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 ARTEAGA- 19 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. 28 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: 11 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. 28 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 11 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).
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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 ARTEAGA- 19 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. 28 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: 11 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. 28 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 11 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 11 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 11 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 28 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. 5 6 IT IS SO ORDERED: DATED this 5th day of June 2024.
8 9 49 || United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28