Wadsworth et al v. KSL Grand Wailea Resort, Inc.
Filing
218
ORDER DENYING DEFENDANTS' MOTION TO VACATE re 193 Motion to Vacate. Signed by JUDGE ALAN C KAY on 09/26/2014. The Court DENIES Defendants' Motion to Vacate Order Granting Partial Summary Judgment on Lia bility for In-Room Dining Service Charges. The Court also DENIES Defendants' Motion to Strike. Finally, pursuant to Federal Rule of Civil Procedure 60(a), the Court hereby AMENDS its July 18, 2011 Order Adopting Magistrate Judges Find ings and Recommendation as stated herein (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
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
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
KSL GRAND WAILEA RESORT, INC.;
)
CNL RESORT LODGING TENANT CORP.; )
CNL GRAND WAILEA RESORT, LP; MSR )
RESORT LODGING TENANT, LLC;
)
HILTON HOTELS CORPORATION;
)
WALDORF-ASTORIA MANAGEMENT LLC; )
and BRE/WAILEA LLC; dba GRAND
)
WAILEA RESORT HOTEL & SPA,
)
)
Defendants.
)
)
ORDER DENYING DEFENDANTS’ MOTION TO VACATE
For the following reasons, the Court hereby DENIES
Defendants’ Motion to Vacate the Order Granting Partial Summary
Judgment on Liability for In-Room Dining Service Charges.
FACTUAL BACKGROUND1/
Plaintiffs Nan Wadsworth, Elizabeth Valdez Kyne, Bert
Villon, and Stephen West (“Plaintiffs”) brought suit on behalf
of a similarly situated class against a number of different
1/
The facts as recited in this Order are for the purpose of
disposing of the current motion and are not to be construed as
findings of fact that the parties may rely on in future
proceedings.
entities that have owned and operated the Grand Wailea Resort
Hotel & Spa (“Grand Wailea Resort” or “Hotel”) in Maui during the
applicable statute of limitations period. (Second Am. Compl.
¶¶ 4-6.) Defendants include MSR Resort Lodging Tenant, LLC, KSL
Grand Wailea Resort, Inc., Hilton Hotels Corp. (“Hilton”),
Waldorf-Astoria Management LLC (“Waldorf-Astoria”), CNL Grand
Wailea Resort, LP, and CNL Lodging Tenant Corp.2/ (Id. ¶¶ 6–8.)
Plaintiffs have all worked as food and beverage servers for
Defendants. (Id. ¶ 3.)
Plaintiffs’ Second Amended Complaint alleges that the
Grand Wailea Resort provides food and beverage services
throughout the Hotel, including in its banquet department, its
restaurants, and through room service. (Id. ¶ 5.) Plaintiffs
allege that Defendants have added a preset service charge to
customers’ bills for food and beverage served at the Hotel, but
that Defendants have not remitted the total proceeds of the
service charge as tip income to the employees who serve the food
and beverages. (Id. ¶¶ 9–10.) Instead, Plaintiffs allege that the
Defendants have had a policy and practice of retaining for
themselves a portion of these service charges (or using it to pay
2/
Plaintiffs also brought suit against Grand Wailea
Resort’s operator at the time the Second Amended Complaint was
filed, BRE/Wailea, LLC (“BRE/Wailea”). (Second Am. Compl. ¶ 6.)
The parties subsequently stipulated to the dismissal of all
claims against BRE/Wailea, which this Court approved and ordered
on April 28, 2009. (Doc. No. 67.)
2
managers or other non-tipped employees who do not serve food and
beverages), without disclosing to the Hotel’s customers that the
service charges are not remitted in full to the employees who
serve the food and beverages. (Id. ¶¶ 11-12.)
Plaintiffs’ Second Amended Complaint asserts five
counts. As a result of the Court’s ruling on a previous motion to
dismiss, the following counts remain: Count II, in which
Plaintiffs allege that Defendants’ conduct constitutes unlawful
intentional interference with contractual and/or advantageous
relations; Count III, in which Plaintiffs allege that Defendants’
conduct constitutes a breach of an implied contract between
Defendants and Defendants’ customers, of which Plaintiffs are
third party beneficiaries3/; Count IV, in which Plaintiffs allege
that Defendants have been unjustly enriched at Plaintiffs’
expense under state common law; and Count V, in which Plaintiffs
allege that as a result of Defendants’ conduct, they have been
deprived of income that constitutes wages, which is actionable
under Haw. Rev. Stat. §§ 388–6, 388–10, and 388–11.
