Rodriguez et al v. Starwood Hotels & Resorts Worldwide, Inc.

Filing 135

ORDER REQUESTING COMMENT ON PROPOSED CERTIFIED QUESTIONS TO THE HAWAI'I SUPREME COURT; EXHIBIT "A": " The parties shall file their comments to the proposed Certified Questions by October 5, 2011. If no responses are filed, the Court will proceed with the Certified Questions as written. After the Certified Questions are filed, the Court intends to issue a separate order staying and administratively closing this action. IT IS SO ORDERED." Signed by District JUDGE LE SLIE E. KOBAYASHI on September 22, 2011. (bbb, )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
RENELDO RODRIGUEZ and
JOHNSHAWN BASLER, on behalf
of themselves and all others
similar situated,

)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
)
STARWOOD HOTELS & RESORTS
)
WORLDWIDE, INC., DBA WESTIN
)
MAUI RESORT & SPA,
)
)
Defendant.
_____________________________ )

CIVIL NO. 09-00016 LEK-RLP

ORDER REQUESTING COMMENT ON PROPOSED CERTIFIED
QUESTIONS TO THE HAWAI`I SUPREME COURT; EXHIBIT “A”
In each case, this Court has issued an order
administratively terminating, without prejudice, the parties’
dispositive motions in light of the Court’s decision to certify
case-dispositive questions of state law to the Hawai`i Supreme
Court.

[Villon, et al. v. Marriott Hotel Servs., Inc., CV 08-

00529 LEK-RLP, filed 9/8/11 (dkt. no. 125); Rodriguez, et al. v.
Starwood Hotels & Resorts Worldwide, Inc., CV 09-00016 LEK-RLP,
filed 9/8/11 (dkt. no. 134).]
Attached as Exhibit A is the Court’s proposed order “Certified Questions to the Hawai`i Supreme Court from the United
States District Court for the District of Hawai`i in Civ. No. 0800529 LEK-RLP and Civ. No. 09-00016 LEK-RLP” (“Certified

Questions”).1

The parties may comment on form of the proposed

Certified Questions, the phrasing of the questions, and whether
there are any other dispositive questions of state law that the
Court should certify.

The Court emphasizes that it is not

inviting the parties to raise substantive challenges to the
Court’s orders administratively terminating the dispositive
motions, including the decision to certify questions.
The parties shall file their comments to the proposed
Certified Questions by October 5, 2011.

If no responses are

filed, the Court will proceed with the Certified Questions as
written.

After the Certified Questions are filed, the Court

intends to issue a separate order staying and administratively
closing this action.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, September 22, 2011.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
RENELDO RODRIGUEZ, ET AL. V. STARWOOD HOTELS & RESORTS WORLDWIDE,
INC.; CIVIL NO. 09-00016 LEK-RLP; ORDER REQUESTING COMMENT ON
PROPOSED CERTIFIED QUESTIONS TO THE HAWAI`I SUPREME COURT

1

The Court notes that, when it ultimately files the
Certified Questions, it will attach the orders administratively
terminating the parties’ dispositive motions as exhibits for the
convenience of the Hawai`i Supreme Court. The Court has not
attached the orders to proposed Certified Questions because the
parties already have those orders.
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EXHIBIT “A”
HAWAI`I SUPREME COURT
BERT VILLON and MARK APANA,

)
)
Plaintiffs,
)
)
vs.
)
)
MARRIOTT HOTEL SERVICES,
)
INC., DBA WAILEA MARRIOTT
)
RESORT,
)
)
Defendant.
)
_____________________________ )

CERTIFIED QUESTIONS TO THE
HAWAI`I SUPREME COURT FROM
THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF
HAWAI`I IN CIV. NO. 08-00529
LEK-RLP AND CIV. NO. 09-00016
LEK-RLP

RENELDO RODRIGUEZ and JOHNSON
BASLER, on behalf of
themselves and all others
similarly situated,

)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
STARWOOD HOTELS & RESORTS
)
WORLDWIDE, INC., dba WESTIN
)
MAUI RESORT & SPA,
)
)
Defendant.
)
_____________________________ )

CERTIFIED QUESTIONS TO THE HAWAI`I SUPREME COURT FROM
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI`I
IN CIV. NO. 08-00529 LEK-RLP AND CIV. NO. 09-00016 LEK-RLP
The instant cases are before the United States District
Court for the District of Hawai`i pursuant to diversity
jurisdiction in accordance with the Class Action Fairness Act.
[Villon, et al. v. Marriott Hotel Servs., Inc., CV 08-00529 LEK-

RLP, Amended Class Action Complaint, filed 6/28/10 (dkt. no. 60),
at ¶ 2 (citing 28 U.S.C. § 1332(d)(2)); Rodriguez, et al. v.
Starwood Hotels & Resorts Worldwide, Inc., CV 09-00016 LEK-RLP,
Second Amended Complaint, filed 6/28/10 (dkt. no. 66), at ¶ 2
(same).]

