-RJJ Schemkes et al v. Jacob Transportation Services, LLC, No. 2:2011cv00355 - Document 10 (D. Nev. 2012)
Court Description: ORDER Granting 09-cv-466 123 Defendant Executive Coach and Carriage's Motion for Summary Judgment or Motion to Dismiss. IT IS FURTHER ORDERED that Case No. 09-cv-466, Greene v. Executive Coach and Carriage and Case No. 11-cv-355, Schem kes v. Jacob Transportation are UNCONSOLIDATED. Upon request of any party, any prior motion or order specifically identified by the party as affecting the Schemkes case shall be re-filed by the Clerk of Court under Case No. 11-cv-355. IT IS FURTHER O RDERED that 09-cv-466 is DISMISSED. IT IS FURTHER ORDERED that Plaintiffs shall a new Notice of Collective Action on or before the close of business on 9/24/12. Defendants may only file objections to the new Notice within 7 days of the filing of the new Notice. Signed by Judge Gloria M. Navarro on 9/13/12. (Copies have been distributed pursuant to the NEF - EDS)
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-RJJ Schemkes et al v. Jacob Transportation Services, LLC Doc. 10 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ROBERT G. GREEN, on behalf of himself and all ) others similarly situated, ) ) Plaintiffs, ) vs. ) ) EXECUTIVE COACH AND CARRIAGE, a ) Nevada Corporation; and DOES 1-50, inclusive, ) ) Defendants. ) ) ) ) THOMAS THATCHER SCHEMKES, et al., ) ) Plaintiffs, ) vs. ) JACOB TRANSPORTATION SERVICES, LLC, ) a Nevada Company, doing business as Executive ) ) Las Vegas, ) ) Defendants. ) ) JACOB TRANSPORTATION SERVICES, LLC, ) ) ) Counterclaimant, ) vs. ) ) THOMAS THATCHER SCHEMKES, and ) GREGORY GREEN, ) ) Counterdefendants. ) Case No.: 2:09-cv-00466-GMN-RJJ Consolidated with: 2:11-cv-00355-GMN-RJJ ORDER (ECF Nos. 123, 153, and 154) 25 Page 1 of 10 Dockets.Justia.com INTRODUCTION 1 2 Before the Court is Defendant Executive Coach and Carriage’s (hereinafter “Executive 3 Coach”) Motion to Dismiss / Motion for Summary Judgment (ECF No. 123). Plaintiff Robert 4 G. Greene filed a Response (ECF No. 130) and Defendant filed a Reply (ECF No. 131). Also before the Court is Defendant Jacob Transportation Services, LLC’s (hereinafter 5 6 “Jacob Transportation”) Motion to Reconsider Magistrate Judge’s Order (#150) Granting 7 Plaintiffs’ Motion for Approval of Their Notice of Collective Action Under the FLSA (ECF No. 8 153) and Motion to Reconsider Magistrate Judge’s Order (#149) Denying Countermotion for 9 Approval of a Notice of FLSA Collective Action that Complies with the Court’s Orders, and For 10 Sanctions (ECF No. 154). Plaintiff filed a Response to both Motions to Reconsider (ECF No. 11 156). FACTS AND BACKGROUND 12 13 On March 10, 2009, Plaintiff Robert A. Greene filed the present lawsuit individually and 14 on behalf of all persons who have worked for Defendant Bentley Transportation Services, doing 15 business as Executive Coach and Carriage (“Defendant”) within the last three years. Plaintiff’s 16 remaining claims against Defendant are: (1) failure to pay the minimum wage under the Fair 17 Labor Standards Act (“FLSA”); (2) failure to pay overtime under the FLSA; and (3) liquidated 18 damages under the FLSA.1 After three years of litigation and Plaintiff’s failed attempt to amend his complaint, 19 20 Defendant “Executive Coach and Carriage” files the instant motion to dismiss or for summary 21 judgment claiming (1) Plaintiff has failed to name a real party in interest; and (2) Plaintiff is a 22 party to an existing suit against the “correct defendant.” 