Rowe v. Sterling Valley Systems, Inc.

• Court: District Court, N.D. California
• Decided: November 9, 2022
• Docket: 3:22-cv-03608
• Status: Unknown

Opinion

My ~~ 9 ky by RED ! 1! John J. Nelson (317598) > 1118 sO ORD! > || Milberg Coleman Bryson ~ iM. < Phillips Grossman, PLLC aperr— wh 12 3 . 7, wo M. Chest! Re 280 S. Beverly Drive O\ Vyudee Maxine’ 4 ||Beverly Hills, CA 90212 PN xy , || Telephone: (917) 471-1894 oN Ly Fax: (865) 522-0049 Ly 5 A oS 6 Email: jnelson@milberg.com ISTRIC 7 || Counsel for Plaintiff and the Putative Class Dated: November 9, 2022

9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 CONNOR ROWE, individually and on Case No: 3:22-cv-03608 12 || behalf of all others similarly situated, 13 Plaintiff, REQUEST FOR DISMISSAL 4 WITHOUT PREJUDICE V. 15 ||STERLNG VALLEY SYSTEMS INC. d/b/a/ INNTOPIA, a Vermont 16 corporation, M Defendant 18 19 TO THE CLERK OF THE NORTHERN DISTRICT OF CALIFORNI AND ALL COUNSEL OF RECORD: 21 ||PLEASE TAKE NOTICE Plaintiff Connor Rowe, pursuant to Federal Rule of 22 |! Civil Procedure 41(a)(1)(A)(i), notices the dismissal of his Class Action Complaint \/against Defendant Sterling Valley Systems Inc. d/b/a Inntopia, a Vermont Corporation, without prejudice as to Plaintiff's individual claims, and without prejudicing any claims of absent putative class members. Dismissal is proper under Rule 41(a)(1)(A)(i), as Defendant has not served 27 its answer or a motion for summary judgment in this action. 28

REQUEST FOR DISMISSAL WITHOUT PREJUDICE

1 A class has not been certified in this action; thus, this voluntary dismissal 2 does not implicate the requirements of Rule 23(e). FED. R. CIV. P. 23(e) (“The 3 claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, 4 or compromised only with the court's approval.”); Committee Notes on Rule 23 – 5 2003 Amendment (“The new rule requires approval only if the claims, issues, or 6 defenses of a certified class are resolved by a settlement, voluntary dismissal, or 7 compromise.”). 8 Additionally, pursuant to the Court’s Chamber Rules, the dismissal would 9 not prejudice the absent putative Class Members. Under the standard cited by the 10 Chambers Rules, the Court must assess potential prejudice to the putative class 11 members from: (1) “possible reliance on the filing of the action if they are likely 12 to know of it either because of publicity or other circumstances”; (2) “lack of 13 14 adequate time for class members to file other actions, because of a rapidly 15 approaching statute of limitations”; and (3) “any settlement or concession of class 16 interests made by the class representative or counsel in order to further their own 17 interests.” Dunn v. Tchrs. Ins. & Annuity Ass'n of Am., No. 13-CV-05456-HSG, 18 2016 WL 153266, at *3 (N.D. Cal. Jan. 13, 2016) citing Diaz v. Trust Territory of 19 Pac. Islands, 876 F.2d 1401, 1408 (9th Cir. 1989). 20 Here, there is no evidence the case has been widely publicized (at least 21 outside the normal media associated with the filing of any lawsuit) or that any 22 putative class members are relying on this action. Mahan v. Trex Co., No. 5:09- 23 CV-00670 JF PVT, 2010 WL 4916417, at *3 (N.D. Cal. Nov. 22, 2010) (“With 24 respect to ‘reliance’ on the part of absent putative class members, ‘[t]he danger of 25 reliance is ... generally limited to actions that would be considered of sufficient 26 public interest to warrant news coverage of either the public or trade-oriented 27 variety [, and such reliance] can occur only on the part of those persons learning of 28 1 the action who are sophisticated enough in the ways of the law to understand the 2 significance of the class action allegation.’”). 3 Additionally, the data breach and phishing scheme that is described within 4 the Complaint occurred in November of 2021 and was only detected in February 5 of 2022. Connor Rowe v. Sterling Valley Systems Inc. d/b/a Inntopia., 3:22-cv- 6 03608 (N.D. Cal.), ECF No. 1 at ¶ 6. Accordingly, putative class members have 7 approximately a year and a half to bring tort-based claims and three and a half years 8 to bring any contract-based claims. See Cal. Code of Civ. Proc. §§ 335.1, 9 337(a). Additionally, these claims may be subject to equitable tolling since the 10 date this putative class action complaint was filed. See American Pipe & Const. Co. 11 v. Utah, 414 U.S. 538, 559 (1974); Tosti v. City of Los Angeles, 754 F.2d 1485, 12 1488 (9th Cir. 1985). There is sufficient time to bring an action, if necessary. See 13 14 Dunn, 2016 WL 153266, at *7. 15 Finally, Plaintiff has not made any concessions of the class interests. As 16 noted above, the dismissal is without prejudice and absent class members will 17 maintain their legal rights. Additionally, data breach cases are known for their 18 difficult in certifying. As one California federal court noted in denying 19 certification: 20 [W]hether each class member's personal information was actually 21 exposed; whether each class member actually suffered from identity theft after the hard drive was stolen; whether this identity theft is 22 traceable to the stolen hard drive; whether the class member 23 previously took measures to protect their personal information from 24 such identity theft; when and whether each class member enrolled in the credit and identity protection services offered by Defendant; and 25 whether each class member relied on Defendant's representations 26 regarding circumstances surrounding the security breach and the procedures in place to safeguard his or her personal information. 27 28 1 Gardner v. Health Net, Inc., No. CV 10–2140 PA, 2010 WL 11579028, at *4 (C.D. 2 Cal. Sept. 13, 2010). Accordingly, Plaintiff’s dismissal should not be seen as the 3 result of any potentially self-interested action. Tombline v. Wells Fargo Bank, N.A., 4 No. 13-CV-04567-JD, 2014 WL 5140048, at *3 (N.D. Cal. Oct. 10, 2014) (noting 5 when the dismissal “does not prevent putative class members from pursuing claims, 6 they are not likely, as a general matter, to be prejudiced.”). 7 Therefore, pursuant to Rule 41(a)(1)(A)(i), Plaintiff may notice dismissal of 8 this case, without leave of the Court. 9

10 Dated: November 8, 2022 Respectfully submitted,

12 /s/ John J. Nelson John J. Nelson (317598) 13 Milberg Coleman Bryson 14 Phillips Grossman, PLLC 280 S. Beverly Drive 15 Beverly Hills, CA 90212 16 Telephone: (858) 209-6941 Fax: (865) 522-0049 17 Email: jnelson@milberg.com 18

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