Landon v. Ernst & Young LLP et al

Filing 90

ORDER by Judge Whyte denying 86 Motion for Leave to File a Motion for Class Certification. (rmwlc1, COURT STAFF) (Filed on 1/11/2012)

1
2
3
4

E-FILED on 1/11/2012

5
6
7
IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10
United States District Court
For the Northern District of California

8

SAN JOSE DIVISION

11
12

JOSEPH LANDON, individually and on behalf
of others similarly situated,

No. C-08-02853 RMW

13
Plaintiff,
14
v.
15
16
17
18

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.

19
20

Plaintiff Joseph Landon ("Landon") moves for leave to file a motion for class certification.

21

Defendant opposes the motion. Having considered the papers submitted by the parties, and for the

22

reasons set forth below, the court denies the motion.

23

I. BACKGROUND

24

This case is one of three actions brought against defendant Ernst & Young LLP ("Ernst &

25

Young") that were consolidated for purposes of class certification. The other two cases are Ho v.

26

Ernst & Young LLP, No. C-05-04867, and Richards v. Ernst & Young LLP, No. 08-04988. The

27

plaintiffs in each action allege violations of California's overtime laws and seek to assert claims on

28
ORDER DENYING MOTION FOR LEAVE TO FILE A MOTION FOR CLASS CERTIFICATION—No. C-08-02853 RMW
LJP

1

behalf of a class of similarly situated individuals who were employed in Ernst & Young's Tax group

2

or Assurance group.

3

The parties in Ho and Richards agreed that the three cases should be consolidated for the

4

purposes of a motion for class certification. They submitted the following proposal to the court:

5
6
7
8
9

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

10

See Dkt. No. 33 at 3. Landon filed a response to this proposal, stating he "is not opposed to

11

consolidation provided that an appropriate leadership structure is put into place." Id. While not

12

addressing the specific details of the parties' proposal, the court consolidated the three cases "for

13

class certification purposes only" on March 13, 2009. Dkt. No. 34.

14

Thereafter, counsel for Landon stipulated that plaintiffs counsel in Ho and Richards would

15

be interim lead counsel for the consolidated cases. Dkt. No. 43. The stipulation, adopted by the

16

court, provided that interim lead counsel "shall have the ultimate authority over all pre-certification

17

aspects of the consolidated actions." Id. at 2. However, interim lead counsel was also required to

18

"permit [Landon's counsel] to participate substantially and significantly in all matters regarding the

19

consolidated actions," including by recommending motions and discovery. Id. at 3.

20

The court set a deadline for plaintiffs to file the class certification motion, which was

21

ultimately continued to August 20, 2010. Ho, Dkt. No. 229. Interim lead counsel moved to certify a

22

class with Sarah Fernandez and Michelle Richards as class representatives and did not include

23

Landon as a proposed representative. Interim lead counsel sent a draft of the motion to Landon's

24

counsel, who provided extensive comments but did not indicate that he wanted to include Landon as

25

a potential class representative. Dkt. No. 87 (Declaration of H. Tim Hoffman) ¶ 3.

26

On September 20, 2011, the court granted in part and denied in part the motion for class

27

certification. Dkt. No. 297. The court found that Fernandez failed to meet the typicality

28

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
2

1

neither proposed representative was typical of persons who worked in entirely different positions.

2

The court certified a narrowed class of "staff" and "senior" employees in the Tax group, with

3

Richards as the sole representative.

4
5

II. ANALYSIS
Landon now moves for leave to file a class certification motion on behalf of employees in the

6

Assurance group, whom Fernandez had sought to represent. Landon argues that, unlike Fernandez,

7

his claims are typical of the class. Landon further argues that he did not previously have an

8

opportunity to seek certification and thus should now be permitted to file a short motion focused on

9

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

10

filing a new class certification motion based on his agreement and the court's orders.

11

While defendant overstates what Landon and his counsel agreed to, Landon did agree to the

12

interim lead counsel structure and was bound by the court's orders. If nothing else, Landon missed

13

the court's deadline for filing a motion for class certification; thus he must show good cause to

14

modify the schedule and permit his filing. See Fed. R. Civ. P. 16(b)(4); Johnson v. Mammoth

15

Recreations, Inc., 975 F.2d 604, 608-09 (9th Cir. 1992). Landon fails to meet that standard. There

16

is no evidence that Landon timely attempted to be included as a potential class representative.

17

Although not lead counsel, Landon's counsel nonetheless had the right to participate and provide

18

input in the class certification process, and it appears that he did so. At the same time, Landon never

19

indicated to lead counsel, defendant, or the court that he wished to be included in the class

20

certification motion.

21

Landon now argues that he did not have the authority to have himself included in the class

22

certification motion, nor did he have the ability to file a separate motion. Those facts have not

23

changed. But the time to act was when the original motion was filed, not now, more than a year

24

later. Landon did not diligently seek relief from the court for his supposed exclusion from the class

25

certification motion. Instead, he sat back and awaited the court's decision on Fernandez and

26

Richards. Now, having seen Fernandez's efforts fail, Landon seeks to step in and try again. This

27

"wait and see" approach was improper in light of the court's scheduling orders and the interim

28

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
3

1
2
3

III. ORDER
For the foregoing reasons, the court denies Landon's motion for leave to file a motion for
class certification.

4
5
6
7

DATED:

January 11, 2012
RONALD M. WHYTE
United States District Judge

8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ORDER DENYING MOTION FOR LEAVE TO FILE A MOTION FOR CLASS CERTIFICATION—No. C-08-02853 RMW
LJP
4