23 /// 24 25 1 Plaintiff(s) brought additional claims under Nevada Law but all of these claims were dismissed by Judge Robert C. Jones. (See ECF Nos. 16 & 31.) Page 2 of 10 DISCUSSION 1 2 A. Motion for Summary Judgment or Motion to Dismiss 3 1. Failure to Name a Real Party in Interest 4 Plaintiff requested leave to amend his complaint to substitute Jacob Transportation 5 Services, a Nevada Company doing business as Executive Las Vegas, as the defendant in the 6 action as well as requested leave to add Jim Jimmerson and Carol Jimmerson as party 7 defendants. (See Mtn to Amend Compl., ECF No. 82.) Magistrate Judge Johnston denied 8 Plaintiff’s request.2 (Aug. 31, 2011 Order, ECF No. 113.) This Court then denied Plaintiff’s 9 Motion to Reconsider Magistrate Judge Johnston’s ruling on February 17, 2012. (See Feb. 17, 10 2012 Order, ECF No. 129.) Plaintiff’s request to substitute Jacob Transportation as the defendant in the suit instead 11 12 of adding Jacob Transportation as a party is an implicit acknowledgement that “Executive 13 Coach and Carriage” is not a proper party to this suit, or a real party in interest. Plaintiff argues 14 that “[m]isjoinder of parties is not a ground for dismissing an action,” and that Rule 21 allows 15 the Court to “add or drop a party any time.” Fed. R. Civ. P. 21. However, Plaintiff’s requested 16 relief to substitute Jacob Transportation as a party defendant was already denied and the Court is 17 not going to again reconsider it.3 At this point, Plaintiff’s Complaint fails to state a claim upon 18 which relief can be granted because Plaintiff basically admits that “Executive Coach and 19 Carriage” was not his employer. 20 2. 21 Defendant argues that Plaintiff should not be allowed to maintain two separate suits 22 Plaintiff is Party to Two Separate Suits Involving the Same Subject Matter involving the same subject matter against the same defendant. Shortly after Plaintiff initiated 23 Magistrate Judge Johnston did grant Plaintiff’s request to amend the complaint to correct Plaintiff’s middle initial from A to G. However, Plaintiff never filed his amended complaint so the docket still reflects his middle initial as A. 3 This motion was being briefed while Plaintiff’s motion to reconsider the magistrate judge’s order denying Plaintiff’s request to amend his complaint. Therefore, Plaintiff makes many arguments that are similar to those made regarding his request to amend his complaint. Those arguments were found to be unmeritorious and this Court will not reconsider them again. 2 24 25 Page 3 of 10 1 this suit, he signed a consent to sue in another related case before this court. (See Consent to 2 Sue, Ex. 2 attached to MSJ, ECF No. 123.) If Plaintiff received his wish to amend, he would 3 become a plaintiff against the same defendant, Jacob Transportation, in two suits, this one (09- 4 cv-466) and the consolidated case (11-cv-355) Schemkes v. Jacob Transportation Services, LLC. “Plaintiffs generally have ‘no right to maintain two separate actions involving the same 5 6 subject matter at the same time in the same court and against the same defendant.” Adams v. 7 California Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007) (citing Walton v. Eaton 8 Corp., 563 F.2d 66, 70 (3d Cir. 1977). Dismissal is an appropriate remedy where the plaintiff 9 has decided to file two such actions. Adams, 487 F.3d at 692 (“the district court did not abuse its 10 discretion in electing to dismiss the second action with prejudice”). The Court finds that the appropriate remedy in this case is to dismiss the current action 11 12 (09-cv-466) and allow Plaintiff, Robert Greene, to proceed as a party plaintiff in the 13 consolidated Schemkes case, 11-cv-355. Plaintiff fails to cite any undue prejudice that would 14 arise if the Court were to take this action. In fact, Plaintiff concedes that “if this Court were to 15 dismiss Plaintiff’s claims against ‘Executive Coach and Carriage,’ Jacob would remain as the de 16 facto real party in interest. . . . and because Robert Greene is a party against Jacob in Schemkes, 17 dismissal of ‘Executive Coach and Carriage’ should not affect Plaintiff’s claims against Jacob.”4 18 (Response at 9:30-10:5.) Accordingly, the Court will order that these two cases be 19 unconsolidated. The instant case (09-cv-466) will be dismissed and the Schemkes case (11-cv- 20 355) will continue with discovery. The Court notes that the Notice of Collection Action will no 21 longer accurately reflect the posture of these cases. (See Order Approving Notice, ECF No. 150.) 