Bond v. Ferguson Enterprises, Inc.

Filing 13

SCHEDULING CONFERENCE ORDER, signed by Judge Oliver W. Wanger on 2/12/2010. Motion to Amend Complaint Filing ddl: 7/23/2010, Motion for Class Certification Filing ddl: 9/20/2010, Opposition Thereto Filing ddl: 10/12/2010, Reply Thereto Filing ddl: 10/25/2010, Motion For Class Certification Hearing set for 11/22/2010 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger.) (Gaumnitz, R)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. I. Date of Scheduling Conference. February 11, 2010. Appearances Of Counsel. Ackermann & Tilajef, P.C. by Craig Ackermann, Esq., and Wasserman, Comden & Casselman, L.L.P. by Melissa M. Harnett, Esq., appeared on behalf of Plaintiffs. Curiale Hirschfeld Kraemer, L.L.P. by Reed E. Schaper, Esq., and Kimberly G. Brener, Esq., appeared on behalf of Defendant. 1 Motion for Class Certification Hearing Date: 11/22/10 10:00 Ctrm. 3 (extended time reserved) v. FERGUSON ENTERPRISES, INC., a corporation, and DOES 1-50, inclusive, Defendants. LEE BOND, individually and on behalf of all others similarly situated, Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv-1662 OWW SMS SCHEDULING CONFERENCE ORDER Motion to Amend Complaint Filing Deadline: 7/23/10 Motion for Class Certification Filing Deadline: 9/20/10 Opposition Thereto Filing Deadline: 10/12/10 Reply Thereto Filing Deadline: 10/25/10 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

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III.

Summary of Pleadings. 1. Plaintiff alleges that, over the period from four years

prior to the filing of the Complaint and continuing through the present, Defendant failed to comply with California law requiring that drivers be provided timely off-duty meal periods and pay for missed, on-duty and untimely meal periods (Cal. Labor Code §§ 226.7, 512). 2. As a result of Defendant's violations of California

statutory laws, Plaintiff asserts derivative claims for penalties associated with the issuance of inaccurate pay stubs (lacking accurate information about wages earned and hours worked) (Cal. Labor Code § 226); waiting time penalties for all former drivers who did not receive all wages owed to them on separation of employment (Cal. Labor Code §§ 201-203); Unfair Competition Law claims under § 17200 of the California Business and Professions Code, based on the foregoing. 3. Finally, Plaintiffs believe that their claims are

amenable to treatment on a class-wide basis under Fed. R. of Civ. Proc. Rule 23. Several federal district courts have recently

certified similar class actions for truckers' claims under Labor Code §§ 203 and 226 and the UCL claim. See, e.g., Espinoza v.

Domino's Pizza, LLC, 2009 WL 882845 (C.D. Cal. 2009); Ortega v. JB Hunt Transport, Inc., 2009 W.L. 1851330 (C.D. Cal. 2009). 4. Defendant contends that it provided Plaintiff and all

putative class members with timely off-duty meal periods as required by California law. Because Defendant has complied with

its statutory obligation to provide its California employees with meal periods pursuant to California Labor Code §§ 226.7 and 512, 2

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the itemized wage statements Defendant issued to Plaintiff and all putative class members were accurate and there is no violation of California Labor Code § 226. Furthermore, because

Defendant properly provided meal periods in compliance with California law, Plaintiff's unfair competition claim (pursuant to Cal. Bus. & Prof. Code § 17200) and claim for waiting time penalties, both of which are premised solely on Plaintiff's meal period violation claims, must fail. 5. Defendant further contends that Plaintiffs' claims are

inappropriate for class treatment under Federal Rule of Civil Procedure Rule 23 because highly individualized considerations predominate. The differences between and among putative class

members' working conditions require an individualized inquiry rendering class certification inappropriate in this action. See,

e.g. Brown v. Federal Express Corp., 249 F.R.D. 580 (C.D. Cal. 2008) (denying class certification for meal and rest period claims of employee drivers); Seymour v. McLane, Inc., No. EDCV08-07-SGL, Order Denying Motion for Class Certification (March 30, 2009) (same). IV. Orders Re Amendments To Pleadings. 1. Plaintiff will seek leave to file a First Amended

