Marti v. MLB - Petition for Writ of Mandamus

7/17/2019 Marti v. MLB - Petition for Writ of Mandamus

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No.

In The

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

______________________

PETITION FOR WRIT OF MANDAMUS

Yadel Marti, Edgardo Baez, Helder Velaquez, Jorge Jimenez, Jorge Minyety, Edwin

Maysonet, Jose Diaz, Brahiam Maldonado, Jaime Ortiz, Luis Mateo, Javier Machuca,Julio Rodriguez, Ruben Sierra, Jr., Orlando Alfonso, Kyle Dhanani, Nelvin Fuentes,

Roidany Aguila, Mario Santiago, and Miguel Abreu

Petitioners,v.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OFCALIFORNIA Respondent,

Aaron Senne, Michael Liberto, Oliver Odle, Brad Mcatee, Craig Bennigson, MattLawson, Kyle Woodruff, Ryan Kiel, Kyle Nicholson, Brad Stone, Matt Daly,

Aaron Meade, Justin Murray, Jake Kahaulelio, Ryan Khoury, Dustin Pease, Jeff Nadeau, Jon Gaston, Brandon Henderson, Tim Pahuta, Les Smith, Joseph Newby,

Ryan Hutson, Matt Frevert, Roberto Ortiz, Witer Jimenez, Kris Watts, Mitch

Hilligoss, Matt Gorgen, Brett Newsome, Jake Opitz, Daniel Britt, Joel Weeks,

Gaspar Santiago, Matt Lewis, Nick Giarraputo, Leonard Davis, David Quinowski,Mark Wagner, Brandon Pinckney, Lauren Gagnier, Omar Aguilar, and Grant Duff,

Individually and on Behalf of all Those Similarly Situated; Office Of TheCommissioner Of Baseball, an unincorporated association doing business as Major

League Baseball; Allan Huber “Bud” Selig; Kansas City Royals Baseball Corp.;

Miami Marlins, L.P.; San Francisco Baseball Associates LLC; Boston Red Sox

Baseball Club L.P.; Angels Baseball L.P.; Chicago White Sox Ltd.; St. LouisCardinals, LLC; Colorado Rockies Baseball Club, Ltd.; The Baseball Club Of

Seattle, LLP; The Cincinnati Reds, LLC; Houston Baseball Partners LLC;

Athletics Investment Group, LLC; Rogers Blue Jays Baseball Partnership;Cleveland Indians Baseball Co., L.P.; Cleveland Indians Baseball Co., Inc.; Padres

L.P.; San Diego Padres Baseball Club, L.P.; Minnesota Twins, LLC; Washington

Nationals Baseball Club, LLC; Detroit Tigers, Inc.; Los Angeles Dodgers LLC;Los Angeles Dodgers Holding Company LLC; Sterling Mets L.P.; Atlanta

National League Baseball Club, Inc.; AZPB L.P.; Baltimore Orioles, Inc.;Baltimore Orioles, L.P.; The Phillies; Pittsburgh Associates, L.P.,; New York

Case: 15-72971, 09/25/2015, ID: 9698330, DktEntry: 1-2, of 38



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Yankees P’ship; Tampa Bay Rays Baseball Ltd.; Rangers Baseball Express, LLC;

Rangers Baseball, LLC; Chicago Cubs Baseball Club, LLC; Milwaukee BrewersBaseball Club, Inc.; Milwaukee Brewers Baseball Club, L.P.

Real Parties in Interest ______________________

From a Decision of the United States District Court for the Northern District of California

Joseph C. Spero, Magistrate Judge, Case No. 14-cv-00608-JCS (consolidated with 14-cv-3289 JCS)

______________________

SAMUEL KORNHAUSER

LAW OFFICES OF SAMUEL KORNHAUSER155 JACKSON STREET, SUITE 1807

SAN FRANCISCO, CA 94111

TEL (415) 981-6281

FACSIMILE (415) 981-7616

BRIAN DAVID, ESQ., ILLINOIS ARDC NO. 0582468LAW OFFICES OF BRIAN DAVID

33 NORTH LASALLE STREET,

SUITE 3200

CHICAGO, ILLINOIS 60610TELEPHONE: (847) 778-7528

FACSIMILE: (312) 346-8469




3

CORPORATE DISCLOSURE STATEMENT

None of the Petitioners is a corporation which has a parent corporation and

no publicly held corporation owns 10% or more of any Petitioner.




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CERTIFICATE OF INTERESTED PARTIES

Affected Court Action

The District Court Action from which this petition arises is entitled: Senne, et al.,

v. Office of the Commissioner of Baseball, et al., pending in the United States District

Court for the Northern District of California, District Court No. 14-cv-00608-JCS

(consolidated with 14-cv-3289-JCS).

Petitioners

Petitioners are Yadel Marti, Edgardo Baez, Helder Velaquez, Jorge Jimenez, Jorge

Minyety, Edwin Maysonet, Jose Diaz, Brahiam Maldonado, Jaime Ortiz, Luis Mateo,

Javier Machuca, Julio Rodriguez, Ruben Sierra, Jr., Orlando Alfonso, Kyle Dhanani,

Nelvin Fuentes, Roidany Aguila, Mario Santiago, and Miguel Abreu, who are the named

Plaintiffs in the consolidated case No. 14-cv-3289-JCS. Petitioners are represented by:

Samuel Kornhauser (California Bar No. 083528)Law Offices of Samuel Kornhauser

155 Jackson Street, Suite 1807San Francisco, CA 94111

Telephone (415) 981-6281

Facsimile (415) 981-7616

Email: [email protected]