22 /// 23 Plaintiff and Defendant also argue over Plaintiff’s failure to appear for a deposition in the Schemkes case. Defendant filed a motion for sanctions, to include dismissal of Robert Greene from the Schemkes case that was ruled on by Magistrate Judge Johnston. (See Mtn for Sanctions, ECF No. 90, Order on Sanctions, ECF No. 135.) It is unclear if Defendant is asking for dismissal of this case based on the conduct involved in the Motion for Sanctions. Either way, the Court will not reconsider the issue as it has already been appropriately handled by the Magistrate Judge. 4 24 25 Page 4 of 10 1 Accordingly, a new Notice of Collective Action is approved as prescribed herein and shall 2 replace the current notice. The Defendant, Jacob Transportation, filed a Motion to Reconsider the Notice and the 3 4 Court will address their arguments at this time infra. 5 B. 6 Motions to Reconsider “A district judge may reconsider any pretrial matter referred to a magistrate judge in a 7 civil . . . case . . . where it has been shown that the magistrate judge’s ruling is clearly erroneous 8 or contrary to law.” LR IB 3-1. The Court may overturn the magistrate judge’s decision if, upon 9 review, the Court is left with a definite and firm conviction that a mistake has been made. See 10 11 12 David H. Tedder & Assocs. v. United States, 77 F.3d 1166, 1169-70 (9th Cir. 1996). Jacob Transportation makes many objections to the notice approved by Magistrate Judge Johnston including, but not limited to, the following: 13 o The caption of the court should be replaced with Plaintiffs’ Counsel’s letterhead; o All references to Bentley Transportation and Executive Coach and Carriage should be removed; o The section describing the case should be replaced with the proposed language from Jacob Transportation’s proposed notice (see ECF No. 137); o The counterclaims should be included in the notice; o Tolling should not have been granted. o Plaintiffs should not be allowed to use a third party administrator to facilitate the sending and collecting of the Notices. 14 15 16 17 18 19 20 The Court makes the following rulings regarding the Notice. 21 1. Parties, Description of Lawsuit, Counterclaims and Caption 22 Based upon the above ruling finding that case number 09-cv-466, Greene v. Executive 23 Coach and Carriage, should be dismissed, the Court agrees that all references to Bentley 24 Transportation and Executive Coach and Carriage should be removed from the notice. The 25 description of the case shall be replaced with the description from Jacob Transportation’s Page 5 of 10 1 proposed notice in docket number 137. Furthermore, the date of the composition of the class 2 shall be changed to June 19, 2006. 3 However, the portion of the description describing the counterclaims shall be omitted. 4 The magistrate judge did not include any reasoning in his Order regarding his decision to 5 include the counterclaims. Thus, it is unclear if his ruling is clearly erroneous or contrary to 6 law. A review of the arguments previously before the Court indicates that the issue could turn 7 either way. 8 9 Defendants previously argued that the counterclaims should be included to disclose a fair and accurate description of the nature of the case. See Gjurovich v. Emmanuel’s Marketplace, 10 Inc., 282 F.Supp.2d 91 (S.D.N.Y. 2003); see Mowdy v. Beneto Bulk Transport, 2008 WL 11 901546, at *10 (N.D. Cal. Mar. 31, 2008). In Gjurovich, the court included the counterclaims as 12 part of the notice of pendency. Defendants would like that language added to put potential 13 plaintiffs on notice that they may be held liable for costs associated with the lawsuit and for 14 potential counterclaims. Plaintiffs object to the inclusion of this language arguing that courts 15 which have dealt with this issue directly have not supported the inclusion of such language. See 16 Whitehorn v. Wolfgang’s Steakhouse, Inc., 767 F.Supp.2d 445, 451 (S.D.N.Y. Feb. 8, 2011) 17 (“Defendants’ request to notify potential plaintiffs that they may be responsible for 18 counterclaims or any other costs is denied.”); Guzman v. VLM, Inc., No. 07 Civ. 1126, 2007 19 U.S. Dist. LEXIS 75817, 2007 WL 2994278, at *8 (E.D.N.Y. Oct. 11, 2007) (rejecting such 20 language because it “may have an in terrorem effect that is disproportionate to the actual 21 likelihood that costs or counterclaim damages will occur in any significant degree.”) They 22 argue that these cases are consistent with the imperative that language should not be included in 23 a FLSA Notice that is “meant to discourage participation in the lawsuit …” In re Milos Litig., 24 No. 08 Civ. 6666 (LBS), 2010 U.S. Dist. LEXIS 3038, at *5 (S.D.N.Y. Jan. 11, 2010). 