Darneal v. Allied Waste Transportation, Inc.

Filing 32

STIPULATION and ORDER signed by District Judge Kimberly J. Mueller on 7/12/2011 ORDERING that this matter is DISMISSED with prejudice and all pending dates are VACATED. That, because no class has been certified, this Order has no effect on the rights of putative class members other than Plaintiff Jerry Darneal. CASE CLOSED. (Zignago, K.)

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23 atDylan Pollard, Esq., SBN 180306
Matt C. Bailey, Esq. SBN 218685
POLLARD | BAILEY th
9701 Wilshire Blvd., 10 Floor
Beverly Hills, CA 90212
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff,
Jerry Darneal
Noah A. Finkel (pro hac vice)
Laura J. Maechtlen (SBN 224923)
Peter D. Urias (SBN 255306)
SEYFARTH SHAW LLP
560 Mission Street, Suite 3100
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
Allied Waste Transportation, Inc.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JERRY DARNEAL, an individual; on behalf of Case No. 10-CV-01940-KJM-GGH
himself and all other similarly situated current
and former employees,
CLASS ACTION

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STIPULATION FOR VOLUNTARY
DISMISSAL; ORDER

Plaintiff,

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vs.

Hon. Kimberly J. Mueller
Date Filed: June 11, 2010
Trial Date: None

ALLIED WASTE TRANSPORTATION, INC.,
a Delaware Corporation; and DOES 1 through
100, Inclusive,

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Defendants.

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This Stipulation and proposed Order is entered into between Plaintiff JERRY
DARNEAL (“Plaintiff”) and Defendant ALLIED WASTE TRANSPORTATION, INC.

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STIPULATION & ORDER OF VOLUNTARY DISMISSAL

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(“Defendant”) (hereinafter the “Parties”) , by and through their counsel of record, as follows:

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WHEREAS Plaintiff initiated the above entitled action by filing a proposed wage and

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hour class action complaint on June 11, 2010 against Defendant (hereinafter “the Action”);

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WHEREAS, on July 21, 2010, Defendant removed the Action on the grounds that this
Court had original federal jurisdiction under 28 U.S.C. § 1332(d)(2);

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WHEREAS Plaintiff has not filed a motion for class certification in the Action, and

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after conducting class discovery, has decided to not pursue certification of a class action in this

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Action;

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WHEREAS Plaintiff now desires to dismiss his claims against Defendant with
prejudice due to a settlement with Defendant;

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WEHREAS Fed. Rules Civ. Proc. R. 23(e) permits voluntary dismissal of the Class

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Action Allegations and dismissal of the named plaintiff’s claims prior to certification of a class

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action without court approval or notice to the class;1

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WHEREAS dismissal of this case will not impair the claims of putative class members,
if any, because the Action has not been certified as a class action;

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WHEREAS notice to the proposed class is not warranted in this case, as the Action has

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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
R 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 this is 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 R Civ P 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).
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STIPULATION & ORDER OF VOLUNTARY DISMISSAL

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not been certified as a class action and neither Plaintiff or his counsel have otherwise engaged

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in communication and/or promotion of the Action with prospective class members;

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WHEREAS, in light of these Recitations, the Parties request that the Case Management
Conference Currently Set for July 20, 2011 at 10:30 a.m. be VACATED.
IT IS HEREBY STIPULATED AND AGREED, by and between the Parties, that that

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the Court enter an order that this case be dismissed with prejudice, but that such order will not

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affect the rights of putative class members other than Plaintiff to bring any claims they may

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have.
Dated: July 12, 2011

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POLLARD | BAILEY

S

__________________________________

By:

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DYLAN F. POLLARD, Esq.
Attorneys for Plaintiff

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Dated: July 12, 2011

SEYFARTH SHAW LLP

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By: /S/-Peter Urias (as authorized on
7.10.11)
PETER D. URIAS, Esq
Attorneys for Defendant

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STIPULATION & ORDER OF VOLUNTARY DISMISSAL

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ORDER

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The Parties having so stipulated, and GOOD CAUSE appearing, the Court ORDERS:

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1.

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That this matter is dismissed with prejudice and all pending dates in this case,

including the July 20, 2011 Case Management Conference, are VACATED;
2.

That, because no class has been certified, this Order has no effect on the rights

of putative class members other than Plaintiff Jerry Darneal.

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IT IS SO ORDERED.

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DATED: July 12, 2011.

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UNITED STATES DISTRICT JUDGE

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STIPULATION & ORDER OF VOLUNTARY DISMISSAL