PROCEDURAL BACKGROUND
On November 24, 2008, Plaintiffs filed a Class Action
Complaint. (Doc. No. 1.) On January 29, 2009, Plaintiffs filed an
3/
In Count III, Plaintiffs also asserted that Defendants
breached an implied contract between Plaintiffs and Defendants.
In a prior ruling, the Court dismissed this portion of Count III
as preempted under federal labor law. See 2010 WL 5146521 (Doc.
No. 118).
3
Amended Class Action Complaint.4/ (Doc. No. 19.) On July 9, 2009,
the Court stayed this case in light of Judge Gillmor’s
certification to the Hawaii Supreme Court of a question of law
that was also important to the instant case.5/ (See Doc. No. 71.)
The Hawaii Supreme Court answered the certified question on March
29, 2010. See Davis v. Four Seasons Hotel Ltd., 228 P.3d 303
(Haw. 2010). Accordingly, on April 19, 2010, Plaintiffs filed a
motion to lift the stay and a motion to file a second amended
complaint. (Doc. Nos. 73 & 74.) The Magistrate Judge granted both
motions on June 22, 2010. (Doc. No. 89.) Plaintiffs filed their
Second Amended Complaint on June 28, 2010. (Doc. No. 93.)
On July 20, 2010, Defendants filed a Motion to Dismiss
Second Amended Complaint. (Doc. No. 95.) On December 10, 2010,
4/
There were a number of similar cases filed in this
district court, and on January 23, 2009, Plaintiffs moved to
consolidate or alternatively for assignment of all the related
cases to one judge pursuant to Local Rule 40.2. (Doc. No. 16.) On
April 8, 2009, this Court adopted the Magistrate Judge’s Findings
and Recommendation that the similar cases not be consolidated.
2009 WL 975769 (Doc. No. 56).
5/
Judge Gillmor certified the following question:
Where plaintiff banquet server employees allege
that their employer violated the notice provision
of H.R.S. § 481B–14 by not clearly disclosing to
purchasers that a portion of a service charge was
used to pay expenses other than wages and tips of
employees, and where the plaintiff banquet server
employees do not plead the existence of
competition or an effect thereon, do the plaintiff
banquet server employees have standing under
H.R.S. § 480–2(e) to bring a claim for damages
against their employer?
4
the Court granted the motion with respect to Count I, Plaintiffs’
unfair methods of competition claim, without prejudice, and Count
III, in so far as it alleged a breach of an implied contract
between Plaintiffs and Defendants. 2010 WL 5146521 (Doc. No.
118).
On March 25, 2011, Plaintiffs filed a Motion to Certify
Class.6/ (Doc. No. 126.) On June 27, 2011, Magistrate Judge
Puglisi issued his Findings and Recommendations to Grant in Part
and Deny in Part Plaintiff’s Motion for Class Certification.
(Doc. No. 149.) Neither party objected to the Magistrate Judge’s
Findings and Recommendation, and on July 18, 2011, the Court
adopted it, certifying the class as “all non-managerial food and
beverage employees who, from January 31, 2006 to the present,
have worked at banquets, functions, other events, and small
parties, where a service charge was imposed and where a part of
that service charge was kept by the Defendants or management
without adequate disclosure to customers” as to the non-debtor
Defendants Hilton and Waldorf-Astoria (together “Defendants”).7/
6/
On April 1, 2011, Defendants filed a Suggestion of
Bankruptcy for MSR Golf Course LLC, et al., which acted to stay
proceedings against all Defendants except Hilton and WaldorfAstoria. (Doc. No. 128.) Defendants CNL Grand Wailea Resort, LP,
CNL Resort Lodging Tenant Corp., and KSL Grand Wailea Resort,
Inc. are each a subsidiary or affiliate of MSR Resort Golf Course
LLC. (See Doc. No. 128.)
7/
Plaintiffs requested that the class be defined as “all
non-managerial food and beverage service employees who, since
(continued...)
5
(Doc. Nos. 149 & 150.)
