IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
MORRIS BICKLEY; MICHAEL D. PATTON; RAYMOND GREWE; DENNIS VANHORN; DOUGLAS PUMROY, v.
WALTER L. ELLIS,
Plaintiffs - Appellees,
SCHNEIDER NATIONAL CARRIERS, INC., a Nevada corporation, No. 16-16947
Defendant – Appellee.
On Appeal from the United States District Court for the Northern District of California, Oakland
The Honorable Jeffrey S. White
PLAINTIFFS-APPELLEES’ OPPOSITION TO APPELLANT’S MOTION FOR APPOINTMENT OF COUNSEL
Stanley D. Saltzman MARLIN & SALTZMAN, LLP
Lead Counsel For Dedicated/Intermodal Drivers
Lee M. Gordon
HAGENS BERMAN SOBOL SHAPIRO LLP
Lead Counsel For Regional Drivers
Plaintiffs-appellees Morris Bickley, et al. oppose objector-appellant Walter Ellis’s motion for appointment of counsel. Mr. Ellis fails to establish that this is one of the “very limited number” of civil appeals warranting pro bono counsel.1 To the contrary, this is just the type of case where appointing counsel to prosecute the appeal would needlessly squander the Court’s limited pro bono resources and reward dubious litigation tactics. Here, counsel should not be appointed to pursue arguments already found to be frivolous. As the Court is aware from its Order issued on November 30, 2016, Mr. Ellis is the only class member to object to a class action settlement approved by the District Court after eight years of litigation. All other settlement beneficiaries, a class of truck drivers, await distribution of their relief under the settlement. Fully steeped in the record, the District Court denied Mr. Ellis IFP status and imposed an appeal bond. As relevant to this motion, the District Court found that “Mr. Ellis’s objections to the class action settlement, and his appeal of the denial of those objections, are frivolous.”3 His objections “lacked any merit, and do not give rise to a non-frivolous issue on appeal.”4 The District Court concluded: “Because Mr. Ellis has not presented any non-frivolous issue that may be within the scope of this appeal, the Court DENIES Mr. Ellis’s request to proceed IFP on appeal and CERTIFIES that his appeal is not taken in good faith.”5
Appointment of counsel in a civil appeal is not a right. It should be reserved for potentially meritorious appeals, not plainly frivolous ones. Given the record in this case, the motion should be denied.
DATED: December 19, 2016
HAGENS BERMAN SOBOL SHAPIRO LLP
By /s/ Lee M. Gordon Lee M. Gordon , Esq.
ELLIS' REPLY TO opposition
On Appeal from the United States District Court for the Northern District of California, Oakland
PLAINTIFFS-APPELLEES’ OPPOSITION TO APPELLANT’S MOTION OR APPOINTMENT OF COUNSEL case# No. 4:08-cv-05806
Stanley D. Saltzman Lead Counsel For Dedicated/Intermodal Drivers
Lee M. Gordon HAGENS BERMAN SOBOL SHAPIRO LLP email@example.com Lead Counsel For Regional Drivers
Plaintiffs-appellees Morris Bickley, et al. oppose objector-appellant Walter Ellis’s motion for appointment of counsel. Appointment of counsel in a civil appeal is not a right. It should be reserved for potentially meritorious appeals, not plainly frivolous ones. Given the record in this case, the motion should be denied.
DATED: December 19, 2016 HAGENS BERMAN SOBOL SHAPIRO LLP By /s/ Lee M. Gordon (see above attachment)
Ellis' stated reasons why Lead Councels don't want Ellis to have APPOINTED COUNSEL representation:
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
Objectors only make general objections at this time due to the fact that Plaintiffs’ attorneys (“Class Counsel”) and mediator David Rotman (“Rotman”) refused to meet with Objectors to discuss the details surrounding the Agreement. Objectors also argue that they will not be able to provide this Court with enough information to determine the adequacy of the Agreement until after they meet with Class Counsel and Rotman. Objectors intend to file a supplemental brief prior to the final fairness hearing wherein they will provide additional facts and case law to support their position that the Agreement is neither fair nor adequate.
