Harrison v. 1-800-Flowers Team Services, Inc. et al

Filing 191

ORDER: Adopting Findings and Recommendation 180 . Accordingly, defendants' Motion for Decertification 142 is DENIED; plaintiff's Motion for Class Certification under Fed. R. Civ. P. 23 134 is GRANTED; and defendants' Motions to Exclude and Strike 155 , 157 are DENIED. Plaintiff's motion to strike 188 is DENIED. Signed on 3/24/2021 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

JENNIFER HARRISON, on behalf of
herself and others similarly situated,

Case No. 1:18-cv-00410-CL
ORDER

Plaintiff,
vs.
HARRY & DAVID OPERATIONS, INC.,
and HARRY AND DAVID, LLC,
Defendants.

AIKEN, District Judge:
Magistrate Judge Mark Clarke has filed his Findings and Recommendation
(“F&R”) (Doc. 180) recommending that defendants’ Motion for Decertification (Doc.
142) should be DENIED; plaintiff’s Motion for Class Certification under Fed. R. Civ.
P. 23 (Doc. 134) should be GRANTED; and defendant’s motions to exclude and strike
(Docs. 155, 157) should be DENIED. This case is now before me. See 28 U.S.C. §
636(b)(1)(B) and Fed. R. Civ. P. 72(b).

PAGE 1 –ORDER

When either party objects to any portion of a magistrate judge’s F&R, the
district court must make a de novo determination of that portion of the magistrate
judge’s report. See 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore
Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981), cert denied, 455 U.S.
920 (1982).
Defendants’ have filed timely objections to the F&R (Doc. 183) and plaintiff has
filed a timely response.

Doc. 184.

Additionally, defendants filed a notice of

supplemental authority (Doc. 185) to which plaintiff responded. Doc. 186. Defendant
then filed a reply (Doc. 187) to plaintiff’s response to the objections to the F&R.
Plaintiff has now moved to strike defendants’ notice and reply. Doc. 188. The Court
denies plaintiff’s motion to strike in the interest of considering the whole record
before it.
Having reviewed the objection, responses, notice of supplemental authority,
and the entire file of this case, however, the Court finds no error in Magistrate Judge
Clarke’s order. The Court notes that it is not persuaded by defendants’ argument
that the Ninth Circuit’s decision in Castillo v. Bank of Am., NA, 980 F.3d 723 (9th
Cir. 2020) undermines Judge Clarke’s ruling regarding the “predominance”
requirement under Fed. R. Civ. P. 23(b)(3). First, the Court does not read Castillo,
which dealt with proposed class action for claims under California state law, to
undermine the authority relied on by Magistrate Judge Clarke in his finding.1 Here,

Further, in Castillo the Ninth Circuit was affirmed, under an abuse of
discretion standard, a decision form the Central District of California which denied
class certification.
1

PAGE 2 –ORDER

there is ample evidence in the record indicating that policies and practices at issue in
this case applied to all class members such that the predominance requirement was
satisfied. Importantly, “[i]ndividual differences in calculating the amount of damages
will not defeat class certification where common issues otherwise predominate.”
Castillo v. Bank of Am., NA, 980 F.3d at 730. (internal citations omitted.) Thus, the
Court agrees with Magistrate Judge Clarke’s initial findings on the question of
predominance, even when considering the holding in Castillo.
In sum, the Court adopts Magistrate Judge Clarke’s F&R (Doc. 180) in its
entirety.

Accordingly, defendants’ Motion for Decertification (Doc. 142) is DENIED;

plaintiff’s Motion for Class Certification under Fed. R. Civ. P. 23 (Doc. 134) is
GRANTED; and defendant’s Motions to Exclude and Strike (Docs. 155, 157) are
DENIED. As noted above, plaintiff’s motion to strike (doc. 188) is DENIED.
IT IS SO ORDERED.
Dated this _____ day of March, 2021.
24th

/s/Ann Aiken
_________________________________
Ann Aiken
United States District Judge

PAGE 3 –ORDER