On June 1, 2011, Plaintiffs filed a Motion for Partial
Summary Judgment (“Plaintiffs’ Motion for Summary Judgment”)
(Doc. No. 143,) and Defendants filed a Motion to Dismiss Count V
of the Second Amended Class Action Complaint or to Certify the
Question to the Hawaii Supreme Court (Doc. No. 146.) On December
2, 2011, the Court issued its Order Granting in Part and Denying
in Part Plaintiffs’ Motion for Partial Summary Judgment, in which
the Court granted summary judgment as to Defendants’ liability
with respect to service charges imposed on food and beverages
purchased via room service. See 2011 WL 6030074 (“12/2/11
Order”). Defendants did not seek reconsideration or file an
appeal of the 12/2/11 Order.
Also on December 2, 2011, the Court issued its Order
Denying Defendants’ Motion to Dismiss Count V, Granting
Defendants’ Request to Stay Proceedings as Modified, and
Administratively Closing this Case, in which the Court, inter
alia, stayed all proceedings in the instant case pending a
decision by the Hawaii Supreme Court on a question of law
7/
(...continued)
November 24, 2002 have worked at banquets, functions, other
events, and small parties, where a service charge was imposed and
where a part of that service charge was kept by the Defendants or
management without adequate disclosure to customers.” (Doc. No.
126.) Hilton and Waldorf-Astoria, however, did not manage the
Hotel prior to January 31, 2006. (See Doc. No. 149.)
6
certified to it by Judge Kobayashi.8/
On August 1, 2013, Plaintiffs notified the Court of the
Hawaii Supreme Court’s decision and, pursuant to Plaintiffs’
request, the Court lifted the stay and reopened the case. (Doc.
Nos. 168, 169.) On July 2, 2014, Defendants filed a Motion to
Vacate Order on Motion for Partial Summary Judgment. (Doc. No.
193.) On the same day, Defendants filed a Motion to Decertify the
Class. (Doc. No. 192.) On September 2, 2014, Plaintiffs filed
their memoranda in opposition to the two motions.9/ (Doc. Nos.
8/
As was relevant in this case, Judge Kobayashi certified
the following question: “May food or beverage service employees
of a hotel or restaurant bring a claim against their employer
based on alleged violation of Haw. Rev. Stat. § 481B–14 by
invoking Haw. Rev. Stat. §§ 388–6, 388–10, and 388–11 and without
invoking Haw. Rev. Stat. §§ 480–2 or 480–13?” Villon v. Marriot
Hotel Services, Inc., CV–08–00529 LEK–RLP, Doc. No. 130 (Oct. 12,
2011) (Doc. No. 130).
9/
On the same day, Defendants filed a Motion to Strike the
Memoranda in Opposition for Untimely Filing. (Doc. No. 207.) In
their Motion to Strike, Defendants note that, because the due
date of Plaintiffs’ oppositions fell on the Labor Day holiday,
under Local Rule 6.1, they technically became due on the prior
Friday, August 29, 2014. Defendants do not, however, suggest that
they were prejudiced by this brief delay and, indeed, this Court
has previously noted that “[a]lthough any tardiness is
discouraged (and, indeed, prohibited), a one-day delay is hardly
epochal . . . .” Epileptic Found. v. City and Cnty. of Maui, 300
F. Supp. 2d 1003, 1005 n.3 (D. Haw. 2003). Moreover, the Court
notes that Defendants themselves violated the Local Rules in this
case by failing to file courtesy copies of their motions papers
until prompted to do so by the Court several months after they
were filed. See Local Rule 7.7 (requiring that two courtesy
copies of, inter alia, motions be mailed to the Court no later
than the business day following the date the document was filed).
Because, in this case, there is no conceivable prejudice
associated with Plaintiffs’ honest mistake regarding the Local
(continued...)
7
205, 206.) Defendants filed their replies on September 8, 2014.
(Doc. Nos. 211, 212.)
The hearing on the motions was held on September 22,
2014. The Court will address the Motion to Decertify the Class in
a separate order.
DISCUSSION
In the instant motion, Defendants seek to vacate the
Court’s December 2, 2011 Order insofar as it granted summary
judgment as to Defendants’ liability with respect to service
charges imposed on food and beverages purchased via room service.
Defendants assert that this portion of the 12/2/11 Order must be
vacated as void pursuant to Federal Rule of Civil Procedure
60(b)(4) because the Plaintiffs lacked standing to litigate
Defendants’ liability as to in-room dining service charges.10/
9/
(...continued)
Rules’ treatment of court holidays, the Court DENIES Defendants’
Motion to Strike.
