Sliger et al v. Prospect Mortgage, LLC et al

Filing 160

ORDER signed by Judge Lawrence K. Karlton on 1/23/2013 re 159 Stipulation and Proposed Order filed by Prospect Mortgage, LLC ORDERING the collective action previously conditionally certified on 8/24/2011 is hereby DECERTIFIED and this case shall no longer proceed as a collective action under 29 USC 216(b); all opt-in plaintiffs (other than the named plaintiffs Carol Dion and Scott Avila) who filed consent forms in this action are hereby DISMISSED without prejudice so that those who so choos e may refile their individual claims in other forums; the named plaintiffs, Scott Avila and Carol Dion, will continue to proceed individually without any tolling in this Court on the schedule set forth in the Court's latest scheduling order; and plaintiff's counsel shall provide notice of this Order to all opt-in plaintiffs via US Mail. (Waggoner, D)

1
2
3
4
5
6
7
8
9
10

SEYFARTH SHAW LLP
Andrew M. Paley (SBN 149699)
E-mail: [e-mail]
2029 Century Park East, Suite 3500
Los Angeles, CA 90067-3021
Telephone: [phone]
Facsimile: [phone]
SEYFARTH SHAW LLP
Alfred L. Sanderson, Jr. (SBN 186071)
E-mail: [e-mail]
Brandon R. McKelvey (SBN 217002)
E-mail: [e-mail]
400 Capitol Mall, Suite 2350
Sacramento, California 95814-4428
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
PROSPECT MORTGAGE, LLC

11
UNITED STATES DISTRICT COURT
12
EASTERN DISTRICT OF CALIFORNIA
13
SACRAMENTO
14
15
16
17
18
19
20
21

ELIZABETH SLIGER, CAROL DION and
SCOTT AVILA, individually, on behalf of
others similarly situated, and on behalf of the
general public,

)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
PROSPECT MORTGAGE, LLC, and DOES 1- )
50, inclusive,
)
)
Defendants.
)
)

Case No. 2:11-CV-00465-LKK-EFB
FURTHER AMENDED STIPULATION
TO DECERTIFY COLLECTIVE
ACTION; ORDER DECERTIFYING
COLLECTIVE ACTION

Complaint Filed: October 18, 2010

22
23
24
25
26
27
28
1
FURTHER AMENDED STIPULATION TO DECERTIFY COLLECTIVE ACTION; [PROPOSED] ORDER
15198552v.2

1

IT IS HEREBY STIPULATED, by and between CAROL DION and SCOTT AVILA

2

(“Plaintiffs”) and PROSPECT MORTGAGE, LLC (“Defendant” or “Prospect”), through their

3

respective undersigned counsel, as follows:

4

WHEREAS, Plaintiffs have brought this lawsuit against Defendant alleging that they and

5

other mortgage loan officers throughout the country were misclassified as exempt employees and

6

are entitled to overtime, minimum wage, and other compensation under federal and California

7

wage-hour laws;

8

WHEREAS, Plaintiffs filed their Motion for Conditional Certification on June 28, 2011;

9

WHEREAS, this Court partially granted Plaintiffs’ motion for conditional certification

10

under section 216(b) of the Fair Labor Standards Act (“FLSA”) on August 24, 2011 (ECF No.

11

71) and ordered that notice be provided to all current and former loan officers paid on a

12

commission-only basis who worked for Prospect at any time from three years prior to date notice

13

issued to the present;

14
15
16
17
18

WHEREAS, notice was sent to the collective in November 2011 and then supplemental
notice was sent in January 2012 with the supplemental notice period ending on March 27, 2012;
WHEREAS, approximately 595 individuals have filed consents to join this lawsuit that
have not been withdrawn;
WHEREAS, over the last year the parties have conducted written discovery and taken a

19

number of depositions, including the depositions of the named plaintiffs and depositions of

20

multiple Rule 30(b)(6) witnesses;

21
22
23
24
25
26
27
28

WHEREAS, over the last several months the parties have been actively engaging in
settlement discussions to resolve the claims that Plaintiffs have asserted in this litigation;
WHEREAS, counsel for all parties met in Los Angeles on May 16, 2012 and July 19,
2012, to discuss settlement and explore potential resolution;
WHEREAS, counsel have exchanged data and other information over the last several
months in a mutual effort to further explore potential resolution;
WHEREAS, the parties participated in a day-long mediation in San Francisco on
September 21, 2012 but were unable to resolve the matter;
2
FURTHER AMENDED STIPULATION TO DECERTIFY COLLECTIVE ACTION; [PROPOSED] ORDER
15198552v.2

