Maslic v. ISM Vuzem d.o.o. ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 SASA MASLIC, et al., Case No. 21-cv-02556-BLF 9 Plaintiffs, ORDER VACATING HEARING ON 10 v. PLAINTIFF SASA MASLIC’S MOTION FOR APPROVAL OF PROPOSED 11 ISM VUZEM D.O.O., et al., CLASS NOTICE PLAN; GRANTING MOTION; AND APPROVING 12 Defendants. PROPOSED FORM OF NOTICE AS MODIFIED BY THE COURT 13 [Re: ECF 98] 14 15 16 This suit for wage and hour violations and human trafficking is brought by persons who 17 claim that they were transported to the United States from their home countries of Bosnia and 18 Herzegovina, the Republic of Slovenia, and Croatia to provide cheap labor for American 19 companies. Plaintiffs assert several individual claims and one class claim. The Court has certified 20 the class claim, appointed Plaintiff Sasa Maslic (“Maslic”) as the class representative, and 21 appointed the Law Office of William C. Dresser as Class Counsel. See Order Granting Plaintiff 22 Sasa Maslic’s Mot. for Class Certification, ECF 90. 23 Maslic now moves for approval of a proposed class notice plan. See Mot. for Approval, 24 ECF 98. The Court finds the motion to be suitable for decision without oral argument. See Civ. 25 L.R. 7-1(b). The hearing previously set for December 14, 2023 is VACATED. 26 The motion is GRANTED and the proposed class notice plan is APPROVED with minor 27 modifications to the proposed form of notice. Class counsel SHALL SUBMIT a modified 1 I. BACKGROUND 2 Plaintiffs filed this suit in the Alameda County Superior Court in August 2020, and filed a 3 first amended complaint (“FAC”) in October 2020. See Not. of Removal at 2-3, ECF 1. The suit 4 was removed to federal district court in April 2021 based on federal question jurisdiction. See id. 5 Not. of Removal at 3-4. Plaintiffs thereafter filed a corrected FAC (“CFAC”) in order to correct 6 the spelling of a party’s name. See CFAC, ECF 63. 7 The operative CFAC alleges that Plaintiffs are residents of Bosnia and Herzegovina, the 8 Republic of Slovenia, and Croatia. See CFAC ¶ 1. Defendant ISM Vuzem d.o.o., a Slovenian 9 company, allegedly employed Plaintiffs and contracted their labor to Defendant Tesla, Inc. 10 (“Tesla”) and its general contractor, Defendant Eisenmann Corporation (“Eisenmann”), for work 11 on a construction project at Tesla’s facility in Fremont, California. See id. ¶¶ 16-17, 89. Plaintiffs 12 claim that they were paid a flat rate per month in violation of federal and state laws requiring 13 payment of minimum wages and overtime wages. See id. ¶¶ 26, 38, 54-57, 61. They also claim 14 that they were not given rest periods, wage statements, or waiting time penalties required under 15 California law. See id. ¶¶ 65, 70, 81-83. Plaintiffs allege that they were coerced to work under 16 these conditions under threat of serious harm, including financial harm, civil and criminal 17 prosecution, and loss of visa status . See id. ¶¶ 112-19. 18 Based on these allegations, Plaintiffs assert the following claims against Eisenmann and 19 Tesla, and against ISM Vuzem d.o.o. and several related entities (“the Vuzem Defendants”). 20 Those claims are: (1) failure to pay minimum wages in violation of the Fair Labor Standards Act 21 (“FLSA”); (2) failure to pay overtime wages in violation of the FLSA; (3) failure to pay minimum 22 wages in violation of California law; (4) failure to pay overtime wages in violation of California 23 law; (5) failure to provide meal breaks and rest periods in violation of California law; (6) failure to 24 provide accurate wage statements in violation of California law; (7) failure to pay waiting time 25 penalties in violation of California law; (8) a class claim for violation of California wage and hour 26 laws; (9) trafficking and coerced labor under the federal Trafficking Victims Protection 27 Reauthorization Act and the California Trafficking Victims Protection Act; and (10) a claim under 1 The sole class claim – Claim 8 – is for violation of California wage and hour laws. The 2 Court has certified the following damages class with respect to Claim 8 under Federal Rule of 3 Civil Procedure 23(b)(3): “All non-exempt individuals employed by ISM Vuzem, d.o.o., who 4 worked at the Tesla facility located in Fremont, California, at any time from July 1, 2014, through 5 April 30, 2016.” Order Granting Plaintiff Sasa Maslic’s Mot. for Class Certification at 9. The 6 Court has appointed Maslic as the class representative and the Law Office of William C. Dresser 7 as Class Counsel. See id. 8 Tesla and Eisenman have been dismissed from all wage and hour claims. See Order 9 