to the prison rule books would have
prevented Sergeant Cisrow or any other mailroom supervisor from
allegedly retaliating against him, violating his right of access to
the courts, or denying his right to freedom of speech by
confiscating law books or other legal materials purchased by mail.
Judge Bumb further finds that neither the filing of a grievance,
nor participation in after-the fact review of a grievance is
sufficient to establish a supervisor's personal involvement in
alleged constitutional misconduct by an employee. Therefore, the
Plaintiff's supervisory liability claims against the Defendants
based on their knowledge and acquiescence in the alleged
unconstitutional conduct of their subordinates will be dismissed.
In summary, Judge Bumb grants the Defendants' motion to dismiss.
The dismissal of the Plaintiff's claims against Defendant Jonathan
Gramp, administrator of New Jersey State Prison, is with prejudice.
Amendment of the claims against Gramp are futile because he is not
an alleged supervisor or a policymaker at South Woods State Prison,
where the Plaintiff was incarcerated when his legal book(s) was
confiscated. Dismissal is without prejudice as to Defendants John
Powell and Marcus Hicks, whom the Plaintiff alleges were
supervisors of South Woods State Prison during the relevant time
period. The Plaintiff's TRO motion, as to these supervisory
defendants, is moot.
An appropriate Order follows.
A full-text copy of the Court's June 21, 2023 Opinion is available
at https://tinyurl.com/5256u2wu from Leagle.com.
Kevin Jackson 207013/291833B Bayside State Prison PO Box F-1
Leesburg, NJ 08327 Plaintiff, Pro Se.
Michael Ezra Vomacka, Deputy Attorney General Office of the New
Jersey Attorney General, Richard J. Hughes Justice Complex 25
Market Street, 2nd Floor P.O. Box 112 Trenton, NJ.
RENTERS WAREHOUSE: Withholds Tenants' Security Deposit, Hansen Says
-------------------------------------------------------------------
NICK HANSEN and MEGHAN ARQUETTE, on behalf of themselves and all
others similarly situated, Plaintiffs v. RENTERS WAREHOUSE, LLC,
Defendant, Case No. 27-CV-23-9659 (D. Minn., Hennepin Cty., June
22, 2023) is a class action against the Defendant for violations of
Minnesota's security deposit statute, the Minnesota Prevention of
Consumer Fraud Act and common law unjust enrichment.
According to the complaint, the Defendant breached the security
deposit statute in Minnesota by unlawfully retaining amounts from
tenants' security deposits that are otherwise constituted as
ordinary wear and tear. Furthermore, the Defendant is engaged in
false, deceptive, and misleading statements to cause the Plaintiffs
and similarly situated tenants to understand that they were
responsible for amounts unlawfully withheld from their security
deposits, says the suit.
Renters Warehouse, LLC is a residential real estate management
company with its principal place of business in Minnesota. [BN]
The Plaintiffs are represented by:
Ryan D. Peterson, Esq.
PETERSON LEGAL PLLC
6600 France Ave S., Suite 602
Edina, MN 55435
Telephone: (612) 367-6568
E-mail: ryan@peterson.legal
- and -
Thomas J. Lyons, Jr., Esq.
CONSUMER JUSTICE CENTER, PA
367 Commerce Court
Vadnais Heights, MN 55127
Telephone: (651) 770-9707
Facsimile: (651) 704-0907
E-mail: tommy@consumerjusticecenter.com
SAN DIEGO, CA: Order Sustaining Demurrer to Sanchez Suit Affirmed
-----------------------------------------------------------------
In the case, NANCY SANCHEZ, Plaintiff and Appellant v. CITY OF SAN
DIEGO, Defendant and Respondent, Case No. D079922 (Cal. App.), the
Court of Appeals of California for the Fourth District, Division
One, affirms the trial court's order sustaining the City's demurrer
to the Plaintiffs' first amended complaint without leave to amend.
In May 2016, Sanchez attended a protest at the site of a rally for
then-presidential candidate Donald Trump in San Diego. After the
San Diego Police Department (SDPD) declared an unlawful assembly,
officers moved protesters away from the rally site and later
arrested Sanchez and other "anti-Trump" protestors about one mile
from the site. Sanchez was jailed overnight for failure to
disperse, but she was not ultimately prosecuted.
Sanchez and other anti-Trump protestors sued in federal court
against several SDPD officials and the San Diego County Sheriff's
Department, the City of San Diego, and the County of San Diego. The
Plaintiffs alleged both state and federal causes of action,
including constitutional claims, related municipal liability
claims, various state tort and civil rights claims, and a request
for declaratory relief.
In September 2020, the federal district court granted summary
judgment to the County and the City as to all the Plaintiffs'
claims except for their state tort claims (negligence, false
imprisonment, and assault and battery) against the City based on
vicarious liability. The district court dismissed those claims
without prejudice to be re-filed in state court.
In sum, the district court granted the City Defendants' summary
judgment motions as to all claims except for those seeking to hold
individual SDPD officers directly liable, and the City vicariously
liable, for false imprisonment, assault and battery, and
negligence. As to these remaining state-law claims against the City
Defendants, the court declined to exercise its supplemental
jurisdiction and dismissed them without prejudice to being re-filed
in state court. The court also granted summary judgment to the
Sheriff's Department employees and the County on all claims brought
against them.
The Ninth Circuit later affirmed the district court's decision. It
concluded, among other things, that the Plaintiffs' claim under
Monell v. Department of Social Services (1978) 436 U.S. 658
(Monell) failed because the record contained no evidence that the
Chief of SDPD ratified a subordinate's unconstitutional action, nor
did the Plaintiffs argue that the Chief knew of a constitutional
violation. The Ninth Circuit also determined that qualified
immunity shielded the individual officers from the Plaintiffs'
constitutional claims, and that the Plaintiffs forfeited their
challenges to the dismissal of their Ralph Act and state tort
claims by failing to brief them on appeal.
While their federal appeal was pending, the Plaintiffs brought suit
in state court against the City, alleging most of the same claims
from their federal suit as well as new class action and California
Public Records Act (Gov. Code, Section 6258 (CPRA)) allegations.