1) Objectors object to the Agreement on the grounds that the Agreement does not appear to be fair or adequate. Objectors argue that the class members have suffered damages in excess of hundred $100 million; wherefore, the Agreement which requires the class members to release all of their claims against Schneider for $28 million is clearly neither fair nor adequate. A district court’s approval of a class action settlement is contingent on “finding that it is fair, reasonable, and adequate.” (Fed. R. Civ. Pro. 23(e)(2); see also Molski v. Gleich, 318 F.3d 937, 953 (9th Cir. 2003).) A district court is required to consider class members’ objections to a class action settlement. (Fed. R. Civ. Pro. 23(e)(5); Devlin v. Scardelletti, 536 U.S. 1, 14, 122 S. Ct. 2005, 153 L. Ed. 2d 27 (2002).) In this instance, the class members were required to release their claims for pennies on the dollar; however, the Parties to the Agreement have failed to file any pleadings in this action which support their position that the class members should be denied the full value of their claims.
2) Objectors object to the Agreement on the grounds that the class members were not given an opportunity to fully participate in this action. Over the years, Ellis has repeatedly contacted Class Counsel wherein he volunteered to provide Class Counsel with additional evidence which would support the Plaintiffs’ claims. Ellis also contacted Class Counsel on numerous occasions and requested the status of the class action lawsuit. (See Declaration of Walter L. Ellis (“Ellis Dec.”) ¶ 2) Instead of promptly contacting Ellis and requesting additional information, Class Counsel routinely ignored Ellis’s correspondence and refused to allow him to participate in this action. Objectors argue that the Agreement is not fair because it requires that Ellis and the other class members release their statutory claims to unpaid wages without being given the opportunity to vigorously participate in this action. Based on the aforementioned facts, this Court cannot reach a reasoned judgment that the settlement reached in this action is fair. (Moleski v. Gleich, 318 F.3d 937, 953 (9th Cir. 2003); Officers for Justice v. Civil Service Comm., 688 F.2d 615, 625 (9th Cir. 1982).)
3) Objectors object to the Agreement on the grounds that the class members suffered retaliation for participating in this action. While employed by Schneider, Ellis routinely complained about Schneider’s unfair labor practices on his website which prompted Schneider to terminate Ellis’s employment. Ellis subsequently filed a retaliation lawsuit against Schneider in the Riverside County Superior Court (“Superior Court”). After Ellis became ill, Schneider was granted a default judgment against Ellis due to the fact that Ellis failed to respond to Schneider’s pleadings. As a means to retaliate against Ellis and to discourage Ellis and thousands of other class members from participating in this action, Schneider requested a default judgment against Ellis for the amount of $700,000. The Superior Court granted Schneider’s request for a default judgment against Ellis for the amount requested thereby sending a chilling message to Ellis and any other class member who dared to challenge Schneider’s unfair labor practices. The Appeals Court reversed the Superior Court’s order granting Schneider’s motion for attorney’s fees; nevertheless, Schneider’s actions discouraged Ellis and thousands of other class members from participating in this action.
Objectors argue that this Court should not approve the settlement that was reached in this action because the class members should be allowed to participate in this action without the fear of retaliation. Intimidating class members who are parties to a class action lawsuit goes against public policy and a settlement reached under those circumstances should not be approved even though the Parties stipulated to the Agreement. Ordinarily, parties can stipulate to severing portions of an agreement that have been deemed to be unenforceable; however, that is not the case when the agreement goes against public policy as in this instance. (Circuit City Stores, Inc. v. Adams, 279 F.3d 889, 893 (9th Cir. 2002).)
