Bryant et al v. Service Corporation International et al

Filing 402

ORDER GRANTING MOTION TO AMEND JUDGMENT (SI, COURT STAFF) (Filed on 9/12/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CLAUDE BRYANT, et al.

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United States District Court
For the Northern District of California

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No. C 08-01190 SI

Plaintiffs,

ORDER GRANTING MOTION TO
AMEND JUDGMENT

v.
SERVICE CORPORATION
INTERNATIONAL, et al.
Defendants.

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On July 12, 2011, the Court granted plaintiffs Biernacki, Farmer, and Holland’s motion to
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compel arbitration and dismissed their claims without prejudice. See Doc. 380. The Court also
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dismissed the claims of the remaining plaintiffs in the suit and entered judgment accordingly on July
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14. See Doc. 381. On August 11, defendants filed a timely motion to alter or amend the judgment
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pursuant to Rule 59(e) of the Federal Rules of Civil Procedure.1 Defendants’ motion is currently

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scheduled for hearing on September 22, 2011. Pursuant to Civil Local Rule 7-1(b), the Court finds this
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matter appropriate for resolution without oral argument and hereby VACATES the hearing. Having
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considered the papers submitted, and for good cause shown, the Court hereby GRANTS defendants’
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motion.
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In opposing plaintiffs’ motion to compel arbitration, defendants argued that plaintiffs Biernacki,
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Although plaintiffs have filed a notice of appeal in this case, the Court retains jurisdiction
to entertain defendants’ timely Rule 59 motion. See Fed. R. App. P. 4(a)(4); Tripati v. Henman, 845
F.2d 205, 206 (9th Cir. 1988) (per curiam) ; Trinidad Corp. v. Maru, 781 F.2d 1360, 1361–62 (9th
Cir.1986).

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Farmer, and Holland had waived their right to compel arbitration. Defendants argued that plaintiffs’

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conduct met all three prongs of the Ninth Circuit’s waiver test, which is laid out in Fisher v. A. G.

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Becker Paribas Inc., 791 F.2d 691, 694 (9th Cir. 1986) and Hoffman Const. Co. of Oregon v. Active

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Erectors and Installers, Inc., 969 F.2d 796, 798 (9th Cir. 1992) (quoting Fisher). See Def. Oppo. to Pl.

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Mot. to Compel Arbitration (Doc. 363), at 16–17. Neither party addressed the question of whether the

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recent U.S. Supreme Court decision in AT&T v. Concepcion, 131 S. Ct. 1740 (2011), which overruled

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the California Supreme Court case Discover Bank v. Superior Court, 36 Cal. 4th 148 (2005), should

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have any bearing on the outcome of the motion.

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United States District Court
For the Northern District of California

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The Court agreed that the Fisher test applied, but determined that plaintiffs had not waived their
right to compel arbitration under the test. The Court explained its reasoning as follows:
The arbitration agreement that plaintiffs are seeking to enforce in this case appears not
to permit class action arbitration, and therefore until recently would not have been
enforceable according to its terms. Defendants do not cite Concepcion in their papers
or explain how it is that plaintiffs acted inconsistently with a known right by not moving
to compel arbitration before the decision in Concepcion. They have failed to meet their
“heavy burden” to prove waiver. Fisher, 791 F.2d at 694.
Doc. 380 at 8.
In their Rule 59(e) motion, defendants argue that the Court made a manifest error of law. See
Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011) (explaining the possible grounds for
granting a Rule 59(e) motion). They argue that while defendants could not have enforced the arbitration
agreements as written before Concepcion, plaintiffs could have. Therefore, by litigating their claims
for three years, plaintiffs acted inconsistently with a known right, and defendants were prejudiced by
plaintiffs’ actions.
Plaintiffs oppose the motion. Plaintiffs argue that “prior to Concepcion, arbitration agreements
that d[id] not permit class arbitration [we]re unenforceable” and “[r]egardless of which party sought to
compel arbitration, the law would have applied equally to invalidate the arbitration agreement because
it did not permit class arbitration.” Pl. Oppo. at 2, 7. Finally, they argue that even if defendants are
correct legally, they have not carried their burden to prove waiver factually.
Prior to Concepcion, defendants in certain types of actions could not enforce as written
arbitration agreements that did not permit class arbitration. The arbitration agreement itself would
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remain enforceable, however, unless the agreement itself prohibited the severing of the unconscionable

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term, or if the arbitration agreement had an “insidious pattern” of unconscionable terms. See, e.g.,

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Shroyer v. New Cingular Wireless Services, Inc., 498 F.3d 976, 986–87 (9th Cir. 2007) (voiding

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agreement where it contained “a nonseverability clause, which states that if the ‘specific proviso’ that

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‘the arbitrator may not . . . preside over any form of a representative or class proceeding,’ ‘is found to

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be unenforceable, then the entirety of this arbitration clause shall be null and void’” (omission in

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Shroyer) (emphasis removed)), overruled by AT&T v. Concepcion, 131 S.Ct. 1740 (2011); Ingle v.

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Circuit City Stores, Inc., 328 F.3d 1165, 1180 (9th Cir. 2003) (citing seven “unconscionable aspects”

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of the arbitration agreement to explain why the court was “compelled to find the entire contract

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United States District Court
For the Northern District of California

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unenforceable”), overruled in part by AT&T v. Concepcion, 131 S.Ct. 1740 (2011). There is no such

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non-severance clause in plaintiffs’ arbitration provision, and plaintiffs have not argued that there is an

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“insidious pattern” in this case.