The Plaintiffs (except for Pease) alleges the following causes of
action: (1) writ of mandate; (2) declaratory relief; (3)
negligence; (4) assault and battery; (5) false imprisonment; (6)
Ralph Act violations; (7) Bane Act violations; and (8) violations
of the CPRA.
The City filed a demurrer to the Plaintiffs' first amended
complaint, and in August 2021, the trial court sustained the
demurrer without leave to amend based on res judicata, statutory
immunity, and other grounds. The court found that the Plaintiffs'
writ of mandate (count 1), declaratory relief (count 2), false
imprisonment (count 5), Ralph Act (count 6), and Bane Act (count 7)
claims were barred by res judicata. The court further found that
counts 1, 2, and 4 (assault and battery) were barred due to the
Plaintiffs' failure to provide adequate notice in their government
claim form. Regarding count 3 for negligence and counts 5, 6, and
7, the court determined that statutory immunities set forth in
sections 815.2, 820.2, and 845 barred those claims. Lastly, the
court sustained the City's demurrers to the Plaintiffs' CPRA claims
(counts 8 and 9) due to lack of standing.
Sanchez contends on appeal that the trial court erred by finding
that: (1) statutory immunities barred some of Sanchez's claims; (2)
Sanchez did not adequately plead many of her claims; and (3) her
notices of claim did not meet the requirements of the Government
Claim Act (Section 900, et seq.). In her reply brief, she has
confirmed that she is not appealing the dismissal of her CPRA
claims (counts 8 and 9).
The Court of Appeals concludes that Sanchez forfeited any challenge
to the trial court's res judicata ruling barring five of her claims
by failing to challenge it in the opening brief, failing to cite
any relevant authorities, and failing to provide any meaningful
argument on the issue. It further concludes that the trial court
did not err in granting the City's demurrer as to Sanchez's
remaining tort claims because statutory immunity barred her
negligence claim, and her government claim form did not give
adequate notice of a cause of action for assault and battery.
Accordingly, the Court of Appeals affirms. The Respondent will
recover its costs on appeal.
A full-text copy of the Court's June 21, 2023 Opinion is available
at https://tinyurl.com/5a9asv35 from Leagle.com.
Pease Law and Bryan W. Pease -- bryan@peaselaw.org -- for the
Plaintiff and Appellant.
Mara W. Elliott -- cityattorney@sandiego.gov -- City Attorney, M.
Travis Phelps -- mphelps@sandiego.gov -- Assistant City Attorney,
Catherine A. Richardson -- crichardson@sandiego.gov -- Chief Deputy
City Attorney, for the Defendant and Respondent.
SCWORX CORP: Court Dismisses Leeburn & Leonard Suits With Prejudice
-------------------------------------------------------------------
Judge John G. Koeltl of the U.S. District Court for the Southern
District of New York dismisses with prejudice the cases, CAITLIN
LEEBURN, ET AL., Plaintiffs v. SCWORX CORP., ET AL., Defendants.
JONATHON CHARLES LEONARD, Plaintiff v. SCWORX CORP., ET AL.,
Defendants, Case Nos. 20-cv-4072 (JGK), 20-cv-4777 (JGK)
(S.D.N.Y.).
The cases were consolidated with lead case No. 20-cv-3349 in
September 2020. On June 29, 2022, the Court entered final judgment
approving the class action settlement in No. 20-cv-3349 and
dismissing with prejudice any and all Released Claims, including,
inter alia, the claims of all Settlement Class Members that were or
could have been asserted in the action.
Accordingly, it appears that these member cases have been dismissed
with prejudice and should be closed. If the parties are aware of
any reason why the cases, Nos. 20-cv-4072 and 20-cv-4777, should
not be closed, they should notify the Court via letter. Absent any
such letter, the Court will direct the Clerk to enter final
judgment and close these member cases once that deadline expires.
The Clerk is directed to enter the Order in Nos. 20-cv-4072 and
20-cv-4777.
A full-text copy of the Court's June 21, 2023 Order is available at
https://tinyurl.com/bdfzs2xx from Leagle.com.
SIRIUS XM: Faces Class Action Over "Deceptive Pricing Scheme"
-------------------------------------------------------------
Inside Radio reports that lawyers from New York State have sued
SiriusXM in federal court alleging the satellite broadcaster has
engaged in "a deceptive pricing scheme." The proposed class action
suit is nearly identical to complaints filed in New Jersey and
California that claim "SiriusXM falsely advertises its music plans
at lower prices than it actually charges" by not including the
amount of the U.S. Music Royalty Fee in its advertised prices.
According to the complaints, this increases the true plan price by
21.4% above and beyond the advertised price for the plan.
The first suit was originally filed by Ayana Stevenson and David
Ambrose in Contra Costa County Superior Court in California on
April 14. SiriusXM on May 15 entered a motion to move the case to
U.S. District Court in San Francisco. The second case, brought by
attorneys Robyn Posternock, Muriel Salters and Philip Munning, was
filed May 17 in U.S. District Court in Newark.
Now Christopher Carovillano and Steven Brandt are making the same
case in U.S. District Court for the Southern District of New York.
All three suits seek class action status to represent all current
and former SiriusXM subscribers in their respective states who paid
a U.S. Music Royalty Fee within the applicable statute of
limitations.
According to the New York complaint, there are about 28 million
members in the nationwide Class, excluding citizens of California,
New Jersey and Washington, and at least 2 million members in the
New York subclass. The suit says the exact number and identities of
Class members can be found in SiriusXM's records "and can be easily
ascertained from those records."
According to the California complaint, the proposed class of
current and former California subscribers numbers at least 3.8
million members. The New Jersey suit estimates there are at least
500,000 class members in the Garden State.
The New York suit estimates that SiriusXM has "unlawfully extracted
over $11 billion from its consumers in unlawful U.S. Music Royalty
Fee charges."
Not only does the satcaster intentionally not disclose the royalty
fee, it also doesn't mention the words "U.S. Music Royalty Fee" in
any of its advertising, including in the fine print, per the
lawsuits. "SiriusXM's sole advertising disclaimer is that ‘Fees
and taxes apply'—but in reality zero taxes and zero other fees
apply, such that the undisclosed U.S. Music Royalty Fee is in fact
the sole and exclusive component of ‘Fees and Taxes,'" the suits
contend.