Brian David, Esq., Illinois ARDC No. 0582468

Law Offices of Brian David33 North LaSalle Street, Suite 3200

Chicago, Illinois 60610

Telephone: (847) 778-7528Facsimile: (312) 346-8469




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Respondent

United States District Court for the Northern District of California




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Real Parties In Interest

The Real Parties In Interest are Aaron Senne, Michael Liberto, Oliver Odle,

Brad Mcatee, Craig Bennigson, Matt Lawson, Kyle Woodruff, Ryan Kiel, Kyle

Nicholson, Brad Stone, Matt Daly, Aaron Meade, Justin Murray, Jake Kahaulelio,Ryan Khoury, Dustin Pease, Jeff Nadeau, Jon Gaston, Brandon Henderson, Tim

Pahuta, Les Smith, Joseph Newby, Ryan Hutson, Matt Frevert, Roberto Ortiz,Witer Jimenez, Kris Watts, Mitch Hilligoss, Matt Gorgen, Brett Newsome, Jake

Opitz, Daniel Britt, Joel Weeks, Gaspar Santiago, Matt Lewis, Nick Giarraputo,Leonard Davis, David Quinowski, Mark Wagner, Brandon Pinckney, Lauren

Gagnier, Omar Aguilar, and Grant Duff, Individually and on Behalf of all Those

Similarly Situated; Office Of The Commissioner Of Baseball, an unincorporatedassociation doing business as Major League Baseball; Allan Huber “Bud” Selig;

Kansas City Royals Baseball Corp.; Miami Marlins, L.P.; San Francisco Baseball

Associates LLC; Boston Red Sox Baseball Club L.P.; Angels Baseball L.P.;Chicago White Sox Ltd.; St. Louis Cardinals, LLC; Colorado Rockies BaseballClub, Ltd.; The Baseball Club Of Seattle, LLP; The Cincinnati Reds, LLC;

Houston Baseball Partners LLC; Athletics Investment Group, LLC; Rogers Blue

Jays Baseball Partnership; Cleveland Indians Baseball Co., L.P.; Cleveland IndiansBaseball Co., Inc.; Padres L.P.; San Diego Padres Baseball Club, L.P.; Minnesota

Twins, LLC; Washington Nationals Baseball Club, LLC; Detroit Tigers, Inc.; LosAngeles Dodgers LLC; Los Angeles Dodgers Holding Company LLC; Sterling

Mets L.P.; Atlanta National League Baseball Club, Inc.; AZPB L.P.; Baltimore

Orioles, Inc.; Baltimore Orioles, L.P.; The Phillies; Pittsburgh Associates, L.P.,;

New York Yankees P’ship; Tampa Bay Rays Baseball Ltd.; Rangers BaseballExpress, LLC; Rangers Baseball, LLC; Chicago Cubs Baseball Club, LLC;

Milwaukee Brewers Baseball Club, Inc.; Milwaukee Brewers Baseball Club, L.P.

The Real Parties In Interest are represented by:

STEPHEN M. [email protected]

GARRETT R. [email protected] ZIGLER

[email protected] TILLERY, LLC

505 North 7th Street, Suite 3600St. Louis, MO 63101




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BRUCE L. SIMON

(Bar No. 96241) [email protected]

BENJAMIN E. SHIFTAN


PEARSON, SIMON & WARSHAW, LLP44 Montgomery Street,

Suite 2450San Francisco, CA 94104

DANIEL L. WARSHAW(Bar No. 185365)

[email protected]

BOBBY POUYA (Bar No. 245527) [email protected], SIMON & WARSHAW, LLP

15165 Ventura Boulevard, Suite 400

Sherman Oaks, California 91403

ENZO DER [email protected]

PROSKAUER ROSE LLP

2049 Century Park East, Suite 3200

Los Angeles, CA 90067

D. GREGORY [email protected]

SHAW VALENZA LLP

300 Montgomery Street, Ste. 788

San Francisco, CA 94105

ELISE M. [email protected]

NEIL H. ABRAMSON

[email protected] M. [email protected]




8

HOWARD L. GANZ

[email protected] SANTORO

[email protected]

PROSKAUER ROSE LLP11 Times Square

New York, NY 10036




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TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ............................... 3

CERTIFICATE OF INTERESTED PARTIES ............................... 4

Affected Court Action ..................................................................... 4

Petitioners......................................................................................... 4

Respondent ....................................................................................... 5

Real Parties In Interest ................................................................... 6

TABLE OF CONTENTS ................................................................... 9

TABLE OF AUTHORITIES ........................................................... 11

INTRODUCTION ............................................................................ 13

ISSUES PRESENTED ..................................................................... 16

RELIEF SOUGHT ........................................................................... 16

STATEMENT OF FACTS AND PROCEDURAL HISTORY .... 17

LEGAL STANDARD ....................................................................... 22

ARGUMENT ..................................................................................... 24

I.

THE DISTRICT COURT ABUSED ITS DISCRETION

AND COMMITTED CLEAR ERROR IN DENYINGPETITIONERS’ MOTION FOR LEAVE TO FILE A

MOTION FOR RECONSIDERATION, BECAUSE THE

CHANGED CIRCUMSTANCES MAKE CLEAR THAT THE

PRIOR ORDERS ARE IN ERROR AND IF NOT

CORRECTED WILL LEAVE PETITIONERS AND CLASS

MEMBERS WITHOUT REMEDIES FOR AT LEAST TEN

WAGE AND HOUR STATE LAW CLASS ACTION

VIOLATIONS WHICH WILL EVADE APPELLATE

REVIEW ABSENT MANDAMUS. ............................................. 24

A. NO OTHER ADEQUATE MEANS OF RELIEF ......... 24

B.

PETITIONERS HAVE SUFFERED AND WILL

CONTINUE TO SUFFER IRREPARABLE INJURY. ......... 26

C.