10/
Plaintiffs argue that, while Defendants purport to bring
the instant Motion pursuant to Rule 60(b)(4), it is really an
improper attempt to persuade the Court to reconsider its prior
order under Rule 59(e). (Opp’n at 11.) Under Federal Rule of
Civil Procedure 59(e), a party may ask a court to reconsider and
amend a previous order on one of three grounds: (1) an
intervening change in controlling law; (2) the availability of
new evidence; or (3) the need to correct clear error or prevent
manifest injustice. White v. Sabatino, 424 F. Supp. 2d 1271, 1274
(D. Haw. 2006). A Rule 59(e) motion may not be used to raise
arguments for the first time when they could reasonably have been
raised earlier in the litigation, and mere disagreement with a
previous order is an insufficient basis for reconsideration under
Rule 59(e). Id. Here, Defendants clearly do not meet the standard
(continued...)
8
(Mot. at 1).
Rule 60(b) of the Federal Rules of Civil Procedure
provides an “exception to finality,” that “allows a party to seek
relief from a final judgment . . . under a limited set of
circumstances.” Gonzalez v. Crosby, 545 U.S. 524, 528-29 (2005).
Specifically, Rule 60(b)(4) — the provision under which
Defendants bring the instant motion — authorizes the Court to
relieve a party from a final judgment if “the judgment is void.”
“A void judgment is one so affected by a fundamental
infirmity that the infirmity may be raised even after the
judgment becomes final.” United Student Aid Funds, Inc. v.
Espinosa, 559 U.S. 260, 270 (2010) (citing Restatement (Second)
of Judgments 22 (1980)). The list of such qualifying
“infirmities” is “exceedingly short.” Id. Thus, “[a] judgment is
not void, for example, simply because it is or may have been
erroneous.” Id.; see also United States v. Berke, 170 F.3d 882,
883 (9th Cir. 1999). Similarly, a motion under Rule 60(b)(4) is
not a substitute for a timely appeal. Espinosa, 559 U.S. at 270.
Rather, Rule 60(b)(4) applies “only in the rare instance where a
judgment is premised either on a certain type of jurisdictional
10/
(...continued)
for Rule 59(e) reconsideration. The Court acknowledges that
Defendants, in the instant Motion, appear to seek what amounts to
an improper Rule 59(e) reconsideration of this Court’s 12/2/11
Order; however, because Defendants assert their entitlement to
relief under Rule 60(b)(4), the Court will analyze the Motion
pursuant to that provision.
9
error or on a violation of due process that deprives a party of
notice or the opportunity to be heard.” Id. at 271.
Here, the “error” Defendants allege falls into the
first category - a jurisdictional error. Federal courts
considering Rule 60(b)(4) motions that assert a judgment is void
because of a jurisdictional defect generally have reserved relief
only for the exceptional case in which the court that rendered
judgment lacked even an “arguable basis” for jurisdiction. Id.;
see also United States v. Boch Oldsmobile, Inc., 909 F.2d 657,
661–662 (1st Cir. 1990) (“[T]otal want of jurisdiction must be
distinguished from an error in the exercise of jurisdiction, and
... only rare instances of a clear usurpation of power will
render a judgment void”); Kansas City Southern Ry. Co. v. Great
Lakes Carbon Corp., 624 F.2d 822, 825 (8th Cir.), cert. denied,
449 U.S. 955 (1980) (“[P]lain usurpation of power occurs when
there is a ‘total want of jurisdiction’ as distinguished from ‘an
error in the exercise of jurisdiction.’”).
Thus, the question before the Court is whether there is
any colorable basis upon which to conclude that the Plaintiffs
had standing to bring a claim based on in-room dining service
charges. The doctrine of standing encompasses both constitutional
and prudential limitations on federal court jurisdiction. Here,
Defendants assert that Plaintiffs did not satisfy the
constitutional requirement of redressability, or that the alleged
10
injury will be redressed by a favorable decision. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Specifically,
Defendants argue that, because no named plaintiff worked as an
in-room server, and because the class definition did not
explicitly reference in-room servers, the Plaintiffs cannot
demonstrate that their injuries may be redressed by the Court’s
decision regarding the in-room dining service charges. (Mot. at
8.)