In addition, the complaints say that once the company lures a new
subscriber, it never sends customers ongoing bills or payment
receipts, while automatically renewing their subscriptions month
after month.
The complaints go as far as making the claim that the company's
"U.S. Music Royalty Fee scheme" has been the source of all of
SiriusXM's profits for the past several years.
In all three cases, the plaintiffs are seeking relief to "protect
the general public by putting an end to SiriusXM's unlawful
advertising scheme." They also want the court to declare these
practices unlawful under state law. And to require the satcaster to
hand over any profits it made as a result of this practice or to
pay damages to the Plaintiffs and Class members "in the amount of
their overpayments." They also seek a court order for SiriusXM to
include the amount of the U.S. Music Royalty Fee in the music plan
prices it advertises to the general public. [GN]
STATE FARM: Bid to Dismiss 10 Plaintiffs From Williams Suit Granted
-------------------------------------------------------------------
In the case, BERNADETTE WILLIAMS, et al., on behalf of themselves
and all others similarly situated, Plaintiffs v. STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY, Defendant, Case No. 22 C 1422 (N.D.
Ill.), Judge Virginia M. Kendall of the U.S. District Court for the
Northern District of Illinois, Eastern Division:
(1) grants in part and denies in part State Farm's motion to
dismiss, transfer, or stay the claims of 10 Plaintiffs in
favor of earlier-filed cases in other districts;
(2) denies State Farm's motion to compel appraisal of 14
Plaintiffs' claims, or alternatively, dismiss or grant
summary judgment on those claims; and
(3) denies State Farm's motion to dismiss "headless" claims --
meaning, claims under the laws of states where none of the
named Plaintiffs resides.
The Plaintiffs are insureds from 32 states, who totaled their
vehicles and then made claims under their insurance policies from
State Farm. In calculating the actual cash value of the Plaintiffs'
vehicles, State Farm applied a "typical-negotiation adjustment,"
which reduced Plaintiffs' total-loss payments. In this putative
nationwide class action, the Plaintiffs allege State Farm's use of
the typical-negotiation adjustment was a fraudulent scheme and a
breach of their insurance policies. They bring common-law and
statutory claims under the laws of 47 states and the District of
Columbia.
The Plaintiffs are 33 insureds under State Farm uniform automobile
insurance policies who submitted claims after totaling their
vehicles. State Farm's drafted its form insurance policies in
Illinois, where it has its headquarters. Under the policies, when
repair of an insured vehicle is impossible or uneconomical --
rendering it a "total loss" -- State Farm may settle the claim by
paying the insured the actual cash value of the vehicle.
To determine the actual cash values of the Plaintiffs' vehicles,
State Farm used Autosource Market-Driven Valuation, a system which
aggregated prices from online sales and listings of comparable
vehicles. Audatex, a Texas-based third-party vendor provided
Autosource to State Farm. At State Farm's directive, Autosource
applied a "typical-negotiation" adjustment to the market-value
price to decide its total-loss payments. At the time State Farm
determined the actual cash values of the Plaintiffs' vehicles used
cars often sold at or above list prices. Nonetheless, in
calculating the Plaintiffs' vehicles' actual cash values, the
typical-negotiation adjustment took 4-11% off the prices of
comparable vehicles -- in turn, reducing the total-loss payments
Plaintiffs received.
State Farm did not tell insureds about the typical-negotiation
adjustment before they bought their policies. Instead, when it
offered total-loss payments to the Plaintiffs, it provided a
valuation report showing that, for each comparable vehicle that
Autosource factored into the average market price, the advertised
price was adjusted to account for typical negotiation. The
Plaintiffs' policies also provide: "Legal action may not be brought
against us until there has been full compliance with all the
provisions of the policy." Under the policies' choice-of-law
provisions, with exceptions, the laws of the insureds' home states
"will control."
On March 18, 2022, 20 insured Plaintiffs brought this putative
nationwide class action. The Feb. 14, 2023 First Amended Class
Action Complaint added Plaintiffs from Minnesota, New Jersey, and
Michigan, among other states. The amended complaint has not added
any new claims or changed the proposed class definition from the
original complaint.
The Plaintiffs bring 32 claims: breach of contract (Count 2);
breach of the covenant of good faith and fair dealing (Count 3);
fraudulent concealment (Count 4); fraud in the inducement (Count
5); unjust enrichment (Count 6); declaratory judgment (Count 7);
violation of the Illinois Consumer Fraud and Deceptive Business
Practices Act (ICFA) (Count 1); and violation of twenty-five other
consumer-protection statutes (Counts 8-33). In Counts 8, 10, 12,
18, 21, 28, 30, and 33, they allege violations of the
consumer-protection statutes of seven states plus the District of
Columbia where none of the Plaintiffs reside.
The Plaintiffs allege State Farm "systematically undervalues
total-loss vehicles" by applying the typical-negotiation
adjustment. They claim further that the appraisal clause is an
integral part of its fraudulent scheme. Because the appraisal
clause requires insureds to bear their own appraisal costs, the
Plaintiffs assert that the clause pressures insureds to accept the
underpayment and prevents them from vindicating their statutory and
common law rights.
The Plaintiffs seek actual damages including "the amounts
improperly deducted by [State Farm] from their payments to
insureds" using the typical-negotiation adjustment. They also seek
statutory and punitive damages, restitution, interest, equitable
relief, and attorneys' fees.
As to their common-law claims (Counts 2-7), the Plaintiffs invoke
Illinois law, or in the alternative, the laws of 45 states and the
District of Columbia. In total, they bring claims under the laws of
48 jurisdictions -- including 16 where no Plaintiffs reside.
The Plaintiffs seek to represent a class of State Farm insureds "in
any state," except California, who "received a first-party total
loss valuation and payment on an automobile total loss claim that
included a 'typical negotiation' or similar adjustment."
Alternatively, they propose subclasses of insureds from 46
jurisdictions.