4) Objectors object to the Agreement on the grounds that Class Counsel should be disqualified from representing the class members in this action based on the fact that a clear conflict of interest exists. Specifically, the attorneys at Hagens Berman Sobol Shapiro LLP (“Hagens Firm”) represented a class of mechanics in an action entitled Krumbine v. Schneider National Carriers, Inc., Case No. 10-CV-4565-GHK (JEMx) (“Krumbine Action”) wherein Schneider was also the defendant in said action. At no time did the Hagens Firm notify the Plaintiffs in this action that the Krumbine Action had been filed thereby creating a clear conflict of interest.
Objectors have reason to believe that Class Counsel diminished the class members’ claims in this action in order to obtain a better settlement in the Krumbine Action. Objectors argue that this Court should not approve the settlement based on the aforementioned conflict of interest. Informed written consent is required before an attorney can jointly represent clients in the same matter. It is well settled that simultaneous representation of clients with conflicting interests (and without written informed consent) is an automatic
ethics violation in California and grounds for disqualification. (Image Technical Serv., Inc. v. Eastman Kodak Co., 136 F.3d 1354, 1358 (9th Cir. 1998)).
5) Objectors object to the Agreement on the grounds that the PAGA payment agreed to in this action is not enough to fulfill the purpose of the PAGA statute. The PAGA was adopted to empower aggrieved employees to act as private attorneys general and to authorize them to seek civil penalties for Labor Code violations that previously could be assessed only by state agencies. (Dunlap v. Superior Court (2006) 142 Cal.App.4th 330, 336). The purpose of the PAGA statute was to penalties employers who violate the PAGA statute and to deter them from engaging in any subsequent violations. In this instance, the Parties agreed to settle the class members’ PAGA claims for only $75,000. The PAGA violations alleged in this action total more than $100 million. Wherefore, Objectors argue that the purpose of the PAGA statute will not be served if the class members are forced to settle their PAGA claims for such a miniscule amount.
6) Objectors object to the Agreement on the grounds that the settlement appears to be the product of fraud and collusion. The Agreement provides for substantial monetary gain for Class Counsel, the mediator and the claims administrator and provides for little or nothing of value to the aggrieved class members. Objectors argue that a settlement agreement that does not benefit the affected class members should not be approved. It is well settled that the settlement may not be the product of collusion among the negotiating parties. (Ficalora v. Lockheed California Co., 751 F.2d 995, 997 (9th Cir. 1985); In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 458 (9th Cir. 2000).) Objectors argue that this Court has a duty to review the facts of this case and ensure that the Agreement was not the product of fraud and collusion. (See Officers for Justice v. Civil Serv. Comm'n of the City and County of San Francisco, 688 F.2d 625 (9th Cir. 1982).)
Furthermore, Objectors have discovered that Rotman has a history of colluding with class action attorneys and large employers to defraud workers out of their unpaid wages which suggests that Rotman is not a neutral mediator. Courts have ruled that use of a “neutral mediator” is “a factor weighing in favor of a finding of non-collusiveness”. (Jones v. GN Netcom, Inc. (In re Bluetooth Headset Prods. Liab. Litig.), 654 F.3d 935, 948 (9th Cir. 2011).) This Court must ensure that the mediator assigned to action is fair and neutral.
7) Objectors object to the Agreement on the grounds that the Plaintiffs in this action did not adequately represent the interests of the unnamed class members. Objectors argue that this Court should not approve the settlement on the grounds that Plaintiffs did not adequately fulfill their roles as class representatives in this action. Specifically, the class members did not make themselves available to the unnamed claims members and they failed to speak out against the fraud and collusion that was clearly evident in this action.
Furthermore, the Plaintiffs in this action have not proven that they are knowledgeable enough about Schneider’s employment practices to act as adequate representatives. (Guido v. L’Oreal, USA, Inc., 2013 WL 3353857, at *8 (C.D. Cal. 2013) (Snyder, J.) (stating that a class representative must have some “involvement in the case and a basic knowledge of the facts,” otherwise he “is unable to make informed decisions about the litigation or guard against potential conflicts of interest involving class counsel”). Objectors argue that Ellis and not Plaintiffs is in a better position to as act as class representative.