1
2
3

WHEREAS, Defendant has notified Plaintiffs that it intends to file a motion to decertify
the FLSA collective action;
WHEREAS, the parties agree that to avoid the cost and expense of discovery and motion

4

practice associated with a motion to decertify the collective, the parties will stipulate that this

5

matter should no longer proceed as a collective action under 29 U.S.C. § 216(b) and that the

6

individual opt-in plaintiffs, who so choose, may pursue their individual claims in other forums;

7
8
9

WHEREAS, the parties agree that all opt-in plaintiffs should be dismissed from the
action without prejudice to refile their individual claims in other forums;
WHEREAS, the parties further agree that the statutes of limitations with respect to the

10

claims asserted in this lawsuit for each individual plaintiff have been tolled since the date that the

11

individual plaintiff filed a consent form in this action, and in the event that Defendant raises the

12

statute of limitations in any action brought by any of the opt-in plaintiffs following

13

decertification, it agrees to extend any limitations period it asserts by 90 days;

14

WHEREAS, the parties further agree that the claims of the named Plaintiffs (Scott Avila

15

and Carol Dion) should not be affected by this stipulation and will continue to proceed

16

individually in this Court on the schedule set forth in the Court’s latest scheduling order; and

17

IT IS HEREBY STIPULATED AND AGREED by and between Plaintiffs and

18
19

Defendant, through their respective undersigned counsel, that:
(1)

The collective action previously conditionally certified on August 24, 2011 (ECF

20

No. 71) be decertified pursuant to this joint stipulation and that this case no longer proceed as a

21

collective action under 29 U.S.C. § 216(b);

22

(2)

All opt-in plaintiffs (other than Carol Dion and Scott Avila) who have filed

23

consent forms in this action should be dismissed without prejudice so that those who so choose

24

may refile their individual claims in other forums;

25

(3)

The statutes of limitations with respect to the claims asserted in this lawsuit for

26

each individual plaintiff have been tolled since the date that the individual plaintiff filed a

27

consent form in this action, and in the event that Defendant raises the statute of limitations in any

28
3
FURTHER AMENDED STIPULATION TO DECERTIFY COLLECTIVE ACTION; [PROPOSED] ORDER
15198552v.2

1

action brought by any of the opt-in plaintiffs following decertification, it agrees to extend any

2

limitations period it asserts by 90 days;

3

(4)

The named Plaintiffs, Scott Avila and Carol Dion, will continue to proceed

4

individually without any tolling in this Court on the schedule set forth in the Court’s latest

5

scheduling order; and

6

(5)

Plaintiffs’ counsel shall provide all of the opt-in plaintiffs with notice via U.S.

7

Mail of the Court’s Order to decertify the collective action. The notice that Plaintiffs’ counsel

8

shall provide to all opt-in plaintiffs shall be in the form attached as Exhibit A.

9
10

IT IS SO STIPULATED.
DATED: January 22, 2013

NICHOLS KASTER, LLP

11
By:____s/ Matthew C. Helland______________
Matthew C. Helland
Attorneys for Plaintiffs
CAROL DION and SCOTT AVILA, et al.

12
13
14
15

DATED: January 22, 2013

16

SEYFARTH SHAW LLP
By

s/ Brandon R. McKelvey
Andrew M. Paley
Brandon R. McKelvey
Attorneys for Defendants
PROSPECT MORTGAGE, LLC

17
18
19
20
21
22
23
24
25
26
27
28

4
FURTHER AMENDED STIPULATION TO DECERTIFY COLLECTIVE ACTION; [PROPOSED] ORDER
15198552v.2

1

ORDER

2

IT IS HEREBY ORDERED:

3

(1)

The collective action previously conditionally certified on August 24, 2011 (ECF

4

No. 71) is hereby decertified and this case shall no longer proceed as a collective action under 29

5

U.S.C. § 216(b);

6

(2)

All opt-in plaintiffs (other than the named Plaintiffs Carol Dion and Scott Avila)

7

who have filed consent forms in this action are hereby dismissed without prejudice so that those

8

who so choose may refile their individual claims in other forums;

9

(3)

The named Plaintiffs, Scott Avila and Carol Dion, will continue to proceed

10

individually without any tolling in this Court on the schedule set forth in the Court’s latest

11

scheduling order; and

12

(4)

Plaintiffs’ counsel shall provide notice of this Order to all opt-in plaintiffs via

13

U.S. Mail. The notice sent to the opt-in plaintiffs will be in the form attached as Exhibit A to the

14

parties’ stipulation

15

IT IS SO ORDERED.

16
Date: January 23, 2013
17
18
19
20
21
22
23
24
25
26
27
28
5
FURTHER AMENDED STIPULATION TO DECERTIFY COLLECTIVE ACTION; [PROPOSED] ORDER
15198552v.2