This is not the only lawsuit challenging State Farm's use of the
typical-negotiation adjustment to determine total-loss payments.
Back in October 2021, Plaintiffs Munoz and Smiling, of Illinois and
North Carolina, respectively, raised similar claims in a putative
class action against State Farm in this District, before the
Honorable Charles R. Norgle -- Munoz v. State Farm Mut. Auto. Ins.
Co., No. 21-cv-05211 (N.D. Ill. Oct. 1, 2021). On Oct. 29, 2021,
Judge Norgle sua sponte dismissed the complaint for lack of
subject-matter jurisdiction and closed the case.
On Nov. 23, 2021, Munoz and Smiling moved to reopen Munoz,
explaining that they made an "inadvertent mistake" in failing to
allege federal jurisdiction under the Class Action Fairness Act
(CAFA), 28 U.S.C. Section 1332(d). The accompanying proposed
amended complaint named 16 additional plaintiffs, including from
Arkansas, Georgia, Kansas, Louisiana, Ohio, and Tennessee. Although
State Farm did not oppose the motion to reopen, Munoz and Smiling
withdrew the motion on March 18, 2022, the same day they joined in
filing this action. In April 2023, Munoz and Smiling renewed their
motion to reopen Munoz and moved to consolidate that case with this
one. State Farm has opposed that motion, which is pending before
the Honorable Elaine E. Bucklo.
In addition, there are ten parallel cases against State Farm in
other federal district courts. Seven of those cases were filed
before this case: Shields (W.D. La.), Clippinger (W.D. Tenn.),
Wiggins (D.S.C.), Chadwick (E.D. Ark.), Gulick (D. Kan.), Cudd
(M.D. Ga.), and Nichols (S.D. Ohio). Shields and Clippinger
predated Munoz. Chadwick, Gulick, Cudd, and Nichols were filed
while the motion to reopen Munoz was pending. Three additional
cases, Varela (D. Minn.), Muhammad (D.N.J.), and Schmidt (E.D.
Mich.), began after this case but before Capers, Grossberg, and
Couch -- citizens of the states where those cases are pending --
joined this action as Plaintiffs in the First Amended Class Action
Complaint. All 10 of the other federal cases allege state-law
claims stemming from State Farm's use of the typical-negotiation
adjustment in determining total-loss payments. And the 10 other
cases proposed (and in one case, certified) class definitions are
similar to the class definition the Plaintiffs propose. Some of the
other cases are further along than this one and other cases are
behind this one.
After the Plaintiffs filed this suit, State Farm demanded that 14
Plaintiffs submit to appraisal. On Jan. 28, 2023, the Plaintiffs'
counsel indicated that the appraisal Plaintiffs would agree to
participate in the appraisal process, to proceed concurrently with
the pending litigation. Those Plaintiffs have since refused to
submit to appraisal.
State Farm now brings three motions. First, it moves to dismiss,
transfer, or stay 10 Plaintiffs' claims in favor of cases in other
districts. Second, as to the 14 appraisal Plaintiffs' claims, State
Farm moves to compel appraisal, or alternatively, dismiss or grant
summary judgment. Third, it moves to dismiss the amended
complaint's "headless" claims (Counts 8, 10, 12, 18, 21, 28, 30,
and 33 in their entirety, and Counts 2-7 to the extent they invoke
the laws of Plaintiff-less states).
State Farm first moves to dismiss, stay, or transfer 10 Plaintiffs'
claims to ten other districts pursuant to the first-filed
doctrine.
Among other things, Judge Kendall finds that (1) the original
complaint gave State Farm adequate notice of the new Plaintiffs'
claims and the addition of new Plaintiffs has not prejudiced State
Farm; (1) Shields and Clippinger are duplicative; (3) there is no
need to dismiss or stay the claims of Brown, Bowden, McConnell,
Payne, Benson, Huff, or Robert in favor of the first-filed cases in
their home states; (4) seeing no reason to depart from "the general
rule favoring the forum of the first-filed suit," she declines to
dismiss or stay the claims of Capers, Grossberg, or Couch; and (6)
transferring some Plaintiffs' claims would not convenience State
Farm: either way, it will be litigating in 11 forums transferring
some Plaintiffs' claims would not convenience State Farm: either
way, it will be litigating in eleven forums.
Judge Kendall grants in part State Farm's motion to transfer.
Pursuant to Rule 21, she severs the claims of Plaintiffs Brown,
Bowden, Payne, McConnell, Huff, and Robert. Under 28 U.S.C. Section
1404(a), she transfers: (1) Brown's claims to the Western District
of Louisiana; (2) Bowden's claims to the Western District of
Tennessee; (3) Payne's claims to the District of South Carolina;
(4) McConnell's claims to the Eastern District of Arkansas; (5)
Huff's claims to the Southern District of Georgia; and (6) Robert's
claims to the Southern District of Ohio. Judge Kendall denies State
Farm's motion to transfer as to Benson, Couch, Capers, and
Grossberg.
Judge Kendall next considers State Farm's motion to compel
appraisal, dismiss, or grant summary judgment as to Lewis
(Florida), Cervantes-White (Hawaii), Munoz (Illinois), Snyder
(Maryland), Couch (Michigan), Dean (Mississippi), Dacheff
(Missouri), Newkirk (New York), Smiling (North Carolina), and
Dewsnup (Utah). She holds that the Plaintiffs' claims go far beyond
a dispute over actual cash value. The appraisal clause does not
apply. Hence, she denies State Farm's motion to compel appraisal.
For the same reason, she denies State Farm's alternative motions to
dismiss or for summary judgment.
Finally, State Farm moves to dismiss the Plaintiffs' claims under
the laws of states where no named Plaintiff is a citizen. Judge
Kendall holds that the Plaintiffs have demonstrated Article III
standing and plausibly alleged their entitlement to relief. She
says the statutory-standing and choice-of-law issues implicit in
State Farm's challenge are best resolved at the class-certification
stage. Accordingly, she denies the motion to dismiss "headless"
claims.
