Rodriguez v. Hermes Landscaping, Inc.

RESPONSE

D. Kan.March 15, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS AT KANSAS CITY ANTONIO CHAVEZ RODRIGUEZ, on behalf of himself and others similarly situated, Plaintiff, v. HERMES LANDSCAPING, INC., Defendant. Case No. 2:17-cv-02142-CM-KGG DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS NOTICE AND FOR OTHER RELIEF Defendant Hermes Landscaping, Inc. (“Defendant” or “Hermes”) submits its Response in Opposition to Plaintiffs’ Motion for Approval of Class Notice and for Other Relief (Docs. 89 and 90) (hereinafter “Plaintiff’s Motion for Approval of Notice”), and offers in support the following: I. INTRODUCTION As part of Plaintiffs’ Motion for Approval of Notice, they attach a proposed Notice of Class Action Lawsuit (“Notice”), along with a proposed opt-out form, for distribution in this case. Plaintiffs request a period of one hundred (100) days to distribute the Notice and allow for any putative class members to opt out of the lawsuit. They further request that Defendant provide them with names and last known addresses of all putative plaintiffs within fifteen (15) days after the date of any Order granting Plaintiff’s Motion for Approval of Notice, and that Defendant be required to post a copy of the proposed Notice at their Kansas facility for a period of ninety (90) days. For the following reasons, Plaintiffs’ proposed Notice of Class Action Lawsuit should be revised, and the method of delivery of notice should be limited to first-class mail without any additional posting of the Notice. Case 2:17-cv-02142-CM-KGG Document 91 Filed 03/15/19 Page 1 of 6 2 II. ARGUMENTS AND AUTHORITIES A. Applicable Legal Standard. “Rule 23(c)(2)(B) provides that ‘[f]or any class certified under Rule 23(b)(3), the court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.’” Sibley v. Sprint Nextel Corp., No. 08-2063-KHV, 2009 WL 662630, *1 (D. Kan. March 13, 2009). “The notice must clearly and concisely state in plain, easily understood language: (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3).” Id. Furthermore, “[t]he Federal Rules of Civil Procedure allow the district court discretion in fashioning notice in class actions.” Id. (citing Burns v. Copley Pharm., No. 96–8054, 1997 WL 767763, at *3 (10th Cir. Dec. 11, 1997) (further citation omitted)). Here, the Court should use its discretion to modify the Plaintiffs’ proposed Notice. B. Plaintiffs’ Third Bullet Point on Page 1 of the Notice Should be Removed. Plaintiffs include five bullet-pointed paragraphs at the beginning of their proposed Notice. The third bullet point reads as follows: Earlier in this case, the Court conditionally certified this action as a collective action and allowed workers to opt-in to this case to pursue claims under the Fair Labor Standards Act (“FLSA”). Notice was sent about this conditional certification and some individuals opt-ed into the case to pursue their FLSA claims. The deadline has passed to opt in to pursue FLSA claims. Case 2:17-cv-02142-CM-KGG Document 91 Filed 03/15/19 Page 2 of 6 3 Doc. 90-1, Ex. A at 1. This language should be excluded from any approved Notice of Class Action Lawsuit because it improperly describes the nature of the classes certified, would be confusing to at least some putative class members, and it improperly implies that the Court has reached some decision about the Plaintiffs’ claims. Notably, the Notice at issue relates solely to Plaintiffs’ Rule 23 class certified claims, not to their previously conditionally certified FLSA claims. The Notice at issue will go to a broader group of individuals; thus, reference to FLSA claims, which most of the putative class members do not have in this case, will likely only confuse those class members as to what claims are covered in the Notice. Additionally, the language above implies that the Court has reached some decision on the merits about FLSA claims against Defendant, when in fact no such determination has been made. Accordingly, the language in the third bullet point should be excluded. C. Notice Regarding Discrimination/Retaliation Should be Removed. The responsive language to question 8 on page 4 of Plaintiffs’ proposed Notice includes an underlined statement noting it would be a violation of the law for Hermes to discriminate or retaliate against any class member for participating in the lawsuit. See Doc. 90-1, Ex. A at 4. While this may be a true statement, Defendant is already well aware of its legal obligations and the addition of this statement, particularly in an emphasized format, is prejudicial to Defendant. Its inclusion implies that Defendant may take some improper action against a class member for participating in the lawsuit when in fact no such thing will occur. Additionally, other