These actions relate to the distribution of hotel

services charges pursuant to Haw. Rev. Stat. § 481B-14.

The

plaintiffs in each case allege that each defendant imposes
service charges in its resort that are subject to § 481B-14 and
that each defendant uses a portion of the service charges “to pay
for costs or expenses other than wages and tips of employees.”
See § 481B-14.

Each defendant, however, allegedly did not

clearly disclose its practice to its customers.

The plaintiffs

in each case allege that each defendant’s failure to make clear
disclosures requires each defendant to distribute the entire
service charges directly to its food and beverage service
employees as tip income.

The plaintiffs in each case allege that

each defendant failed to distribute the tip income and that this
failure is, inter alia, actionable pursuant to Haw. Rev. Stat. §§
388-6, 388-10, and 388-11.
This Court has received briefing and argument on
dispositive motions in each case addressing the issue whether an
alleged § 481B-14 violation is actionable pursuant to §§ 388-6,

2

388-10, and 388-11.

In Villon, the plaintiffs filed a Motion for

Partial Summary Judgment on April 29, 2011, and the defendant
filed a Motion to Dismiss Amended Class Action Complaint Filed
June 28, 2010 [Doc #60] on May 18, 2011.
103).]

[Villon (dkt. nos. 92,

In Rodriguez, the plaintiffs filed their Motion for

Partial Summary Judgment on May 11, 2011, and the defendant filed
its Motion for Summary Judgment on May 11, 2011.

[Rodriguez

(dkt. nos. 106, 122).]
After considering the motions, supporting and opposing
memoranda, and the arguments of counsel, this Court determined
that the motions raise important questions of Hawai`i law for
which there is no clear controlling Hawai`i precedent for
purposes of Hawai`i Rule of Appellate Procedure 13.

The answers

to the questions are “determinative of the cause” as to the
motions such that certification of the questions is appropriate
under Rule 13.

This Court also notes that its analysis of the

issue whether § 481B-14 is enforceable through §§ 388-6, 388-10,
and 388-11 differs from the analysis that other United States
District Judges in this district and a state circuit court judge
have previously applied.

Accordingly, this order certifies

questions to the Hawai`i Supreme Court.

This Court has issued

orders administratively terminating, without prejudice, the four

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dispositive motions in light of the decision to certify
questions.

[Villon, filed 9/8/11 (dkt. no. 125); Rodriguez,

filed 9/8/11 (dkt. no. 134).2]

This Court will permit the

parties to re-file the dispositive motions after the Hawai`i
Supreme Court responds to the certified questions.
Rule 13 calls for “a statement of prior proceedings in
the case, a statement of facts showing the nature of the cause,
the question of law to be answered, and the circumstances out of
which the question arises.”

Haw. R. App. P. 13(b).

The instant

order sets forth the questions of law to be answered, and this
Court’s orders administratively terminating the dispositive
motions in light of this Court’s decision to certify questions
address the remaining Rule 13(b) requirements.

The orders

administratively terminating the dispositive motions are attached
hereto as Exhibits A and B.
CONCLUSION AND RECITATION OF CERTIFIED QUESTIONS
Given the procedural posture of these actions and the
parties’ dispositive motions, this Court certifies the following
questions to the Hawai`i Supreme Court:
1.

May a food or beverage service employee of a hotel or
restaurant bring an action against his or her employer

2

The order in Villon and the order in Rodriguez are
attached as Exhibits A and B, respectively.
4

based on an 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. §§ 4802 or 480-13?

2.

If an employee is entitled to enforce Haw. Rev. Stat. §
481B-14 through Haw. Rev. Stat. §§ 388-6, 388-10, and
388-11, what statute of limitations applies?

This Court’s “phrasing of the question[s] should not
restrict the [Hawai`i Supreme Court’s] consideration of the
problems and issues involved.

The [Hawai`i Supreme Court] may

reformulate the relevant state law questions as it perceives them
to be, in light of the contentions of the parties.”

Allstate

Ins. Co. v. Alamo Rent-A-Car, Inc., 137 F.3d 634, 637 (9th Cir.
1998) (citations and quotation marks omitted).

If the Hawai`i

Supreme Court declines to accept certification, this Court will
“resolve the issues according to [its] understanding of Hawaii
law.”

Id. (citation and quotation marks omitted).
IT IS SO ORDERED.

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