Nunez v. Bae Sys. San Diego Ship Repair Inc.

• Decision Date: 14 November 2017
• Docket Number: Case No.: 16–CV–2162 JLS (NLS)
• Citation: 292 F.Supp.3d 1018
• Parties: Eduardo NUNEZ, individually and on behalf of others similarly situated, Plaintiff, v. BAE SYSTEMS SAN DIEGO SHIP REPAIR INC., a California Corporation; and Does 1 through 50 inclusive, Defendants.
• Court: U.S. District Court — Southern District of California

292 F.Supp.3d 1018

Eduardo NUNEZ, individually and on behalf of others similarly situated, Plaintiff,

v.BAE SYSTEMS SAN DIEGO SHIP REPAIR INC., a California Corporation; and Does 1 through 50 inclusive, Defendants.

Case No.: 16–CV–2162 JLS (NLS)

United States District Court, S.D. California.

Signed November 14, 2017

Alexander I. Dychter, Dychter Law Offices, APC, Efaon Cobb, Justin Greer Hewgill, Law Office of Hewgill and Cobb, San Diego, CA, for Plaintiff.

Mary Dollarhide, Taylor H. Wemmer, DLA Piper LLP (US), San Diego, CA, for Defendants.

ORDER (1) GRANTING FINAL SETTLEMENT MOTION; (2) GRANTING MOTION FOR ATTORNEY'S FEES; AND (3) GRANTING MOTION TO SUBSTITUTE PARTY

(ECF Nos. 37, 46, 47)

Hon. Janis L. Sammartino, United States District Judge

Presently before the Court is Class Counsel's and Defendant BAE Systems San Diego Ship Repair, Inc.'s (collectively, the "Parties") Joint Motion for Final Approval of Class Action Settlement ("Final Settlement Mot."). (ECF No. 46.) Because the Settlement is fundamentally fair, reasonable, and adequate, the Court GRANTS the Parties' Final Settlement Motion. Also before the Court is Class Counsel's Motion for Attorney's Fees, Costs, and Incentive Fees ("Fee Mot."). (ECF No. 47.) Given that the attorney's fees are set at the Ninth Circuit benchmark, and that the remaining fees and costs are reasonable, the Court GRANTS Class Counsel's Fee Motion. Finally, the Parties seek to replace the sole named Plaintiff Eduardo Nunez with another Class Member, arguing that by objecting to the Final Settlement, Nunez has a conflict of interest with the Class and can no longer serve as an adequate Class Representative. (Joint Motion for Substitution of Class Representative in Place of Eduardo Nunez ("Mot. to Substitute"). (ECF No. 37.) The Court GRANTS the Parties' Motion to Substitute and substitutes Plaintiff Bryan De Anda as the sole named Plaintiff.

BACKGROUND

Plaintiff Eduardo Nunez filed a class action suit seeking compensation on behalf of all non-exempt employees of Defendant BAE Systems San Diego Ship Repair Inc. ("BAE SDSR") for unpaid wages and penalties, as well as other violations of California law. (Final Settlement Mot. 7,¹ ECF No. 46–1; see also generally Second Am. Compl. ("SAC"), ECF No. 11.) Defendant BAE SDSR is an international defense, aerospace, and security company that maintains a single shipyard in San Diego Bay, where it works on virtually all types of government and commercial vessels (e.g., the U.S. Navy fleet). (SAC ¶ 14.) The proposed class includes all non-exempt employees at BAE SDSR who worked at any time during the period May 27, 2012 through October 13, 2016 (collectively, "Class," "Settlement Class," or "Class Members"). (Final Settlement Mot. 7.) Plaintiff's Second Amended Complaint asserts seven claims for relief under various provisions of California law:

1. Failure to Pay Straight–Time & Overtime Wages

2. Violation of the Unfair Competition Law ( Cal. Bus. & Prof. Code §§ 17200, et seq. )

3. Failure to Provide Accurate Wage Statements

4. Failure to Provide Rest Periods

5. Failure to Reimburse Employees for Business Expenses

6. Failure to Provide All Compensation Owed Upon Termination of Employment

7. Violation of the Private Attorney General Act

(See generally SAC.) Among other claims, Plaintiff alleges that because there would typically be 100 BAE SDSR workers waiting in line to pass through a checkpoint before they could break their shift for lunch, Plaintiff and other workers were not provided with a full 30–minute meal break due to the time spent waiting in line. (Id. ¶ 10.) Thus, Plaintiff argues Defendant failed to provide Plaintiff and other workers with a duty-free 30–minute meal period and failed to pay the Class its wages for their time spent, for example, disembarking from the ship, returning tools, and waiting in the security line. (Id. ) Plaintiff additionally alleges that Defendant improperly forced him and others to purchase clothes and shoes from Defendant and that Defendant did not provide reimbursements for these purchases. (Id. ) As a result of this, and other, fraudulent behavior, Plaintiff alleges the wage statements that Defendant provided were inaccurate. (Id. ¶ 11.) In sum, Plaintiff alleges that the Class Members are "similarly situated persons who are presently employed or were formerly employed as non-exempt employees of Defendant BAE SDSR in San Diego, California who: 1) were not paid straight-time wages for all work time; 2) were not paid premium overtime wages for all work performed in excess of eight hours in one workday or over forty hours in one workweek; 3) were not provided with duty-free meal 30–minute meal breaks; and/or, 4) were not provided accurate itemized wage statements." (Id. ¶ 12.)

