Patterson v. RW Direct, INC

Opinion

Brian S. Kabateck, SBN. 152054 1 bsk@kbklawyers.com 2 Christopher Noyes, SBN. 270094 3 cn@kbklawyers.com Joana Fang, Esq. SBN. 309623 4 jf@kbklawyers.com 633 W. 5th. Street, Suite 3200 6 Los Angeles, CA 90071 7 Telephone: (213) 217-5000 Facsimile: (213) 217-5010 8 9 Attorneys for Plaintiff 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN FRANCISCO DIVISION 13 14 15 KEITH PATTERSON, individually, and CASE NO. 3:18-cv-00055 on behalf of all others similarly situated, 16 The Hon. Vince Chhabria Plaintiffs, 17 vs. 18 JOINT REQUEST FOR DIMISSAL RW DIRECT, INC., POSITEC USA, PER RULE 23(e); [PROPOSED] 19 INC.; and DOES 1 to 50, inclusive, ORDER 20 Defendants. 21 (Filed concurrently with Declaration of 22 Joana Fang) 23 24 25 26 27 28 JOINT REQUEST FOR DISMISSAL 1 2 Plaintiff KEITH PATTERSON (hereinafter, “Plaintiff”) and Defendants RW 3 DIRECT, INC. and POSITEC USA, INC. (hereinafter, “Defendants”) by and 4 through their respective counsel of record hereby submit this request for dismissal 5 and request an order from the Court dismissing the above captioned case with 6 prejudice. 7 WHEREAS, on January 4, 2018, Plaintiff filed a proposed class action 8 against Defendants involving the WORX WG782 14-Inch 24 Volt Cordless Mower 9 (“WORX mower”), in the United States District Court, Northern District of 10 California, Case No. 3:18-cv-00055 (“Complaint”) alleging claims for (1) Breach 11 of Express Warranty, (2) Breach of Implied Warranty, (3) Breach of Express 12 Warranty (Magnuson-Moss Warranty Act) (4) Declaratory Judgment Act (28 13 U.S.C. §§ 2201(a), et. seq., (5) Breach of Express Warranty (Song-Beverly 14 Consumer Warranty Act), (6) Breach of Implied Warranty (Song-Beverly 15 Consumer Warranty Act), (7) Consumers Legal Remedies Act (Cal. Civ. Code §§ 16 1750, et. seq.), (8) Unfair Competition Law (Cal. Bus. & Prof. Code § 17200), (9) 17 Breach of Express Warranty Under Cal. U. Com. Code § 2313), and (10) Breach of 18 Implied Warranty Under Cal. U. Com. Code § 2314 (Declaration of Joana Fang 19 “Dec of JF,” ¶2); 20 WHEREAS, the proposed class is not certified in this matter and no motion 21 for certification has been made or is pending (Dec of JF, ¶3); 22 23 WHEREAS, based on the limited exposure of this case in the press, it is 24 highly unlikely that any putative class member has relied on the filing of this action. 25 Furthermore, no putative class members have filed any other action, or contacted 26 any of the parties, or sought to intervene in this action (Dec of JF, ¶4); 27 WHEREAS, class counsel is unaware of the identities of any putative class 28 members and therefore, cannot notify the unnamed class members of the dismissal if required to do so (Dec of JF, ¶5); 1 2 WHEREAS, class counsel is not aware of any danger that absent class 3 members will be prejudiced by a “rapidly approaching statute of limitations.” The 4 filing of a class action on both federal and state law claims tolls the applicable 5 statute of limitations for members of the putative class (See Am. Pipe & Constr. Co. 6 v. Utah, 414 U.S. 538, 553-554 (1974)) (Dec of JF, ¶6); 7 WHEREAS, the interests of putative class members are not being 8 compromised by Plaintiff’s individual settlement as it was reached after testing 9 conducted on Plaintiff’s WORX mower by Plaintiff’s expert did not substantiate the 10 alleged defect claims (Dec of JF, ¶7); and 11 WHEREAS, the parties have agreed to the dismissal of this action on the 12 following terms (i) dismissal of Plaintiff’s individual claims with prejudice, (ii) 13 dismissal of the putative class claims without prejudice to class members, and (iii) 14 for Plaintiff and Defendant to each bear their respective attorney’s fees and costs of 15 suit (Dec of JF, ¶8). 16

17 18 Dated: October 22, 2019 Respectfully submitted,

20 By: /s/ Joana Fang 21 Counsel for Plaintiff and the Proposed Class 22 23 Dated: October 22, 2019 Respectfully submitted,

24 NELSON MULLINS RILEY 25 & SCARBOROUGH, LLP

26 By: /s/ William H. Latham 27 Counsel for Defendants 28 1 [RPROROSED |] ORDER 2 The foregoing Joint Request for Dismissal of the parties is accepted and 3 || approved, and this action is hereby dismissed on the following terms (i) dismissal 4 Plaintiff’s individual claims with prejudice, (ii) dismissal of the putative class 5 claims without prejudice to class members, and (iii) for Plaintiff and Defendant to 6 || each bear their respective attorney’s fees and costs of suit. 7 9 10 owas Ovber28.2009 1D The Hon. Vince Chhabria

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