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Zyda v. Four Seasons Hotels and Resorts

United States District Court, D. Hawaii

June 4, 2019

CHRISTOPHER ZYDA, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs,
v.
FOUR SEASONS HOTELS AND RESORTS, FOUR SEASONS HOLDINGS, INC., FOUR SEASONS HUALALAI RESORT, HUALALAI RESIDENTIAL, LLC, DBA HUALALAI REALTY; HUALALAI INVESTORS, LLC, KAUPULEHU MAKAI VENTURE, HUALALAI DEVELOPMENT COMPANY, HUALALAI VILLAS & HOMES, HUALALAI INVESTORS, LLC, HUALALAI RENTAL MANAGEMENT, LLC, DOES 1-100, Defendants.

          ORDER DENYING INTERVENORS' MOTION TO REMOVE CHRISTOPHER ZYDA AS CLASS REPRESENTATIVE, OR IN THE ALTERNATIVE, TO PROHIBIT MR. ZYDA FROM ENCOURAGING OTHER CLASS MEMBERS TO PERSONALLY HARASS INTERVENORS

          LESLIE E. KOBAYASHI UNITED STATES DISTRICT JUDGE

         On February 28, 2019, Intervenors James R. Mahoney, Ann Marie Mahoney, Judith Runstad, H. Jon Runstad, Jonathan Seybold, Patricia Seybold, David Keyes, Doreen Keyes, Julie Wrigley, Kevin Reedy, Lynn Reedy, Bradley Chipps, and J. Orin Edson (“Intervenors”) filed their Motion to Remove Christopher Zyda as Class Representative, or in the Alternative, to Prohibit Mr. Zyda from Encouraging Other Class Members to Personally Harass Intervenors (“Motion”). [Dkt. no. 149.] Defendants Four Seasons Hotels Ltd.; Four Seasons Holdings, Inc.; Hualalai Investors, LLC; Hualalai Residential, LLC; and Hualalai Rental Management, LLC (“Defendants”) filed a statement of no opposition on April 12, 2019. [Dkt. no. 160.] Plaintiffs Christopher Zyda (“Zyda”) and Carol Meyer (“Meyer, ” collectively “Plaintiffs”), on behalf of themselves and all others similarly situated (all collectively “Class”), filed their memorandum in opposition on April 12, 2019, and they filed an errata on April 13, 2019. [Dkt. nos. 161, 162.] Intervenors filed their reply on April 19, 2019. [Dkt. no. 163.] This matter came on for hearing on May 3, 2019. Intervenors' Motion is hereby denied for the reasons set forth below.

         BACKGROUND

         There is a history of various disputes between Defendants and certain homeowners at the Hualalai Resort (“Resort”). However, the focus of the claims and issues in the instant case is the Resort's policy change regarding the daily fees for renters and unaccompanied guests (“Daily Resort Guest Fees” or “DRGFs”) that was announced in 2015 and took effect in 2016. The operative pleading in this case is Plaintiffs' Second Amended Class Action Complaint for Damages, Declaratory, and Injunctive Relief (“Second Amended Complaint”), filed on April 30, 2018. [Dkt. no. 89.]

         Zyda filed the first two versions of the complaint in state court, and the state court certified the Class. [Notice of Removal of Action Pursuant to 28 U.S.C. § 1332(d) and 28 U.S.C. § 1453(b) (“Notice of Removal”), filed 11/1/16 (dkt. no. 1), Decl. of William Meheula, Exh. 1 (complaint filed on 10/2/15), Exh. 2 (amended complaint filed on 10/14/16), Exh. 3 (order granting class certification filed on 10/13/16).] Defendants removed the case based on diversity jurisdiction, pursuant to the Class Action Fairness Act. [Notice of Removal at ¶ 16.]

         Intervenors are Resort homeowners and members of the Hualalai Club (“Club”), i.e., they are members of the Class. However, they support the DRGFs that Plaintiffs are challenging in this action. See Amended Motion to Intervene, filed 4/3/17 (dkt. no. 37); Order Granting Amended Motion to Intervene, filed 8/4/17 (dkt. no. 65); Intervenors' Answer to Second Amended Class Action Complaint for Damages, Declaratory, and Injunctive Relief, filed 5/14/18 (dkt. no. 92). In the instant Motion, Intervenors ask this Court to remove Zyda as a Class representative or, in the alternative, to issue an order requiring Zyda to 1) stop sending “e-mails to his hui inviting them to personally approach intervenors”; and 2) retract the February 21, 2019 email he sent to his “hui”.[1] [Motion at 2.]

         STANDARD

         As part of its authority to exercise control over a class action, this Court has broad, although not unlimited, discretion to issue orders addressing the conduct of the counsel and the parties in this case. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981).

Federal Rule of Civil Procedure 23(a)(4) requires that representative parties in a class action “will fairly and adequately protect the interests of the class.” Courts have the inherent power to replace class representatives. See, e.g., Robichaud v. Speedy PC Software, No. C 12 04730 LB, 2013 WL 818503, at *8 (N.D. Cal. Mar. 5, 2013) (noting that when a representative plaintiff cannot serve as the class representative “for a reason that does not affect the viability of the class claims, courts regularly allow or order the plaintiffs' counsel to substitute a new representative plaintiff” and collecting cases); Bogner v. Masari Investments, LLC, 257 F.R.D. 529, 533 n.1 (D. Ariz. 2009) (“[I]f Plaintiffs prove to be incapable of representing the class effectively, the Court has power to replace them.”); see also U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 416 n.8, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (Powell, J., dissenting) (noting that a court “can re-examine [a class representative's] ability to represent the interests of class members [and s]hould it be found wanting, the court may seek a substitute representative or even decertify the class” (citing, e.g., Fed.R.Civ.P. 23(c)(1), (d))). . . .

Nunez v. BAE Sys. San Diego Ship Repair Inc., 292 F.Supp.3d 1018, 1059 (S.D. Cal. 2017) (alterations in Nunez) (emphasis added).

         DISCUSSION

         This Court has carefully considered all of the parties' submissions related to the Motion, but does not find that Zyda's conduct related to this case warrants his removal as a Class representative. That being said, all parties and counsel are reminded of the following:

(a) Aloha Spirit” is the coordination of mind and heart within each person. It brings each person to the self. Each person must think and emote good feelings to others. In the contemplation and presence of the life force, ...

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