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Harper v. C.R. England, Inc.

United States District Court, D. Utah

December 12, 2016

MILTON HARPER, RONNIE STEVENSON, AND JONATHAN MITCHELL, individuals, on behalf of themselves, and on behalf of all persons similarly situated, Plaintiff,
v.
C.R. ENGLAND, INC., a corporation; and DOES 1-50, inclusive, Defendant.

          MEMORANDUM DECISION AND ORDER

          Dee Benson United States District Judge.

         Before the court is Plaintiffs' Motion for Final Approval of Class Settlement (Dkt. No. 34), Plaintiffs' Motion for Attorney Fees (Dkt. No. 33), two motions to intervene (Dkt. Nos. 35 and 41), and Objections to the proposed class settlement. (Dkt. No. 37.) The court held a hearing on the motions on November 29, 2016. At the hearing, Plaintiffs were represented by Kyle Nordrehaug and Lauren Scholnick. Defendant was represented by Scott Hagen and Drew Hansen. Proposed Intervenors Gradie, et al. (“Gradie Group”) were represented by Brian Van Vleck. Proposed Intervenor Adonne Woods (“Woods”) was represented by Christopher Hill and Nicholas Scardigli. At the conclusion of the hearing, the court took the motions under advisement and imposed an accelerated briefing schedule for the remaining briefs. Now being fully advised, the court renders the following Memorandum Decision and Order.

         Background

         This is a wage and hour class action, with a proposed class of all current and former truck drivers employed by Defendant in the State of California, for the period beginning on March 12, 2014, through the Preliminary Approval Date. (Dkt. No. 27-1.) In their Second Amended Complaint, Plaintiffs have alleged, among other things, the following claims against Defendant: (1) Unfair competition in violation of California Business & Professions Code §§ 17200 et seq.; (2) failure to pay minimum wages under the California Labor Code, applicable Wage Order, and corresponding regulations; (3) failure to pay regular wages, straight time wages, and overtime wages under the California Labor Code, applicable Wage Order, and corresponding regulations; (4) failure to provide accurate itemized wage statements; (5) failure to maintain copies of accurate itemized wage statements; (6) failure to reimburse for all business-related expenses under the California Labor Code; (7) unlawful deductions in violation of the California Labor Code; (8) failure to provide meal periods as required under the California Labor Code, applicable Wage Order, and corresponding regulations; (9) failure to provide rest periods as required under the California Labor Code, applicable Wage Order, and corresponding regulations; (10) failure to timely pay wages due in violation of California Labor Code §§ 201-203 et seq.; (11) failure to pay all wages owed on regularly scheduled paydays in violation of California Labor Code §§ 204 et seq.; (12) misrepresentation in violation of California Labor Code §§ 970 through 972 et seq.; (13) usury, and; (14) failure to comply with the Private Attorneys' General Act of 2004 (i.e., California Labor Code § 2698 et seq.).

         The court granted Plaintiffs' Motion for Preliminary Approval of Class Settlement on October 6, 2016. (Dkt. No. 29.) Plaintiffs filed their Motion for Final Approval of Class Settlement on November 1, 2016. (Dkt. No. 34.) A flurry of activity followed-Woods and the Gradie Group each filed a Motion to Intervene (Dkt. Nos. 35 and 41), and the Gradie Group filed Objections to Plaintiffs' Motion for Final Approval. (Dkt. No. 37.)

         Motions to Intervene

         “[A]n applicant may intervene as a matter of right if: (1) the application is timely, (2) the applicant claims an interest relating to the property or transaction which is the subject of the action, (3) the applicant's interest may be impaired or impeded, and (4) the applicant's interest is not adequately represented by existing parties.” Elliott Indus. V. BP Am. Prod. Co. 407 F.3d 1091, 1103 (10th Cir. 2005); F.R.C.P. 24(a). On timely motion, a court may grant permissive intervention where an intervenor “has a claim or defense that shares with the main action a common question of law or fact.” F.R.C.P. 24(b).

         An untimely application for intervention “must be denied” under either standard. See Nat'l Ass'n for Advancement of Colored People v. New York, 413 U.S. 345, 365 (1973). The timeliness of a motion to intervene is determined “in light of all of the circumstances.” Oklahoma ex rel. Edmondson v. Tyson Foods, Inc., 619 F.3d 1223, 1232 (10th Cir. 2010) (citing Sanguine, Ltd. v. U.S. Dep't of Interior, 736 F.2d 1416, 1418 (10th Cir.1984)). The Tenth Circuit has recognized three factors as particularly important to the timeliness inquiry: “(1) the length of time since the movant knew of its interests in the case; (2) prejudice to the existing parties; and (3) prejudice to the movant.” Id. The court should also consider “the existence of any unusual circumstances.” Id.

         Woods Motion to Intervene

         Woods' Motion to Intervene fails to meet the requirements of intervention as of right or permissive intervention. First, Woods' Motion is not timely. Woods filed her Motion to Intervene on November 21, 2016 (Dkt. No. 41), more than six weeks after the court's October 6thOrder granting Motion for Preliminary Approval of Class Settlement (Dkt. No. 29), and approximately one week before the hearing on Plaintiffs' Motion for Final Approval of Class Settlement held on November 29, 2016. Woods was informed by Defendant of the proposed settlement on September 1, 2016, about two and a half months prior to her objection. (Dkt. 41 at 3:19-22.) Woods had ample time to intervene and failed to do so until the eve of the final approval hearing.

         Second, Woods opted out of the proposed class action settlement on November 14, 2016. (Dkt. 59 at 5.) As such, she “lack[s] any personal stake or interest in the settlement.” Rutter & Wilbanks Corp. v. Shell Oil Co., 55 F. App'x 498, 501 (10th Cir. 2003).

         Finally, Woods does not maintain any right that will be impeded or impaired by the current action. Woods' assertions on behalf of the California Labor and Workforce Development Agency (“LWDA”) are adequately represented by Plaintiffs here, who also received authorization to bring those claims on behalf of the LWDA. The PAGA does not require an exclusive proxy, nor does it provide a first-to-file rule. Tan v. GrubHub, Inc., 171 F.Supp.3d 998, 1012 (N.D. Cal. 2016). Plaintiffs have considered and allocated an appropriate portion of the proposed settlement to PAGA recovery. (See Dkt. 59 at 14-16; Dkt. 61 at 5-7.) As such, Woods' intervention is unnecessary. Woods' Motion to Intervene is denied.

         Gradie Group Motion to Intervene

         The Gradie Group similarly fails to meet the requirements of either intervention as of right or permissive intervention. Like Wood, proposed intervenor William Gradie has opted out of the proposed settlement and, as such, “lack[s] any personal stake or interest in the settlement.” Rutter, 55 F. App'x at 501. However, proposed intervenors Sang Kim, William Borschowa, Tony Ruiz and Romi Francescu appear not to have opted out of the proposed settlement. But these members of the Gradie Group, like Wood, were aware of the proposed settlement months before attempting to intervene. The Gradie Group then filed for intervention only days before the hearing scheduled for the Motion for Final Approval. The Gradie Group's Motion to Intervene was untimely, and any intervention now would prejudice the Plaintiffs who informed the Gradie Group months ago that the proposed settlement was pending. (See Dkt. No. 56 at 2.) Furthermore, the interests of the Gradie Group will not be impeded if they are not permitted to intervene, ...


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