Roe v. American Databank, LLC

Filing 66

ORDER RE MOTION TO APPOINT INTERIM COUNSEL AND RE SUMMARY JUDGMENT BRIEFING SCHEDULE Motion due by 7/15/2014 at noon. Response due by 7/22/2014 at noon. Motion Hearing set for 7/31/2014 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup.. Signed by Judge Alsup on July 7, 2014. (whalc1S, COURT STAFF) (Filed on 7/7/2014)

1
2
3
4
5

IN THE UNITED STATES DISTRICT COURT

6
FOR THE NORTHERN DISTRICT OF CALIFORNIA
7
8

ASTRAILIA I. DUNFORD, individually and
on behalf of all similarly situated,

No. C 13-03829 WHA

9
Plaintiff,
10
AMERICAN DATABANK LLC,
For the Northern District of California

United States District Court

v.
11
12
Defendant.
13

/

ORDER RE MOTION TO APPOINT
INTERIM COUNSEL AND RE
SUMMARY JUDGMENT BRIEFING
SCHEDULE

14
In June 2013, this action involving the Fair Credit Reporting Act, 15 U.S.C. 1681,
15
et seq., was filed in Alameda Superior Court. Roe v. American DataBank, LLC,
16
No. HG13682746. Removal occurred in August 2013. Attorneys Michael Caddell and Cynthia
17
Chapman from the law firm of Caddell & Chapman then appeared as counsel of record for
18
plaintiff Jane Roe. In December 2013, Jane Roe was dismissed and Astrailia Dunford’s motion
19
to intervene was granted.
20
In May 2014, Ms. Dunford filed a second amended complaint and moved to certify two
21
classes: (1) a disclosure form class and (2) an obsolete information class. She also moved to
22
appoint the law firm of Caddell & Chapman as class counsel. A supplemental briefing
23
opportunity was provided (Dkt. Nos. 48, 50).
24
On July 1, Ms. Dunford filed a motion to appoint the law firm of Caddell & Chapman as
25
interim counsel, noticed for a hearing on August 14. Defendant filed a statement of non26
opposition on July 7 (Dkt. Nos. 55, 65).
27
28

1

On July 3, defendant filed a précis seeking leave to file a motion for summary judgment.

2

Defendant argued that Ms. Dunford’s report was not obtained for “employment purposes;”

3

defendant’s actions were not willful; and Ms. Dunford’s report did not contain an “adverse item

4

of information” (Dkt. No. 63).

5

On July 3, the parties filed a “stipulated request for order shortening time for decision on

6

plaintiff’s unopposed motion for appointment of interim class counsel” (Dkt. No. 64).

7

The parties have a settlement conference before Magistrate Judge Jacqueline Corley set for

8

July 9 (Dkt. Nos. 22, 57).

9

*

*

*

Upon review of the record, the following is hereby ordered:

11
For the Northern District of California

United States District Court

10

1.

12

DENIED.

13

2.

The joint stipulation to shorten time on the motion to appoint interim counsel is

The motion to appoint Caddell & Chapman as interim counsel is HELD IN

14

ABEYANCE until summary judgment and class certification are decided. This is because any

15

possible flaws in Ms. Dunford’s standing and/or ability to represent putative class members

16

should not factor into settlement negotiations compromising a class recovery. No class has

17

been certified to date. If (and when) a class is certified, the class’ claims should be evaluated on

18

the merits, not influenced by the risk that the particular plaintiff lacks standing. Moreover, any

19

motion for approval of a proposed class settlement would require proper evidentiary and/or

20

expert support. See Daniels v. Aeropostale West, Inc., No. 3:12-cv-05755-WHA, 2014 WL

21

2215708, at *3 (N.D. Cal. May 29, 2014); Kakani v. Oracle Corp., No. 3:06-cv-06493-WHA,

22

2007 WL 1793774, at *7 (N.D. Cal. June 19, 2007). In most circumstances “it is better to

23

develop and to present a proposed compromise after class certification, after diligent discovery

24

on the merits, and after the damage study has been finalized” (Dkt. No. 20). The summary

25

judgment motion should be heard and decided before any settlement discussions occur because

26

if it turns out that Ms. Dunford lacks standing, then class members should not be saddled with a

27

proposed settlement that reflects that risk.

28
2

1
2
3

3.

This order recommends that the July 9 settlement conference be postponed until

after summary judgment and/or class certification is decided in August 2014.
4.

The following briefing schedule shall apply for defendant’s motion for summary

4

judgment. Defendant’s motion (not to exceed fifteen pages) is due by JULY 15 AT NOON.

5

Plaintiff’s opposition (not to exceed fifteen pages) is due by JULY 22 AT NOON. No replies,

6

please. Defendant’s motion for summary judgment, plaintiff’s motion for class certification,

7

and plaintiff’s motion to appoint interim counsel shall be heard on JULY 31, 2014 AT 8:00 A.M.

8
9

IT IS SO ORDERED.

11
For the Northern District of California

United States District Court

10
Dated: July 7, 2014.

WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3