courts in this District have agreed that such language is prejudicial and should not be included. See, e.g., Sibley, 2009 WL662630 at *3 (noting also that such language is not part of the Federal Judicial Center’s sample notice for employment cases). The Court should therefore order such language to be stricken from any approved Notice. Case 2:17-cv-02142-CM-KGG Document 91 Filed 03/15/19 Page 3 of 6 4 D. Plaintiffs’ Counsel Should be Required to Disclose Their Contingency Fee. Plaintiffs’ Counsel should also be required to disclose the amount of their contingency fee in the content responsive to question 10 on page 4 of their proposed Notice. See Doc. 90-1, Ex. A at 4. As it stands, Plaintiffs’ proposed Notice states only that the Class Representatives have entered into a “contingency fee agreement” with Plaintiffs’ counsel. But the language says nothing about the potential amount of that fee. Rule 23 requires that class members be informed of their right to enter an appearance through an attorney if so desired. To make an educated decision on whether to hire their own counsel, class members are entitled to know how much their potential lawyers are going to be paid. The Court should therefore order any approved Notice to include the amount of the Plaintiffs’ counsel’s contingency fee. E. Putative Class Members should be Notified that They May Contact Defense Counsel During the Opt-Out Period. Next, Defendant submits that the notice should also inform class members that they may also contact defense counsel until the end of the opt-out period. This information could easily be included in the content regarding question 12 on page 5 of the proposed Notice. See Doc. 90-1, Ex. A at 5. A balanced approach that identifies both Plaintiffs’ and Defendant’s counsel is consistent with general principles of fairness in the Rule 23 notice process. See Sibley, 2009 WL662630 at *3 (citation omitted). Furthermore, until the end of the opt-out period, putative class members who did not opt in to the conditionally certified FLSA collective are not represented by Plaintiffs’ counsel. They should at minimum therefore be provided with Defendant’s counsel’s contact information F. The Notice Should Not Be Posted Finally, if the Court orders distribution of a Notice by regular mail as requested by Plaintiffs, there is no need for it to further order posting of the Notice at Defendant’s Kansas Case 2:17-cv-02142-CM-KGG Document 91 Filed 03/15/19 Page 4 of 6 5 facility. Rule 23 requires only that class members receive the “best notice practicable under the circumstances.” Here, that is first-class mail. Defendant does not maintain email addresses for the class members but does have last known contact information that it will agree to provide to Plaintiffs. Absent any circumstances that justify a second form of notice, which do not exist at this point, a notice by posting would be redundant and unnecessary in this matter. Other courts in this District have agreed with this position and declined to order notice by posting. See, e.g., Tommey v. Computer Sciences Corp., No. 11-CV-2214-EFM-GLR, 2013 WL 1304186, *8 (D. Kan. March 27, 2013) (noting that the Court has found “that workplace postings do not provide effective delivery of consent forms.”) (citation omitted). Here, the Court should use its discretion and order notice by first-class mail only, without any posting requirement. III. CONCLUSION WHEREFORE, Defendant requests that Plaintiff’s Motion for Approval of Notice be denied, or alternatively that, if Plaintiff’s Motion is granted, that it only be granted to the extent and with the requested modifications set forth herein. Respectfully submitted, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. /s/ Justin M. Dean Patrick F. Hulla KS #16230 Justin M. Dean KS #19636 4520 Main Street, Suite 400 Kansas City, MO 64111 816.471.1301 816.471.1303 (Facsimile) patrick.hulla@ogletree.com justin.dean@ogletree.com ATTORNEYS FOR DEFENDANT Case 2:17-cv-02142-CM-KGG Document 91 Filed 03/15/19 Page 5 of 6 6 CERTIFICATE OF SERVICE I hereby certify that on this 15th day of March, 2018, the foregoing was electronically filed with the Clerk of the Court using the CM/ECF system which sent an electronic notice to the following: Heather Schlozman Mark Dugan DUGAN SCHLOZMAN LLC 8826 Santa Fe Drive, Suite 307 Overland Park, KS 66212 913.322.3528 913.904.0213 (Facsimile) heather@duganschlozman.com mark@duganschlozman.com Patricia Kakalec (admitted pro hac vice) KAKALEC LAW PLLC 85 Broad Street, 16th Floor New York, NY 10004 212.705.8730 646.844.1249 (Facsimile) Patricia@kakalecLaw.com ATTORNEYS FOR PLAINTIFF /s/ Justin M. Dean ATTORNEY FOR DEFENDANT 37667503.1 Case 2:17-cv-02142-CM-KGG Document 91 Filed 03/15/19 Page 6 of 6