As an initial matter, as to the class definition, on
July 18, 2011, the Court certified the class as “all
non-managerial food and beverage employees who, from January 31,
2006 to the present, have worked at banquets, functions, other
events, and small parties, where a service charge was imposed and
where a part of that service charge was kept by the Defendants or
management without adequate disclosure to customers.” (Doc. Nos.
149, 150.) Defendants did not argue in opposition to Plaintiffs’
Motion for Class Certification that in-room dining should be
excluded from the class, (see Doc. No. 135,) and they likewise
did not object to the Magistrate Judge’s Findings and
Recommendation regarding class certification. While the class
definition does not explicitly use the term “in-room dining,” it
also does not cabin the class only to those food and beverage
employees who worked in the specific locations of banquet halls
or hotel ballrooms but not in other areas of the hotel. Rather,
11
the class as defined encompasses all non-managerial employees who
worked as food and beverage servers at the enumerated and “other
events” during the class period. This includes those who worked
as servers in hotel rooms. (See Opp’n, Ex. 1 (Aff. of Steven
Lawrence) at ¶¶ 1-4 (noting that in-room dining servers perform
the same work as servers at banquets, weddings, and conventions,
the only difference being that in-room dining servers work at
smaller functions located in rooms and suites).) Moreover, both
the Second Amended Complaint and Plaintiffs’ Motion for Class
Certification specifically state that in-room dining servers are
included in the proposed class. (See Second Amended Compl. ¶ 17;
Pl.’s Mot. for Class Certification (Doc. No. 126) at 1.)
The claims common to the certified class turn not on
the location in which food and beverage service was provided, or
the department in which individual class members worked, but on
the fact that all of the class members worked as food and
beverage servers at events where Defendants allegedly withheld
service charges without sufficiently disclosing that they were
doing so. (See Second Amended Compl. ¶ 17; Pl.’s Mot. for Class
Certification (Doc. No. 126) at 1; Findings and Recommendation
Re: Certification (Doc. No. 149) at 7-10; Pl.’s Mot. for Partial
Summary Judgment (Doc. No. 145) at 2-3). Thus, the Court
concludes that the class definition includes those food and
12
beverage servers who provided in-room dining services.11/
Having concluded that in-room dining is encompassed in
the class definition, the Court turns to the issue of whether the
Court had any arguable basis for concluding that Plaintiffs had
standing at the time the Court issued its 12/2/11 Order.
Undoubtedly, the Court did. Defendants contest Plaintiffs’
standing on redressability grounds. The injury Plaintiffs allege
is the loss of the portion of the service charge that Defendants
11/
This should come as no surprise (and no prejudice) to
Defendants, who, until recently, appeared to share the Court’s
view that in-room dining was included in the class definition.
Indeed, in their memoranda in opposition to Plaintiffs’ Motion
for Class Certification and Motion for Partial Summary Judgment,
Defendants made no argument that in-room dining should not be or
was not included in the class definition. (See generally Doc.
Nos. 135, 155.) Significantly, Defendants filed their memorandum
in opposition to Plaintiffs’ Motion for Partial Summary Judgment
on October 24, 2011, several months after the class had been
certified; yet, Defendants made no argument that in-room dining
was not a part of the class and, thus, not properly subject to
summary judgment. (See Doc. No. 155.) This was notwithstanding
the fact that Plaintiffs specifically sought summary judgment as
to Defendants’ liability for the in-room dining service charges.
(See Doc. Nos. 144, 145.) Similarly, Defendants did not object to
the Magistrate Judge’s Finding and Recommendation to Certify the
Class, and they agreed to the Stipulated Form Notice of Class
Action Lawsuit, which expressly referenced “room service” servers
as part of the class. (Doc. No. 151, Ex. A at 1.) Indeed,
Defendants themselves responded to Plaintiffs’ First Request for
Production of Documents by producing to Plaintiffs, among other
documents, room service menus and checks. (See Opp’n, Ex. 2.)
Indeed, in light of the fact that Defendants are only making this
argument now, on the eve of trial and over two years after the
Court issued its 12/2/11 Order, when the only thing that has
changed in the intervening years is that Defendants have obtained
new legal counsel, it appears to be a transparent attempt by
Defendants’ new counsel to revisit issues long settled in the
instant litigation.
