Gehl et al v. Bloomin' Brands et al

Filing 52

STIPULATION AND ORDER 50 DISMISSING DEFENDANTS BLOOMIN' BRANDS, INC., OSI RESTAURANT PARTNERS, LLC AND OS RESTAURANT SERVICES, LLC WITH PREJUDICE. Signed by Magistrate Judge Kandis A. Westmore on 9/23/14. (sisS, COURT STAFF) (Filed on 9/23/2014)

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THEODORE J. BOUTROUS JR., SBN 132099
[e-mail]
CATHERINE A. CONWAY, SBN 98366
[e-mail]
JESSE A. CRIPPS, SBN 222285
[e-mail]
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
Telephone: [phone]
Facsimile: 213.229.7520
SARAH ZENEWICZ, SBN 258068
[e-mail]
GIBSON, DUNN & CRUTCHER LLP
555 Mission Street, Suite 3000
San Francisco, CA 94105
Telephone: [phone]
Facsimile: 415.393-8306
Attorneys for Defendants
BLOOMIN’ BRANDS, INC.; OSI RESTAURANT
PARTNERS, LLC; OS RESTAURANT SERVICES,
LLC

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HOLLY GEHL, CHRIS ARMENTA, TRENT
BROADSTREET, BRITTNI ZACHER,
ALEX BURROUGHS, SARA EWART,
JAMIE METTER, RAMON PEREZ,
SHANNON SPALDING, and RYAN TYSON
Individually and On Behalf of All Others
Similarly Situated,

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Plaintiffs,
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v.
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BLOOMIN’ BRANDS, INC.; OSI
RESTAURANT PARTNERS, LLC; OS
RESTAURANT SERVICES, LLC; T-BIRD
RESTAURANT GROUP, INC.; T-BIRD
NEVADA, LLC; and DOES 1 through 100,
Inclusive,

CASE NO. 4:13-cv-05961-KAW
JOINT STIPULATION AND [PROPOSED]
ORDER VOLUNTARILY DISMISSING
PLAINTIFFS GEHL, ARMENTA,
BROADSTREET, ZACHER, BURROUGHS,
EWART, METTER, PEREZ AND TYSON’S
CLAIMS AGAINST DEFENDANTS
BLOOMIN’ BRANDS, INC.; OSI
RESTAURANT PARTNERS, LLC; AND OS
RESTAURANT SERVICES, LLC WITH
PREJUDICE
Judge: The Honorable Kandis A. Westmore

Defendants.

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Gibson, Dunn &
Crutcher LLP

JOINT STIPULATION AND [PROPOSED] ORDER VOLUNTARILY DISMISSING PLAINTIFFS’ CLAIMS AGAINST THE BLOOMIN’
DEFENDANTS WITH PREJUDICE – CASE NO. 4:13-CV-05961-KAW

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TO THE COURT AND THE CLERK OF COURT, PLEASE TAKE NOTICE THAT

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plaintiffs Holly Gehl, Chris Armenta, Trent Broadstreet, Brittni Zacher, Alex Burroughs, Sara Ewart,

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Jamie Metter, Ramon Perez and Ryan Tyson (“Plaintiffs”)1 and Bloomin’ Brands, Inc.; OSI

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Restaurant Partners, LLC; and OS Restaurant Services, LLC (the “Bloomin’ Defendants”) hereby

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stipulate that, in exchange for a release by the Bloomin’ Defendants to any claims for costs, expenses

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and attorneys’ fees in connection with this action, each Plaintiff through this stipulation and

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agreement hereby agrees:

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(1)

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to dismiss each and every one of such Plaintiff’s claims against the Bloomin’
Defendants in the above-captioned lawsuit in their entirety with prejudice pursuant to

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Federal Rule of Civil Procedure 41(a)(1)(A)(ii),2 pursuant to which Plaintiffs agree

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and understand that they are forever waiving, releasing and discharging any claims

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that were brought or could have been brought in this action and will not reassert such

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claims;

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(2)

to not bring any claims against the Bloomin’ Defendants, or any of their subsidiaries

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or parent companies, that were brought or could have been brought relating to

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minimum wage, unpaid overtime, or off-the-clock gap time claims in this or any other

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jurisdiction, including in the action currently pending in the United States District

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Court, District of Nevada, case number 2:13-cv-01820-JAD-(NJK), entitled Cardoza,

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et al. v. Bloomin’ Brands, Inc., et al., pursuant to which Plaintiffs agree and

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understand that they are forever waiving, releasing and discharging any claims that

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Each of the Plaintiffs other than Shannon Spaulding have agreed to this Stipulation and
[Proposed] Order. Ms. Spaulding has ceased to communicate with her counsel. Plaintiffs’
counsel intends to file a motion to withdraw as her counsel and withdraw Ms. Spaulding as a
named Plaintiff in this action. Defendants have agreed not to oppose that motion.

