Pomer v. Reno Cab Company, Inc.

[1] CURTIS B. COULTER, ESQ., NSB 3034 STACEY UPSON, ESQ., NSB 4773 2 Coulter Harsh Law 403 Hill Street [3] Reno, Nevada 89501 4 Tel (775) 324-3380 5 Fax (775) 324-3381 ccoulter@coulterlaw.net [6] 7 LEON GREENBERG, ESQ., SBN 8094 R U T H A N N D E V E R E A U X - G O N Z A LEZ, ESQ., SBN 15904 [8] Leon Greenberg Professional Corporation 9 1811 South Rainbow Blvd- Suite 210 10 L a s V e g a s , N e v a d a 8 9 1 4 6 T e l ( 7 0 2 ) 3 8 3 - 6 0 8 5 11 F a x ( 7 0 2 ) 3 8 5 - 1 8 2 7 [12] l e o n g r e e n b e r g @ o v e r t i m e l a w . c o m Ranni@overtimelaw.com [13] 14 Attorneys for Plaintiffs [15] UNITED STATES DISTRICT COURT [16] 17 DISTRICT OF NEVADA 18 SCOTT POMER, ALLAN ARTEAGA19 BROWN, and MICHAEL Case No.: MAIENSCHEIN individually and on 3:22-cv-00014-MMD-CLB 20 behalf of others similarly situated, [21] Plaintiffs, ORDER APPROVING [22] SETTLEMENT 23 vs. [24] RENO CAB COMPANY, ROY L. 25 STREET, ROBIN STREET, FRANK 26 STREET, and BRITTANY STREET [27] Defendants. [1] The plaintiffs, SCOTT POMER, ALLAN ARTEAGA-BROWN, and 2 MICHAEL MAIENSCHEIN, and the defendants, RENO CAB COMPANY, ROY [3] L. STREET, ROBIN STREET, FRANK STREET, and BRITTANY STREET, by [4] 5 and through their respective counsel, having filed a Joint Motion to Approve [6] Settlement (Doc. 71, the “Settlement Motion”), seeking an Order approving the [7] p r o p o s e d s e t t l e m e n t o f t h i s c a s e , a s s e t forth in their Stipulation of Settlement, at Ex. [8] 9 “A” thereto, and the Court, after due deliberation, and with good cause having been [10] s h o w n , h e r e b y m a k e s t h e f o l l o w i n g f indings of fact and conclusions of law: [12] F o r t h e r e a s o n s s t a t e d i n t h e S ettlement Motion, the proposed settlement of [13] this case as set forth in the parties’ Stipulation of Settlement, to be made in [14] conjunction with and dependent upon the final approval the proposed class action [15] 16 settlements of two cases pending in the First Judicial District Court of the State of [17] Nevada captioned Shatz et al. v. Street, and Myers et al. v. Reno Cab, (collectively [18] 19 the “Myers Litigation”) is appropriate and warrants approval by this Court. [20] This case and the Myers Litigation both seek relief under Article 15, Section [21] 22 16, of the Nevada Constitution for unpaid minimum wages allegedly owed to the [23] defendants’ taxicab drivers. This case additionally seeks to make claims under the [24] Fair Labor Standards Act (the “FLSA”) for unpaid minimum wages and to impose [25] 26 liability on certain additional, non-corporate, defendants, under the FLSA, for the 38 [27] FLSA “opt in” plaintiffs in this case. [1] While there is a small difference in the nature of the relief available to the 2 plaintiffs in the Myers Litigation and this case the controlling issues of fact and law [3] in both cases are identical. The plaintiffs in both cases were taxi drivers who leased [4] 5 taxicabs from the defendant Reno Cab Company or a related taxicab company [6] Capital Cab, pursuant to written agreements stating they were independent [7] c o n t r a c t o r s , n o t e m p l o y e e s . T h e d e f endants insist all of those taxi drivers, and all [8] 9 of the plaintiffs in both cases, were not employees and have no right to seek unpaid [10] m i n i m u m w a g e s f r o m t h e d e f e n d a n ts, whether under Nevada law or the FLSA. [11] 12 W h e t h e r t h e p l a i n t i f f t a x i d r i v e r s i n t h ese cases were, as a matter of law, employees [13] entitled to minimum wages, or independent contractors without any such right, is [14] resolved under the FLSA’s “economic realities” test, whether such minimum wage [15] 16 claim was made under Nevada law or the FLSA. See, Myers v. Reno Cab Co., 492 17 P.3d 545 (Nev. Sup. Ct. 2021) (en banc). [18] 19 The Myers Litigation involves the proposed class action settlement, pursuant [20] to Rule 23, for over 800 taxi drivers. Two of the FLSA plaintiffs in this case, Daniel [21] 22 Boynton and Clifton Bruce, are not Myers Litigation class members, the Court being [23] advised they only drove a taxi for three or eight shifts, respectively, for Reno Cab [24] during the relevant time period. As a result, the Court is advised they do not present [25] 26 claims for minimum wage related damages cognizable as part of the Myers [27] Litigation settlement but are to receive payments of $50 each in settlement of their [28] claims in this case. The remaining 36 FLSA plaintiffs in this case are members of [1] the class of plaintiffs