13
allegedly withheld without proper disclosure. As discussed above,
this includes the injury suffered by those food and beverage
employees who worked at in-room dining events. Plaintiffs seek as
a remedy, inter alia, an award of the unpaid service charges
(Second Amended Compl. at 11.) Thus, those class members who
worked at in-room dining events clearly stand to have their
alleged harms redressed by this litigation: should they prevail,
they will recover the service charge amounts that were allegedly
wrongfully withheld. See, e.g., Bates v. United Parcel Service,
Inc., 511 F.3d 974, 985 (9th Cir. 2007) (stating that, to show
redressability, plaintiffs must show “only that a favorable
decision is likely to redress their injuries” (internal quotation
marks omitted)). The Plaintiff class therefore clearly has
standing to prosecute claims for in-room dining service charges.
The fact that none of the named plaintiffs worked at
in-room dining events does not alter this conclusion. The named
plaintiffs’ claims and the claims of all other class members,
including those who worked in-room dining, all arise from the
Defendants’ alleged collection of service charges for food and
beverage services without the required disclosures to customers.
(See generally Second Amended Compl.) Plaintiffs’ claims, and the
relief they seek, are the same regardless of where the food and
beverage service took place. Thus, the fact that the named
plaintiffs performed food and beverage service in hotel locations
14
other than hotel rooms is inconsequential to the issue of
redressability, and does not render the named plaintiffs unable
to adequately represent the plaintiff class. Indeed, this
district court has confirmed as much in a number of the other
service charge cases brought in this district. See Davis v. Four
Seasons Hotel Ltd., 277 F.R.D. 429, 437 (D. Haw. 2011), report
and recommendation adopted, Civ. No. 08-00525 HG-BMK, 2011 WL
4590393 (D. Haw. Sept. 30, 2011) (“The Court recognizes that
Plaintiffs were employed by Defendant as banquet servers and a
banquet captain, and there are no named plaintiffs who were
employed by Defendant as, for example, a room service staff
member. . . . This, however, does not defeat typicality because,
as mentioned above, the named plaintiffs’ claims do not have to
be identical or substantially identical to the claims of all of
the class members.”); Villon v. Marriott Hotel Services, Inc.,
Civ. No. 08-00529 LEK-RLP, 2011 WL 2160483, at *16 (D. Haw. May
31, 2011) (“The Court recognizes that the named Plaintiffs both
worked for the Resort as banquet servers; there is no named
Plaintiff who worked for the Resort as a bartender. . . . This
does not defeat typicality because the named Plaintiffs’ claims
do not have to be identical to the claims of all the class
members. Further, the servers’ and the bartenders’ claims arise
from the same general fact pattern and rely on the same legal
theories.”).
15
Moreover, the Ninth Circuit has stated that class
representatives’ claims must be “reasonably co-extensive with
those of absent class members; they need not be substantially
identical.” Rodriguez v. Hayes, 591 F.3d 1105, 1124 (9th Cir.
2009) (citation and internal quotation marks omitted); see also
Gurrobat v. HTH Corporation et al., 323 P.3d 792, 806 (Haw. 2014)
(concluding that the named plaintiff was a sufficient class
representative because the legal and factual bases underlying his
claims were “coextensive with those of all other class members,”
notwithstanding the fact that he did not work at one of the two
hotels alleged to have illegally withheld service charges). Thus,
notwithstanding Defendants’ arguments to the contrary, there is
no requirement here that Plaintiffs include a named plaintiff
from each department (including in-room dining) in order to
adequately represent the class.
In sum, Defendants have failed to demonstrate that this
Court “lacked even an arguable basis for jurisdiction” at the
time of the 12/2/11 Order, as required by Rule 60(b)(4). See
Espinoza, 559 U.S. at 271. As the Supreme Court has emphasized, a
motion under Rule 60(b)(4) “is not a substitute for a timely
appeal.” Id. at 270. Defendants, who failed to timely appeal this
Court’s 12/2/11 Order, cannot attempt to do so now through the
instant Rule 60(b)(4) motion.
As a final matter, the Court notes that, in light of
16
the instant Motion, there appears to be some current confusion as
to the scope of the class definition. As discussed above, the
class definition was clearly intended to include those food and
beverage servers who provided in-room dining services, and in any
event, in-room dining would fall under “other events” in the
definition. This was the Court’s intention and the parties’
understanding at the time the class was originally certified.
