Murray v. Dubric ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
MICHAEL MURRAY; MICHAEL RENO; No. 83492
MICHAEL SARGEANT,
INDIVIDUALLY AND ON BEHALF OF
A CLASS OF PERSONS SIMILARLY
SITUATED; MARCO BAKHTIARI;
MICHAEL BRAUCHLE; THOMAS
FILE
COHOON; GARY GRAY; JORDAN AUG 1 1 2022
HANSEN; ROGER KELLER; CHRIS D.
ELIZABETH A. BROWN
NORVELL; POLLY RHOLAS; AND CLERK OF S PRENIE COURT
GERRIE WEAVER, BY S-
DEP CLERK
Appellants,
vs.
JASMINKA DUBRIC, INDIVIDUALLY
AND ON BEHALF OF THOSE
SIMILARLY SITUATED; A CAB, LLC, A
NEVADA LIMITED LIABILITY
COMPANY; A CAB SERIES LLC;
EMPLOYEE LEASING COMPANY, A
NEVADA SERIES LIMITED LIABILITY
COMPANY; AND CREIGHTON J.
NADY, AN INDIVIDUAL,
Res a ondents.
ORDER OF AFFIRMANCE
This is an appeal from a district court order approving a class
action settlement. Eighth Judicial District Court, Clark County; Kathleen
E. Delaney, Judge.'
Appellants and respondent Jasminka Dubric are taxi drivers
who allege that their employer, respondents A Cab, LLC, and A Cab Series
LLC, Employing Leasing Company (collectively, the A Cab respondents)
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted.
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failed to pay them and other drivers minimum wage. The taxi drivers filed
two separate class action suits against the A Cab respondents: the
underlying matter brought by Dubric (the Dubric action) and another
brought by appellants Michael Murray, Michael Reno, and Michael
Sargeant (collectively, the Murray intervenors) (the Murray action).2 The
Murray intervenors secured a judgment against the A Cab respondents in
the Murray action, see A Cab, LLC v. Murray, 137 Nev., Adv. Op. 84, 501
P.3d 961 (2021), and then intervened in the Dubric action, objecting to the
proposed class action settlement because of its potential impact on the
judgment in the Murray action. The remaining appellants are unnamed
class members of both the Murray action and the Dubric action who objected
to the Dubric settlement.
The Murray intervenors unsuccessfully sought to recuse or
disqualify Judge Kathleen Delaney from presiding over the Dubric action
due to alleged bias toward their counsel. After sending notice to all
potential class members, class counsel in the Dubric action received nine
objections to the proposed class settlement and only one member, in
addition to the Murray intervenors, opted out.3 Thereafter, the district
court conducted a final fairness hearing and granted respondents' joint
2 Whilethere is some overlap of class membership, the Dubric class
action settlement encompasses claims that go beyond the timeframe of
those resolved in the Murray class action.
3This court denied appellants' previous request for extraordinary
relief in which they sought an order requiring the district court to allow
their class counsel to opt out from the Dubric settlement on behalf of all
members of the Murray class. See Murray v. Eighth Judicial Dist. Court,
No. 82126, 2020 WL 7296993 (Nev. Dec. 10, 2020) (Order Denying Petition
for Writ of Prohibition or Mandamus).
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motion to approve their proposed settlement, finding that the settlement
was fair, reasonable, and adequate and in the best interest of the class
members. Appellants now challenge the order granting final approval of
the Dubric settlement, as well as the order denying the Murray intervenors'
motion to disqualify Judge Delaney.
As a preliminary matter, we first reject the A Cab respondents'
arguments that appellants lack standing to bring this appeal, as appellants
are potentially aggrieved by the Dubric settlement order in that it appears
to release some of the class claims against the A Cab respondents for less
than the amount of the judgments obtained in the Murray action. See Valley
Bank of Nev. v. Ginsburg, 110 Nev. 440, 446, 874 P.2d 729, 734 (1994)
(defining an aggrieved party as one whose personal or property rights are
adversely and substantially affected). Although the Murray intervenors
cannot demonstrate that they are individually aggrieved because they were
not included in the Dubric settlement class, we conclude that they have
standing as class representatives to assert claims on behalf of those Murray
class action members who may be adversely affected by the Dubric
settlement. See Las Vegas Police Protective Ass'n Metro, Inc. v. Eighth
Judicial Dist. Court, 122 Nev. 230, 239, 130 P.3d 182, 189 (2006) (providing
that intervenors have "a right to appeal independent from that of the
original parties" so long as they are also aggrieved parties pursuant to
NRAP 3A(a)). And this court has previously recognized that unnamed class
members who objected to a proposed settlement have standing to appeal
that settlement. See Marcuse v. Del Webb Crntys., Inc., 123 Nev. 278, 285,
163 P.3d 462, 467 (2007) (concluding that unnamed class members "had
standing to object to [a] proposed settlement and to appeal the district
court's order dismissing the class action based on the settlement").