The Parties entered into extensive pre-suit negotiations for the purpose of settling their disputes, such as (1) voluntary exchange of information, including BAE SDSR's employment policies, sworn declarations from putative class members, and thousands of electronic records containing class member data (e.g., individualized rates of pay, employment dates, time records, and badge swipe data); and (2) a full-day mediation in San Francisco with Mr. Anthony ("Antonio") Piazza, Esq., of Mediated Negotiations. (Final Settlement Mot. 9–12; Prelim. Settlement Mot. 10, ECF No. 15–1.) The mediation was successful and resulted in a non-reversionary settlement of $2.9 million, (Final Settlement Mot. 11–12), though Defendant BAE SDSR maintains its complete denial of wrongdoing, (e.g., Prelim. Settlement Mot. 9 n.1).

On February 13, 2017, the Court issued an Order (1) conditionally certifying the settlement class action; (2) preliminarily approving the proposed settlement; (3) approving the notice to be sent to the Class; and (4) setting a final approval hearing date. ("Prelim. Settlement Order," ECF No. 18.) On March 15, 2017, the Court–appointed Settlement Administrator mailed the Class Notice to 1,970 Settlement Class Members. (Final Settlement Mot. 6.) Settlement Class Members were advised that they could object to or opt-out of the Settlement by no later than May 15, 2017. (Id. ) Relevant to the pending motions, the Notice contained the following language for those interested in objecting to the proposed settlement:

As long as you do not ‘opt out’ from the settlement, you have the right to object to the settlement. To do so, you must send to the Court , the attorneys for the parties whose addresses are listed below, and the Claims Administrator whose address is above your objection in writing and the objection must be postmarked no later than May 15, 2017 . The objection must state: (a) your full legal name, home address, telephone number, last four digits of your social security number (for identity verification purposes); (b) the words ‘Notice of Objection’ or ‘Formal Objection;’ (c) in clear and concise terms, the legal and factual arguments supporting the objection ; and (d) a list identifying the witness(es) you as the objector may call to testify at the Fairness Hearing, as well as true and correct copies of any exhibit(s) you intend to offer. Your objection should be directed to the Hon. Janis L. Sammartino, United States District Court—Southern District of California, 221 West Broadway, Suite 4135, San Diego, California 92101 and must reference case number 3:16–cv–02162–JLS–NLS .

(Id. at 21 (citing Decl. of Abigail Schwartz on Behalf of Rust Consulting, Inc. in Support of Mot. for Final Approval ("Schwartz Decl.") ¶ 8, Ex. A ("Notice"), at 4, ECF No. 46–5 (emphasis added by the Parties) ).) Only one Class Member opted out, and six Class Members attempted² to file objections. (Id. )

On May 2, 2017, Plaintiff Nunez and Defendant BAE SDSR filed a Joint Motion to Reset the Final Approval Hearing to June 15, 2017, instead of the original date of July 27, 2017, given the lengthy delay between the opt-out and objection deadline and the date of the Final Approval Hearing. (ECF No. 19.) On May 4, 2017, the Court granted the Joint Motion, instructing Plaintiff and Defendant to immediately contact Class Members who timely object to the Settlement or who otherwise noticed their intent to appear at the Final Approval Hearing and apprise them of the new date. (ECF No. 20.)

Then, on May 12, 2017, the Court received a contested motion to substitute attorney filed by Plaintiff Nunez. (ECF No. 24). Four days later the Court received a notice of Plaintiff Nunez's objection to the Settlement. (ECF No. 27). Given these developments, the Court vacated the newly reset Final Fairness Hearing Date and ordered all parties to appear for a status conference set for May 25, 2017. (ECF No. 35.) At the status conference, the Court granted Nunez's motion to substitute attorneys from the law firm Hewgill & Cobb to represent him in his individual capacity as an objector to the Settlement (not as new Class Counsel), and also requested briefing on the question of whether Nunez could continue to serve as the sole named Class Representative given his eleventh-hour objections to the Settlement. (ECF No. 36.) Briefing was completed on June 12, 2017, (ECF No. 40), and the Court took all arguments under submission to be considered together with any motion for final approval of the settlement. (ECF No. 41.) The Court also reset the date for the Final Approval Hearing to the original date of July 27, 2017. (Id. ) The Court held a final fairness hearing on November 7, 2017.

After considering some of the arguments raised in the Class Members' objections, addressed more thoroughly below, the Court ordered supplemental notice to the Class to address certain issues. (ECF Nos. 57, 59.) The Court also granted the Class a new opportunity to opt-out of the Settlement, as well as a limited opportunity to file new objections to the Settlement and Class Counsel's Motion for Attorney's Fees. (Id. )

On October 24, 2017, the Parties (Class Members and Defendant) filed a Supplemental Memorandum in Support of...