proposed for participation in the Myers Litigation class action 2 settlement. Those 36 FLSA plaintiffs receive additional potential benefits under the [3] FLSA (an opportunity to collect double or liquidated damages that is not provided [4] 5 for by Nevada law) and under Nevada law (a right to the payment of a higher hourly [6] minimum wage than the one provided by the FLSA). The state court in the Myers [7] l i t i g a t i o n w i l l b e c h a r g e d w i t h m a king appropriately supported, and thorough, [8] 9 findings, as to the adequacy and fairness of that proposed class action settlement, [10] i n v o l v i n g o n l y N e v a d a s t a t e l a w c l a ims, as required by Rule 23. Given the far [12] g r e a t e r s c o p e o f t h e M y e r s L i t i g a t i o n, involving approximately 22 times as many [13] taxi drivers, the Court believes it can appropriately rely upon the state court [14] overseeing the Myers Litigation to make findings as to the fairness and adequacy of [15] 16 the settlement of the claims of those 36 FLSA opt-in plaintiffs in this case under [17] Nevada law. Those state law claims, subsumed within the broader Myers Litigation [18] 19 class action settlement, involves most of the relief available to those 36 plaintiffs in [20] this case under the FLSA, and those 36 plaintiffs are proposed Myers Litigation class [21] 22 members. As a result, as requested by the parties and as envisioned by their [23] proposed Settlement, this Court, confines itself to determining whether the proposed [24] settlement of those 36 plaintiffs’ rights to unique relief under the FLSA is properly [25] 26 granted approval. [27] Subject to the state court’s ultimate approval of the proposed Myers [28] Litigation class action settlement, the Court grants approval of the parties’ [1] settlement of this case under the FLSA as provided for in their Stipulation of 2 Settlement. In doing so the Court observes it is hotly disputed whether the [3] plaintiffs were employees of the defendants, meaning a bona fide dispute exists as [4] 5 to whether the plaintiff are entitled to relief under the FLSA, a requirement for any [6] settlement of FLSA claims to be approved. See, Lynn’s Food Stores Inc., v. United [7] S t a t e s , 6 7 9 F . 2 n d 1 3 5 0 , 1 3 5 4 ( 1 1 t h C i r. 1982). As Lynn’s Food also holds, it is [8] 9 incumbent upon the district court to find any proposed FLSA settlement is fair. Id. [10] T h a t “ f a i r n e s s ” r e q u i r e m e n t i s n o t e x pounded upon in Lynn’s Food but most courts [11] 12 h a v e u s e d t h e f a c t o r s c o n s i d e r e d i n a p proving class action settlements under Rule [13] 23 to determine whether an FLSA settlement should be approved. See, Silva v. [14] Miller, 547 F. Supp. 2d 1299, 1303-04 (S.D. Fla. 2008) and other cases. Those [15] 16 factors are discussed in Churchill Vill. v. Genl. Elec., 361 F.3d 566 , 575-76 (9th [17] Cir. 2004). [18] 19 The parties’ Settlement Motion asserts the Court’s evaluation of the “fairness” [20] of the proposed settlement, in light of the proposed Myers Litigation class settlement [21] 22 and the other relevant circumstances, should involve a more limited inquiry than if [23] the Court were approving a Rule 23 class action settlement. The parties point out [24] that the FLSA’s “opt in” process means this case’s settlement will not resolve the [25] 26 claims of any unknown or unknowing “silent” class members that Rule 23 acts to [27] protect. In addition, that process was expressly set up by Congress to allow [28] individuals to litigate their FLSA claims as a voluntary “collective” while not [1] necessarily ceding control over their legal claims to a representative, as in a Rule 23 2 class action. See, Campbell v. City of Los Angeles, 903 F.3d 1090, 1105 (9th Cir. [3] 2018). The parties have fashioned their proposed settlement of this case with robust [4] 5 protections for the 38 individual plaintiffs, allowing them to pursue individually, and [6] in an unimpeded fashion, their claims in a further, separate, litigation if they believe [7] t h e p r o p o s e d s e t t l e m e n t i s i n a d e q u a t e . They argue as a result the Court should grant [8] 9 approval to the proposed Settlement, subject to the state court’s approval of the [10] M y e r s L i t i g a t i o n c l a s s a c t i o n s e t t l e m e nt, since it provides some meaningful measure [12] o f a d d i t i o n a l r e l i e f u n d e r t h e F L S A t o the 38 plaintiffs that they would not receive [13] as Myers Litigation class members. The Court agrees and in