Danette Moore v. Petsmart, Inc.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANETTE M. MOORE; ALANNA No. 16-16124
HARRISON; ALISA VALDEZ; LATRESA
MYERS, individually and on behalf of all D.C. No.
others similarly situated, 5:12-cv-03577-EJD
Plaintiffs-Appellees,
MEMORANDUM*
LINDSEY LOOMIS,
Objector-Appellant,
v.
PETSMART, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted December 7, 2017
San Francisco, California
Before: GRABER and N.R. SMITH, Circuit Judges, and SIMON,** District Judge.
Lindsey Loomis (“Loomis”) challenges the district court’s approval of a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
class action settlement and the court’s award of attorney’s fees. The district court
struck Loomis’s objections on the ground that her filing, made on the last day to
file objections, was unsigned and this omission was not promptly corrected after
being called to the attention of Loomis and her counsel. Fed. R. Civ. P. 11(a). The
district court also rejected Loomis’s objections on the merits. We affirm.
Current and former employees of PetSmart, Inc. (“PetSmart”) filed a
putative class action alleging various labor-law violations. After mediation, the
parties reached an initial class settlement. On February 10, 2015, Plaintiffs moved
for final approval of the proposed settlement agreement and for attorney’s fees and
costs. The court set February 11, 2015, as the final date for any class member to
file objections to either the proposed settlement or the requested award of
attorney’s fees.
Loomis worked as both a pet stylist and in other non-exempt positions
between October 2008 and May 2014, making her a member of both settlement
classes. On February 11, 2015, the deadline for objections, Loomis filed unsigned
objections to both the proposed settlement and the requested fee award. In her
objections, Loomis, acting pro per, stated: “Please note that I have retained counsel
who will be appearing on my behalf and request that I not be personally contacted
by any counsel in this matter.”
At a March 12, 2015 fairness hearing, attorney Burke Huber appeared on
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behalf of Loomis. Huber presented a black-and-white photocopy of Loomis’s
objection, which had a signature in blue ink and contained a blue “original” stamp.
After a discussion with Huber and class counsel, the district court concluded that
there was insufficient proof that Loomis’s objection was timely filed. The district
court then struck Loomis’s objection as untimely. The court, however, also
considered the merits of Loomis’s objections and found them to be unpersuasive.
The district court granted Plaintiffs’ motion for final approval of the proposed class
settlement agreement and granted in part and denied in part Plaintiffs’ motions for
attorney’s fees and costs. Loomis’s timely appeal followed.
When a district court strikes an objection and the inquiry is essentially
factual, we review for abuse of discretion. United States v. Mateo-Mendez, 215
F.3d 1039, 1042 (9th Cir. 2000). We review a district court’s approval of a class
action settlement for “clear abuse of discretion.” In re Bluetooth Headset Prods.
Liab. Litig., 654 F.3d 935, 940 (9th Cir. 2011). We review the court’s award of
attorney’s fees and costs to class counsel, as well as its method of calculation, for
abuse of discretion. In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 942
(9th Cir. 2015). Accordingly, “we must affirm unless the district court applied the
wrong legal standard or its findings of fact were illogical, implausible, or without
support in the record.” Radcliffe v. Experian Info. Sols. Inc., 715 F.3d 1157, 1162-
63 (9th Cir. 2013) (internal quotation marks omitted).
3
Rule 11(a) of the Federal Rules of Civil Procedure provides: “Every
pleading, written motion, and other paper must be signed by at least one attorney
of record in the attorney’s name—or by a party personally if the party is
unrepresented.” Fed. R. Civ. P. 11(a). Rule 11 also provides that a “court must
strike an unsigned paper unless the omission is promptly corrected after being
called to the attorney’s or party’s attention.” Id. (emphasis added). Loomis
suggests that it is unclear whether objections must be signed. As a document filed
with the court, however, the objection is an “other paper” under Rule 11 and, thus,
must be signed. The documents that Huber provided to the district court did not
reflect the date on which they had been signed. The court noted that Huber
provided a black-and-white photocopy of a document dated February 11, 2014.
Below this date was a signature in blue ink. As the court stated, if the original
document was filed on February 11 and had been signed at that time, then the
signature would also appear in black on the black and white photocopy. Huber
could not answer the court’s question of when his client had signed the document.
The court then explained that the information presented left open the factual
question of when the document had been signed. Because February 11 was the last
date to file objections to the class settlement and because Loomis neither signed
the objection on February 11 nor corrected it promptly, the district court struck
Loomis’s objection as untimely.
4
On this record, it was not an abuse of discretion for the district court to
conclude that there was insufficient evidence to find that Loomis had not timely
filed a signed objection. Accordingly, the district court did not err in striking
Loomis’s objection. Nevertheless, because the district court considered the merits
of Loomis’s objections, so will we.
Loomis argues that the Pet Stylist Class and the Non-Exempt Employee
Class were competing for payments from the same pot of money and that this fact
constitutes an inherent conflict of interest between these two classes, such that they
may not be represented by the same counsel. PetSmart and class counsel respond
that the interests of the two classes are aligned. Each class asserted claims for
unpaid wages, failure to provide adequate meal and rest periods, failure to provide
adequate wage statements, and waiting-time penalties.
Unlike Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), this case
does not involve an attempt to settle both pending claims and future claims.
Although the claims of one class purportedly are more valuable than the claims of
another class, a difference in value of claims does not necessarily mean that there
is a structural, or fundamental, conflict of interest requiring separate counsel. To
find that a conflict within a class is fundamental, and thus requires separate
counsel, there must be some actual, apparent conflict beyond the mere unequal
allocation of settlement funds. When class members disagree over the type or form
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of relief sought, or where class members have claims that are vastly different from
one another, as in Amchem, there may be a fundamental conflict. See In re Mego
Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th Cir. 2000) (“[A] conflict between
class members regarding the most favorable measure of damages can create a
potential conflict of interest between members of the class.”).
On the other hand, when class members essentially seek the same thing from
the defendant and differ only with respect to the amount or value of their claims,
absent vast differences or some other evidence of unfairness, there is no
fundamental conflict sufficient to defeat adequacy. See id. at 463 (noting that
keeping class members together was proper because each group was “allegedly
damaged by the fraud” complained of and “the necessity for disposing of all
potential claims justifies the inclusion of” both classes). That is the case here. The
district court did not abuse its discretion in approving the class action settlement
and awarding attorney’s fees.1
AFFIRMED.
1
Loomis’s objection to the award of attorney’s fees rests solely on the asserted
conflict of interest of class counsel. In the absence of such a conflict, the challenge
to the award of fees necessarily fails.
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