Complaint in order to conform venue and jurisdictional bases of the original Complaint to federal court. In addition, Plaintiff

may seek to add a class representative and a claim for unlawful deductions from wages for meal periods never taken in violation of Cal. Labor Code §§ 1194, 1194.2. Defendant reserves the right

to oppose any motion for leave to file an Amended Complaint. Plaintiff does not presently contemplate adding any new 3

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Defendants. V. Factual Summary. A. Admitted Facts Which Are Deemed Proven Without Further

Proceedings. 1. Plaintiff Lee Bond was employed as a driver by

Defendant and was based at Defendant's Bakersfield facility. 2. Defendant Ferguson Enterprises, Inc. is a

corporation formed under the laws of Virginia. B. Contested Facts. 1. VI. All remaining facts are disputed.

Legal Issues. A. Uncontested. 1. Jurisdiction exists under 28 U.S.C. § 1332(d)(2)

and the parties invoke diversity jurisdiction because this is a putative class action with at least one putative class member who is a citizen of a state different from that of the Defendant and the amount in controversy, as alleged by Plaintiff, exceeds $5 million, exclusive of interest and costs. 2. Venue is proper under 28 U.S.C. § 1391 because a

substantial part of the events or actions giving rise to the claims occurred in the Fresno Division of the Eastern District of California. 3. In this diversity action, the substantive law of

the State of California provides the rule of decision. B. Contested. 1. Whether this action is appropriately maintainable

as a class action and should be so certified. 2. Whether this case meets the requirements for class 4

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certification pursuant to Federal Rule of Civil Procedure Rule 23. 3. Whether Plaintiff can establish claims set forth

in the Complaint and enumerated below: a. breaks. b. duty meal periods. c. statements. d. termination. e. practices. 4. Whether Defendant can establish its affirmative Unfair/unlawful/fraudulent business Failure to pay wages due at time of Failure to provide accurate itemized wage Failure to pay for missed, untimely or onFailure to provide timely off-duty meal

defenses set forth in the Answer, a subset of which are set forth below: a. can be granted. b. willful acts. c. 5. Claims barred by statute of limitations. Good faith; no knowing, intentional and/or Failure to state a claim upon which relief

The issue of whether Plaintiff Bond is a proper

representative of the purported class. 6. 7. damages. 8. Any and all other issues relating to damages. 5 Any and all other issues of ultimate liability. The issue of whether Plaintiff suffered any

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VII. Consent to Magistrate Judge Jurisdiction. 1. The parties have not consented to transfer the

case to the Magistrate Judge for all purposes, including trial. VIII. 1. Corporate Identification Statement. Any nongovernmental corporate party to any action in

this court shall file a statement identifying all its parent corporations and listing any entity that owns 10% or more of the party's equity securities. A party shall file the statement with

its initial pleading filed in this court and shall supplement the statement within a reasonable time of any change in the information. IX. Discovery Plan and Cut-Off Date. 1. The parties have made their initial disclosures under

Federal Rule of Civil Procedure 26(a)(1). A. Subjects of Discovery. 1. The parties agree in principle that they will

first focus on class-oriented discovery (i.e., toward determining whether certification of a class is appropriate). It is not the

parties' intent, by this paragraph, to limit any discovery to class-oriented issues alone. 2. The subjects of discovery will include, but are

not limited to, all outstanding factual issues enumerated in the parties' pleadings. Those issues include, but are not limited

to, facts relevant to the named Plaintiff, the individuals Defendant identifies as persons most knowledgeable, a statistically relevant sample of driver information of the members of the putative class related to the issues enumerated in the parties' pleadings. 6

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B.