Granting in Part Mot. to Dismiss, ECF 45. Accordingly, Claim 8 is asserted only against the 10 Vuzem Defendants. Two of the six Vuzem Defendants have been dismissed for lack of service of 11 process: ISM Vuzem USA, Inc. and Vuzem USA, Inc. See Order Dismissing Defs. ISM Vuzem 12 USA, Inc. and Vuzem USA, Inc., ECF 94. The remaining four Vuzem Defendants have defaulted: 13 ISM Vuzem d.o.o., HRID-MONT d.o.o., Ivan Vuzem, and Robert Vuzem. See Clerk’s Entry of 14 Default, ECF 68. Once the class has been given notice of the suit and an opportunity to opt out, 15 Maslic will seek default judgment against the four defaulting Vuzem Defendants on behalf of the 16 class. See Admin. Mot. by Sasa Maslic as Class Representative, ECF 96. 17 II. LEGAL STANDARD 18 “For any class certified under Rule 23(b)(3) . . . the court must direct to class members the 19 best notice that is practicable under the circumstances, including individual notice to all members 20 who can be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). “The notice may be 21 by one or more of the following: United States mail, electronic means, or other appropriate 22 means.” Id. The notice must clearly and concisely state in plain, easily understood language: 23 (i) the nature of the action; (ii) the definition of the class certified; 24 (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the 25 member so desires; (v) that the court will exclude from the class any member who requests exclusion; 26 (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3). 27 1 III. DISCUSSION 2 Maslic’s proposed class notice plan satisfies the Rule 23 requirements set forth above, 3 although as discussed below the Court will require minor modifications to the proposed long form 4 notice before it is sent to the class. The Court first discusses the proposed methods for providing 5 notice and then the proposed form of notice. 6 A. Methods for Providing Notice 7 Maslic submits Class Counsel’s declaration describing his office’s identification of 177 8 class members who worked Tesla’s facility in Fremont, California during the class period. See 9 Dresser Decl. ¶¶ 3-12. Class Counsel has created an excel spreadsheet of class members with all 10 known street addresses and email addresses. See id. ¶ 56. The spreadsheet contains street 11 addresses for 146 of the 177 class members. See id. ¶¶ 58-59. The spreadsheet contains an email 12 address for 1 of the 31 class members for whom no street address is known. See id. Although 13 Class Counsel has neither a street address nor an email address for 30 of the class members, he 14 believes that he will be able to obtain a street address or an email address for many of those 15 individuals through inquiry to the named plaintiffs in this case. See id. ¶ 63. 16 Class Counsel has identified two potential companies to serve as the Claims/Notice 17 Administrator, Simpluris and ILYM Group. See Dresser Decl. ¶ 70. He believes that either 18 company would provide competent services at a reasonable price. See id. Under the proposed 19 class notice plan, the Claims/Notice Administrator will mail a long form notice directly to class 20 members via International Priority Airmail through the United States Postal Service. See id. ¶ 66. 21 If any of the notices are returned to sender as undeliverable, Class Counsel will work with the 22 named plaintiffs to find alternate street addresses and the Claims/Notice Administrator will re- 23 send the long form notice to those alternate street addresses via International Priority Airmail 24 through the United States Postal Service. See id. ¶ 67. In addition, the Claims/Notice 25 Administrator will email the long form notice to all class members for whom email addresses are 26 known. See id. ¶ 68. 27 Class Counsel proposes to provide a list of class members with all known street addresses, 1 approval of the proposed class notice plan. See Dresser Decl. at pp. 17-18. The Claims/Notice 2 Administrator will mail the long form notice to class members 21 days after approval of the 3 proposed notice plan. See id. For all notices returned to sender as undeliverable, the 4 Claims/Notice Administrator will mail the notice to any alternate addresses provided by Class 5 Counsel within 7 days of being advised of such alternate addresses. See id. The long form notice 6 will be provided in both English and Croatian; Class Counsel has been informed that Croatian is 7 the predominant language understood by the class members. See id. ¶¶ 52-55. The long form 8 notice will advise class members of their right to opt out of the class and their deadline