Montoya v. Intelicare Direct, Inc.

          Robert Montoya, Plaintiff, represented by Georgiy Borisovich Lyudyno.

          Kelly Zahos, Plaintiff, represented by Georgiy Borisovich Lyudyno.

          Javier Marquez, Plaintiff, represented by Georgiy Borisovich Lyudyno.

          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

          LARRY ALAN BURNS, District Judge.

         While 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.

         The 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 In light of the parties' settlement of this case, the remainder of the motion to dismiss is deemed withdrawn, and the motion itself is DENIED AS MOOT.

         Class Certification and Appointment of Counsel

         For 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.

         Plaintiff 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 settled.

         Under 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).

         Numerosity

         The 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 ...