THE DISTRICT COURT’S ORDERS ARE CLEARLY

ERRONEOUS AS A MATTER OF LAW. .............................. 29




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i. The Court’s Denial of Leave To Move for

Reconsideration Was Clearly Erroneous And An Abuse of

Discretion. ................................................................................ 30

ii. The Court’s Sua Sponte Striking of Petitioners’ First

Amended Complaint Was Clear Error And an Abuse ofDiscretion. ................................................................................ 32

iii. It Was Also an Abuse of Discretion And Clear Error to

Deny Leave to Reconsider The Appointment of KT and

PSW as Interim Co-Lead Counsel Because The Rights and

Claims of Petitioners And of The Ten Potential Classes Have

Been Severely Prejudiced. ...................................................... 33

CONCLUSION ................................................................................. 34

STATEMENT OF RELATED CASES .......................................... 35

CERTIFICATE OF SERVICE ....................................................... 36




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TABLE OF AUTHORITIES

Cases

Bauman v. U.S. Dist. Court , 557 F.2d 650, 654-55 (9th

Cir. 1977)) ........................................................................... 23, 25, 26

Cohen v. United States District Court for the Northern District of California, 586 F.3d 703 (9th Cir. 2009), ............... 16, 23

Cole v. United States Dist. Ct. for Dist. of Idaho, 366

F.3d 813, 817 (9th Cir. 2004) .......................................................... 25

Douglas v. U.S. Dist. Court , 495 F.3d 1062, 1065-66 (9thCir. 2007) .................................................................................. 23, 26

Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9thCir.1993). ........................................................................................ 32

Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994). .................................. 32

Hernandez v. Tanninen, 604 F.3d 1095, 1099 (9th Cir.2010)................................................................................................ 23

Horizon Asset Management, Inc. v. H & R Block, Inc.,580 F.3d 755, 768-69 (8th Cir. 2009). .......................... 17, 28, 31, 33

In re Cement Antitrust Litig., 688 F.2d 1297, 1304 (9th

Cir. 1982), ....................................................................................... 23

Kentucky Speedway, LLC v. Nat’l Ass’n of Stock Car

Auto Racing, Inc., 410 F. Supp. 2d 592, 599-600 (E.D.Ky. 2006)......................................................................................... 27

See Malcolm v. National Gypsum Co., 995 F.2d, 346,

351 (2nd Cir. 1993). ........................................................................ 31

United States E.P.A. v. City of Green Forest, Ark. 921

F.2d 1394, 1402 (8th Cir. 1990). ..................................................... 31

Valenzuela – Gonzalez v. U.S. Dist. Court , 915 F.2d 1276,

1279 (9th Cir. 1990), ....................................................................... 23

Varsic v. United States Dist. Ct., 607 F.2d 245, 251 (9thCir. 1979) ........................................................................................ 24

Washington Public Util. Group v. United States Dist. Ct.

for Western Dist. of Wash., 843 F.2d 319, 325 (9th Cir.

1987)................................................................................................ 26




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Other Authorities

All Writs Act, 28 U.S.C. § 1651 ......................................................... 22

Local Rule 7-9(b) .............................................................. 13, 16, 22, 29

Local Rule 7-9(b)(1),(2) ..................................................................... 31




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INTRODUCTION

This petition seeks writ relief from the District Court’s July 23, 2015 order

denying Petitioners’ motion for leave to file a motion for reconsideration1 (Exhibit

20, pp. 1 and 2). The motion for leave to file a motion for reconsideration sought

reconsideration of the District Court’s interlocutory orders: 1) denying Petitioner’s

motion to be appointed co-lead counsel (Exhibit 9, pp. 1 and 2), 2) consolidating

Petitioners’ federal and state class action wage and hour claims with another class

action which did not assert the same state wage and hour claims (Exhibit 9, pp. 1

and 2), and 3) the court order sua sponte dismissing Petitioners’ First Amended

Complaint (Exhibit 13, pp. 1 and 2), resulting in the dismissal of ten (10) of

Petitioners’ state wage and hour claims that are not asserted in the Second

Consolidated Complaint thereby leaving members’ claims for the classes of those

ten (10) state claims without representation. (Exhibits 12 and 16).

A writ should be issued because the magistrate judge’s denial of Petitioners’

motion for leave to file a motion for reconsideration on the grounds that Petitioners

did not satisfy Civil Local Rule 7-9(b) was incorrect and constituted an abuse of

judicial discretion. The motion did satisfy the criteria for reconsideration.

The district court’s denial of Petitioner’s motion for leave to file a motion for

reconsideration (Exhibit 20, pp. 1 and 2) forecloses Petitioners’ rights to pursue

1 “Exhibit __, p. __”refers to the exhibit number and page numbers of theExhibits to Petition for Writ of Mandamus filed herewith.




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their separate and distinct claims (including a claim for defendants’ conspiracy to

commit the state wage and hour claims, which claims have not been pursued by the

appointed interim lead counsel for the Real Parties In Interest in the Consolidated

Second Amended Complaint in the Senne action). (Exhibit 16).

Respectfully, the district court abused its discretion by denying Petitioners’

motion for leave to file a motion for rehearing regarding the district court’s sua

sponte dismissal and striking of the First Amended Complaint filed by Petitioners

in the consolidated Marti action. (Exhibits 12, 13, and 20). The district court

refused to consider factual material changes that were not known and could not

have been known by Petitioners or their counsel at the time the motions for

consolidation and appointment for co-lead counsel were contested.

Specifically, at the time Petitioners’ counsel opposed both consolidation and

appointment of co-lead counsel, counsel did not yet represent twelve (12) of the

Petitioners. (Exhibits 7 and 8). Petitioners’ First Amended Complaint, filed after

the motions for consolidation and appointment of co-lead counsel were pending,

added twelve (12) additional named plaintiffs and added ten (10) separate and

distinct class action claims for violations of state wage and hour laws (in addition

to their existing California, Florida, Arizona, North Carolina, New York,

Pennsylvania, Maryland, and Oregon state wage and hour law claims). (Exhibit




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12).2 Petitioners’ First Amended Complaint also raised allegations of conspiracy

(Exhibit 12, pp. 2 and 29), which Real Parties In Interest (Senne plaintiffs) and not

pursuing. (Exhibits 10 and 16).

