Figueroa v. Conner Logistics, Inc. ( 2020 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 UBALDO FIGUEROA, an individual, Case No. 1:19-cv-01004-NONE-BAM 13 on behalf of himself, and on behalf of all persons similarly situated, 14 FINDINGS AND Plaintiff, RECOMMENDATIONS 15 REGARDING PLAINTIFF’S v. MOTION FOR PRELIMINARY 16 APPROVAL OF CLASS CONNER LOGISTICS, INC., a SETTLEMENT 17 California corporation; and DOES 1 through 50, inclusive, (Doc. No. 21.) 18 Defendants. 19 20 21 22 23 24 25 26 27 1 On June 26, 2020, the Court held a hearing on the motion of Plaintiff Ubaldo 2 Figueroa (“Plaintiff”) for preliminary approval of the parties’ proposed class 3 settlement, approval of the notice to be sent to the class about the settlement, and 4 the setting of a date for the hearing on final approval of the settlement. 5 Motschiedler, Michaelides, Wishon, Brewer & Ryan LLP appeared as counsel for 6 defendant Conner Logistics, Inc. (“Defendant”) and Blumenthal Nordrehaug 7 Bhowmik De Blouw LLP appeared for Plaintiff. The Court, having carefully 8 considered the briefs, argument of counsel and all matters presented to the Court, 9 and good cause appearing, hereby RECOMMENDS that Plaintiff’s Motion for 10 Preliminary Approval of Class Action Settlement be GRANTED, subject to the 11 following findings: 12 1. The Court recommends preliminarily approval of the Joint Stipulation 13 of Class Settlement and Release of Claims (the “Stipulation” or “Settlement”) 14 attached as Exhibit #1 to the Declaration of Norman Blumenthal in Support of 15 Plaintiff’s Motion for Preliminary Approval of Class Action Settlement. This is 16 based on the Court’s preliminary determination that the settlement agreement is 17 within the range of possible final approval. 18 2. Pursuant to the Class Action Fairness Act, 28 U.S.C. § 1711 et seq. 19 (“CAFA”), the Defendant caused the mailing of the CAFA Notice to the Attorney 20 General of the United States and the appropriate state official in each state in 21 which a Class Member reportedly resides at the time of CAFA Notice according to 22 Defendant’s records and as updated following a National Change of Address 23 search. Accordingly, the Court finds that Defendant has discharged its obligations 24 under CAFA to provide notice to the appropriate federal and state officials. 25 3. Pursuant to the Stipulation, the Court recommends that the Class be 26 conditionally certified for settlement purposes only. The Class is defined as all 27 individuals who were California residents who worked for Defendant, Conner 1 Logistics, Inc. in California as truck drivers at any time during the Class Period. 2 The Class Period is August 11, 2011 and up to and including July 11, 2016. 3 4. Pursuant to the Stipulation, the Court recommends that the FLSA 4 collective action be certified for settlement purposes only. The “FLSA Opt-In 5 Members” are defined as those Participating Class Members who worked for 6 Defendant during the period August 11, 2012 to July 11, 2016 and who timely 7 execute and return the FLSA Consent Form. For the same reasons as the Court 8 finds the requirements for certification are met, the Court similarly finds, 9 for settlement purposes only, the requirements of 29 U.S.C. section 216(b) for 10 conditional certification of this FLSA collective action as to the FLSA Opt-In 11 Members are satisfied. 12 5. It appears to the Court on a preliminary basis that the settlement 13 amount and terms are fair, adequate and reasonable as to all potential Class 14 Members and FLSA Opt-In Members when balanced against the probable outcome 15 of further litigation relating to certification, liability and damages issues, and in 16 light of the defendant’s financial condition. It further appears that investigation 17 and research have been conducted such that counsel for the parties are able to 18 reasonably evaluate their respective positions. It further appears to the Court that 19 settlement at this time will avoid substantial additional costs by all parties, as well 20 as avoid the delay and risks that would be presented by the further prosecution of 21 the Action. It further appears that the Settlement has been reached as the result of 22 intensive, serious and non-collusive, arms-length negotiations. 23 6. The Court preliminarily finds that the Settlement appears to be within 24 the range of reasonableness of a settlement that could ultimately be given final 25 approval by this Court. The Court has reviewed the monetary recovery that is 26 being granted as part of the Settlement and preliminarily finds that the monetary 27 settlement awards made available to Class Members and FLSA Opt-In Members is 1 fair, adequate, and reasonable when balanced against the probable outcome of 2 further litigation relating to certification, liability, and damages issues, and in light 3 of the defendant’s financial condition. 4 7. The Court finds that, for settlement purposes only, the Class meets the 5 requirements for certification under F.R.C.P. rule 23 in that: (a) the Class is 6 ascertainable and so numerous that joinder of all members of the Class is 7 impracticable; (b) common questions of law and fact predominate, and there is a 8 well-defined community of interest amongst the members of the Class with respect 9 to the subject matter of the litigation; (c) the claims of the named plaintiff are 10 typical of the claims of the members of the Class; (d) the Class Representative will 11 fairly and adequately protect the interests of the members of the Class; (e) a class 12 action is superior to other available methods for the efficient adjudication of this 13 controversy; and (f) counsel for the Class is qualified to act as counsel for the 14 Class. 