United States District Court, E.D. Tennessee, Knoxville
LARRY P. LOWELL, JR., et al., Plaintiffs,
SUMMER BAY MANAGEMENT, L.C., et al., Defendants.
MEMORANDUM AND ORDER
Clifford Shirley, Jr. United States Magistrate Judge
case is before the undersigned pursuant to 28 U.S.C. §
636, the Rules of this Court, and Standing Order 13-02.
before the Court is a Motion to Remove Patricia K. Watts,
Eric Jimenez, and Jennifer Deal as Named Plaintiffs and Class
Representatives [Doc. 146] and a Motion to Withdraw Eric
Jimenz and Jennifer Deal from Motion to Remove Patricia K.
Watts, Eric Jimenez and Jennifer Deal as Named Plaintiffs and
Class Representatives [Doc. 149]. The parties appeared before
the Court for a motion hearing on February 27, 2017.
Attorneys Chris T. Cain and W. Allen McDonald appeared on
behalf of the Plaintiffs. Attorney Jennifer Gustafson
appeared on behalf of Defendants Summer Bay Management, L.C.,
Summer Bay Partnership, and Joe Scott.
initial matter, the Plaintiffs filed a Motion to Withdraw
Eric Jimenz and Jennifer Deal [Doc. 149] from the original
Motion [Doc. 146]. The Motion to Withdraw states that Class
Counsel has re-established contact and communications with
Jimenez and Deal and that they are both agreeable to the
global settlement that has been reached. Accordingly, the
Court finds the Motion to Withdraw Eric Jimenz and Jennifer
Deal from Motion to Remove Patricia K. Watts, Eric Jimenez
and Jennifer Deal as Named Plaintiffs and Class
Representatives [Doc. 149] well-taken, and it is GRANTED.
POSITIONS OF THE PARTIES
respect to the Motion to Remove Patricia Watts [Doc. 146],
Class Counsel requests that the Court remove Ms. Watts as a
named plaintiff and a class representative. The Motion states
that recent events have caused Class Counsel to conclude that
Ms. Watts no longer adequately represents the class of over
8, 000 time-share owners of the resorts. In support of the
Motion, Class Counsel states that following months of
arm's length negotiations, the parties reached a global
settlement agreement that would completely dispose of
Lowell I and Lowell II. The Motion states
that the proposed global settlement is an excellent
resolution, especially in light of the pending motions.
Motion continues that the written global settlement agreement
has been approved by all the named plaintiffs and the class
representatives, except Ms. Watts. Further, the Motion
explains that the settlement incorporates three classes, all
of which are represented by one or more named plaintiffs,
such that, even if Ms. Watts were removed as a class
representative, the class to which she belongs will still be
represented by at least two other named class
representatives. The Motion continues that Ms. Watts has
expressed a general dissatisfaction with the settlement terms
and has actively campaigned against the settlement to some or
all of the other named plaintiffs and class members. The
Motion states that Ms. Watts is steadfast in her disapproval
of any settlement that does not accomplish her expectations,
which Class Counsel deems unattainable. The Motion explains
that Ms. Watts has been unwilling to consider Class
Counsel's reasons for agreeing to the proposed settlement
and the positions of the other named plaintiffs and that Ms.
Watts's position has not changed despite the global
settlement agreement that resolves all of the issues in
Lowell I and Lowell II. The Motion
continues that it is apparent to Class Counsel that Ms.
Watts's interests are not aligned with the remaining
class representatives and that Class Counsel has advised Ms.
Watts that they intend to seek approval of the global
settlement. Further, the Motion states that Ms. Watts does
not consent to her removal as a named plaintiff and a class
representative, nor does she consent to Class Counsel
withdrawing as her counsel in any capacity, other than as
Class Counsel. Finally, the Motion requests that Ms. Watts
file any objections with the Court on or before November 14,
2016, and states that a copy of the Motion was sent to Ms.
Watts by overnight courier.
noted above, the Court held a motion hearing on February 27,
2017. Ms. Watts did not appear. During the hearing, Class
Counsel stated that even if the Court granted the Motion, Ms.
Watts may still proceed as a member of the class, opt out of
the class, or object to the settlement. Class Counsel stated
that they have achieved a good settlement and that Ms.
Watts's expectations were not attainable. The Defendants
stated that they do not oppose the Motion.
Rule of Civil Procedure 23(a)(1) requires that class
representatives shall “fairly and adequately protect
the interests of the class.” Further, the
“Supreme Court has stated that a court can re-examine a
named plaintiff's ability to represent the class.”
Heit v. Van Ochten, 126 F.Supp.2d 487, 496 (W.D.
Mich. 2001) (quoting U.S. Parole Comm'n v.
Geraghy, 445 US. 388 (1980)); see also
Fed.R.Civ.P. 21 (“On motion, or on its own, the court
may at any time, on just terms, add or drop a party.”).
instant matter, the Court notes that the Motion to Remove
Patricia Watts [Doc. 146] was filed on October 24, 2016.
Class Counsel sent Ms. Watts a copy of the Motion and
requested that she file objections on or before November 14,
2016. On February 3, 2017, the Court scheduled a motion
hearing for February 27, 2017, and mailed a Notice of the
hearing to Ms. Watts. The Court has not heard from Ms. Watts,
she did not attend the hearing, nor has she filed an
objection to the Motion. See L.R. 7.2
(“Failure to respond to a motion may be deemed a waiver
of any opposition to the relief sought.”). Based on Ms.
Watts's lack of participation, the Court finds Class
Counsel's request to remove Ms. Watts as a named
plaintiff and class representative well-taken, and it is
the Motion states that the relationship between Class Counsel
and Ms. Watts has irreparably broken down and that Class
Counsel should be permitted to withdraw from representing Ms.
Watts in any capacity, other than simply as an unnamed class
Court notes that Class Counsel has indicated their intent to
move forward with the proposed global settlement, despite Ms.
Watts's objections thereto. Thus, it appears that Ms.
Watts's position is diametrically opposed with the
position of Class Counsel. Accordingly, the Court finds Class
Counsel's request to withdraw from representing Ms. Watts
in any capacity, other than as an unnamed class member, to be
well-taken, and it is GRANTED. See
Heit, 126 F.Supp.2d at 494 (“Recognizing Plaintiff
counsel's duty to the class, it appears she cannot
represent Richard Heit because he objects to the Proposed
Settlement, which Plaintiff's counsel argues is in the
best interest.”). The Court finds that Ms. Watts should
have the opportunity to pursue any objections to the global
settlement with a new lawyer, if she chooses to do so.