The denial of Petitioners’ motion for leave to file a motion for

reconsideration is incorrect and constitutes an abuse of discretion. The district

court refused to consider factual material changes that have transpired since the

district court (1) denied Petitioners’ motion to be appointed co-lead counsel; (2)

consolidated the Senne and Marti actions despite the two cases pursuing different

state wage and hour claims, and a separate and distinct claim of conspiracy only

being pursued by the Marti Petitioners. The sua sponte dismissal of Petitioners’ ten

state wage and hour class action claims have left those class members’ without

representation as to their Nebraska, Wisconsin, Tennessee, Montana, Indiana,

Arkansas, Iowa, Michigan, Washington, and New Jersey state law class action

claims. Such factual material changes were not known by Petitioners’ and their

counsel and could not have been known by Petitioners’ and their counsel at the

2 Petitioners initial complaint asserted class action claims for violation of

Oregon, Maryland, Pennsylvania, Arizona, Florida, and California wage and

hour laws which the Senne plaintiffs had not asserted. The Senne plaintiffs

thereafter amended their complaint to assert the same Oregon, Maryland,Pennsylvania, Arizona, Florida, and California wage and hour claims but did

not assert and have not asserted class action claims for the ten additionalstate law violations (Nebraska, Wisconsin, Tennessee, Montana, Indiana,

Arkansas, Iowa, Michigan, Washington, and New Jersey) alleged by

Petitioners in their First Amended Complaint (Exhibit 12) which the DistrictCourt erroneously sua sponte dismissed (Exhibit 13).




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time Petitioners moved for their counsel to be appointed co-lead counsel, and in

their opposition to consolidation of the Senne and Marti actions. The district

court’s sua sponte dismissal of Petitioners’ First Amended Complaint has left the

class members’ without representation o their state wage and hour claims for those

states. These factual material changes satisfy the Civil Local Rule 7-9(b)

requirements and Petitioners should therefore be permitted leave to file a motion

for reconsideration regarding the district court’s interlocutory orders. Cohen v.

United States District Court for the Northern District of California, 586 F.3d 703,

710-11 (9th Cir. 2009).

ISSUES PRESENTED

Whether the district court’s denial of Petitioners’ motion for leave to file a

motion for reconsideration on the grounds that the requirements of Civ. Local Rule

7.9(b) had not been met was clearly erroneous and constituted an abuse of

discretion?

Whether the district court was incorrect in denying Petitioners’ motion for

leave to file a motion for reconsideration?

RELIEF SOUGHT

Petitioners petition this Court for a writ of mandamus directing the

respondent district court to vacate its July 23, 2015 order denying Petitioners’

motion for leave to file motion for reconsideration and enter a new order




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permitting Petitioners to file a motion for reconsideration regarding appointment of

co-lead class counsel, consolidation of the Senne and Marti actions, and sua sponte

dismissal of Petitioners’ First Amended Complaint.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Petitioners (collectively “Marti”) filed their Complaint in the district court in

the Marti action, Case No. 3:14-cv-05349-HSG, on July 21, 2014, alleging claims

against the Major League Baseball Defendants for violation of the Fair Labor

Standards Act (“FLSA”) and Oregon, Maryland, Pennsylvania, Arizona, Florida,

and California state wage and hour class action claims. (Exhibit 2). The Complaint

in Marti alleged violations of Pennsylvania, Maryland, and Oregon state wage and

hour claims which were not alleged in the Senne case. (Exhibit 1).

On August 18, 2014, Real Parties In Interest (the Senne plaintiffs) filed two

motions. The Senne plaintiffs moved to consolidate the Senne and Marti matters

(Exhibit 5) and also moved to be appointed interim co-lead counsel. (Exhibit 6).

The Marti Petitioners’ vigorously opposed both motions. (Exhibits 7 and 8).

First, Petitioners’ opposed consolidation of the Senne and Marti cases on the

grounds that the cases involved different state wage and hour class action claims

which had not been asserted in the Senne action. Horizon Asset Management, Inc.

v. H & R Block, Inc., 580 F.3d 755, 768-69 (8th Cir. 2009). (Exhibit 7, p. 2).

Petitioners also opposed the Senne plaintiffs’ motion to be appointed interim co-




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lead counsel on the grounds that they could not represent the Oregon, Maryland,

Pennsylvania, Arizona, Florida, and California clients on their state law class

action claims asserted only by the Marti Plaintiffs. Horizon Asset Management,

Inc. v. H&R Block, Inc., supra 580 F.3d at 768-69. (Exhibit 7, p. 2). Based on

those deficiencies, the undersigned counsel for Marti moved to be appointed co-

lead counsel. (Exhibit 3).

On October 10, 2010, the district court ordered consolidation of the two

cases. (Exhibit 9, pp. 1 and 2). In that same Order, the district court also appointed

KT and PSW interim co-lead counsel despite legitimate concerns raised by Marti

(which have since come to fruition) that their interests and those of the class

members in those ten states are not represented by KT and PSW. (Exhibit 9, pp. 1

and 2).

Counsel for Petitioners only represented 7 of the current 19 Petitioners at the

time the two motions were pending before the district court. (Exhibits 7 and 8).

Representation of the additional 12 new Petitioner plaintiffs and their assertion of

the ten (10) additional state wage and hour class action claims did not commence

until December, 2014, long after October 10, 2014, when the district court decided

to consolidate the two cases and to appoint KT and PSW as interim co-lead

counsel. (Exhibit 12).