8) Objectors object to the Agreement on the grounds that the claims filing process was inadequate. Objectors have reason to believe that hundreds of class members did not receive their claim forms which suggests that the claims filing process in this action was not fair or adequate. Ellis did not receive his claim form until after he contacted the claims administrator to request it. Ellis was also contacted by other class members who did not receive their claim forms. (Ellis Dec. ¶ 3) This Court should not approve the settlement of this action until after the Parties have provided this Court with evidence which proves that the claims filing process is adequate.
9) Objectors object to the Agreement on the grounds that the attorneys’ fees requested are not justified. In determining what fees are reasonable, a district court may consider a lawyer’s misconduct, which affects the value of the lawyer’s services. (Image Technical Services, Inc. v. Eastman Kodak Co., 136 F. Supp. 1358 (C.D. Cal 1997)) A court has broad equitable power to deny attorneys’ fees (or to require an attorney to disgorge fees already received) when an attorney represents clients with conflicting interests. (See Silbiger v. Prudence Bonds Corp., 180 F.2d 917, 920 (2d Cir. 1950).)
Objectors argue that this Court should not approve the Agreement and allow Objectors to shine a light on the fraud that was committed in this action thereby protecting the unnamed class members from imminent harm. In a class action, whether attorneys’ fees come from a common fund or are otherwise paid, the district court must exercise its inherent authority to assure that the amount and mode of payment of attorneys’ fees are fair and proper. This duty of the court exists independently of any objection. (Zucker v. Occidental Petroleum Corp., 192 F.3d 1323, 1328-29 (9th Cir. 1999).
Based on the foregoing, Objectors respectfully request that this Court deny Plaintiffs’ Motion for Final Approval of Class Action Settlement in its entirety. Objectors also request that this Court disqualify Class Counsel, mediator and the claims administrator and allow the Class Members to elect new and different Class Counsel, mediator and claims administrator. Additionally, Objectors reserve their right to augment these objections with additional facts, arguments and case law at any time prior to final approval of the settlement.
Dated: August 15, 2016 By ________
Walter L. Ellis, Pro Se
A complaint against Schneider National Carriers, Inc. RE: DISCRIMINATION / FALSE IMPRISONMENT / RETALIATION / FRIVOLOUS LAW SUIT / MALICIOUS PROSECUTION / PERJURY / DENIAL of DUE PROCESS, CONSPIRCY to commit FRAUD beginning 1/12/2009 to present
(1). Workman Comp complaint case # ADJ6624664; ADJ6624781 see: http://schneiderworkcompcompl2009.blogspot.com/
(2). Workman Comp Judge Chris Willmon, see: http://commissioncomplaint-judgewillmon.blogspot.com/
(3). SCHNEIDER, (SNI) SUES ELLIS for $701,000.00 (without a prove-up of the complaint), see:
CONSPIRED WITH AN UNETHICAL Judge John M. Pacheco who accepted a 170.6pc, see: http://californiajusticforcaucasians.blogspot.com/ http://impeachjudgejohnmpacheco.blogspot.com/
(4). Ellis filed an Appeal, which threw out $690,000.00 of the fraudulent lawsuit based on FRAUD, etc..
(5). Due to the harm caused by SNI filing the fraudulent lien Ellis intend to follow through or incorporate the following: Ellis v. SCHNEIDER
case# RIC 1606203 1. SLANDER OF TITLE; 2. Quiet title; 3. FRAUD AND CONSPIRACY; 4. DECLARATION RELIEF; JURY TRIAL Demand
I am 78 years of age, in good health and intend to continue asking for justice. I ask that you assist in resolving these problems.
These complaints are to notify all concerned that it is PLAINTIFF’S intent to ask the Court(s) to combine the complaints due to FRAUD and CONSPIRCY to commit FRUAD