Chavez v. Texas De Brazil (Fresno) Corporation ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 WENDY CHAVEZ, on behalf of herself CASE NO. 1:19-CV-0502 AWI BAM and all other similarly situated, and as an 11 “aggrieved employee” on behalf of other “aggrieved employees” under the Labor ORDER FOR ADDITIONAL 12 Code Private Attorneys General Act of INFORMATION REGARDING 2004, STIPULATED DISMISSAL 13 Plaintiff 14 v. 15 TEXAS DE BRAZIL (FRESNO), et al., 16 Defendants 17 18 19 On October 28, 2019, the parties filed a stipulation for dismissal of Plaintiff’s individual 20 and class claims and for the filing of Second Amended Complaint that pursued a state law Private 21 Attorneys General Act (“PAGA”) claim. See Doc. No. 18. The dismissal of the individual and 22 class claims is based on an arbitration agreement that Plaintiff signed in connection with her 23 employment with Defendants. See id. This case is in its early stages and no class has been 24 certified and no motion for class certification has been filed. 25 Federal Rule of Civil Procedure 23(e) requires courts to approve the proposed voluntary 26 dismiss of a class claim even before the class has been certified. See Choo v. Wellnx Life Scis., 27 Inc., 2019 U.S. Dist. LEXIS 181959, *2 (E.D. Cal. Oct. 18, 2019); Madrid v. TeleNetwork 28 Partners, Ltd., 2019 U.S. Dist. LEXIS 123653, *21 (N.D. Cal. July 23, 2019). Therefore, when 1 parties seek to voluntarily dismiss class claims, the Court must be aware of prejudice to a class 2 and consider three factors before authorizing a dismissal: “(1) class members’ possible reliance on 3 the filing of the action if they are likely to know of it either because of publicity or other 4 circumstances, (2) lack of adequate time for class members to file other actions, because of a 5 rapidly approaching statute of limitations, (3) any settlement or concession of class interests made 6 by the class representative or counsel in order to further their own interests.” Diaz v. Trust 7 Territory of Pac. Islands, 876 F.2d 1401, 1408 (9th Cir. 1989); Choo, 2019 U.S. Dist. LEXIS 8 181959 at *2-*3; Madrid, 2019 U.S. Dist. LEXIS 123653 at *21. 9 Here, the stipulation indicates that the dismissal of the class claims is to be without 10 prejudice. See Doc. No. 18 at ¶¶ 9, 13. Because the dismissal is without prejudice, other class 11 members will be able to pursue claims against Defendants. For purposes of the third Diaz factor, 12 the interests of the class are not adversely affected. 13 With respect to the first Diaz factor, the stipulation states that no putative class members 14 have been given “written notice” of the class claims or the lawsuit and Plaintiff’s counsel is 15 “unaware of any putative class member who refrained from bringing similar class action 16 allegations in reliance on the existence of this class action.” Id. at ¶ 13. The Court is concerned 17 with the limitations found in this paragraph. While the Court suspects that there is little reliance 18 on this case by putative class members, the Court would like additional information from 19 Plaintiff’s counsel. In further submissions, Plaintiff’s counsel should address any publicity 20 regarding the putative class action/claims, whether it is known if putative class members received 21 something other than a “formal written notice” of the class action, whether it is known if putative 22 class members have foregone pursuing individual claims in light of the putative class action, and 23 any other information that may be relevance to the issue of reliance. 24 With respect to the second Diaz factor, the stipulation does not address any statute of 25 limitations related issues. Plaintiff’s counsel is directed to do so. 26 Once the additional information is received, the Court will act on the parties’ stipulation.1 27 1 The Court notes that the proposed Second Amended Complaint omits jurisdictional allegations. If the Court grants 28 the parties’ stipulation, Plaintiff’s counsel will be ordered to include jurisdictional allegations as part of any amended 1 ORDER 2 Accordingly, IT IS HEREBY ORDERED that, within ten (10) days of service of this 3 | order, Plaintiff's counsel shall provide the additional information requested regarding the first and 4 | second Diaz factors. 5 6 IT IS SO ORDERED. 7 Dated: _ October 29, 2019 Z : Cb ut _-SENIOR DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28