15 8. The Court recommends that Plaintiff Ubaldo Figueroa be 16 provisionally appointed as the representative of the Class and FLSA members. 17 9. The Court recommends that Blumenthal, Nordrehaug & Bhowmik be 18 provisionally appointed as Class Counsel. 19 10. The Court recommends that the Notice of Pendency Class Action 20 Settlement and Hearing Date for Court Approval (“Class Notice”), attached to the 21 Stipulation as Exhibit A, be approved as to form and content. The Court finds that 22 the Class Notice appears to fully and accurately inform the Class Members of all 23 material elements of the proposed Settlement, of the Class Members’ right to be 24 excluded from the Class by submitting a written opt-out request, and of each Class 25 Members’ right and opportunity to object to the Settlement. The Court further 26 finds that the distribution of the Class Notice substantially in the manner and form 27 set forth in the Stipulation and this Order meets the requirements of due process, is 1 the best notice practicable under the circumstances, and shall constitute due and 2 sufficient notice to all persons entitled thereto. The Court also recommends that 3 the FLSA Consent Form in the form attached to the Stipulation as Exhibit D be 4 approved and the Court order the mailing of the Notice Materials by first class 5 mail, pursuant to the terms set forth in the Stipulation. 6 11. The Court recommends appointing KCC Class Action Services as 7 Settlement Administrator. 8 12. The Court recommends that the proposed procedure for exclusion 9 from the Settlement be preliminarily approved. Any Class Member may choose to 10 opt out of and be excluded from the Class as provided in the Class Notice by 11 following the instructions for requesting exclusion from the Class that are set forth 12 in the Class Notice. All requests for exclusion must be postmarked or received by 13 the deadline set forth in the Class Notice. Any such person who chooses to opt out 14 of and be excluded from the Class will not be entitled to any recovery under the 15 Settlement and will not be bound by the Settlement or have any right to object, 16 appeal or comment thereon. Any Class Member who does not submit a valid 17 request for exclusion will receive a Settlement Share and shall be bound by all 18 determinations of the Court, the Stipulation and Judgment. 19 13. The Court recommends that a final approval hearing be set before the 20 Honorable Barbara A. McAuliffe on January 15, 2021 at 9:00 a.m. in Courtroom 21 8 of the United States District Court for the Eastern District of California, located 22 at 2500 Tulare Street, Fresno, California 93721, to determine all necessary matters 23 concerning the Settlement, including: whether the proposed settlement of the 24 Action on the terms and conditions provided for in the Stipulation is fair, adequate 25 and reasonable and should be finally approved by the Court; whether an Order 26 Granting Final Approval should be entered herein; whether the plan of allocation 27 contained in the Stipulation should be approved as fair, adequate and reasonable to 1 the Class Members; and to finally approve Class Counsel’s fees and litigation 2 costs, Plaintiff’s service award, and the Settlement Administrator’s expenses. 3 14. The Court recommends preliminarily approving the proposed 4 procedure for objecting to the Settlement. Any Class Member who wishes to 5 comment on or object to the Settlement, the attorneys’ fees and costs, and/or the 6 proposed Class Representative Service Payments has until 45 days after the 7 mailing of the Class Notice to submit his or her written comment or objection 8 pursuant to the procedures set forth in the Class Notice. Class Counsel must file 9 their application for the attorneys’ fees and costs no later than 14 days prior to the 10 end of the objection period, and the application will be heard at the Final Approval 11 Hearing. 12 15. No Class Member shall be entitled to be heard at the final approval 13 hearing (whether individually or through separate counsel) or to object to the 14 Settlement, and no written objections or briefs submitted by any Class Member 15 shall be received or considered by the Court at the final approval hearing, unless 16 written notice of the Class Member's intention to appear at the final approval 17 hearing were timely submitted as provided in the Notice. Class Members who fail 18 to timely submit written objections in the manner specified in the Notice shall be 19 deemed to have waived any objections and shall be foreclosed from making any 20 written objection to the Settlement. 21 16. The Court reserves the right to adjourn or continue the date of the 22 final approval hearing and all dates provided for in the Stipulation without further 23 notice to Class Members, and retains jurisdiction to consider all further 24 applications arising out of or connected with the proposed Settlement. 25 These findings and recommendations are submitted to the United States 26 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 27 636(b)(l). Within fourteen (14) days after being served with these findings and 1 recommendations, the parties may file written objections with the Court. Such a 2 document should be captioned “Objections to Magistrate Judge’s Findings and 3 Recommendations.” The parties are advised that failure to file objections within 4 the specified time may result in the waiver of the “right to challenge the 5 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 6 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 8 IT IS SO ORDERED. 9 Dated: July 10, 2020 /s/ Barbara A. McAuliffe _ 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27