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Next, we reject appellants' challenge to the order denying the
motion to disqualify Judge Delaney. The Murray intervenors' motion to
intervene in the Dubric class action was still pending when they sought
Judge Delaney's disqualification. Therefore, the Murray intervenors were
not yet parties to the Dubric class action, see Aetna Life & Cas. Ins. Co. v.
Rowan, 107 Nev. 362, 363, 812 P.2d 350, 350 (1991) ("[A] proposed
intervenor does not become a party to a lawsuit unless and until the district
court grants a motion to intervene."), and thus lacked standing to move to
disqualify Judge Delaney. See NRS 1.235(1) (providing that "[a]ny party to
an action [may] seek{ ] to disqualify a judge for actual or implied bias"
(emphasis added)). As such, we conclude that the district court did not
abuse its discretion when it denied the motion to disqualify. See Ivey v.
Eighth Judicial Dist. Court, 129 Nev. 154, 162, 299 P.3d 354, 359 (2013)
(reviewing the denial of a motion to disqualify for an abuse of discretion).
We also reject appellants' challenge to Dubric serving as the
class representative because she is a judgment debtor of the A Cab
respondents in a related federal action. The judgment that forms the basis
of Dubric's purported conflict of interest did not arise until after the
respondents reached a settlement in the Dubric action and the record does
not otherwise demonstrate that she had an injury or "interest in the
outcome of the litigation" that differed from the other class members such
that she could not "fairly and adequately protect the interests of the class."4
Jane Doe Dancer I-VII v. Golden Coin, Ltd., 124 Nev 28, 34-35, 176 P.3d
271, 275-76 (2008) (discussing the prerequisites for serving as a class
representative).
We are not persuaded by appellants' remaining arguments regarding
4
Dubric's standing to serve as class representative.
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Finally, while appellants advance several arguments contesting
the Dubric settlement terms, they fail to point to any Nevada caselaw or
statute that would require reversal.5 And although we decline appellants'
invitation to adopt the Ninth Circuit's eight-factor test for determining
whether a proposed class action settlement is fair, adequate, and reasonable
at this time, see Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 575 (9th
Cir. 2004),6 we note that the district court here appeared to consider many
of those factors and the Dubric settlement would likely satisfy that test if
applied. Indeed, we discern no abuse of discretion in the district court's
decision to approve the Dubric class settlement. See Marcuse, 123 Nev. at
286, 163 P.3d at 467 (reviewing a district court's approval of a class action
settlement for an abuse of discretion). The record demonstrates that
respondents reached the settlement as the result of lengthy negotiations
5We decline to consider appellants' argument that the district court
lacked subject matter jurisdiction to approve the Dubric settlement because
appellants fail to support this argument with citation to relevant authority.
See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d
1280, 1288 n.38 (2006) (explaining that a party is responsible for supporting
its arguments with salient authority). We also decline to address
appellants' request that this court impose monetary sanctions against
Dubric's counsel pursuant to NRS 7.085, raised for the first time in their
reply brief. See Phillips v. Mercer, 94 Nev. 279, 283, 579 P.2d 174, 176
(1978).
6 We note that Churchill Village, 361 F.3d at 575, concerned whether
a proposed class settlement was fair and adequate, an explicit requirement
under the Federal Rules of Civil Procedure, whereas the Nevada Rules of
Civil Procedure do not contain the same requirement. Compare FRCP
23(e)(2) (providing that a court may only approve a proposed settlement
upon "finding that it is fair, reasonable, and adequate"), with NRCP 23(f)
(requiring court approval before "[a] class action [may] be dismissed or
compromised").
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after conducting a significant amount of discovery and with the assistance
of both a jointly retained expert and an experienced judicial officer. And
although there were objections to the settlement, the number of objections
represented only a small fraction of the total class, and those objectors chose
not to opt out of the settlement. Lastly, we note that no Nevada caselaw or
statute requires the district court to make specific findings regarding the
individual objections to a proposed class settlement or its basis for
approving such a settlement as appellants suggest. Based upon the
foregoing, we
ORDER the judgment of the district court AFFIRMED.
Parraguirre
942 6 "4rum.77.j*
Hardesty Silver
cc: Hon. Kathleen E. Delaney, District Judge
William C. Turner, Settlement Judge
Leon Greenberg Professional Corporation
Rodriguez Law Offices, P.C.
Bourassa Law Group, LLC
Eighth District Court Clerk
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