Issues About Discovery of Electronically-Stored Information. 1. Counsel for both parties have discussed the

preservation and production of any discoverable information, including electronically-stored information. To the extent such

information is reasonably available, the parties may produce the information in electronic format via CD Rom. C. Claims of Privilege or Protection of Trial Preparation Materials. 1. Defendant will pursue the court's grant of a

protective order over documents to the extent that they reveal confidential, private and/or proprietary information of Defendant or of third parties to which Defendant owes a duty to keep such information confidential and private. The parties agree in

principle that a protective order regarding the foregoing may be appropriate, and further agree to properly meet and confer prior to the filing of any motion for such an order. Plaintiff,

however, reserves his right to object to any such motion. D. Changes to Limitations on Discovery. 1. The parties agreed that no changes are needed to

the applicable federal and local rules governing civil discovery in this case, except that in this putative class action, the parties may need to take more than 10 depositions per side, and Defendant should not be limited from taking discovery of individual member(s) of the purported class; and that some depositions, namely Fed. R. Civ. Proc. Rule 30(b)(6) depositions may need to exceed the seven and one-half hour limitation. /// 7

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X.

Pre-Trial Motion Schedule. A. Class Certification. 1. Plaintiff's deadline to seek leave to amend the

Complaint will be July 23, 2010. 2. The Court sets, as the filing date for a motion

for class certification, September 20, 2010. 3. Defendant's opposition to the motion to be filed

on or before October 12, 2010. 4. Plaintiff's reply shall be filed on or before

October 25, 2010. 5. The hearing on the motion for class certification

is scheduled for November 22, 2010 at 10:00 a.m. in Courtroom 3. The Court reserves extended time for oral argument. XI. Motions - Hard Copy. 1. The parties shall submit one (1) courtesy paper copy to Exhibits shall be marked with

the Court of any motions filed.

protruding numbered or lettered tabs so that the Court can easily identify such exhibits. XII. Request For Bifurcation, Appointment Of Special Master, Or Other Techniques To Shorten Trial. 1. XIII. 1. To be determined. Related Matters Pending. On December 29, 2009, a First Amended Complaint was

filed in the case of Daniel Branch v. The Plumbers Warehouse (Case No. BC425627) in Los Angeles County Superior Court adding Ferguson Enterprises, Inc. as a Defendant. This action is a

putative class action alleging, among other things, failure to provide meal periods, failure to pay wages upon termination, 8

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failure to keep accurate payroll records and unfair competition pursuant to Cal. Business & Prof. Code § 17200. The proposed

Plaintiff Class in this action consists of persons working in hourly positions for The Plumbers Warehouse and Ferguson Enterprises, Inc., including drivers. XIV. Further Scheduling. 1. Following decision on class certification and class

dispositive motions, the parties and the Court will schedule a Further Scheduling Conference to set a final schedule for the case. XV. Compliance With Federal Procedure. 1. The Court requires compliance with the Federal

Rules of Civil Procedure and the Local Rules of Practice for the Eastern District of California. To aid the court in the

efficient administration of this case, all counsel are directed to familiarize themselves with the Federal Rules of Civil Procedure and the Local Rules of Practice of the Eastern District of California, and keep abreast of any amendments thereto. XVI. Effect Of This Order. 1. The foregoing order represents the best

estimate of the court and counsel as to the agenda most suitable to bring this case to resolution. The trial date reserved is If the parties determine at

specifically reserved for this case.

any time that the schedule outlined in this order cannot be met, counsel are ordered to notify the court immediately of that fact so that adjustments may be made, either by stipulation or by subsequent scheduling conference. 2. Stipulations extending the deadlines contained 9

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herein will not be considered unless they are accompanied by affidavits or declarations, and where appropriate attached exhibits, which establish good cause for granting the relief requested. 3. Failure to comply with this order may result in

the imposition of sanctions.

IT IS SO ORDERED. Dated: February 12, 2010 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

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