Wilburn v. Blockbuster Inc.

Filing 24

ORDER GRANTING 23 Stipulation For Dismissal of Class Action Allegations Without Prejudice and Without Notice to Putative Class. Signed by Judge Jeffrey S. White on 9/30/08. (jjo, COURT STAFF) (Filed on 9/30/2008)

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[COUNSEL LISTED ON NEXT PAGE]

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA DINO WILBURN, an individual, on behalf of himself and others similarly situated, Plaintiff, vs. BLOCKBUSTER INC., and DOES 1 through 25, inclusive, Defendants. Case No. 3:08-CV-01249-JSW Complaint Filed: January 14, 2008 STIPULATED MOTION AND [PROPOSED] ORDER FOR DISMISSAL OF CLASS ACTION ALLEGATIONS WITHOUT PREJUDICE AND WITHOUT NOTICE TO PUTATIVE CLASS NO HEARING SET

Stipulated Motion And Order For Dismissal Of Class Allegations Without Prejudice ­ Case No. 08-1249 JSW

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REBECCA D. EISEN, State Bar No. 96129 SHANNON B. NAKABAYASHI, State Bar No. 215469 MORGAN, LEWIS & BOCKIUS LLP One Market, Spear Street Tower San Francisco, CA 94105-1126 Tel: [phone] Fax: [phone] [e-mail] [e-mail] JOHN S. BATTENFELD, State Bar No. 119513 DONNA MO, State Bar No. 240621 MORGAN, LEWIS & BOCKIUS LLP 300 South Grand Avenue Twenty-Second Floor Los Angeles, CA 90071-3132 Tel: [phone] Fax: [phone] [e-mail] [e-mail] Attorneys for Defendant, BLOCKBUSTER INC. JOSE R. MATA (CA State Bar No. 83724, OSB 80305) E-Mail: [e-mail] BAILEY PINNEY, PC 1498 SE Tech Center Place, Suite 290 Vancouver, WA 98683 Telephone: [phone]; Fax: [phone] SUSAN SIMMONS SEEMILLER (CA State Bar No. 150546) E-Mail: [e-mail] BAILEY PINNEY, PC 840 County Square Drive Ventura, CA 93003 Telephone: [phone]; Fax: [phone] Attorneys for Plaintiff, DINO WILBURN

Stipulated Motion And Order For Dismissal Of Class Allegations Without Prejudice ­ Case No. 08-1249 JSW

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IT IS HEREBY STIPULATED AND MOVED by and between the parties to this action through their designated counsel, as follows: 1) Plaintiff Dino Wilburn and Defendant Blockbuster, Inc. continue their efforts to

settle and resolve this case. At this time, Plaintiff has decided to proceed with this action as an individual case, and the parties have agreed that the class allegations should be dismissed without prejudice. The parties are conferring with the court-assigned JAMS mediator as part of their attempts to resolve this matter as an individual case. 2) Accordingly, all class action allegations in the above action should be dismissed

without prejudice pursuant to Fed. R. Civ. P. 23(e) and 41. All individual allegations on behalf of Plaintiff Dino Wilburn are to remain as set forth in the Complaint. 3) Each party shall bear its own attorney fees and costs with respect to this dismissal

of the class allegations. IT IS HEREBY FURTHER STIPULATED AND MOVED by the parties, that the Court issue an order holding that the factors identified in Diaz v. Trust Territory of the Pacific Islands, 876 F.2d 1401 (9th Cir., 1989), do not weigh in favor of requiring notice to the putative class members in this case because: 1) Plaintiff and his counsel represent that the class allegations were not frivolous and

were not initially pled for the purpose of extracting a more favorable settlement. 2) Defendant has not promised Plaintiff and his counsel a disproportionate recovery

on settlement of Plaintiff's individual action in exchange for dismissal of the class allegations. Defendant has not made any concessions to Plaintiff or his attorneys in exchange for dismissal of the class allegations. 3) Settlement of Plaintiff's individual claim will not deplete Blockbuster of assets

such that Blockbuster would be financially unable to pay any meritorious claims of putative class Stipulated Motion And Order For Dismissal Of Class Allegations Without Prejudice ­ Case No. 08-1249 JSW
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members. 4) This action, including the class allegations, has not received any publicity that

would have caused putative class members to refrain from filing their own individual lawsuits. Also, this action was filed on January 14, 2008 and has only been pending for about nine months. 5) The class allegations to be dismissed are for failure to provide rest and meal

periods, failure to pay wages (including minimum and overtime wages), failure to pay reporting time pay, failure to provide properly itemized wage statements, late payment of wages, and requiring the purchase of uniforms as a condition of employment. There are also class allegations based on breach of contract, conversion, and unlawful business practices. Defendant denies all allegations, as stated in its Answer. The statute of limitations for these claims varies between one and four years. Plaintiff's employment with Blockbuster terminated on January 31, 2007. This action was filed January 14, 2008. Substantial time remains for most putative class members to bring most of the claims asserted in this action. Thus, the likelihood of prejudice to most class members due to the statute of limitations is low. IT IS SO STIPULATED. Dated: September 25, 2008 BAILEY PINNEY, PC JOSE R. MATA SUSAN SIMONS SEEMILLER By ______________/s/__________________ Susan Simons Seemiller Attorneys for Plaintiff DINO WILBURN Dated: September 25, 2008 MORGAN, LEWIS & BOCKIUS LLP REBECCA D. EISEN JOHN S. BATTENFELD DONNA MO By ______________/s/__________________ Rebecca D. Eisen Attorneys for Defendant BLOCKBUSTER INC

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30 Dated: September ____, 2008

ORDER On stipulation of the parties, and good cause appearing therefor, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that: 1) All class action allegations in the above action are hereby dismissed without

prejudice. All individual allegations on behalf of Plaintiff Dino Wilburn are to remain as set forth in the current Complaint. 2) 3) No party shall be entitled to costs or attorney fees because of this dismissal. Based on the factors identified in Diaz v. Trust Territory of the Pacific Islands, 876

F.2d 1401 (9th Cir., 1989), the above dismissal of the class allegations may be made, and hereby is made, without notice to the putative class.

__________________________________ HON. JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

Stipulated Motion And Order For Dismissal Of Class Allegations Without Prejudice ­ Case No. 08-1249 JSW

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