For these reasons, Judge Kendall rules on State Farm's three
motions as follows. State Farm's Renewed Motion to Dismiss,
Transfer, or Stay is granted in part. Pursuant to Federal Rule of
Civil Procedure 21, she severs the claims of Plaintiffs Brown,
Bowden, Payne, McConnell, Huff, and Robert. Under 28 U.S.C. Section
1404(a), she transfers: (1) Brown's claims to the Western District
of Louisiana; (2) Bowden's claims to the Western District of
Tennessee; (3) Payne's claims to the District of South Carolina;
(4) McConnell's claims to the Eastern District of Arkansas; (5)
Huff's claims to the Southern District of Georgia; and (6) Robert's
claims to the Southern District of Ohio. State Farm's Renewed
Motion to Dismiss, Transfer, or Stay is otherwise denied. Second,
State Farm's Renewed Motion to Compel Appraisal, or, in the
Alternative, Dismiss or Grant Summary Judgment is denied. Third,
State Farm's Renewed Motion to Dismiss "Headless" Claims is
denied.
A full-text copy of the Court's June 21, 2023 Memorandum Opinion &
Order is available at https://tinyurl.com/5xybv4f3 from
Leagle.com.
SYNERGY STEEL: Ramirez Suit Seeks Unpaid Overtime Wages for Workers
-------------------------------------------------------------------
ALVARO ROJAS RAMIREZ, ANDRIK PALMAR, ANDRIK RODRIGUEZ, ANYERSON
JAMBORTINEZ, DANNY HENRRIQUEZ, GERARDO PAZ, ISSIS ARTEAGA MEJIA,
JAUDIEL LOPEZ, JUAN CARLOS, LUIS PARENDES, RAFAEL SARAVIA, NELSON
HERNANDEZ and RONMEL LOPEZ MADRID, individually and on behalf of
all others similarly situated, Plaintiffs v. SYNERGY STEEL
HOLDINGS, INC. and MICHAEL P. IAGNEMMA, Defendants, Case No.
1:23-cv-02807-ELR (N.D. Ga., June 22, 2023) is a class action
against the Defendants for failure to pay overtime wages in
violation of the Fair Labor Standards Act and for breach of
contract.
The Plaintiffs worked for the Defendants as project managers,
helpers, or framers at any time between 2020 and 2023.
Synergy Steel Holdings, Inc. is a manufacturer and provider of
steel components based in South Carolina. [BN]
The Plaintiffs are represented by:
Charles R. Bridgers, Esq.
Mitchell D. Benjamin, Esq.
Kevin D. Fitzpatrick, Esq.
DELONG CALDWELL BRIDGERS FITZPATRICK & BENJAMIN, LLC
3100 Centennial Tower
101 Marietta Street
Atlanta, GA 30303
Telephone: (404) 979-3171
Facsimile: (404) 979-3170
E-mail: charlesbridgers@dcbflegal.com
benjamin@dcbflegal.com
TECHNOLOGY CREDIT: Court Refuses to Amend Dismissal of Davis Suit
-----------------------------------------------------------------
In the case, TONYA DAVIS, Plaintiff v. TECHNOLOGY CREDIT UNION, ET
AL., Defendants, Case No. 5:22-cv-02206 (N.D. Ohio), Judge Dan
Aaron Polster of the U.S. District Court for the Northern District
of Ohio, Eastern Division, denies the Plaintiff's motion to amend
judgment dismissing the case without prejudice.
Before the Court is the Plaintiff's motion to amend judgment, under
Fed R. Civ. P. 59(e). The Plaintiff requests that the Court
"reconsiders" and "vacates" its Opinion and Order, dated May 5,
2023, where it dismissed the case without prejudice under the
first-to-file rule. The case stems from a purported business
operation that allegedly used false promises, deceptive
advertisement, and pressured sales tactics to sell Davis overpriced
and defective residential solar panels.
On March 31, 2023, one of the defendants, Trivest Partners, L.P.,
filed a motion to dismiss. Trivest argued that dismissal was
warranted under Fed. R. Civ. P. 12(b)(2), 12(b)(6), and the
first-to-file rule.
After the Plaintiff filed a response and Trivest filed a reply, the
Court issued its ruling on May 5, 2023. The Court dismissed the
case without prejudice under the first-to-file rule.
On May 25, 2023, the Plaintiff filed her motion to amend judgment.
On June 8, 2023, Trivest and Defendant Jayson Waller filed
responses. And on June 19, 2023, the Plaintiff filed her reply.
The Plaintiff's primary basis for her motion to amend judgment is
that she will "suffer injustice." Davis states that she has no
desire to participate in the Michigan litigation and fully intends
to 'pt-out' of the class. She asserts that being forced to wait an
extended period of time before she can opt out of the class action
suit is "prejudicial" to her. Additionally, the Plaintiff argues
that the Court's decision weighs against judicial economy because
the Court will have to "essentially restart" the case after she
opts-out of the Michigan suit.
Trivest argues that the Plaintiff's motion simply restates the
merits of the motion to dismiss, improperly relies on previously
available evidence, and attempts to circumvent the first-to-file
rule by preemptively opting out of the class action suit. Waller
echoes Trivest's arguments in opposition.
Judge Polster carefully considered the parties' written briefs in
deciding to apply the first-to-file rule and dismisses without
prejudice the Plaintiff's case. He holds that the Plaintiff failed
to satisfy Rule 59(e)'s standard for the Court to amend its
judgment. The Plaintiff has not demonstrated a clear error of law,
newly discovered evidence, intervening change in controlling law,
or a need to prevent manifest injustice.
Therefore, Judge Polster finds no reason to "reconsider" or
"vacate" the Court's Opinion and Order, dated May 5, 2023.
Accordingly, the Plaintiff's motion is denied.
A full-text copy of the Court's June 20, 2023 Opinion & Order is
available at https://tinyurl.com/k9993m8c from Leagle.com.
TRIDENT MARITIME: Williams Suit Removed to S.D. California
----------------------------------------------------------
The case captioned as Irving Williams, individually and on behalf
of all others similarly situated v. TRIDENT MARITIME SYSTEMS, LLC;
and DOES 1 through 50, inclusive, Case No.
