United States District Court, S.D. California
Montoya, Plaintiff, represented by Georgiy Borisovich
Zahos, Plaintiff, represented by Georgiy Borisovich Lyudyno.
Marquez, Plaintiff, represented by Georgiy Borisovich
Intelicare Direct, Inc., Defendant, represented by Chana
Emily Ickowitz, Venable, LLP, Richard James Frey, VENABLE LLP
& Ryan M. Andrews, Venable.
ORDER DENYING AS MOOT MOTION TO DISMISS; ORDER
GRANTING JOINT MOTION TO CERTIFY CLASS AND TO APPOINT CLASS
COUNSEL, AND ORDER SETTING HEARING ON MOTION FOR PRELIMINARY
APPROVAL OF SETTLEMENT
ALAN BURNS, District Judge.
Defendants' motion to dismiss was pending, the parties
agreed to settle this putative class action. The motion to
dismiss raised the question of subject matter jurisdiction.
Before certifying a class or approving a settlement, the
Court must assure itself of its own jurisdiction. See
generally Reed Elsevier, Inc. v. Muchnick, 559
U.S. 154 (2010) (examining the question of whether district
court had subject matter jurisdiction over underlying
controversy, sufficient to authorize it certify a class or
approve a settlement.
Court has reviewed Defendant's jurisdictional arguments,
and the Second Amended Complaint, and concludes that
Plaintiffs have pled facts establishing diversity
jurisdiction under the Class Action Fairness Act.
Specifically, the amount in controversy is alleged to exceed
$5 million, and CAFA's minimal diversity requirements are
met. In light of the parties' settlement of this case,
the remainder of the motion to dismiss is deemed withdrawn,
and the motion itself is DENIED AS MOOT.
Certification and Appointment of Counsel
purposes of settlement only, the parties have agreed to
certification of a class consisting of all non-exempt
employees terminated in California by Intelicare from June 8,
2012 through the Preliminary Approval Date, whose termination
dates precede the dates listed on their Final Paychecks, and
who were not paid any waiting time penalties as required by
California Labor Code section 203. The putative class
consists of 198 members.
Montoya also brought disability discrimination claims, which
his counsel now concedes are not viable on a classwide basis.
(Docket no. 36-2, Lyudyno Decl., ¶ 9.) The parties therefore
agree to abandon all other claims other than those being
Fed.R.Civ.P. 23(a), a class may be certified only if the
numerosity, commonality, and typicality requirements are met,
and the representative parties will fairly and adequately
protect the interests of the class. A party seeking
certification must affirmatively demonstrate that these
requirements are met. Parsons v. Ryan, 754 F.3d 657,
674 (9th Cir. 2014).
parties cite evidence that the class consists of
approximately 198 members. (Jt. Mot., Docket no. 36-1, at
13:18-21.) Ordinarily, classes of more than 40 or more
members are numerous enough to meet this ...