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Barcia v. Contain-a-Way

September 23, 2009

RAMON BARCIA, ON BEHALF OF HIMSELF AND ALL PERSONS SIMILARLY SITUATED, PLAINTIFF,
v.
CONTAIN-A-WAY, INC., DEFENDANT.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER GRANTING IN PART DEFENDANT TO PROVIDE EVIDENCE OF COMPLIANCE WITH SETTLEMENT AGREEMENT

(Doc. No. 37)

AND DENYING IN PART PLAINTIFFS' MOTION FOR

On July 22, 2009, Plaintiffs filed the instant motion for an order directing Defendant to provide evidence to the Court of compliance with the settlement agreement that led to the dismissal of this case on the merits. (Doc. No. 37.) Plaintiffs also seek ERISA civil enforcement penalties, as further described below. Defendant has filed an opposition and Plaintiffs have filed a reply. The Court heard oral argument the motion on Monday, August 31, 2009.

BACKGROUND

I. Factual and Procedural Background

From 2003 until 2008, defendant Contain-a-Way, Inc., doing business as Nexcycle, operated a business which recycled aluminum, glass, and plastic using small kiosks or trailers located behind large grocery stores or other retail stores. The recycling sites were manned by "Site Attendants" or "Floaters" who received the recyclables, weighed the materials, and paid clients with cash or credit according to the weight and material price.*fn1 Nexcycle stored the recyclables at the recycling sites and picked up the matter periodically. The company required employees to perform a series of tasks before opening and after closing the site to public, but allegedly failed to compensate Site Attendants and Floaters for this pre-opening and post-closing work. In addition, Plaintiffs contend they were denied certain profit-sharing 401k benefits to which they were entitled.

On April 19, 2007, Plaintiff Randall Lewis filed a complaint entitled Randall Lewis, et al. v. Contain-A-Way, et al., civil action no. 37-2007- 00065322, in Superior Court for the County of San Diego, on behalf of himself and all other similarly situated site attendants. (Blumenthal Decl. ISO Plt.'s Motion for Final Approval of Class Settlement, Doc. No. 30-4, ¶ 6(a).) Mr. Lewis sought unpaid wages and penalties for missed rest breaks.

On May 23, 2007, Plaintiff Ramon Barcia filed the instant action on behalf of himself and all other similarly situated site attendant and floater employees. Mr. Barcia sought unpaid wages and penalties for missed rest breaks as well as a claim for ERISA benefits.

After extensive discovery in both actions, on April 4, 2008, Mr. Barcia amended his complaint to add Mr. Lewis as a plaintiff. Following the amendment, Mr. Lewis dismissed the state action without prejudice in order to proceed solely in the federal court where all claims could be redressed.

The Amended Complaint alleges Defendants (1) failed to pay earned wages and overtime compensation; (2) failed to provide rest periods; (3) failed to provide accurate itemized statements; (4) violated California Business and Professions Code §17200 which prohibits unfair competition; (5) failed to pay ERISA benefits; and (6) violated the fair labor standards act, 29 U.S.C. § 216. Additionally, plaintiffs requested civil damages under California's Private Attorney General Act, Cal. Labor Code §2698.

After extensive discovery and multiple meet and confer sessions, the parties agreed to submit to mediation before nationally recognized labor mediator Mark Rudy on April 2, 2008. The parties reached an agreement after day-long negotiations. The stipulated settlement agreement contained the following provision: "The Parties agree that upon final approval by the Court, this Stipulation shall be enforceable by the Court and the Court shall retain exclusive and continuing equity jurisdiction of this action over all Parties and Class Members to interpret and enforce the terms, conditions, and obligations set forth in this Stipulation." [Stipulation of Class Action Settlement ("Settlement Agreement"), Ex. 1 to Blumenthal Decl. ISO Motion for Order ("Blumenthal Decl."), Doc. No. 37-3, pp. 23-24.] The Settlement Agreement also provided that Gilardi & Co., LLC would serve as claims administrator "for the purpose of administering timely claims made by eligible Class Members in accordance with this Stipulation." (Settlement Agreement at 12.)

On August 15, 2008, the Court granted preliminary approval of the settlement. On September 2, 2008, plaintiffs mailed the notice of settlement ("Class Notice") to 2,385 current and former employees who comprise the class. The Class Notice provided class members with an opportunity to file a claim for monetary relief, opt out of the settlement, or object to the settlement. (Solorzano Decl. ISO Plt.'s Motion for Final Approval of Class Settlement, Doc. No. 30-3, ¶¶ 3-6.) On or before October 1, 2008, plaintiffs mailed a reminder postcard to class members who had not yet responded. Id. Only 478 class members submitted timely claims for unpaid work, 56 class members opted out, and no one objected. Id. at ¶¶ 8-10.

II. The Settlement

On March 6, 2009 the Court issued an order granting Plaintiffs' motion for: (1) final approval of class settlement; (2) entry of final judgment; (3) award of attorneys' fees; and (4) allowing service awards to class representatives. (Doc. No. 34.) In the Court's separate judgment and order of final approval of the settlement, the Court retained "exclusive and continuing jurisdiction over the Litigation, Plaintiffs, all Class Members and Defendant, for purposes of supervising, implementing, interpreting and enforcing this Order and the Settlement Agreement." [Judgment and Order of Final Approval of the Settlement and Dismissing Action ("Dismissal Order"), Doc. No. 35.]

The Settlement Class consisted of "all individuals employed as Site Attendant and/or Floaters by Nexcycle in California at any time from May 23, 2003 and the date of preliminary approval of the settlement by the Court [August 15, 2008], and who do not file a timely request to be excluded from the settlement class." Without admitting class certification was proper, Defendant stipulated that the class could be certified for settlement ...


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