37-2023-0021186-CU-OE-CTL was removed from the Superior Court of
the State of California for the County of San Diego, to the United
States District Court for the Southern District of California on
June 23, 2023, and assigned Case No. 3:23-cv-01168-L-DEB.
The Complaint alleges nine causes of action: Failure to Pay Minimum
Wages; Failure to Pay Overtime; Failure to provide required meal
periods; Failure to Provide Required Rest Periods; Failure to Pay
All Paid Sick Leave; Wages Not Timely Paid; Failure to Furnish
Accurate Itemized Wage Statements; Waiting Time Penalties; Failure
to Provide Records; and Unfair Competition.[BN]
The Defendant is represented by:
Wendy Sugg, Esq.
SUGG LAW GROUP, A PROFESSIONAL CORPORATION
384 Forest Avenue, Suite 15
Laguna Beach, CA 92651
Phone: (949) 260-9548
Email: wendy@sugglaw.com
UNITED STATES: Summary Judgment Bid in Allen Suit Granted in Part
-----------------------------------------------------------------
In the case, PAULA N. ALLEN, et al., Plaintiffs v. THE UNITED
STATES OF AMERICA, Defendant, Case No. 22-400C (Fed. Cl.), Judge
Elaine D. Kaplan of the U.S. Court of Federal Claims grants in part
and denies in part the government's motion for summary judgment.
The Plaintiffs in this putative class action are employed by the
Department of Veterans Affairs ("VA") as advanced practice
registered nurses ("APRNs") and physician assistants ("PAs"). They
allege that the VA induced them to work overtime to update
patients' electronic health records and monitor and respond to
certain patient-related notifications. They further allege that --
in violation of 38 U.S.C. Sections 7453(e)(1) and 7454(a) -- the VA
failed to provide them with overtime pay for work they were induced
to perform in excess of 40 hours in an administrative workweek, or
in excess of eight consecutive hours.
Currently before her is the government's motion for summary
judgment. The government contends that the Plaintiffs lack standing
to pursue their claims because they do not allege that an
authorized VA official expressly approved the overtime they worked
either in advance or after the fact, as required effective Aug. 3,
2017, in accordance with revisions to VA Handbook 5007, pt. V, ch.
2, at V-3a.
The Plaintiffs oppose the government's motion on the grounds that
its arguments go to the merits of the Plaintiffs' claims and not
their standing to pursue them. Further, they contend that: (1)
consistent with Federal Circuit precedent interpreting Title 38,
they are entitled to be paid at overtime rates for work that they
were induced to perform in excess of 40 hours in an administrative
workweek, or in excess of eight consecutive hours, and that (2) the
new rules in the VA Handbook cannot override the existing judicial
interpretation of the statute because they lack the force and
effect of law.
The case comes to the Court in the context of a trio of
precedential decisions by the Federal Circuit and its predecessor,
the Court of Claims, interpreting federal employees' rights to
receive overtime pay under the Federal Employee Pay Act ("FEPA"), 5
U.S.C. Section 5542(a), in Anderson v. United States, 136 Ct. Cl.
365 (1956), and Doe v. United States, 372 F.3d 1347 (Fed. Cir.
2004), and under Title 38 in Mercier v. United States, 786 F.3d 971
(Fed. Cir. 2015) (Mercier II).
On April 7, 2022, the named Plaintiffs, Paula N. Allen, Yvonne
Eichler, and Shirley Saunders, VA nurse practitioners, filed the
putative class action on behalf of themselves and all other
similarly situated APRNs and PAs who have not received overtime pay
or compensatory time off for work they performed on an overtime
basis in the VA's Computerized Patient Record System. Since the
suit was filed, over 1,300 APRNs and PAs who allege that they
performed work for the VA on an overtime basis since April 2016
(i.e. during the six years preceding the filing of the case) have
filed notices to opt into the action.
The Plaintiffs' claims, as noted, arise out of their management of
"View Alerts." These View Alerts, which are sent electronically,
contain patient information, may come at any time, and, because
they may deal with critical patient information, frequently require
nurses to act immediately to manage their patients' care. The
plaintiffs allege that they do not have sufficient time to manage
these View Alerts during working hours (particularly given that
they may come at any time of the day) and that their failure to
timely address them "may jeopardize patient health and safety" and
"result in intensified scrutiny, management intervention, and/or
disciplinary action by VA management."
The Plaintiffs allege that their overtime work has been "officially
ordered or approved" within the meaning of 38 U.S.C. Section
7453(e)(1) because they are effectively required, even if not
expressly directed, to perform the work. In other words, they
allege that they have been induced to work overtime within the
meaning of the Anderson line of cases. They do not allege that the
overtime they performed was approved in advance, either verbally or
in writing, as required in the revised VA Handbook. Nor do they
claim that they requested approval after the fact in writing or
that such approval was denied.
On Dec. 19, 2022, the government filed the motion for summary
judgment that is currently before the Court. In it, the government
contends that the Plaintiffs lack standing to pursue this action
for overtime pay because they do not allege that they were denied
such pay for work that was expressly approved in advance, as
required under the revised VA Handbook effective Aug. 3, 2017. The
Plaintiffs counter that the government is conflating Plaintiffs'
standing to sue with the merits of their claims.
With respect to the merits, the government contends that the new
Handbook provisions have the force and effect of law and so
supersede the rule established in the Anderson line of cases and in
Mercier II, under which employees who are induced to work overtime
are entitled to be paid at overtime rates, regardless of whether
they have received express approval to do so.
The Plaintiffs respond that the new Handbook provisions do not have
the force and effect of law. They further observe that, in a
response to one of Plaintiffs' interrogatories, the government
disclaimed any argument that the VA's interpretation of the statute
is entitled to Chevron deference, and instead took the position
that the standard for reviewing agency interpretations of a statute
set forth in Skidmore v. Swift, 323 U.S. 134 (1944) (i.e.,
deference proportional to the agency's power to persuade) was
applicable. The Plaintiffs argue that the government's concession
is fatal to its position that the Handbook provisions supersede the
Anderson inducement rule because absent Chevron deference, an
agency's interpretation cannot override judicial precedent.
Oral argument was held on the government's motion on April 4, 2023.