25 Additionally, there has been no showing by defendants that their counterclaims are likely to Page 6 of 10 1 succeed in this case. Accordingly, the Court does find that the magistrate judge’s ruling 2 regarding the counterclaims is clearly erroneous or contrary to law. In addition, the magistrate judge’s ruling that the caption of the court can be used 3 4 is not clearly erroneous. Although this Court previously ruled in Schemkes v. Presidential 5 Limousine, case no. 09-cv-1100, that the notice should be drafted with counsel’s letterhead 6 without the caption of the case, there was no binding authority for this Court’s decision. As a 7 purely discretionary decision, the magistrate judge’s ruling is not clearly erroneous or contrary 8 to law. However, changes must be made to the court caption to properly reflect the new posture 9 of the case. 10 2. Tolling 11 Again, the magistrate judge did not include any reasoning in his order regarding its 12 approval of Plaintiffs’ Notice of Collective Action. Accordingly, it is unclear what the extent of 13 his ruling was with regard to tolling. 14 In Plaintiffs’ motion to approve their notice, Plaintiffs request that the notice should be 15 given to the broadest possible class of opt-ins, which can then be limited at the decertification 16 stage. Plaintiffs further explain that this will prevent multiple notices being sent out once the 17 court determines the appropriate statute of limitations, equitable tolling, the proper Defendant 18 entities, and other issues. Plaintiffs acknowledge that they have the burden of proof to invoke 19 equitable tolling; however it does not appear that Plaintiffs ever actually request the Court to 20 make a ruling that equitable tolling applies in this case. Instead, Plaintiffs only ask for the 21 Notice to be sent to the largest class possible in case Plaintiffs later succeed on their claim for 22 equitable tolling. See Anglada v. Linens ‘N Things, Inc., 2007 WL 1552511, at *8 (S.D.N.Y. 23 May 29, 2007). In Plaintiffs’ proposed order, which the magistrate judge did not sign, Plaintiffs 24 include the following language: 25 /// Page 7 of 10 3. Notice shall be given to all persons who currently work or who have worked for Defendants as a limousine driver at any time between March 10, 2006, and the date of this Order (hereinafter “Putative Class Members”). 4. The statute of limitations shall be equitably tolled for Putative Class Members until the cut-off date for returning consents to join as provided in Paragraph 10 below. ... 10. When the notice period ends, Administrator shall prepare a list of those people who timely5 returned consent to join forms, stating their full names, the date on which each consent to join form was received, and the postmarked date on the corresponding envelope, if applicable. Plaintiff’s counsel shall file that list and all timely consent to join forms with the Court within 14 days of the end of the notice period. 1 2 3 4 5 6 7 8 9 10 (See Proposed Order, ECF No. 134.) Thus, although it is unclear from the motion itself that 11 Plaintiffs are asking for equitable tolling to apply (let alone what that period should be), the 12 proposed order makes it clear that Plaintiffs are asking for equitable tolling to be approved. Plaintiffs’ Reply adds little to the argument for equitable tolling. Plaintiffs argue that two 13 14 other cases have already approved equitable tolling in this district for similar reasons. Plaintiffs 15 point to evidence in their motion that Defendants have engaged in intentional and pervasive 16 corporate practice