Berera v. United States of America et al

Filing 42

MEMORANDUM OPINION & ORDER: 1. The Joint Motion to Lift Stay for the LimitedPurpose of Determining that Notice is Not Required 39 is GRANTED. 2. Notice to the putative class member of the potential settlement between Tammy Berera and the Mesa dfts is NOT REQUIRED. 3. Plaintiff and Mesa Defendants SHALL FILE a joint status report on progress of settlement or agreed order of dismissal within 14 days. 4. Plaintiff and USA SHALL FILE a joint or separate status report within 30 days to inform whether the settlement impacts the claims against the United States or its pending Motion at 29 , and, if so, how the parties intend to proceed in this matter. Signed by Judge Joseph M. Hood on 05/11/2017.(LC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

TAMMY BERERA, Individually, and )
on behalf of others similarly
)
situated,
)
)
Plaintiffs,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
et al.,
)
)
Defendants.
)

Civil Case No. 16-cv-164-JMH
MEMORANDUM OPINION AND ORDER

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This matter is before the Court on the Mesa Defendants’ and
Plaintiffs’ Joint Motion to Lift Stay for Limited Purpose of
Determining that Notice is Not Required [DE 39]. The United States
did not object or otherwise respond.
Fed. R. Civ. P. 23(e) states that “[t]he claims, issues, or
defenses

of

a

certified

class

may

be

settled,

voluntarily

dismissed, or compromised only with the court's approval.”
Fed. R. Civ. P. 23.

The language of Rule 23(3) changed in 2003,

removing the reference generally to dismissal or compromise of
“members of a class” and now refers to a “certified class.”

The

parties correctly note there has not been a Sixth Circuit Court of
Appeals

case

involving

settlement

of

an

individual

named

plaintiff’s claims prior to a motion for class certification since
the 2003 revision to Rule 23(e).

1

The primary Sixth Circuit case

to address this issue prior to the amendment to Rule 23(e) was Doe
v. Lexington-Fayette Urban County Government, 407 F.3d 755, 762
(6th Cir. 2005).

In the three cases in which this issue has been

presented to district courts in the Sixth Circuit since the Rule
23(e) amendment, the Southern District of Ohio has utilized the
Doe analysis, despite the fact Doe relied on the prior version of
Rule 23(e).

See Eastham v. Chesapeake Appalachia, LLC, 2013 WL

4776701 (S.D. Ohio, September 6, 2013); In re Behr Dayton Thermal
Products, LLC, 2012 WL 559913 (S.D. Ohio, February 21, 2012); and
Coston v. Petro, 398 F. Supp. 2d 878, 880 (S.D. Ohio 2005).
The undersigned holds, however, that the Doe analysis is
inapplicable after the 2003 amendment to Rule 23(e)(1)(A) because
the plain language of the Rule clarifies that it only applies to
a certified class, not a putative class. In addition, the advisory
committee’s note to the 2003 amendment to subdivision (e) states
that the change to
Rule 23(e)(1)(A) resolves the ambiguity in
former Rule 23(e)’s reference to dismissal or
compromise of “a class action.” That language
could be—and at times was—read to require
court approval of settlements with putative
class representative that resolved only
individual claims.
See Manual for Complex
Litigation Third, § 30.41.
The new rule
requires approval only if the claims, issues,
or defenses of a certified class are resolved
by a settlement, voluntary dismissal, or
compromise.

2

Fed. R. Civ. P. 23(e)(1)(A) advisory committee’s note to 2003
amendment.
In this case there has been no motion to certify a class and
Rule 23(e)(1)(A) does not require notice to the putative class
members; thus, no further analysis is required.1

Accordingly, and

for the reasons stated herein, IT IS ORDERED:
(1)

That the Joint Motion to Lift Stay for the Limited
Purpose of Determining that Notice is Not Required [DE
39] is GRANTED;

(2)

That

notice

to

the

putative

class

members

of

the

potential settlement between Tammy Berera and the Mesa
Defendants is NOT REQUIRED;
(3)

That Plaintiff Tammy Berera and the Mesa Defendants
SHALL FILE a joint status report on the progress of
settlement negotiations or an agreed order of dismissal
within 14 days of the date of this Order; and

(4)

That Plaintiff Tammy Berera and the United States SHALL
FILE joint or separate status reports within 30 days of
the date of this Order, informing the Court of whether
the settlement between Berera and the Mesa Defendants

1

The Court notes that the outcome would not change if the factors in Doe were
applied in this case because there has been no publicity about Plaintiff’s
claims that might cause a putative class member to rely on the tolling of the
statute of limitations to protect his interest, nor is there any evidence of
collusion between the parties to harm the putative class members.
Furthermore, Plaintiffs’ counsel represented to the Court that the few
putative class members who contacted his law firm were given the opportunity
to join in the lawsuit [DE 39 p. 4].

3

(if any) impacts the claims against the United States or
its pending Motion at DE 29, and, if so, how the parties
intend to proceed in this matter.
This the 11th day of May, 2017.

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