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The Senne plaintiffs thereafter added additional plaintiffs and filed a

consolidated first amended complaint on October 24, 2014. (Exhibit 10). The

Senne plaintiffs (represented by KT and PSW, after being appointed interim co-

lead counsel by the district court) amended their consolidated complaint to add

Oregon, Maryland, Pennsylvania, Arizona, Florida, and California state wage and

hour class action claims (which the Marti plaintiffs had alleged in their original

July 21, 2014 Complaint) but failed to amend the consolidated complaint to allege

that the Major League Baseball defendants conspired to commit state wage and

hour violations in Nebraska, Wisconsin, Tennessee, Montana, Indiana, Arkansas,

Iowa, Michigan, Washington, and New Jersey which the Petitioners did assert in

their First Amended Complaint. (Exhibits 12 and 16).

Counsel for Petitioners did not yet represent Brahiam Maldonado, Jaime

Ortiz, Luis Mateo, Javier Machuca, Julio Rodriguez, Ruben Sierra, Jr., Orlando

Alfonso, Kyle Dhanani, Nelvin Fuentes, Roidany Aguila, Mario Santiago, and

Miguel Abreu on October 10, 2014 when the district court ruled on the

consolidation motion and motion to appoint co-lead counsel. Therefore, counsel

for Petitioners did not raise and could not have raised in their opposition to the

motions for consolidation of the Senne and Marti actions, and for appointment of

interim lead counsel, the claims of those additional Petitioners alleging class action

claims for Nebraska, Wisconsin, Tennessee, Montana, Indiana, Arkansas, Iowa,




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Michigan, Washington, and New Jersey state wage and hour violations which were

not alleged in the Senne action. It also follows that Petitioners did not raise and

could not have raised these separate state wage and hour claims as a basis for their

motion for appointment as co-lead counsel. (Exhibit 3).

After obtaining representation of the additional Petitioners, the Petitioners

filed their First Amended Complaint on December 4, 2014, naming the now

represented twelve additional Plaintiffs and alleging class action claims against the

Major League Baseball (“MLB”) defendants for violations of Nebraska,

Wisconsin, Tennessee, Montana, Indiana, Arkansas, Iowa, Michigan, Washington,

and New Jersey state wage and hour laws. (Exhibit 12, pp. 64-68, 70-74).

Petitioners’ First Amended Complaint also alleged that the MLB defendants

conspired to commit the acts giving rise to the class action claims, claims which

the Senne plaintiffs have not pursued. (Exhibit 12, pp. 2 and 29) (Exhibit 16).

On December 5, 2014, the district court sua sponte struck Petitioners’ First

Amended Complaint, including Petitioners’ ten (10) separate and distinct

additional state wage and hour claims and claim that MLB defendants conspired to

commit those state class action claims. (Exhibit 13, pp. 1 and 2). The district court

further ordered (at the Senne plaintiffs’ request) that Petitioners were not permitted

to file any pleadings, including any motion for reconsideration, until the MLB

Defendants’ motions to dismiss were decided (Exhibit 13, pp. 1 and 2), thereby




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leaving Petitioners without representation of their different 10 state wage and hour

claims, which were not asserted in the Senne Consolidated Amended Complaint.

(Exhibits 10 and 16).

Various MLB defendants moved to dismiss the Senne plaintiffs’

consolidated first amended complaint on the grounds that the district court lacked

personal jurisdiction. (Exhibit 11). After briefing and oral argument, the district

court took the matter under submission, and issued its order dismissing, without

prejudice, eight MLB defendants (Atlanta Braves, Chicago White Sox, Tampa Bay

Rays, Washington Nationals, Philadelphia Phillies, Boston Red Sox, Baltimore

Orioles, and the Cleveland Indians) for lack of personal jurisdiction. (Exhibit 15, p.

105). Had Petitioners’ First Amended Complaint not been dismissed by the district

court, and had Petitioners been allowed to file oppositions to assert their

conspiracy theory for personal jurisdiction (Exhibits 12 and 13), i.e., that the MLB

defendants conspired to commit the state wage and hour claims, Petitioners believe

that that could have formed the basis for the district court to exercise personal

jurisdiction over the all of the MLB defendants, including the eight defendants that

had been dismissed for lack of personal jurisdiction.

The Senne plaintiffs then filed a second consolidated amended complaint on

May 20, 2015. (Exhibit 16). Yet again, the Senne plaintiffs and their counsel did

not allege the ten (10) state wage and hour class action violations (for Nebraska,




22

Wisconsin, Tennessee, Montana, Indiana, Arkansas, Iowa, Michigan, Washington,

and New Jersey) which Petitioners had asserted in their First Amended Complaint

and which the magistrate judge had sua sponte dismissed. (Exhibit 13, pp.1 and 2).

Therefore, on July 13, 2015, pursuant to Civil Local Rule 7-9(b) ) ,

Petitioners timely sought leave to file a motion for reconsideration seeking

reconsideration of the interlocutory order s denying Petitioners’ motion for

appointment as co-lead counsel, consolidation of the Senne and Marti actions, and

the district court’s sua sponte dismissal of Petitioners’ First Amended Complaint

in light of the above described intervening events, i.e., ten new state class action

claims not asserted by the Senne plaintiffs. (Exhibit 17).

On July 23, 2015, the district court denied Petitioners’ motion for leave to

file a motion for reconsideration. (Exhibit 20, pp. 1 and 2).

Petitioners now petition this Court for a writ of mandamus vacating the

District Court’s order denying Petitioners’ motion for leave to file a motion for

reconsideration.