to scare away potential opt-ins and mislead them into believing they had been 17 properly paid. However, Plaintiffs again round out their argument by explaining that it is more 18 prudent at this stage of the proceedings to define the relevant class period “broadly” and that the 19 relevant class period and definition can be amended later. Given that it is very unclear in the motions whether or not Plaintiffs are affirmatively 20 21 moving for the court to approve equitable tolling in this case, and since Magistrate Judge 22 Johnston’s order does not give any reasoning regarding its ruling, this Court is not construing 23 the Magistrate Judge’s Order as affirmatively granting equitable tolling. In fact, in the 24 Magistrate Judge’s Order he only mentions reviewing the Motion (ECF No. 132), the 25 5 The putative class members have 60 days from the date of the mailing of the Notice to return it. Page 8 of 10 1 Declaration (ECF No. 133), the Opposition (ECF No. 136) and the Reply (ECF No. 140). He 2 does not mention that he also reviewed the proposed order which is the only place where 3 Plaintiffs affirmatively demonstrate they are asking for the Court to grant equitable tolling. 4 Nevertheless, it is plausible that the Magistrate Judge considered allowing the Notice to 5 be distributed to a class that would include members that would only be allowed if Plaintiffs’ 6 request for equitable tolling is granted. Plaintiff is free to file a motion for equitable tolling at 7 any time. The Court finds this request to be reasonable and it does not conflict with this Court’s 8 previous Order regarding the Notice schedule. (See Order, ECF No. 66, “Within 10 days of the 9 Notice being approved by the Court, Defendant is to provide Plaintiffs with the names, physical 10 residential addresses, and email addresses of all limousine drivers employed by Defendants at 11 any time from June 19, 2006 to present.”) 12 3. Third Party Administrator 13 Defendant Jacob Transportation’s objection to Plaintiffs’ use of a third party 14 administrator is a perfect example of the two parties’ willingness to fight over frivolous details 15 instead of heeding the Court’s numerous suggestions to cooperate. Defendant argues that 16 Plaintiffs’ use of a third party administrator is in violation of this Court’s previous order 17 approving the notice schedule. (See ECF No. 66.) However, this Court is mindful of the fact 18 that attorneys have changed in this case, and new counsel may choose to do things a little 19 differently than previous counsel. There is nothing in the Order approving the notice schedule 20 that affirmatively orders that the notices must be sent to Plaintiffs’ counsel. Accordingly, the 21 Court finds Defendant’s objection to a third party administrator to be completely meritless. 22 23 24 25 CONCLUSION IT IS HEREBY ORDERED that Defendant “Executive Coach and Carriage’s Motion for Summary Judgment or Motion to Dismiss (ECF No. 123) is GRANTED. IT IS FURTHER ORDERED that Case No. 09-cv-466, Greene v. Executive Coach and Page 9 of 10 1 Carriage and Case No. 11-cv-355, Schemkes v. Jacob Transportation are HEREBY 2 UNCONSOLIDATED. Upon the request of any party, any prior motion or order specifically 3 identified by the party as affecting the Schemkes case shall be re-filed by the Clerk of the Court 4 under Case No. 11-cv-355. 5 6 7 IT IS FURTHER ORDERED that Case No. 09-cv-466, Greene v. Executive Coach and Carriage is HEREBY DISMISSED. IT IS FURTHER ORDERED that the Plaintiffs shall submit a new Notice of Collective 8 Action for the Court’s approval on or before close of business on September 24, 2012, 9 incorporating the changes ordered herein. Defendants may only file objections to the new 10 Notice within seven (7) days of the filing of the new Notice which points out discrepancies 11 between this Order and the new Notice. 12 DATED this 13th day of September, 2012. 13 14 15 16 ________________________________ Gloria M. Navarro United States District Judge 17 18 19 20 21 22 23 24 25 Page 10 of 10
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