During oral argument, the Court pressed the counsel for the
government to explain its position that the overtime provisions
contained in the VA Handbook carry the force and effect of law, yet
are not entitled to Chevron deference. Ultimately, the counsel for
the Plaintiffs requested an opportunity to submit additional
briefing on Chevron's applicability, which the Court granted.
The parties have now submitted their supplemental briefs and the
case is ripe for decision.
Judge Kaplan agrees with the Plaintiffs that the government's
standing argument lacks merit. She agrees with the government,
however, that it is entitled to judgment as a matter of law as to
the Plaintiffs' claims that they are entitled to overtime pay for
work performed on Aug. 3, 2017, or thereafter, where an authorized
VA official did not approve in advance the performance of overtime,
either verbally or in writing, or approve the overtime after the
fact, as required by the applicable rules in the VA Handbook.
Judge Kaplan concludes that the new Handbook provisions specifying
the manner in which overtime is "officially ordered or approved"
have the force and effect of law. She further finds that the
statutory language they interpret is ambiguous and that the VA's
interpretation of the statutory phrase "officially ordered or
approved" is entitled to deference under Chevron. Because the VA's
interpretation of the ambiguous language is reasonable, it
supersedes the court of appeals' ruling in Mercier II that overtime
is officially ordered or approved where it is induced, even in the
absence of express advance authorization, whether written or
verbal
Based on the foregoing, the government's motion for summary
judgment is granted for claims based on overtime performed on or
after Aug. 3, 2017, and denied for claims based on overtime
performed prior to that date.
The parties will file a joint status report within 30 days of the
date of Judge Kaplan's Opinion. In that status report, the parties
will identify the named and opt-in plaintiffs whose overtime claims
are based entirely on work performed on or after Aug. 3, 2017. They
will advise the Court whether they would prefer that it enter
immediate judgment as to some or all of those individuals' claims
(allowing an immediate appeal) or whether they would propose some
other option for moving forward with this case as to all
Plaintiffs.
A full-text copy of the Court's June 23, 2023 Opinion & Order is
available at https://tinyurl.com/yckb9jpd from Leagle.com.
William Michael Hamilton, Provost Umphrey Law Firm LLP, Nashville,
TN, for plaintiffs, with whom were Guy Fisher, Provost Umphrey Law
Firm LLP, Beaumont, TX, William H. Narwold --
bnarwold@motleyrice.com -- and Matthew P. Jasinski --
mjasinski@motleyrice.com -- Motley Rice LLC, Hartford, CT, Bennett
Allen , Cook, Allen & Logothetis LLC, Cincinnati, OH, Robert H.
Stropp, Jr. -- rstropp@mooneygreen.com -- Mooney, Green, Saindon,
Murphy & Welch, P.C., Washington, DC, and E. Douglas Richards,
Franklin, TN.
P. Davis Oliver, Department of Justice, Senior Trial Counsel,
Commercial Litigation Branch, Civil Division, Washington, DC, for
defendant, with whom were Brian M. Boynton, Principal Deputy
Assistant Attorney General, Patricia M. McCarthy, Director, and
Reginald T. Blades, Jr., Assistant Director.
VANTAGE DELUXE: Couple Joins Class Action After Trip Canceled
-------------------------------------------------------------
Ethan Budowsky, writing for WCJB, reports that that's how much Kim
Roane and her husband are out after their trip to Canada with
Vantage Deluxe World Travel was suddenly canceled.
That does not include the more than $900 they paid for insurance
that did not cover companies going insolvent.
Roane says it took her a week to hear from Vantage, and when she
did she was notified all trips through August had been canceled.
"We were scheduled to go to Canada and Boston this fall," said
Roane. "We got notified through an e-mail from Vantage that there
was an important message on our "MyPortfolio." We checked and it
said 'your trip has been canceled.' No explanation.
"Through investigating all of this," continued Roane, "and through
a complaints website for Vantage, we have found that the company is
insolvent. That there are hundreds of people out of thousands and
thousands of dollars."
Roane says they haven't been made aware exactly why the company has
gone down, however . . .
"The owner's name is Henry Lewis and he is apparently in a huge
lawsuit over personal financial losses right now in Boston," said
Roane.
Roane says one traveler posted in a Facebook group that they did
not know their trip was canceled until arriving at the airport.
She also says a quick look showed her that among six people, they
were out more than $100 thousand combined.
Now, with the company out of business, there is nobody available to
help refund the money.
"As of last Tuesday," said Roane, "all Vantage employees have been
laid off. There is no one answering phones, there is no one
scheduling trips . . . The biggest frustration really is getting
hold of them and now that's not even an availability."
More than $1 million has been recovered through settlements for
Vantage customers.
The Roanes say they do not expect to ever get their money back, but
are joining a class-action lawsuit against Vantage to make sure
Lewis is held accountable. [GN]
VIO FRANCHISE: Weitz Sues Over Unwanted Texts to Promote Services
-----------------------------------------------------------------
BRANDON WEITZ, individually and on behalf of all others similarly
situated, Plaintiff v. VIO FRANCHISE GROUP, LLC, Defendant, Case
No. 1:23-cv-01231-CAB (N.D. Ohio, June 22, 2023) is a class action
against the Defendant for violation of the Telephone Consumer
Protection Act.
According to the complaint, the Defendant placed telemarketing text
messages to consumers with numbers registered on the Do Not Call
Registry without obtaining prior express written consent. As a
result, the Plaintiff and the Class suffered damages including
invasion of privacy, harassment, aggravation, and disruption of
daily life, says the suit.
Vio Franchise Group, LLC is an operator of a chain of med-spas,
headquartered in Cuyahoga County, Ohio. [BN]
The Plaintiff is represented by:
Andrew J. Shamis, Esq.
SHAMIS & GENTILE, P.A.
14 NE 1st Avenue, Suite 705
Miami, FL 33132
Telephone: (305) 479-2299
E-mail: ashamis@shamisgentile.com
VIRGINIA: Bid to Compel Production of Docs in Thorpe v. DOC Denied
------------------------------------------------------------------
In the case, WILLIAM THORPE, et al., Plaintiffs v. VIRGINIA
DEPARTMENT OF CORRECTIONS, et al., Defendants, Civil Case No.
