On March 2, 2011, the court heard argument on the motion for summary judgment filed by defendant U.S. Bank National Association.
I. Summary Judgment Standards
A court will grant summary judgment "if . . . there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The "threshold inquiry" is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).*fn1
The moving party bears the initial burden of showing the district court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which "must establish that there is a genuine issue of material fact . . . ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must "cit[e] to particular parts of materials in the record . . . or show  that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 ("[the nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts"). Moreover, "the requirement is that there be no genuine issue of material fact . . . . Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 247-48 (emphasis in original).
In deciding a motion for summary judgment, the court draws all inferences and views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968)).
II. Factual and Procedural Background
The facts of this case are largely undisputed; the parties' disagreement centers on the effect of an earlier class action suit.
Plaintiff Dolores Prieto began working for defendant U.S. Bank in May 2005. Def.'s Undisputed Fact ( DUF) 2.*fn2 In November 2006, she was promoted to an "In-Store Branch Manager" of a retail bank inside a supermarket. DUF 3. She was terminated from her position in January 2009. DUF 4.*fn3
On Apri1 1, 2009, she filed this putative class action, based on this court's diversity jurisdiction. ECF No. 2 at 4 ¶ 14. Plaintiff claims that she and other In-Store Branch Managers employed by defendant in California had been misclassified as exempt from overtime. DUF 5. The complaint seeks relief for failure to pay overtime compensation, failure to provide rest and meal breaks, failure to pay all wages due at termination under California Labor Code § 203, unlawful business practices under California Business and Professions Code § 17200, et seq., and failure to provide accurate itemized wage statements. DUF 6. The court dismissed the class claims. DUF 8-9.
On April 4, 2007, a case entitled Ross v. U.S. Bank was filed in Alameda County Superior Court; it was removed to the Northern District of California on June 7, 2007. DUF 10-11. In its notice of removal, defendant U.S. Bank identified the federal court's jurisdiction over the overtime and rest and meal break claims brought under the Fair Labor Standards Act (FLSA), its supplemental jurisdiction over the state law claims, and diversity under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2). ECF No. 39-1 at 4-5, ¶¶ 9-14. The third amended complaint in Ross presented wage and hour claims on behalf of employees, including the failure to pay overtime compensation, failure to provide rest and meal breaks, failure to pay all wages due at termination under California Labor Code § 203, unlawful business practices under California Business and Professions Code § 17200, et seq., and failure to provide accurate itemized wage statements. DUF 12. The plaintiffs noted the court had federal question jurisdiction over the FLSA claims, supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367, independent subjection matter jurisdiction under the Class Action Fairness Act, 28 U.S. C. § 1332(d)(2) (CAFA), and added that the named plaintiffs were each diverse with respect to U.S. Bank. ECF No. 39-2 at 6-7.
The Northern District granted conditional class certification and defined the two Ross classes as (1) all hourly employees of U.S. Bank who worked at a U.S. Bank California in-store branch, during a Sunday shift, during the period April 9, 2003, through the date of judgment in that case; and (2) all hourly employees of a U.S. Bank who worked a shift of more than five hours at a U.S. Bank California in-store branch during the same period. DUF 14. Plaintiff Prieto was a member of these classes. DUF 15.
On January 26, 2010, Class Notice was sent to all class-members (those who held a non-exempt position in California during the relevant time period), including Prieto, at her most recent address. DUF 16, 18. The notice was addressed to "ALL PERSONS WHO ARE EMPLOYED OR WHO, SINCE APRIL 9, 2003, HAVE BEEN EMPLOYED IN THE STATE OF CALIFORNIA BY U.S. BANK AS AN HOURLY-PAID IN-STORE EMPLOYEE." Def.'s Request for Judicial Notice (DRJN), ECF No. 38-2 at 6. The notice identified the two classes conditionally certified by the court and described the relief sought on behalf of the class members. DRJN, ECF No. 38-1 at 7. It included information on opting-out of the class:
If you wish to remain a Class Member and have your interests represented by Class Counsel approved by the Court, you do not need to take any action at this time. You will receive further notices as the case progresses. If you remain a Class Member, you will be legally bound by any decision, favorable or unfavorable, in this lawsuit. If you remain a Class Member, and the Plaintiffs obtain money as a result of a trial or a settlement with respect to an issue that pertains to you, you will be notified about the procedure for submitting a claim for payment.
ECF No. 38-1 at 8 (emphasis in original). It continued "if you want to exclude yourself from the Class, you must make your request in writing. . . . If you do not exclude yourself from this lawsuit, any judgment rendered by the Court or jury, whether favorable or not, will be binding upon you." Id. (emphasis in original).
Plaintiff did not opt out of the class. DUF 19.
The parties settled the Ross case in 2010, and on March 31, 2010, entered into a Settlement Agreement on behalf of all members of the conditionally certified classes. DUF 20-21. The Ross settlement defined all "Participating Class Members" as those class members "to whom notice shall have been sent according ...