considering the fairness [14] of the proposed settlement limits itself to reviewing the proposed Settlement’s [15] 16 provisions that are unique to the 38 FLSA plaintiffs in this case, such Settlement [17] proposing to settle this case otherwise subject to the approval of the state court [18] 19 overseeing the Myers Litigation. [20] This case was filed in January of 2021 and the FLSA’s minimum hourly [21] 22 wage is and was $7.25 an hour during the entire time period at issue in this case. [23] During that same time period the Nevada minimum hourly wage was consistently [24] higher, at least $8.25 an hour and currently is $11.25 an hour. As a result, the [25] 26 FLSA offers the 38 plaintiffs in this case no minimum wage recovery they cannot [27] secure (and in a higher amount) in a Nevada state law case, such as the Myers [28] Litigation. But the FLSA provides an additional liquidated (double damages) [1] remedy pursuant to 29 U.S.C. Sec. 216 (b) that would not be available to the 38 2 FLSA plaintiffs in this case under Nevada law. [3] The Court finds the proposed Settlement’s terms, that are unique to the 38 [4] 5 FLSA plaintiffs in this case and secure a benefit specifically to them separate and [6] apart from the proposed Myers Litigation settlement, are fair. It grants approval to [7] t h o s e t e r m s , w i t h t h e e n t i r e t y o f t h e p roposed Settlement’s approval being further [8] 9 subject to final approval by the state court overseeing the Myers Litigation. In [10] m a k i n g t h a t f i n d i n g t h e C o u r t o b s e r v es that those terms applicable to the FLSA [12] c l a i m s a t i s s u e a r e n o t i n d i c a t i v e o f a ny collusion or unfairness. They provide a [13] service award payment of $1,000 each to the four named plaintiffs in this case. [14] The 38 FLSA plaintiffs will also share in a $4,000 separately reserved settlement [15] 16 fund in addition to their share of the settlement fund available for distribution to all [17] of the Myers Litigation class members. The 36 FLSA plaintiffs in this case [18] 19 eligible to do so will, unless they elect to exclude themselves, be Participating [20] Claimants in the Myers Litigation class settlement and will receive a pro rata share [21] 22 of what is estimated to be a net settlement fund of at least $152,000 that will be [23] fully distributed to all claiming Myers Litigation class members. The Settlement [24] also requires written notice to all of the 38 plaintiffs in this case of the proposed [25] 26 Settlement and grants them the right to exclude themselves from the Settlement [27] and a toll of the statute of limitations if they elect to do so, allowing them to [1] commence a new and separate FLSA action that will not be impaired in any 2 fashion. [3] It is hereby Ordered that: [4] 5 The Settlement of this case is approved pursuant to the terms proposed by [6] the parties in the Settlement Motion and their Stipulation of Settlement (Doc. 71, [7] E x . “ A ” ) . [8] 9 Within 20 days of the entry of this Order, and as provided for in the [10] S t i p u l a t i o n o f S e t t l e m e n t , p l a i n t i f f s ’ c ounsel shall mail to each of the 39 plaintiffs [11] 12 i n t h i s c a s e a c o p y o f t h e S e t t l e m e n t A dvisement Letter provided as an exhibit to [13] the Stipulation of Settlement. Plaintiffs’ counsel shall 91 days thereafter file a [14] statement with the Court confirming the Settlement Advisement Letter has been so [15] 16 mailed and advising the Court of any plaintiffs who have elected to exclude [17] themselves from the settlement. [18] 19 Plaintiffs’ counsel shall advise the Court of the Myers Litigation’s proposed [20] settlement’s approval by the state court within 10 days of the effective date of that [21] 22 settlement occurring and file a motion to have this Court enter a final judgment [23] dismissing this case with prejudice as to all plaintiffs except those, if any, who [24] elected to exclude themselves in a timely fashion as provided for in the previous [25] 26 paragraph, any such excluding plaintiffs to have a statute of limitations toll on the [27] commencement of a new FLSA action as provided for in the Stipulation of [28] Settlement. In the event Myers Litigation’s proposed settlement’s effective date , not occur by November 1, 2024, the plaintiffs’ counsel shall file a status 2 || report with the Court advising it of the status. This case is otherwise stayed for all [3] ,, || Purposes. [6] IT IS SO ORDERED: DATED this 5th day of June 2024. [9] 49 || United States District Judge