Landon v. Ernst & Young LLP et al
Filing
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ORDER by Judge Whyte denying 86 Motion for Leave to File a Motion for Class Certification. (rmwlc1, COURT STAFF) (Filed on 1/11/2012)
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E-FILED on 1/11/2012
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California
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SAN JOSE DIVISION
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JOSEPH LANDON, individually and on behalf
of others similarly situated,
No. C-08-02853 RMW
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Plaintiff,
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v.
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ERNST & YOUNG LLP, a limited liability
partnership; ERNST & YOUNG U.S. LLP, a
limited liability partnership; and DOES 1-100
inclusive,
ORDER DENYING MOTION FOR LEAVE
TO FILE A MOTION FOR CLASS
CERTIFICATION
[Re Docket No. 86]
Defendants.
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Plaintiff Joseph Landon ("Landon") moves for leave to file a motion for class certification.
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Defendant opposes the motion. Having considered the papers submitted by the parties, and for the
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reasons set forth below, the court denies the motion.
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I. BACKGROUND
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This case is one of three actions brought against defendant Ernst & Young LLP ("Ernst &
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Young") that were consolidated for purposes of class certification. The other two cases are Ho v.
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Ernst & Young LLP, No. C-05-04867, and Richards v. Ernst & Young LLP, No. 08-04988. The
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plaintiffs in each action allege violations of California's overtime laws and seek to assert claims on
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ORDER DENYING MOTION FOR LEAVE TO FILE A MOTION FOR CLASS CERTIFICATION—No. C-08-02853 RMW
LJP
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behalf of a class of similarly situated individuals who were employed in Ernst & Young's Tax group
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or Assurance group.
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The parties in Ho and Richards agreed that the three cases should be consolidated for the
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purposes of a motion for class certification. They submitted the following proposal to the court:
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Pursuant to Federal Rule of Civil Procedure 42(a)(1), the Fernandez, Landon, and
Richards actions shall be consolidated for the purposes of a motion for class
certification. The docket in Fernandez shall constitute the Master Docket and the file
in Fernandez shall constitute a Master File for every consolidated action until the
Court has made a ruling on any motion for class certification. A single motion for
class certification will be brought on behalf of all of the putative classes and/or
subclasses that each individual plaintiff seeks to represent. This Court’s ruling on that
single motion for class certification will be binding on all the putative classes and/or
subclasses that each individual plaintiff seeks to represent.
United States District Court
For the Northern District of California
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See Dkt. No. 33 at 3. Landon filed a response to this proposal, stating he "is not opposed to
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consolidation provided that an appropriate leadership structure is put into place." Id. While not
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addressing the specific details of the parties' proposal, the court consolidated the three cases "for
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class certification purposes only" on March 13, 2009. Dkt. No. 34.
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Thereafter, counsel for Landon stipulated that plaintiffs counsel in Ho and Richards would
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be interim lead counsel for the consolidated cases. Dkt. No. 43. The stipulation, adopted by the
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court, provided that interim lead counsel "shall have the ultimate authority over all pre-certification
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aspects of the consolidated actions." Id. at 2. However, interim lead counsel was also required to
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"permit [Landon's counsel] to participate substantially and significantly in all matters regarding the
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consolidated actions," including by recommending motions and discovery. Id. at 3.
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The court set a deadline for plaintiffs to file the class certification motion, which was
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ultimately continued to August 20, 2010. Ho, Dkt. No. 229. Interim lead counsel moved to certify a
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class with Sarah Fernandez and Michelle Richards as class representatives and did not include
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Landon as a proposed representative. Interim lead counsel sent a draft of the motion to Landon's
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counsel, who provided extensive comments but did not indicate that he wanted to include Landon as
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a potential class representative. Dkt. No. 87 (Declaration of H. Tim Hoffman) ¶ 3.
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On September 20, 2011, the court granted in part and denied in part the motion for class
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certification. Dkt. No. 297. The court found that Fernandez failed to meet the typicality
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requirement because Ernst & Young had defenses unique to her. The court further found that
ORDER DENYING MOTION FOR LEAVE TO FILE A MOTION FOR CLASS CERTIFICATION—No. C-08-02853 RMW
LJP
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neither proposed representative was typical of persons who worked in entirely different positions.
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The court certified a narrowed class of "staff" and "senior" employees in the Tax group, with
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Richards as the sole representative.
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II. ANALYSIS
Landon now moves for leave to file a class certification motion on behalf of employees in the
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Assurance group, whom Fernandez had sought to represent. Landon argues that, unlike Fernandez,
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his claims are typical of the class. Landon further argues that he did not previously have an
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opportunity to seek certification and thus should now be permitted to file a short motion focused on
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the typicality and adequacy requirements of Rule 23. Defendant argues that Landon is barred from
United States District Court
For the Northern District of California
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filing a new class certification motion based on his agreement and the court's orders.
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While defendant overstates what Landon and his counsel agreed to, Landon did agree to the
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interim lead counsel structure and was bound by the court's orders. If nothing else, Landon missed
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the court's deadline for filing a motion for class certification; thus he must show good cause to
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modify the schedule and permit his filing. See Fed. R. Civ. P. 16(b)(4); Johnson v. Mammoth
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Recreations, Inc., 975 F.2d 604, 608-09 (9th Cir. 1992). Landon fails to meet that standard. There
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is no evidence that Landon timely attempted to be included as a potential class representative.
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Although not lead counsel, Landon's counsel nonetheless had the right to participate and provide
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input in the class certification process, and it appears that he did so. At the same time, Landon never
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indicated to lead counsel, defendant, or the court that he wished to be included in the class
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certification motion.
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Landon now argues that he did not have the authority to have himself included in the class
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certification motion, nor did he have the ability to file a separate motion. Those facts have not
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changed. But the time to act was when the original motion was filed, not now, more than a year
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later. Landon did not diligently seek relief from the court for his supposed exclusion from the class
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certification motion. Instead, he sat back and awaited the court's decision on Fernandez and
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Richards. Now, having seen Fernandez's efforts fail, Landon seeks to step in and try again. This
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"wait and see" approach was improper in light of the court's scheduling orders and the interim
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leadership structure. Thus, there is no basis to now allow a second class certification motion.
ORDER DENYING MOTION FOR LEAVE TO FILE A MOTION FOR CLASS CERTIFICATION—No. C-08-02853 RMW
LJP
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III. ORDER
For the foregoing reasons, the court denies Landon's motion for leave to file a motion for
class certification.
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DATED:
January 11, 2012
RONALD M. WHYTE
United States District Judge
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United States District Court
For the Northern District of California
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ORDER DENYING MOTION FOR LEAVE TO FILE A MOTION FOR CLASS CERTIFICATION—No. C-08-02853 RMW
LJP
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