Kelly Chang-Luna et al v. Ulta Salon, Cosmetics & Fragrance, Inc. et al
Filing
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ORDER on Stipulation for Voluntary Dismissal, signed by Magistrate Judge Sheila K. Oberto on 10/30/17: This action is dismissed with prejudice; The Clerk of Court shall close this case. (CASE CLOSED)(Hellings, J)
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JOHN C. KLOOSTERMAN, Bar No. 182625
jkloosterman@littler.com
ALEXIS A. SOHRAKOFF, Bar No. 273410
asohrakoff@littler.com
LITTLER MENDELSON, P.C.
333 Bush Street
34th Floor
San Francisco, CA 94104
Telephone: 415.433.1940
Facsimile: 415.399.8490
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Attorneys for Defendant
ULTA SALON, COSMETICS & FRAGRANCE,
INC.
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KELLY CHANG-LUNA and ESTEBAN
SOLIS,
Case No. 17-cv-00363-AWI-SKO
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Plaintiffs,
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STIPULATION FOR VOLUNTARY
DISMISSAL; ORDER
v.
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ULTA SALON, COSMETICS &
FRAGRANCE, INC., a Delaware
corporation; and DOES 1 through 10,
inclusive,
Defendants.
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LITTLE R MEND ELSO N, P .C .
333 Bush Street
34th Floor
San Francisco, CA 94104
415.433.1940
STIPULATION AND ORDER FOR
VOLUNTARY DISMISSAL
CASE NO. 17-CV-00363-AWI-SKO
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This Stipulation and Order is entered into between Plaintiffs KELLY CHANG-
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LUNA and ESTEBAN SOLIS (“Plaintiffs”) and Defendant ULTA SALON, COSMETICS &
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FRAGRANCE, INC. (“Defendant”) (hereinafter the “Parties”), by and through their counsel of
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record, as follows:
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WHEREAS, Plaintiffs initiated the above entitled action by filing a proposed wage
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and hour class action complaint on March 10, 2017 against Defendant (hereinafter “the Action”) in
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the Eastern District of the United States District Court;
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WHEREAS, after filing the Action, Plaintiffs learned they were class members in a
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separate class action pending in the United States District Court in the Central District of California,
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titled Sarah Moore v. Ulta Salon, Cosmetics & Fragrance, Inc., Case No. CV-12-3224 FMO
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(AGRx) (“Moore action”);
WHEREAS, Plaintiffs realized that the claims settled by the Moore action
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significantly overlapped with the claims asserted by Plaintiffs in this Action;
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WHEREAS, the claims asserted and settled in the Moore action included: (1) failure
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to pay overtime compensation; (2) failure to compensate for all hours worked; (3) failure to pay all
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wages due upon discharge; (4) failure to provide required meal periods; (5) failure to authorize or
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permit rest periods; (6) failure to maintain required records; (7) waiting time penalties; and (8) unfair
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competition under California Business and Professions Code section 17200, et seq.;
WHEREAS, Plaintiff Kelly Chang-Luna timely opted out of the settlement of the
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Moore action and sought an individual settlement from Defendant;
WHEREAS, Plaintiff Esteban Solis did not opt out of the settlement of the Moore
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action;
WHEREAS, on July 25, 2017, the Central District Court issued final approval of the
class action settlement, entered judgment and dismissed the action with prejudice;
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WHEREAS, Defendant has never responded to the Action (but has been in
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communication with counsel for Plaintiffs) and Plaintiffs have not filed a motion for class
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certification in the Action;
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LITTLE R MEND ELSO N, P .C .
333 Bush Street
34th Floor
San Francisco, CA 94104
415.433.1940
WHEREAS, Plaintiff Chang-Luna now desires to dismiss her individual claims with
STIPULATION AND ORDER FOR
VOLUNTARY DISMISSAL
1.
