Diva Limousine, Ltd. v. Uber Technologies, Inc. ( 2019 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DIVA LIMOUSINE, LTD., Case No. 18-cv-05546-EMC 8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. NOTICE OF DISMISSAL 10 UBER TECHNOLOGIES, INC., et al., Docket No. 139 11 Defendants. 12 13 On October 7, 2019, Plaintiff Diva Limousine, Ltd. filed a Notice of Voluntarily Dismissal 14 pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure. See Docket No. 139. 15 That Notice included dismissal of all individual claims with prejudice and dismissal of all class 16 claims without prejudice, with each side to bear its own fees and costs. Id. That same day, the 17 Court issued an Order Requesting Information from the Parties. See Docket No. 140. 18 Specifically, the Court requested that the parties provide information “about the scope and nature 19 of the publicity associated with this putative class action,” so that the Court might appropriately 20 safeguard the interests of absent plaintiffs. Id. 21 Shortly thereafter, counsel for Defendants lodged a letter with the Court challenging the 22 Court’s jurisdiction to issue such an order. See Docket No. 143. Counsel stated that the Notice of 23 Voluntary Dismissal had been filed by Plaintiff pursuant to Federal Rule of Civil Procedure 24 41(a)(1)(A), which permits voluntary dismissal by the plaintiff without a court order “before the 25 opposing party servers either an answer or a motion for summary judgment.” Fed. R. Civ. P. 41. 26 However, Rule 41(a)(1)(A) also states that it is “subject to Rule[] 23(e).” Id. Rule 23(e), in turn, 27 states that the “claims . . . of a certified class . . . may be . . . voluntarily dismissed . . . only with 1 because Defendant never filed an answer and because the proposed class was never certified— 2 court approval is not required for Plaintiff’s voluntary dismissal. 3 As noted in the Court’s previous order, the Ninth Circuit has held that Rule 23(e) is 4 applicable to precertification class actions. Diaz v. Trust Territory of Pac. Islands, 876, F.2d 5 1401, 1408 (9th Cir. 1989). Counsel is correct in noting that Diaz predates the 2003 and 2007 6 amendments to the Federal Rules of Civil Procedure. However, courts in the Northern District 7 have continued to apply Diaz to cases such as this one. More specifically, courts have noted 8 “some uncertainty about whether Rule 23(e) still applies to pre-certification settlement proposals 9 but have generally assumed that it does [apply].” Lyons v. Bank of Am., NA, No. C 11-1232 CW, 10 2012 WL 5940846, at *1 (N.D. Cal. Nov. 27, 2012) (emphasis added); see also Tombline v. Wells 11 Fargo Bank, N.A., No. 13-CV-04567-JD, 2014 WL 5140048, at *2 (N.D. Cal. Oct. 10, 2014) 12 (noting that “this Court will follow Diaz” to evaluate the proposed dismissal as “this approach is 13 consistent with Rule 23(e) as it exists today”); Mahan v. Trex Co., Inc., 2010 WL 4916417, at *3 14 (N.D. Cal. Nov. 22, 2010) (noting that “even where the procedures of Rule 23(e) do not apply 15 automatically,” court approval of class settlements and dismissals is still required to determine if 16 there is evidence of collusion or prejudice (citations omitted)). Pre-certification review is 17 appropriate because it affords a safeguard against any significant reliance interest of putative class 18 members who received notice of the action but not its dismissal, and are thus unaware of, e.g., 19 statute of limitation issues consequential to dismissal. See Am. Pipe & Const. Co. v. Utah, 414 20 U.S. 538 (1974). It also safeguards against any potential abuse of the class action process. 21 Following the general practice of this district, the Court finds that it does have jurisdiction 22 to inquire into the publicity associated with this putative class action, and that doing so is 23 appropriate. As a result, it turns to the responses provided by the parties. See Docket Nos. 141, 24 142. The response provided by Plaintiff’s counsel notes that publicity associated with the case 25 “has principally appeared in legal press” and that The Daily Journal has “referenced this case only 26 three times.” Docket No. 141 at 2. It further observes that coverage in the popular press has been 27 “modest” and “principally concerned . . . [with] the filing of the complaint and the disqualification 1 the letter alleges that “counsel has communicated with less than a half dozen putative class 2 || representatives/class members” and “no information about the case has been shared with the 3 public or putative class members other than the information, whether verbatim or in summary, that 4 appears as a matter of record in this action, and strategic matters covered by the work product 5 doctrine concerning the suitability of certain individual and types of entities to serve as class 6 || representatives.” Id. at 2-3. 7 Accordingly, the Court GRANTS Plaintiff's Notice of Voluntary Dismissal. 8 This order disposes of Docket No. 139. The Clerk is instructed to enter Judgment and 9 close the file. 10 11 IT IS SO ORDERED. 12 13 Dated: October 23, 2019 LL © 15 fe 2 ED M.C 16 Uni □□ nited States District Judge = 17 Z 18 19 20 21 22 23 24 25 26 27 28