Kyne v. Ritz-Carlton Hotel Company, LLC, The
Filing
93
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS re 91 "Findings and Recommendation to Grant Plaintiffs' Motion for Class Certification". Signed by JUDGE ALAN C KAY on 5/18/11. (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
ELIZABETH VALDEZ KYNE, CHAD
KRUZIC, and ADAM BOROWIEC, on
behalf of themselves and all
others similarly situated,
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Plaintiffs,
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vs.
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THE RITZ-CARLTON HOTEL
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COMPANY, L.L.C., dba THE
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RITZ-CARLTON, KAPALUA,
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Defendant.
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_____________________________ )
Civ. No. 08-00530 ACK-RLP
ORDER ADOPTING MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATION
The magistrate judge’s “Findings and Recommendation to
Grant 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
1
Two points are worth noting. First, Defendant’s 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 Ritz-Carlton, Kapalua, does not apply to managerial
employees. See Doc. No. 47, Ex. C at 5; Id. Ex. D at 4-5.
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.
IT IS SO ORDERED.
Dated:
Honolulu, Hawai‘i, July 18, 2011.
________________________________
Alan C. Kay
Sr. United States District Judge
Kyne et al. v. The Ritz-Carlton Hotel Company, L.L.C., Civ. No. 08-00530 ACKRLP: Order Adopting Magistrate Judge’s Findings and Recommendation.
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, Defendant’s failure to
distribute the total proceeds of its service charges to nonmanagerial 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 after the subject
statute was enacted.
Second, the Court notes that the F & R erroneously suggests
that Plaintiffs’ H.R.S. § 481B-14 claim has been dismissed. See
F & R at 12. Defendant’s motion to dismiss the complaint filed
June 28, 2010 (which includes the § 481B-14 claim) is not
scheduled to be heard until October 31, 2011. Nonetheless, it is
clear that the F & R’s misstatement does not affect any of the
F & R’s conclusions.
2
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