CASE NO. 17-CV-00363-AWI-SKO
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prejudice against Defendant due to a settlement with Defendant;
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WHEREAS, Plaintiff Solis now desires to dismiss his individual claims with
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prejudice in light of his participation as a class member in the settlement of the Moore action and the
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action titled Quinby et al. v. Ulta Salon, Cosmetics & Fragrance, Inc., in the Northern District
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Court of California, Case No. CV-15-4099 WHO;
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WHEREAS, Rule 23(e) of the Federal Rules of Civil Procedure permits voluntary
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dismissal of the putative class action allegations and dismissal of the named plaintiffs’ claims prior
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to certification of a class action without Court approval or notice to the putative class;1
WHEREAS, dismissal of this Action will not impair the claims of putative class
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members, if any, because the Action has not been certified as a class action;
WHEREAS, notice to the proposed class is not warranted in this case, as the Action
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has not been certified as a class action;
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IT IS HEREBY STIPULATED AND AGREED, by and between the Parties, that the
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Court enter an Order that this Action be dismissed with prejudice, but that such Order will not affect
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the rights of putative class members, other than Plaintiffs Kelly Chang-Luna and Esteban Solis, to
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bring any existing claims they may have. Each party shall bear their or its own attorneys’ fees and
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LITTLE R MEND ELSO N, P .C .
333 Bush Street
34th Floor
San Francisco, CA 94104
415.433.1940
Rule 23(e) states that “[t]he claims, issues, or defenses of a certified class may be settled,
voluntarily dismissed, or compromised only with the court's approval. See Fed Rules Civ. Proc.,
Rule 23(e) (emphasis added). The 2003 Committee Notes to revisions to Rule 23(e) make clear that
Court approval is not required for settlements which seek to resolve only the named representative’s
individual claims when sought prior to certification of a class:
Rule 23(e)(1)(A) resolves the ambiguity in former Rule 23(e)'s reference to
dismissal or compromise of "a class action." That language could be -- and at
times was -- read to require court approval of settlements with putative class
representatives that resolved only individual claims. See Manual for Complex
Litigation Third, § 30.41. The new rule requires approval only if the claims,
issues, or defenses of a certified class are resolved by a settlement, voluntary
dismissal, or compromise.
See Fed Rules Civ. Proc., Rule 23(e)(1), Committee Note of 2003 (emphasis added); see also Bender
Practice Guide: Fed Pretrial Civ. Proc. in CA, at 20.41 (“Rule 23 requires court approval of a
voluntary dismissal or settlement with notice to the class members, but the requirement of court
approval applies only after certification of the action as a class action [see Fed R Civ P 23(e)(1)].
Before certification, plaintiffs may settle or dismiss their individual claims as in an individual action
[see Fed R Civ P 23(e)(1), Committee Note of 2003]. Similarly, the plaintiffs may amend the
complaint to delete the class allegations and proceed as in an individual suit [see Fed R Civ P 15].”)
(parentheticals in original).
STIPULATION AND ORDER FOR
VOLUNTARY DISMISSAL
2.
CASE NO. 17-CV-00363-AWI-SKO
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costs.
IT IS SO STIPULATED.
Dated: August 31, 2017
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/s/ John C. Kloosterman
JOHN C. KLOOSTERMAN
ALEXIS A. SOHRAKOFF
LITTLER MENDELSON, P.C.
Attorneys for Defendant
ULTA SALON, COSMETICS &
FRAGRANCE, INC.
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Dated: August 31, 2017
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/s/ David D. Deason
MATTHEW F. ARCHBOLD
DAVID D. DEASON
DEASON & ARCHBOLD
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JOHN M. NORTON
MATTHEW NORTON & ASSOCIATES
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Attorneys for Plaintiffs
KELLY CHANG-LUNA and
ESTEBAN SOLIS
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LITTLE R MEND ELSO N, P .C .
333 Bush Street
34th Floor
San Francisco, CA 94104
415.433.1940
STIPULATION AND ORDER FOR
VOLUNTARY DISMISSAL
3.
CASE NO. 17-CV-00363-AWI-SKO
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ORDER
Pursuant to the parties’ above-stipulation (Doc. 13), and GOOD CAUSE appearing, the
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Court ORDERS:
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That this Action is dismissed with prejudice;
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2.
That because no class has been certified, this Order has no effect on the existing
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rights of putative class members other than Plaintiffs Kelly Chang-Luna and Esteban Solis;
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That each Party shall bear their or its own attorneys’ fees and costs; and
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That the Clerk of Court close this case.
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IT IS SO ORDERED.
Dated:
October 30, 2017
/s/
Sheila K. Oberto
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UNITED STATES MAGISTRATE JUDGE
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LITTLE R MEND ELSO N, P .C .
333 Bush Street
34th Floor
San Francisco, CA 94104
415.433.1940
STIPULATION AND ORDER FOR
VOLUNTARY DISMISSAL
1.
CASE NO. 17-CV-00363-AWI-SKO
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