Indeed, as noted above, the Court and the parties proceeded in
this litigation under the understanding that in-room dining was
included in the class definition for over two years. (See Doc.
No. 126 (Mot. to Certify) at 1; Doc. No. 135 (Def.’s Opp’n to
Mot. to Certify); Doc. No. 151, Ex. A (Stipulated Form Notice of
Class Action Lawsuit) at 1; Doc. No. 145 (Pl.’s Mot. for Partial
Summary Judgment) at 12; Doc. No. 155 (Def.’s Opp’n to Pl.’s Mot.
for Partial Summary Judgment); Doc. No. 157 (Pl.’s Reply in Supp.
of Mot. for Partial Summary Judgment) at 3; Doc. No. 161 (Trans.
of Hearing on Mot. for Partial Summary Judgment) at 63, 66, 8283, 86; Doc. No. 163 (12/2/11 Order) at 20).
Nevertheless, because there appears to be some current
confusion in light of the inadvertent omission of the term “inroom dining” from the class definition, the Court elects, under
Federal Rule of Civil Procedure 60(a), to correct this omission
here.
Federal Rule of Civil Procedure 60(a), titled
17
“Corrections Based on Clerical Mistakes; Oversights and
Omissions,” states:
The court may correct a clerical mistake or a
mistake arising from oversight or omission
whenever one is found in a judgment, order, or
other part of the record. The court may do so on
motion or on its own, with or without notice. But
after an appeal has been docketed in the appellate
court and while it is pending, such a mistake may
be corrected only with the appellate court's
leave.
The Ninth Circuit has made clear that “Rule 60(a)’s
touchstone is fidelity to the intent behind the original
judgment.” Garamendi v. Henin, 683 F.3d 1069, 1078 (9th Cir.
2012). Thus, a court may invoke Rule 60(a) “in order to make a
judgment reflect the actual intentions of the court . . .” Id.
(quoting Blanton v. Anzalone, 813, F.2d 1574, 1577 (9th Cir.
1987)). Rule 60(a) is not, however, “limited to situations in
which a judgment clearly misrepresents what the court meant to
state. A district court may also invoke Rule 60(a) to resolve an
ambiguity in its original order to more clearly reflect
contemporaneous intent and ensure that the court’s purpose is
fully implemented.” Id. (quoting 12 James W. Moore, Moore’s
Federal Practice § 60.11[1][c] (2011)).
Here, in light of the instant Motion and in an
abundance of caution, the Court elects to exercise its authority
under Rule 60(a) to amend the class definition to clarify that,
pursuant to the Court’s original intention and the parties’
18
understanding at the time, the definition includes in-room
dining. The Court’s July 18, 2011 Order Adopting Magistrate
Judge’s Findings and Recommendation, (Doc. No. 150,) is therefore
amended as follows. The Court will insert the following language
after the final paragraph of the Order:
The Court CERTIFIES the following class,
as amended: all non-managerial food and beverage
employees who, from January 31, 2006 to the
present, have worked at banquets, functions, other
events, in-room dining, and small parties, where a
service charge was imposed and where a part of
that service charge was kept by the Defendants or
management without adequate disclosure to
customers.
The Court notes that this alteration of the original
certification Order is for the purpose of clarifying the class
definition to more adequately articulate the Court’s intention at
the time that Order was issued. This modification in no way
alters the parties’ rights or the Court’s substantive decision
regarding class certification.
CONCLUSION
For the foregoing reasons, the Court DENIES Defendants’
Motion to Vacate Order Granting Partial Summary Judgment on
Liability for In-Room Dining Service Charges. The Court also
DENIES Defendants’ Motion to Strike.
Finally, pursuant to Federal Rule of Civil Procedure
60(a), the Court hereby AMENDS its July 18, 2011 Order Adopting
Magistrate Judge’s Findings and Recommendation as stated herein.
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IT IS SO ORDERED.
DATED:
Honolulu, Hawaii, September 26, 2014.
________________________________
Alan C. Kay
Senior United States District Judge
Wadsworth v. KSL Grand Wailea Resort, Inc., et al., Civ. No. 08-00527 ACK-RLP,
Order Denying Defendants’ Motion to Vacate.
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