Jesse Cantu v. Vimeo.com, Inc.

• Court: District Court, C.D. California
• Decided: February 10, 2023
• Docket: 2:22-cv-08888
• Status: Unknown

Opinion

Case 2:22-cv-08888-SVW-E Document 20 Filed 02/10/23 Page 1of4 Page ID #:68 JS-6 ; si ? UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 || JESSE CANTU, individually and on behalf | Case No. 2:22-cv-08888-SVW-E 13 || Of all others similarly situated, 4 Plaintiff, ORDER ON PLAINTIFF’S NOTICE 8 PURSUANT TO FEDERAL RULE OF VIMEO.COM, INC., a Delaware 16 ¢ orp oration: and DOES 1 through 25, CIVIL PROCEDURE 41(a)(1)(A)(i) 17 || inclusive, Defendants. Filed: December 8, 2022

19 20 IT IS SO ORDERED. 21 DATED: February 10, 2023 22 Cegt 2 \bas 23

NOTICE OF VOLUNTARY DISMISSAL

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1 TO THE COURT, CLERK AND ALL PARTIES OF RECORD, please take notice 2 that Plaintiff Jesse Cantu (“Plaintiff”) respectfully requests dismissal of the instant action 3 pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure with prejudice as 4 to the Plaintiff’s individual claims, and without prejudice as to the putative class. There 5 has been no responsive pleading or motion filed, no class has been certified, and there is 6 no settlement or concession of class interests in order to resolve Plaintiff’s individual 7 claims. 8 Pursuant to Rule 23(e), “the district court should inquire into possible prejudice 9 from (1) class members’ possible reliance on the filing of the action if they are likely to 10 know of it either because of publicity or other circumstances, (2) lack of adequate time 11 for class members to file other actions, because of a rapidly approaching statute of 12 limitations, (3) any settlement or concession of class interests made by the class 13 representative or counsel in order to further their own interests.” Diaz v. Trust Territory 14 of the Pacific Islands, 876 F.2d 1401, 1408 (9th Cir. 1989). 15 Plaintiff contends the Diaz factors do not apply to the facts of this case, but even 16 if they did, dismissal is nonetheless proper. In 1989, the Ninth Circuit held in Diaz that 17 Rule 23(e) applies prior to class certification. 876 F.2d at 1408. At that time, Rule 23 18 provided that “[a] class action shall not be dismissed or compromised without the 19 approval of the court . . . .” Fed. R. Civ. P. 23(e) (as amended Mar. 2, 1987, eff. Aug. 1, 20 1987). Under Diaz, the district court evaluating dismissal is to “inquire into possible 21 prejudice from (1) class members’ possible reliance on the filing of the action if they are 22 likely to know of it either because of publicity or other circumstances, (2) lack of 23 adequate time for class members to file other actions, because of a rapidly approaching 24 statute of limitations, (3) any settlement or concession of class interests made by the class 25 representative or counsel in order to further their own interests.” 876 F.2d at 1408 26 (citations omitted). 27 Notably, Diaz was decided prior to amendments to Rule 23(e), which clarified that 28 Rule 23(e) applies to certified classes or settlement classes. Specifically, Rule 23(e) now

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1 provides that “[t]he claims, issues, or defenses of a certified class—or a class proposed 2 to be certified for purposes of settlement” may be settled or voluntarily dismissed “only 3 with the court’s approval.” Fed. R. Civ. P. 23(e) (emphasis added); see also Lee v. CVS 4 Pharmacy, Inc., No. 3:20-cv-01923-BEN-DEB, 2021 WL 308283, at *2 (S.D. Cal. Jan. 5 28, 2021) (acknowledging that “in 2003, the Congress revised Rule 23 to make clear that 6 court approval is only required in a putative class action where the plaintiff seeks to 7 approve a settlement of both individual and class claims”); 7B Charles Alan Wright & 8 Arthur R. Miller, Fed. Prac. & Proc., Settlement, Voluntary Dismissal, or Compromise of 9 Class Actions § 1797 (3d ed. 2021) (“settlements or voluntary dismissals that occur 10 before class certification are outside the scope of subdivision (e)”). Accordingly, because 11 no class has been certified and there is no settlement of any kind in this action, Rule 23(e) 12 does not apply. See Fed. R. Civ. P. 23(e). 13 Nevertheless, even if the Court were to apply the Diaz factors to these 14 circumstances, dismissal would be proper. First, it is unlikely that any putative class 15 members have relied on the action to protect their interests given that the case is in its 16 infancy and there are no circumstances suggesting reliance on Plaintiff’s claims. This 17 action has not been publicized in any way and as such, the putative class members are 18 highly unlikely to have knowledge of it, or to have relied upon it in any way. Similarly, 19 Plaintiff’s counsel is unaware of any other circumstances that may have led to the 20 putative class’s knowledge of, or reliance upon, this action. Second, just two months 21 have passed since the filing of the Complaint. Plaintiff’s earliest interaction with the chat 22 feature on Defendant’s website was in December 2022 and as such, based on the one- 23 year statute of limitations associated with his cause of action, the statute of limitations 24 shall not run until December 2023. As such, the rights of the putative class are preserved 25 by the solely individual dismissal of Plaintiff’s claims with prejudice. Third, as discussed 26 above, there is no settlement or concession of putative class interests given that there has 27 been no settlement or compromise of any kind related to any potential class claims 28 asserted in the Complaint. Indeed, the resolution reached between the Parties does not -3 - NOTICE OF VOLUNTARY DISMISSAL Case 2:22-cv-08888-SVW-E Document 20 Filed 02/10/23 Page 4 of 4 Page ID #:71

1 address, affect, or change the putative class’s rights or claims in any manner. Even under 2 Diaz, dismissal is clearly proper here. 3 The parties have diligently followed the rules to obtain a voluntary dismissal prior 4 to any substantive response to the Complaint. Diaz should not stand as a barrier to 5 dismissal, given the subsequent amendments to Rule 23(e) and the facts of this case in 6 which there is no settlement or compromise of any class claims, no collusion, and no 7 potential prejudice to any putative class member. Moreover, the dismissal as to any 8 putative class members would be without prejudice. 9 For all the foregoing reasons, the Plaintiff respectfully requests that the Court enter 10 a dismissal of this action with prejudice as to the named Plaintiff and without prejudice 11 as to the putative class. 12 Respectfully submitted, 13 Dated: February 9, 2023 PACIFIC TRIAL ATTORNEYS 14 By: /s/ Scott J. Ferrell Scott J. Ferrell 15 Attorney for Plaintiff 16 17 18 19 20 21 22 23 24 25 26 27 28

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