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Beltran v. Interexchange, Inc.

United States District Court, D. Colorado

April 9, 2018

JOHANA PAOLA BELTRAN, LUSAPHO HLATSHANENI, BEAUDETTE DEETLEFS, ALEXANDRA IVETTE GONZALEZ, JULIANE HARNING, NICOLE MAPLEDORAM, LAURA MEJIA JIMENEZ, and SARAH CAROLINE AZUELA RASCON, Plaintiffs,
v.
INTEREXCHANGE, INC., USAUPAIR, INC., GREATAUPAIR, LLC, EXPERT GROUP INTERNATIONAL INC., d/b/a Expert AuPair, EURAUPAIR INTERCULTURAL CHILD CARE PROGRAMS, CULTURAL HOMESTAY INTERNATIONAL, CULTURAL CARE, INC., d/b/a Cultural Care Au Pair, AUPAIRCARE INC., AU PAIR INTERNATIONAL, INC., APF GLOBAL EXCHANGE, NFP, d/b/a Au Pair Foundation, AMERICAN INSTITUTE FOR FOREIGN STUDY, d/b/a Au Pair in America, AMERICAN CULTURAL EXCHANGE, LLC, d/b/a GoAuPair, AGENT AU PAIR, A.P.EX. AMERICAN PROFESSIONAL EXCHANGE, LLC, d/b/a ProAuPair, 20/20 CARE EXCHANGE, INC., d/b/a The International Au Pair Exchange, ASSOCIATES IN CULTURAL EXCHANGE, d/b/a GoAu Pair, and GOAUPAIR OPERATIONS, LLC, Defendants.

          ORDER ON ALL PARTIES' JOINT REPORT REGARDING PROPOSED RULE 23 NOTIFICATION PLAN

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE

         This matter is before the Court on all parties' Joint Report Regarding Proposed Rule 23 Notification Plan, in which the parties request that the Court resolve their disputes about class notice procedures. (Doc. # 851.)

         I. BACKGROUND AND PROCEDURAL HISTORY

         The factual and procedural background of this case has been extensively detailed in the Court's previous orders and the Magistrate Judge's recommendations. See, e.g., (Doc. ## 240, 569, 828.) Additional information is included here only to the extent necessary to address the parties' Joint Report.

         On February 2, 2018, this Court granted in part Plaintiffs' Motion for Rule 23 Class Certification and Appointment of Class Counsel, certifying eighteen classes and subclasses and appointing class counsel. (Doc. # 828.) The Court ordered the parties to confer about class notice procedure and to “submit proposed notices and a proposed notification plan within ten (10) days of th[e] Order.” (Id. at 37.) It also directed the parties to “reach agreement on as many issues as possible and set forth their proposals and points of dispute in a concise joint filing.” (Id.) Subsequently, the parties moved for and the Court granted a two-day extension for the submission of proposed notices and notification plan. (Doc. ## 844, 845.)

         On February 14, 2018, the parties submitted the Joint Report Regarding Proposed Rule 23 Notification Plan now before the Court.[1] (Doc. # 851.) The Joint Report states that the parties conferred and largely agree to a proposed notice and notification plan.[2] (Doc. # 851.) However, the parties cannot reach agreement on five issues. (Id.) They “request that the Court enter a Rule 23 Notification Plan . . . or set a streamlined schedule for deciding remaining issues necessary for a Rule 23 Plan.” (Id. at 1.) The Court addresses each disputed issue below.

         II. CLARIFICATION OF CERTIFIED CLASSES

         In its February 2, 2018, certification order, the Court certified eighteen classes and subclasses. (Doc. # 828 at 34-37.) Three certified subclasses are relevant to this disputed issue:

1. Au Pair in America Illinois Subclass, defined as “All persons sponsored by Defendant Au Pair in America (American Institute for Foreign Study) to work as a standard au pair in the State of Illinois pursuant to a J-1 Visa”;
2. Cultural Care Pennsylvania Subclass, defined as “All persons sponsored by Defendant Cultural Care, Inc. to work as a standard au pair in the Commonwealth of Pennsylvania pursuant to a J-1 Visa”; and
3. Cultural Care Texas Subclass, defined as “All persons sponsored by Defendant Cultural Care, Inc. to work as a standard au pair in the State of Texas pursuant to a J-1 Visa.”

See (id.); (Doc. # 851 at 2.)

         A. PROCEDURAL HISTORY

         When Plaintiffs filed their Motion for Rule 23 Class Certification and Appointment of Class Counsel on June 3, 2017, Plaintiffs stated in a footnote that “[c]ertain of [the listed Plaintiffs] have not yet been joined but are the subject of a pending motion for leave to amend.” (Doc. # 559 at 3 n.3.) In the attached appendix, Plaintiffs represented that the Au Pair in America Illinois Subclass was represented by Camila Gabriela Perez Reyes, the Cultural Care Pennsylvania Subclass was represented by Linda Elizabeth, and the Cultural Care Texas Subclass was represented by Cathy Caramelo and Linda Elizabeth. (Doc. # 559-1 at 4-7.)

         Separately, Plaintiffs also filed a Motion to Amend Complaint on June 3, 2017. (Doc. # 564.) Plaintiffs sought leave to file a third amended complaint that “add[ed] as named plaintiffs Linda Elizabeth, Camila Gabriela Perez Reyes, and Cathy Caramelo” and named an additional defendant. (Id. at 2.) Defendants Cultural Care and Defendant American Institute for Foreign Study (“AIFS”), d/b/a Au Pair in America, responded in opposition on the same day. (Doc. ## 589, 587.) Plaintiffs replied on July 7, 2017. (Doc. # 595.)

         The Court denied Plaintiffs' Motion to Amend Complaint on February 13, 2018. (Doc. # 850.) With regard to Plaintiffs' request to add named plaintiffs, the Court concluded that Plaintiffs did not satisfy the good cause standard of Federal Rule of Civil Procedure 16(b)(4) and thus failed to demonstrate the elements necessary for amendment after a scheduling order deadline. (Id. at 3-6) (citing Gorsuch, Ltd., B.C. v. Wells Fargo Nat'l Bank Ass'n, 771 F.3d 1230 (10th Cir. 2014)). The Court reasoned that Plaintiffs did not demonstrate that they had previously engaged in diligent efforts to locate proposed plaintiffs.

         The parties gently point out in their Joint Motion that the Court's February 2, 2018, class certification order (Doc. # 828) and its February 13, 2018, order denying Plaintiffs' motion to add named plaintiffs (Doc. # 850) are in tension. (Doc. # 851 at 2.) The Court certified the Au Pair in America Illinois Subclass, the Cultural Care Pennsylvania Subclass, and the Cultural Care Texas Subclass in the certification order, (Doc. # 828 at 34-37), but rejected Plaintiffs' request to add the named plaintiffs that were to be those subclasses' representatives in its denial of Plaintiffs' Motion to Amend eleven days later (Doc. # 850 at 3-6). Accordingly, the Au Pair in America Illinois Subclass, the Cultural Care Pennsylvania Subclass, and the Cultural Care Texas Subclass do not currently have representative class members.

         The parties “request a clarifying order as to the status of an Au Pair in America Illinois Subclass, [a] Cultural Care Pennsylvania Subclass, and [a] Cultural Care Texas Subclass.” (Doc. # 851 at 2.) The Joint Motion does not detail the parties' positions; it merely states “Plaintiffs refer to the [February 2, 2018, certification order]; Defendants refer to the [February 13, 2018, order denying ...


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