Wadsworth et al v. KSL Grand Wailea Resort, Inc.

Filing 150

ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION re: 149 "Findings and Recommendation to Grant in Part and Deny in Part Plaintiffs Motion for Class Certification". Signed by JUDGE ALAN C KAY on 7/18/11. (eps) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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Plaintiffs,
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vs.
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KSL GRAND WAILEA RESORT,
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INC.; CNL RESORT LODGING
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TENANT CORP.; CNL GRAND
WAILEA RESORT, LP; MSR RESORT )
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LODGING TENANT, LLC; HILTON
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HOTELS CORPORATION;
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WALDORF-ASTORIA MANAGEMENT
LLC; and BRE/WAILEA LLC, dba )
GRAND WAILEA RESORT HOTEL & )
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SPA,
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Defendants.
_____________________________ )
NAN WADSWORTH, MARK APANA,
ELIZABETH VALDEZ KYNE, BERT
VILLON, and STEPHEN WEST, on
behalf of themselves and all
others similarly situated,

Civ. No. 08-00527 ACK-RLP

ORDER ADOPTING MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATION
The magistrate judge’s “Findings and Recommendation to
Grant in Part and Deny in Part Plaintiffs’ Motion for Class
Certification” (“F & R”) were filed and served on all parties on
June 27, 2011.

No party has filed an objection to the F & R, and

the Court cannot find clear error on the face of the record with
respect to these unobjected to findings and recommendation.

See

Stow v. Murashige, 288 F. Supp. 2d 1122, 1127 (D. Haw. 2003)
(“The court may accept those portions of the Magistrate Judge’s
findings and recommendation that are not objected to if it is
satisfied that there is no clear error on the face of the

record.”).1
Accordingly, IT IS HEREBY ORDERED AND ADJUDGED that,
pursuant to Title 28, United States Code, Section 636(b)(1)(C)
and Local Rule 74.2, the F & R are adopted as the opinion and
order of this Court.

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Several points are worth noting. First, Defendants’
argument that the proposed class inappropriately excludes
managerial employees is unpersuasive (H.R.S. § 481B-14 clearly
was not intended to include managerial employees). Also, the
collective bargaining agreement (“CBA”) governing Plaintiffs’
employment at the Hotel does not apply to managerial employees.
See Doc. No. 95, Ex. A at 3 (CBA). Accordingly, the claims now
asserted by “non-managerial food and beverage service employees”
and the potential claims by managerial employees would likely
present different legal and/or factual questions. In particular,
Defendants’ failure to distribute the total proceeds of its
service charges to non-managerial food and beverage service
employees arguably complies with the CBA (that is, this was not
simply according to “a policy and practice” as alleged in the
complaint and referred to in the F & R); although it may be
violative of the subject statute in the absence of any notice to
customers. The CBA was negotiated by Plaintiffs’ union on
Plaintiffs’ behalf several years after the subject statute was
enacted.
Second, Defendants have admitted that “Waldorf=Astoria
Management LLC” has managed the Hotel since January 31, 2006.
See Doc. No. 95, Bailey Decl. ¶¶ 2, 5. Although Plaintiffs
apparently dispute Defendants’ assertion that Hilton Hotels
Corporation has never managed the Hotel, it seems implausible
that both Waldorf=Astoria Management LLC and Hilton Hotels
Corporation simultaneously managed the Hotel during all or part
of the time period at issue. The Court encourages the parties to
settle this issue and, if possible, to stipulate to the dismissal
of Defendant Hilton Hotels Corporation.
Third, Plaintiffs should not be allowed to recover twice the
full amount to which they may be entitled; that is, in this
action as well as in the subject bankruptcy proceeding. The
Court has not been provided with the subject management agreement
between the Hotel’s manager and the Hotel, and accordingly is
unaware which organization, if any, may be ultimately liable in
the event service charges were inappropriately handled. The
Court notes that this may give rise to a conflict of interest.
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IT IS SO ORDERED.
Dated:

Honolulu, Hawai‘i, July 18, 2011.

________________________________
Alan C. Kay
Sr. United States District Judge

Wadsworth et al. v. KSL Grand Wailea Resort, Inc., et al., Civ. No. 08-00527
ACK-RLP: Order Adopting Magistrate Judge’s Findings and Recommendation.

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