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. 24 On October 30, 2019, the Court requested additional information from Plaintiff’s counsel 25 regarding the three Diaz v. Trust Territory of Pac. Islands, 876 F.2d 1401 (9th Cir. 1989) factors 26 that a court is to consider before permitting the voluntary dismissal of a putative class action. See 27 Doc. No. 19. On November 5, 2019, Plaintiff’s counsel submitted the additional information. See 28 Doc. No. 20. 1 2 Federal Rule of Civil Procedure 23(e) requires courts to approve the proposed voluntary 3 dismiss of a class claim even before the class has been certified. See Choo v. Wellnx Life Scis., 4 Inc., 2019 U.S. Dist. LEXIS 181959, *2 (E.D. Cal. Oct. 18, 2019); Madrid v. TeleNetwork 5 Partners, Ltd., 2019 U.S. Dist. LEXIS 123653, *21 (N.D. Cal. July 23, 2019). Therefore, when 6 parties seek to voluntarily dismiss class claims, the Court must be aware of prejudice to a class 7 and consider three factors before authorizing a dismissal: “(1) class members’ possible reliance on 8 the filing of the action if they are likely to know of it either because of publicity or other 9 circumstances, (2) lack of adequate time for class members to file other actions, because of a 10 rapidly approaching statute of limitations, (3) any settlement or concession of class interests made 11 by the class representative or counsel in order to further their own interests.” Diaz v. Trust 12 Territory of Pac. Islands, 876 F.2d 1401, 1408 (9th Cir. 1989); Choo, 2019 U.S. Dist. LEXIS 13 181959 at *2-*3; Madrid, 2019 U.S. Dist. LEXIS 123653 at *21. 14 Here, with respect to the first Diaz factor, the initial stipulation and the supplemental 15 materials demonstrate that Plaintiff’s counsel is unaware of any publicity surrounding the filing of 16 this case, no potential class members have contacted counsel, counsel unsuccessfully attempted to 17 contact three putative class members, counsel is unaware of any foregone opportunities by class 18 members to participate in individuals suits or other class actions, and no class member received 19 written notice of the suit. See Doc. No. 18 at ¶ 13; Doc. No. 19 at ¶¶ 4-7. From counsel’s 20 submissions, the Court concludes that there is either no or insubstantial detrimental reliance by the 21 member of the putative class action. 22 With respect to the second Diaz factor, counsel points out that, per American Pipe & 23 Constr. Co. v. Utah, 414 U.S. 538 (1974), the statutes of limitations were all tolled as to the class 24 when the complaint was filed. Further, counsel is unaware of any imminently approaching 25 limitations periods that would leave the putative class members with inadequate time to file other 26 actions. See Doc. No. 19 at ¶ 9. From this submission, the Court does not detect a significant 27 statute of limitations problem. 28 Finally, with respect to the third Diaz factor, the stipulation indicates that the dismissal of 1 | the class claims is to be without prejudice. See Doc. No. 18 at 4] 9, 13. Because the dismissal is 2 | without prejudice, other class members will be able to pursue claims against Defendants. 3 | Additionally, no class has been certified and no motion to certify class has been filed. The Court 4 | concludes that the interests of the class are not adversely affected. 5 Because the submissions of counsel and the Diaz factors do not show that the putative 6 will be prejudiced by the proposed voluntary dismissal, the Court will generally give effect 7 |to the stipulation. Per the stipulation, Plaintiff's individual and class action claims will be 8 dismissed without prejudice. Plaintiff will file and serve her proposed second amended complaint, 9 | but the second amended complaint will add jurisdictional allegations.'! Because the Court will not 10 | permit the proposed second amended complaint to be filed without jurisdictional allegations, the 11 second amended complaint will not be deemed to have been filed on October 28, 2019 (the date it 12 | was lodged as part of the parties’ stipulation). 13 14 ORDER 15 Accordingly, IT IS HEREBY ORDERED that: 16 | 1. Per the parties’ stipulation, Plaintiffs individual and class action claims (non-PAGA 17 claims) are DISMISSED without prejudice; and 18 Plaintiff shall file the proposed Second Amended Complaint, but shall add jurisdictional 19 allegations to the proposed Second Amended Complaint, within seven (7) days of service 20 of this order. 21 IT IS SO ORDERED. 93 | Dated: _ November 6, 2019 : : — SENIOR DISTRICT JUDGE 24 25 26 27 28 ' Plaintiff’s proposed Second Amended Complaint contains no jurisdictional allegations and is thus, improper.