LEGAL STANDARD

This Court weighs five factors in determining whether to grant a writ of

mandamus under the All Writs Act, 28 U.S.C. § 1651:

(1) The party seeking the writ has no other adequate means, such as a directappeal, to attain the relief he or she desires. (2) The petitioner will be damaged or

prejudiced in a way not correctable on appeal. (3) The district court’s order isclearly erroneous as a matter of law. (4) The district court’s order is an oft-repeated




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error, or manifests a persistent disregard of the federal rules. (5) The district court’s

order raises new and important problems, or issues of law of first impression.

Douglas v. U.S. Dist. Court , 495 F.3d 1062, 1065-66 (9th Cir. 2007) (quoting

Bauman v. U.S. Dist. Court , 557 F.2d 650, 654-55 (9th Cir. 1977)) (internal

quotation marks omitted); Cohen v. District Court for the Northern District of

California, supra 586 F.3d at 708.). Not every element of the mandamus standard

must be satisfied in order to warrant a writ and no single factor is determinative in

any case. Cohen Id. at 708; Valenzuela – Gonzalez v. U.S. Dist. Court , 915 F.2d

1276, 1279 (9th Cir. 1990) (“all five factors need not be satisfied at once”).

“Exercise of [the Court’s] supervisory mandamus authority is particularly

appropriate when an important question of law would repeatedly evade review

because of the collateral nature of the issue.” In re Cement Antitrust Litig., 688

F.2d 1297, 1304 (9th Cir. 1982).

The Bauman factors are “guidelines” and proper disposition often requires a

balancing of conflicting indications. Id. at 655. Not every factor need be present at

once, and it is a rare case when all factors point to one direction or where every

guideline is both relevant and applicable. Hernandez v. Tanninen, 604 F.3d 1095,

1099 (9th Cir. 2010).




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ARGUMENT

I. THE DISTRICT COURT ABUSED ITS DISCRETION AND

COMMITTED CLEAR ERROR IN DENYING PETITIONERS’

MOTION FOR LEAVE TO FILE A MOTION FORRECONSIDERATION, BECAUSE THE CHANGED

CIRCUMSTANCES MAKE CLEAR THAT THE PRIOR ORDERS

ARE IN ERROR AND IF NOT CORRECTED WILL LEAVE

PETITIONERS AND CLASS MEMBERS WITHOUT REMEDIES

FOR AT LEAST TEN WAGE AND HOUR STATE LAW CLASS

ACTION VIOLATIONS WHICH WILL EVADE APPELLATE

REVIEW ABSENT MANDAMUS.

It is beyond dispute that the issues presented by the District Court’s order

denying Petitioners’ motion for leave to file a motion for reconsideration, has

harmed and will irreparably harm Petitioners and the class members of the ten (10)

state law wage and hour classes that are not having their state law claims asserted

as a result of the erroneous rulings, absent this Court issuing a writ of mandate.

The criteria for the grant of mandamus are clearly established here.

A.

NO OTHER ADEQUATE MEANS OF RELIEF

Generally, the party seeking the writ must have no adequate means to attain

the desired relief, i.e., it must appear that direct appeal is not available or, because

of the particular circumstances, could not correct extraordinary hardship. Varsic v.

United States Dist. Ct., 607 F.2d 245, 251 (9th Cir. 1979); Cole v. United States




25

Dist. Ct. for Dist. of Idaho, 366 F.3d 813, 817 (9th Cir. 2004) – mandamus used

when no other realistic alternative available.

A district court’s denial of a motion for leave to file a motion for

reconsideration is a nonappealable order and is reviewed for abuse of discretion.

Petitioners have no other recourse but to seek mandamus review. Therefore, the

first Bauman factor is satisfied.

Petitioners lack any other means to secure relief. The order denying

Petitioners’ motion for leave to file a motion for reconsideration is not a final

judgment or otherwise appealable. And unlike evidentiary rulings and other orders

that are reviewable once a final judgment is entered, there is no realistic

opportunity to correct the District Court’s order denying motion for leave to file a

motion for reconsideration and the underlying orders. There may be years of delay

while this case, with only some of the claims being asserted, is pending, and

Petitioners therefore will incur unnecessary expense and delay. After appeal, the

case will have to be litigated again as to at least the ten (10) state class actions that

are not being litigated. That is a highly prejudicial, unnecessary waste of time,

effort and expense.




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B.

PETITIONERS HAVE SUFFERED AND WILL CONTINUE TO

SUFFER IRREPARABLE INJURY.

The first two Bauman factors are closely related and the court generally

examines the first and second Bauman factors together. Douglas v. United States

Dist. Ct. for Central Dist. of Calif., 495 F.3d 1062, 1068, fn. 3 (9th Cir. 2007).

The second Bauman factor is satisfied if Petitioner can show it will suffer

“severe prejudice” or that the remedy on appeal would be inadequate. Washington

Public Util. Group v. United States Dist. Ct. for Western Dist. of Wash., 843 F.2d

319, 325 (9th Cir. 1987).

Here, the lower court’s July 23, 2015 Order denying Petitioners’ motion for

leave to file a motion for reconsideration of the October 10, 2014 district court’s

order and the December 5, 2014 sua sponte striking of Petitioners’ First Amended

Complaint in the consolidated Marti action, has severely prejudiced Petitioners’

ability to pursue all their claims and theories of recovery and has severely

prejudiced the class members of the ten classes whose state law class action wage

and hour law claims are not being asserted

Specifically, the additional twelve Petitioners have been prohibited from

amending their complaint to allege their ten separate and distinct additional state

law wage and hour claims. The consolidation of the Senne and Marti actions, along

with the appointment of KT and PSW as co-lead counsel have prejudiced

Petitioners and the members of the ten (10) additional state law classes and caused




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irreparable harm because their separate and distinguishable claims have been

dismissed.