2:20-cv-00007-JPJ-PMS (W.D. Va.), Magistrate Judge Pamela Meade
Sargent of the U.S. District Court for the Western District of
Virginia, Big Stone Gap Division, denies the Plaintiffs' Motion to
Compel the Production of Documents.
The class action is set for jury trial on March 18 to April 26,
2024. Several scheduling orders have been entered in the case to
date. An Amended Scheduling Order entered on Aug. 2, 2022,
continued the trial to the March 2024 start date and amended
several other important deadlines in the matter, including setting
the deadline for "Substantial Completion of Document Production"
for Jan. 17, 2023, and the deadline for the "Close of Non-Expert
Fact Discovery" for Feb. 28, 2023.
On Jan. 27, 2023, the Plaintiffs moved for a 90-day extension of
all discovery deadlines. The Motion for Extension stated that
"numerous discovery issues remain outstanding," including the issue
regarding the retrieval of emails dated from 2014-2016 for certain
agreed custodians from recently discovered backup tapes, which is
the basis of the current Motion. It further stated that to date,
VDOC has agreed to restore one custodian's mailbox from the backup
tapes. However, it has refused to restore any others,
notwithstanding the myriad gaps in its production, based on an
unsubstantiated claim of burden. The parties have been meeting and
conferring about these issues.
According to the Plaintiffs' memorandum in support of the Motion,
and its attached exhibits, their counsel were advised of the
existence of these backup tapes by a Dec. 30, 2021, letter from
defense counsel Meghan A. Podolny. In this letter, Podolny outlined
the steps the VDOC was willing to take to attempt to restore
deleted emails of former Red Onion Warden Earl Barksdale. Podolny
also specifically advised the Plaintiffs' counsel that the VDOC did
not consider these backup tapes within its possession, custody or
control and of the VDOC's position that it would not be
proportional to restore mailboxes for all VDOC personnel identified
on those tapes.
The Motion for Extension was heard by telephone conference call on
Feb. 7, 2023. During that hearing, the counsel for the Plaintiffs
addressed Judge Sargent on the need to grant the Motion for
Extension, at least in part, to allow for resolution of the issue
regarding the retrieval of emails from the recently discovered
backup tapes. The Court pointed out to the counsel that fact
discovery was set to close on Feb. 28, 2023, and there were no
pending motions to compel before it.
By Order entered on Feb. 7, 2023, the Court extended the fact
discovery deadline only to allow additional time for the taking of
nonexpert witness depositions. This Order extended the deadline for
the completion of discovery depositions of nonexpert witnesses to
April 14, 2023. Importantly, the Court denied the Motion for
Extension insofar as it sought a general extension of time past
Feb. 28, 2023, for the close of nonexpert fact discovery.
Despite the Court's admonishment to bring any remaining discovery
dispute to its attention by filing a proper motion, the Motion was
not filed with the Court until March 17, 2023, approximately two
months after the court's deadline for substantial completion of
document production, more than a month after the February 7 hearing
and 17 days after the close of nonexpert fact discovery.
Judge Sargent states that courts in the Fourth Circuit routinely
deny motions to compel that are filed after the discovery deadline
when no good cause is shown for their delay. In this case, the
Motion is untimely, and the Plaintiffs' counsel have offered no
good cause for why they waited until after the discovery deadline
to file the Motion.
In addition to the untimely filing of the Motion, Judge Sargent
holds that neither the Motion nor the supporting Memoranda identify
any particular discovery request by the Plaintiffs to which the
data contained on the backup tapes would be responsive. Instead,
the Motion asks the Court to assume that a proper discovery request
was served on the Defendants.
Oddly, the Plaintiffs' counsel provided only two pages of the
Plaintiffs' First Set Of Requests To Defendants For Production Of
Document, and these pages contained only certain definitions of the
words and phrases contained in the Requests for Production but none
of the actual requests. The Federal Rules of Civil Procedure state
that a motion to compel a discovery response may be made if a party
fails to produce documents as requested under Rule 34. In this
case, the Plaintiffs also have failed to show the Court that the
data at issue was the subject of a request for production served on
the Defendants.
For these reasons, Judge Sargent denies the Motion. The Clerk's
Office will provide a copy of her Memorandum Order to all counsel
of record.
A full-text copy of the Court's June 21, 2023 Memorandum Order is
available at https://tinyurl.com/3zwy99fm from Leagle.com.
WHITWORTH UNIVERSITY: Fails to Protect Patients' Info, Loyola Says
------------------------------------------------------------------
PATRICK LOYOLA, individually and on behalf of all others similarly
situated, Plaintiff v. WHITWORTH UNIVERSITY, Defendant, Case No.
2:23-cv-00179-SAB (E.D. Wash., June 22, 2023) is a class action
against the Defendant for negligence, breach of implied contract,
breach of the implied covenant of good faith and fair dealing,
unjust enrichment, and violation of the Washington Consumer
Protection Act.
The case arises from the Defendant's failure to properly secure and
safeguard the protected health information (PHI) and personally
identifiable information (PII) of the Plaintiff and similarly
situated patients stored within its network following a data breach
on approximately July 29, 2022. The Defendant also failed to timely
notify the Plaintiff and similarly situated individuals about the
data breaches. As a result, the PII and PHI of the Plaintiff and
Class members were compromised and damaged through access by and
disclosure to unknown and unauthorized third parties.
Whitworth University is a nonprofit corporation, with its principal
address at 300 W. Hawthorne Rd., Spokane, Washington. [BN]
The Plaintiff is represented by:
Samuel J. Strauss, Esq.
TURKE & STRAUSS LLP
613 Williamson St., Suite 201
Madison, WI 53703
Telephone: (608) 237-1775
Facsimile: (608) 509-4423
E-mail: sam@turkestrauss.com
- and -
Kevin Laukaitis, Esq.
LAUKAITIS LAW LLC
954 Avenida Ponce De Leon
Suite 205, #10518
San Juan, PR 00907
Telephone: (215) 789-4462
E-mail: klaukaitis@laukaitislaw.com
*********
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