to do so. 9 See at p. 18. The opt-out deadline will be 60 days after the mailing of the notice. See id. The 10 Claims/Notice Administrator will provide Class Counsel with a list of class members who did not 11 opt out 90 days after the mailing of the notices. See id. Maslic will be responsible for the costs of 12 notice with the understanding that he may request reimbursement of such costs at a later date. 13 The Court finds that this proposed class notice plan will provide “the best notice that is 14 practicable under the circumstances, including individual notice to all members who can be 15 identified through reasonable effort” as required under Rule 23(c)(2)(B). That rule expressly 16 recognizes that the proposed notice methods here – United States mail and electronic means – are 17 appropriate means to provide class notice. See id. 18 B. Form of Notice 19 Under Rule 23, the notice provided to the class must contain certain information in plain 20 and clear language. See Fed. R. Civ. P. 23(c)(2)(B). Maslic’s proposed long form notice contains 21 all of the required information, which will be provided in both English and Croatian. See Dresser 22 Decl. ¶¶ 52-55 & Ex. A (Long Form Notice in English), Ex. B (Long Form Notice in Croatian). 23 Specifically, the proposed long form notice explains the nature of the action; sets forth the class 24 definition; identifies the class claims at issue; advises that any class member may enter an 25 appearance through an attorney; describes the procedure for requesting exclusion from the class; 26 and states that the judgment in this action will be binding on all class members who do not seek 27 exclusion. See Dresser Decl. Ex. A. 1 calculated, under all the circumstances, to apprise interested parties of the pendency of [an] action 2 and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Tr. 3 Co., 339 U.S. 306, 314 (1950). “The notice must be of such nature as reasonably to convey the 4 required information, and it must afford a reasonable time for those interested to make their 5 appearance.” Id. (citation omitted). “[I]f with due regard for the practicalities and peculiarities of 6 the case these conditions are reasonably met the constitutional requirements are satisfied.” Id. 7 The Court finds that under the circumstances of this case, as set forth in Class Counsel’s 8 declaration, the proposed notice plan in conjunction with the proposed long form notice will 9 reasonably convey the required information and afford a reasonable time for class members to 10 appear or opt out of the class. 11 The Court will require minor modifications to the proposed long form notice before it is 12 sent to the class. First, Class Counsel shall fill in the blank spaces left for the opt-out deadline, 13 leaving sufficient time that the deadline will be 60 days after mailing of the notice. Second, the 14 proposed notice has blank spaces for the Claims/Notice Administrator’s identity and contact 15 information. Class Counsel shall fill in that information after retaining a Claims/Notice 16 Administrator. Finally, the last paragraph, which explains how class members may access 17 information about the case through PACER, provides the wrong case name, filing date, and case 18 number. Class Counsel shall correct those errors. 19 Before notice may be sent to the class, Class Counsel shall submit a declaration identifying 20 the Claims/Notice Administrator and the terms of that engagement. 21 Once the required modifications to the proposed long form notice have been made, in both 22 the English and Croatian versions, Class Counsel shall submit the modified long form notice to the 23 Court for final approval, along with a proposed order allowing mailing of the modified notice to 24 the class. 25 // 26 // 27 // 1 IV. ORDER 2 (1) Plaintiff Maslic’s Motion for Approval of Proposed Class Notice Plan is 3 GRANTED and the hearing previously set for December 14, 2023 is 4 VACATED. 5 (2) Plaintiff Maslic’s proposed long form notice is APPROVED with the modifications 6 required herein. 7 (3) Before notice is mailed to the class, Plaintiff SHALL submit to the Court a 8 declaration identifying the Claims/Notice Administrator and the terms of the 9 engagement. 10 (4) Before notice is mailed to the class, Plaintiff Maslic SHALL submit a modified 11 long form notice to the Court for final review, along with a proposed order 12 allowing mailing of the modified long form notice to the class. 5 13 (5) This order terminates ECF 98. 14 15 Dated: December 7, 2023 TH LABSON FREEMAN 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28