If the lower court’s errors are not corrected now, Petitioners and the

potential class members, have been and will continue to be prejudiced and suffer

irreparable harm by not having all their claims litigated. Petitioners are not able to

pursue their ten additional state law wage and hour claims (thereby eliminating

potential class relief for those additional state wage and hour claims). The District

Court dismissed without prejudice eight Defendants for lack of personal

jurisdiction (without giving these Petitioners an opportunity to oppose the

Defendants motion to dismiss or to assert their conspiracy theory of personal

jurisdiction, which might avoid dismissal for lack of personal jurisdiction.

Petitioners also alleged that Defendants conspired to commit the state wage and

hour violations. Where, as here, the defendants engaged in a conspiracy, personal

jurisdiction may be exercised over all defendants, including those over which the

court might not otherwise have personal jurisdiction. Kentucky Speedway, LLC v.

Nat’l Ass’n of Stock Car Auto Racing, Inc., 410 F. Supp. 2d 592, 599-600 (E.D.

Ky. 2006). If a writ is not granted to allow Petitioners to assert their claims and

allow Petitioners’ counsel to act as co-lead counsel, the conspiracy theory of

jurisdiction may not be asserted. Plaintiffs will have to file eight separate

additional state or federal court lawsuits, which duplicate Petitioners’ lawsuit




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below, in order to assert their claims against the dismissed defendants. KT and

PSW, as appointed interim co-lead counsel for Real Parties In Interests failed to

pursue and have not pursued a conspiracy theory of jurisdiction in opposition to

defendants motion to dismiss, despite the facts illustrating that there was such an

agreement to conspire amongst the Defendants to commit the state wage and hour

claims. Counsel for Real Parties Interest’s refusal to allege a claim of conspiracy

has resulted in the dismissal of eight Defendants from the Senne and Marti actions

on the grounds that the district court lacked personal jurisdiction over these

defendants. (Exhibit 15, p. 105).

Petitioners will thus continue to be prejudiced if continued representation by

the appointed interim co-lead counsel (KT and PSW) is permitted. Horizon Asset

Management , supra 580 F.3d at p. 768-769. KT and PSW’s failure to pursue the

interests of the ten (10) potential class claims has prevented those claims from

being asserted.

KT and PSW’s lack of representation has resulted in the dismissal of

Petitioners’ ten additional state wage and hour claims. The state wage and hour

claims are separate and distinct from those alleged by the Senne plaintiffs. Those

potential class members are now without representation as their claims have been

dismissed after the district court sua sponte dismissed their first amended

complaint in the Marti action. (Exhibit 13, pp. 1 and 2).




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C.

THE DISTRICT COURT’S ORDERS ARE CLEARLY

ERRONEOUS AS A MATTER OF LAW.

Civil L.R. 7-9 provides in pertinent part that: “any party may make a motion

before a Judge requesting that the Judge grant the party leave to file a motion for

reconsideration of any interlocutory order on any ground set forth in Civil L.R. 7-9

(b).

Civil L.R. 7-9 (b) provides the basis for a motion for leave and states that

“[t]he moving party must specifically show reasonable diligence in bringing the

motion and one of the following:

(1) That at the time of the motion for leave, a material difference in fact or

law exists from that which was presented to the Court before entry of the

interlocutory order for which reconsideration is sought. The party also must show

that in the exercise of reasonable diligence the party applying for reconsideration

did not know such fact or law at the time of the interlocutory order; or

(2) The emergence of new material facts or a change of law occurring after

the time of such order; or

(3) A manifest failure by the Court to consider material facts or dispositive

legal arguments which were presented to the Court before such interlocutory

order.”




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i.

The Court’s Denial of Leave To Move for Reconsideration Was

Clearly Erroneous And An Abuse of Discretion.

a.

At The Time of The Motion for Leave to File, There Had Been a

Material Change of Facts

The lower court’s July 23, 2015 Order denying Petitioners’ motion for leave

to file a motion for reconsideration with regard to the consolidation of the Senne

and Marti actions, the sua sponte dismissal, and the denial of the motion to act as

co-lead counsel were clearly erroneous. Counsels’ r epresentation of the additional

twelve Petitioners and the assertion of the ten new state law class action claims had

not yet been asserted at the time of the challenged October 10, 2014 orders. No

argument or opposition as to those ten new claims had been made or allowed

when, on December 5, 2014, the subsequent magistrate judge sua sponte dismissed

the ten claims, and ordered (at the Senne plaintiffs’ request) that Petitioners could

not seek reconsideration of the dismissal and prior orders until after the

Defendants’ motions to dismiss were decided (which decisions occurred on

December 5, 2014 and July 23, 2015). Petitioners, as part of their opposition to

consolidation, could not possibly have raised their ten (10) additional separate and

distinct state law wage and hour claims prior to the October 10, 2014 order to

consolidate or at the time the subsequent magistrate sua sponte ordered that any

motions for reconsideration be deferred until the motions to dismiss were decided.

These new material facts emerged after the October 10, 2014 orders which




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Petitioners sought to have reconsidered. Thus, on July 23, 2015 when Petitioners

sought leave to move for reconsideration, new material facts had emerged.

Therefore, it was clear error not to allow Petitioners to move for reconsideration

(Local Rule 7-9(b)(1),(2)) of the order granting consolidation of different claims of

relief. Horizon Asset Management Inc., v. H & R Block, Inc., 580 F.3d 755, 768-

769 (8th Cir. 2009).

The grant or denial of a motion to consolidate rests in the trial court's

discretion and can only be reversed for clear error or exigent circumstances. United

States E.P.A. v. City of Green Forest, Ark. 921 F.2d 1394, 1402 (8th Cir. 1990).

While considerations of judicial economy and convenience weigh in favor

of consolidation, the paramount concern is for a fair and impartial trial. Common

issues alone do not justify consolidating cases and considerations of convenience

and efficiency must yield to the paramount concern for fair and impartial trials.