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In the instant case where no class is certified, voluntary dismissal by joint stipulation of the
parties is proper. Fed. R. Civ. P. 41(a)(1)(A). No court approval is required: “Rule 23(e)(1)(A)
resolves the ambiguity in former Rule 23(e)’s reference to dismissal or compromise of ‘a class
action.’ That language could be—and at times was—read to require court approval of settlements
with putative class representatives that resolved only individual claims. See Manual for Complex
Litigation Third, § 30.41. The new rule requires approval only if the claims, issues, or defenses
of a certified class are resolved by a settlement, voluntary dismissal, or compromise.” Fed. R.
Civ. P. 23(e)(1)(A) advisory committee’s note (emphasis added).

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Gibson, Dunn &
Crutcher LLP

JOINT STIPULATION AND [PROPOSED] ORDER VOLUNTARILY DISMISSING PLAINTIFFS’ CLAIMS AGAINST THE BLOOMIN’
DEFENDANTS WITH PREJUDICE – CASE NO. 4:13-CV-05961-KAW

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were brought or could have been brought in that action;
(3)

that he or she will not apply for employment with or accept employment in any

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capacity at any restaurant location owned or operated by the Bloomin’ Defendants (or

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any subsidiary thereof);

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(4)

that each Plaintiff knowingly and voluntarily releases the Bloomin’ Defendants from

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any and all claims, demands, causes of action, complaints or charges, known or

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unknown, of any kind or character, in tort, in contract, or under any law or statute

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whatsoever, which each Plaintiff has or might have, and that each Plaintiff waives the

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provisions of Section 1542 of the California Civil Code (or any analogous state or

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federal statute), which reads as follows:

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A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR

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DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME

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OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE

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MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR; and

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(5)

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the Bloomin’ Defendants agree not to assert any claims against Plaintiffs related to or
arising from Plaintiffs’ prosecution of this action.

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In consideration for the foregoing, Plaintiffs and the Bloomin’ Defendants agree that they will each

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bear their own respective costs, expenses and attorneys’ fees in connection with this action.

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Dated: September 22, 2014
GIBSON, DUNN & CRUTCHER LLP

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By:

/s/ Jesse A. Cripps
Jesse A. Cripps
Attorneys for Defendants Bloomin’ Brands, Inc.; OSI
Restaurant Partners, LLC; OS Restaurant Services, LLC

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Gibson, Dunn &
Crutcher LLP

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JOINT STIPULATION AND [PROPOSED] ORDER VOLUNTARILY DISMISSING PLAINTIFFS’ CLAIMS AGAINST THE BLOOMIN’
DEFENDANTS WITH PREJUDICE – CASE NO. 4:13-CV-05961-KAW

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Dated: September 22, 2014

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WOLF, RIFKIN, SHAPIRO, SCHULMAN &
RABKIN, LLP

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By:

/s/ Eric Levinrad
Eric Levinrad
Attorneys for Plaintiffs

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Dated: September 22, 2014

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LATHROP & GAGE LLP

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By:

/s/ Beth Schroeder
Beth Schroeder
Attorneys for Defendants T-Bird Restaurant Group, Inc.
and T-Bird Nevada, LLC

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[PROPOSED] ORDER
IT IS SO ORDERED.

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9/23/14
Dated: _________________________

____________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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Gibson, Dunn &
Crutcher LLP

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JOINT STIPULATION AND [PROPOSED] ORDER VOLUNTARILY DISMISSING PLAINTIFFS’ CLAIMS AGAINST THE BLOOMIN’
DEFENDANTS WITH PREJUDICE – CASE NO. 4:13-CV-05961-KAW

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DECLARATION OF FILER PURSUANT TO CIVIL LOCAL RULE 5-1(i)
I attest that concurrence in the filing of this stipulation has been obtained from each of the
other Signatories to this filing, as that term is defined in Civil Local Rule 5-1(i).

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Dated: September 22, 2014

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GIBSON, DUNN & CRUTCHER LLP

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By: /s/ Jesse A. Cripps
Jesse A. Cripps
Attorneys for Bloomin’ Brands, Inc.; OSI
Restaurant Partners, LLC; OS Restaurant Services,
LLC

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Gibson, Dunn &
Crutcher LLP

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JOINT STIPULATION AND [PROPOSED] ORDER VOLUNTARILY DISMISSING PLAINTIFFS’ CLAIMS AGAINST THE BLOOMIN’
DEFENDANTS WITH PREJUDICE – CASE NO. 4:13-CV-05961-KAW