Main v. Wal-Mart Stores Inc

Filing 37

ORDER DENYING MOTIONS TO DISMISS AND CONTINUING CASE MANAGEMENT CONFERENCE: (12 in 3:11-cv-02001-JSW) MOTION to Dismiss Damages Claim filed by Wal-Mart Stores, Inc., (24 in 3:11-cv-01919-JSW) MOTION to Dismiss Damages Claim filed by Wal-Mart Stores Inc. Case Management Statement due by 12/9/2011. Case Management Conference set for 12/16/2011 01:30 PM in Courtroom 11, 19th Floor, San Francisco.. Signed by Judge Jeffrey S. White on 11/1/11. (jjoS, COURT STAFF) (Filed on 11/1/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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KIMBERLY MAIN, an individual, on behalf
of herself and all others similarly situated,
No. C 11-01919 JSW

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Plaintiff,
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For the Northern District of California

United States District Court

v.
ORDER DENYING MOTION TO
DISMISS AND CONTINUING
CASE MANAGEMENT
CONFERENCE

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WAL-MART STORES, INC., and DOES 1
through 50, inclusive,

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Defendants.
/

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ROBIN NELSON, an individual, on behalf of
herself and all others similarly situated,

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No. C 11-02001 JSW

Plaintiff,
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v.
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ORDER DENYING MOTION TO
DISMISS AND CONTINUING
CASE MANAGEMENT
CONFERENCE

WAL-MART STORES, INC., and DOES 1
through 50, inclusive,
Defendants.
/

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MARYLYNN GRIKAVICIOUS, an
individual, on behalf of herself and all others
similarly situated,
No. C 11-02893 JSW
Plaintiff,

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v.
WAL-MART STORES, INC., and DOES 1
through 50, inclusive,

ORDER CONTINUING CASE
MANAGEMENT CONFERENCE

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Defendants.
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/

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LOURDES R. LANDEROS, an individual, on
behalf of herself and all others similarly
situated,

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No. C 11-02659 JSW

Plaintiff,
ORDER CONTINUING CASE
MANAGEMENT CONFERENCE

v.
WAL-MART STORES, INC., and DOES 1
through 50, inclusive,

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Defendants.
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/
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TINA BAUER, an individual, on behalf of
herself and all others similarly situated,

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For the Northern District of California

United States District Court

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No. C 11-03233 JSW

Plaintiff,
v.

ORDER CONTINUING CASE
MANAGEMENT CONFERENCE

WAL-MART STORES, INC., and DOES 1
through 50, inclusive,

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Defendants.
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Now before the Court are the motions to dismiss filed by defendant Wal-Mart Stores,

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Inc. (“Defendant”). The Court determines that these matters are appropriate for disposition

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without oral argument and are deemed submitted. See Civ. L.R. 7-1(b). Accordingly, the

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hearing set for November 4, 2011 is HEREBY VACATED. Having carefully reviewed the

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parties’ papers and considering their arguments and the relevant authority, and good cause

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appearing, the Court hereby DENIES Defendant’s motions to dismiss for the reasons set forth

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below.

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Defendant moves to dismiss the “claims” by plaintiff Kimberly Main and Robin Nelson

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(“Plaintiffs”) for cy pres recovery. Plaintiffs each bring a cause of action for violation of

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California Civil Code § 1747.08, the Song-Beverly Credit Card Act of 1971 (“Song-Beverly

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Credit Card Act”). In their prayers for relief, Plaintiffs each seek an award for themselves and

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the purported class they seek to represent of the civil penalty pursuant to California Civil Code

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§ 1747.08 and “for distribution of any moneys recovered on behalf of the Class of similarly
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situated consumers via fluid recovery or cy pres recovery where necessary to prevent Defendant

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from retaining the benefits of their wrongful conduct.” Defendant argues that cy pres is

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considered a form of equitable relief and the Song-Beverly Credit Card Act only authorizes

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recovery of statutory damages by private plaintiffs.

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In Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1307 (9th Cir.

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1990), the Ninth Circuit held that cy pres or a fluid recovery may be considered by courts to

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distribute unclaimed funds after a valid judgment for statutory damages has been entered

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against a defendant. The court merely rejected the district court’s specific application of cy pres

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because the proposed distribution of funds was to a group too remote from the plaintiff class
and there was no reasonable certainty that any class member would have benefitted. Id. at

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For the Northern District of California

United States District Court

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1308.1

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The Court need not determine at this time whether distribution of any unclaimed

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statutory damages to the purported class through cy pres would be appropriate. The issue of cy

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pres distribution is premature until a class is certified, damages are awarded, and there are

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funds that remain unclaimed. See Rodriguez v. West Publ’g Corp., 563 F.3d 948, 966 (9th Cir.

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2009) (finding cy pres distribution “becomes ripe only if entire settlement fund is not

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distributed to class members” and declining to determine propriety of cy pres at that time).

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Accordingly, the Court DENIES Defendant’s motions to dismiss. This Order is without

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prejudice to Defendant challenging the use of cy pres distribution if and when this issue

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becomes ripe.

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Defendant relies on Haug v. Petsmart, Inc., 2010 WL 2925096 (E.D. Cal. July 23,
2010). In Haug, the court characterized the plaintiff’s request for cy pres relief as damages,
and as such, struck the plaintiff’s request for “cy pres damages” as unauthorized by the
Song-Beverly Credit Card Act. The Court disagrees that cy pres funds are a form of
damages, and finds instead, that they are a form of distribution of damages. Therefore, the
Court finds the reasoning of Haug unpersuasive.
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In addition, the case management conferences, set in all related matters, is HEREBY
CONTINUED to December 16, 2011 at 1:30 p.m.

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IT IS SO ORDERED.
Dated: November 1, 2011

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JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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