See Malcolm v. National Gypsum Co., 995 F.2d, 346, 351 (2nd Cir. 1993). Where

some different claims are not being pursued by the interim lead counsel in their

case, consolidation is inappropriate. Horizon Asset Management Inc., v. H & R

Block, Inc., 580 F.3d 755, 768-769 (8th Cir. 2009).

Here, it is clear that even though there is some overlap in common issues of

the Senne and Marti cases, judicial economy and efficiency must yield to the

paramount concern that the Petitioners will not be able to pursue their ten




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additional state wage and hour class action claims in light of their First Amended

Complaint being sua sponte dismissed. Petitioners cannot receive a fair and

impartial trial for claims that were erroneously dismissed by the district court.

ii.

The Court’s Sua Sponte Striking of Petitioners’ First Amended

Complaint Was Clear Error And an Abuse of Discretion.

The Court can only strike a pleading when the pleading is “insufficient,

redundant, immaterial, impertinent or scandalous”. F.R.C.P. Section 12(f).

Rule 12(f ) of the Federal Rules of Civil Procedure states that a district court “may

strike from a pleading an insufficient defense or any redundant, immaterial,

impertinent, or scandalous matter.” “The function of a 12(f) motion to strike is to

avoid the expenditure of time and money that must arise from litigating spurious

issues by dispensing with those issues prior to trial....” Fantasy, Inc. v.

Fogerty , 984 F.2d 1524, 1527 (9th Cir.1993),

rev'd on other grounds by Fogerty v.

Fantasy, Inc., 510 U.S. 517 (1994).

As set forth above, none of those situations

existed when the magistrate judge sua sponte struck Petitioners’ First amended

Complaint. To the contrary, Petitioners were asserting ten different claims that

need to be asserted but are not being asserted. Thus, it was clear error to sua sponte

dismiss Petitioners claims. Therefore, there was need for the Court to grant leave to

move for reconsideration.




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iii.

It Was Also an Abuse of Discretion And Clear Error to Deny

Leave to Reconsider The Appointment of KT and PSW as Interim Co-

Lead Counsel Because The Rights and Claims of Petitioners And of The

Ten Potential Classes Have Been Severely Prejudiced.

Petitioners and potential class members have been and will continue to be

prejudiced by the lack of representation of their claims by KT and PSW (the

current interim co-lead counsel). Absent reconsideration of the denial of Petitioners

as co-lead plaintiffs and their counsel as interim co-lead counsel, Petitioners have

no representation as to the ten state wage and hour claims asserted in their First

Amended Complaint (Exhibit 12). Unless the district court reconsiders its

interlocutory order appointing interim co-lead counsel, Petitioners and potential

class members will continue to be prejudiced by a lack of representation Horizon

Asset Management Inc., v. H & R Block, Inc., supra 580 F.3d at 760-769.




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CONCLUSION

For the foregoing reasons, this Court should grant mandamus relief and

direct the district court to vacate its July 23, 2015 Order denying Petitioners’

motion for leave to file a motion for reconsideration and permit Petitioners to file a

motion for reconsideration.

Dated: September 25, 2015

/S/ Samuel Kornhauser

Samuel KornhauserLaw Offices of Samuel Kornhauser155 Jackson Street, Suite 1807


Telephone (415) 981-6281Facsimile (415) 981-7616

Counsel for Petitioners




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STATEMENT OF RELATED CASES

Pursuant to Circuit Rule 28-2.6, there are no known related cases pending in

this Court.

Dated: September 25, 2015/S/ Samuel Kornhauser

Samuel Kornhauser

Law Offices of Samuel Kornhauser155 Jackson Street, Suite 1807


Telephone (415) 981-6281Facsimile (415) 981-7616Counsel for Petitioners




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CERTIFICATE OF SERVICE

I declare that I am employed in the City and County of San Francisco,

California. I am over the age of 18 years and not a party to the within cause. My

business address is 155 Jackson Street, Suite 1807, San Francisco. On September

25, 2015, I caused to be served the within PETITION FOR WRIT OF

MANDAMUS; EXHIBITS TO PETITION FOR WRIT OF MANDAMUS on

the parties below in said cause:

Honorable MagistrateJoseph C. Spero

United States District Court

Courtroom G - 15th Floor450 Golden Gate Avenue,

San Francisco, CA 94102Via U.S. mail.

and via electronic mail to the following parties:

STEPHEN M. [email protected]

GARRETT R. BROSHUIS

[email protected] ZIGLER

[email protected] TILLERY, LLC

505 North 7th Street, Suite 3600St. Louis, MO 63101




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BRUCE L. SIMON


BENJAMIN E. SHIFTAN


PEARSON, SIMON & WARSHAW, LLP44 Montgomery Street,

Suite 2450San Francisco, CA 94104

DANIEL L. WARSHAW(Bar No. 185365)

[email protected]

BOBBY POUYA (Bar No. 245527) [email protected], SIMON & WARSHAW, LLP

15165 Ventura Boulevard, Suite 400

Sherman Oaks, California 91403

ENZO DER [email protected]

PROSKAUER ROSE LLP

2049 Century Park East, Suite 3200

Los Angeles, CA 90067

D. GREGORY [email protected]

SHAW VALENZA LLP

300 Montgomery Street, Ste. 788


ELISE M. [email protected]

NEIL H. ABRAMSON

[email protected] M. [email protected]




HOWARD L. GANZ

[email protected] SANTORO

[email protected]

PROSKAUER ROSE LLP11 Times Square

New York, NY 10036

I declare under penalty of perjury that the foregoing is true and

correct and that this declaration was executed by me on September 25,

2015, in San Francisco, California.

By: /s/ Samuel Rolnick

Samuel Rolnick


Marti v. MLB - Petition for Writ of Mandamus

Documents

Transcript of Marti v. MLB - Petition for Writ of Mandamus