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The Discover Bank rule evolved out of California’s laws regarding unconscionability. The rule

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only applied where the arbitration provision was “imposed and drafted by the party of superior

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bargaining strength.” 36 Cal. 4th at 160. Thus, it protected the party of lesser bargaining strength: the

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plaintiff/consumer. The Discover Bank Court based its decision in part on the fact that it was “difficult

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to envision the circumstances under which the provision might negatively impact” the defendant-drafter

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of the provision. See 36 Cal. 4th at 161. The California Supreme Court announced a similar RULE IN

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the area of employment law in Gentry v. Superior Court, 42 Cal. 4th 443 (2007). The Supreme Court

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explained that “under some circumstances such a provision would lead to a de facto waiver [of

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unwaivable statutory rights] and would impermissibly interfere with employees’ ability to vindicate

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unwaivable rights and to enforce the overtime laws.” Id. at 457.

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It is not at all clear that a defendant—the party of the greater bargaining strength—could have

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utilized the protections afforded by Discover Bank and Genrty to compel one or more individual

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plaintiffs to arbitrate their claims as a class. Plaintiffs have not cited, and the Court is not aware of, any

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case where a defendant attempted to do so. Nor, as a practical matter, is it easy to envision a situation

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in which a defendant would wish to do so or could try to do so.

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The cases cited by plaintiffs in opposition to defendants’ motion involve defendants moving to
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compel arbitration. See, e.g., Swift v. Zynga Game Network, Inc., --- F. Supp. 2d ----, 2011 WL 3419499

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(N.D. Cal. 2011) (defendant’s motion); In re Cal. Title Ins. Antitrust Litig., No. 08-01341, 2011 WL

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2566449, at *3 (N.D. Cal. June 27, 2011) (defendants’ motion); Villegas v. US Bancorp, No. C 10-1762

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RS, 2011 WL 2679610, (N.D. Cal. June 20, 2011) (defendants’ motion); Estrella v. Freedom Fin., No.

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C. 09-03156, 2011 WL 2633643 (N.D. Cal. July 5, 2011) (defendants’ motion). Plaintiffs have not

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successfully explained how those cases can be analogized to this case, where it is plaintiffs who are

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moving to compel arbitration, and where it appears that plaintiffs could have arbitrated their claims on

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an individual basis when they filed suit in 2008.
Defendants successfully met their burden to show that plaintiffs acted inconsistently with a

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United States District Court
For the Northern District of California

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known right when they litigated this case for over three years: filing this case in federal court, filing an

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amended complaint, undertaking considerable discovery including filing a motion to compel, and filing

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a motion for class certification. Defendants have also successfully met their burden to show that they

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were prejudiced by the time and expense of litigating this case for the past three years.

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For the foregoing reasons, and for good cause shown, the Court hereby GRANTS defendants’

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motion and WITHDRAWS the Judgment entered in this case on July 14, 2011. (Doc. 385.)

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Additionally, the Court AMENDS its Order of July 12, 2011 as follows:

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The Court previously granted defendants’ motion to sever the claims of plaintiffs Stickle, Riggio,

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Acuna, Lamasters, Allen, Fulcher, Levine, and Thompson, and dismissed them “‘without prejudice to

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the institution of new, separate lawsuits by the dropped plaintiffs against some or all of the present

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defendants based on the claim or claims attempted to be set forth in the present complaint.’” Order

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(Doc. 380) at 5 (quoting Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997) (internal quotation

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marks omitted)). For the reasons stated in the July 12 Order, that part of the Order remains unchanged.

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The Court previously denied defendants’ motion to sever the claims of plaintiffs Biernacki,

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Farmer, and Holland, finding that the permissive joinder test was satisfied. For the reasons stated in the

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July 12 Order, that part of the Order remains unchanged.

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The Court previously found that plaintiffs Biernacki, Farmer, and Holland had carried their

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burden to establish the existence of enforceable arbitration agreements. For the reasons stated in the

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July 12 Order, that part of the Order remains unchanged.
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The Court previously found that plaintiffs Biernacki, Farmer, and Holland had not waived their

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right to arbitration and granted in part plaintiffs’ motion to compel arbitration. For the above reasons,

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the Court AMENDS its Order, finds that plaintiffs Biernacki, Farmer, and Holland did waive their right

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to arbitration, and DENIES their motion to compel arbitration.

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Finally, in the July 12 Order, the Court GRANTED plaintiff Bryant’s unopposed request for his

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claims to be dismissed with prejudice. Because the request was made in order to permit the Court to

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enter judgment in this case, so that plaintiff Bryant might appeal the Court’s denial of class certification,

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the Court AMENDS its Order and DENIES plaintiff Bryant’s request for his claims to be dismissed at

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this point.

United States District Court
For the Northern District of California

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Plaintiffs Bryant, Biernacki, Farmer, and Holland are hereby ORDERED to file a statement to

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the Court by 5:00 p.m. on Friday, September 16, 2011, informing the Court whether plaintiffs wish

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to pursue their claims individually, or whether they would like their claims to be dismissed with

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prejudice in order to facilitate appeal.

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Because the judgment in this case has been withdrawn, plaintiffs’ objections to defendants’ bill
of costs is OVERRULED without prejudice. (Doc. 383.)

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IT IS SO ORDERED.

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Dated: September 12, 2011
SUSAN ILLSTON
United States District Judge

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