Cuevas, et al v. Dias & Fragoso, Inc.

Filing 10

ORDER Granting Stipulation (Doc. 8).... parties are to refer to the document for further detailed information. (4.) Initial SCHEDULING CONFERENCE is continued from 6/13/2017 to November 28,2017 at 09:00 AM in Courtroom 8 (BAM) before Magistrate Judge Barbara A. McAuliffe. signed by Magistrate Judge Barbara A. McAuliffe on 6/13/2017. (Herman, H)

1
2
3
4
5
6
7
8

10
11
ATTORNEYS AT LAW
7550 North Palm Avenue, Suite 100
Fresno, California 93711
Telephone: [phone]

SAGASER, WATKINS & WIELAND PC

9

Howard A. Sagaser, State Bar No. 72492
William M. Woolman, State Bar No. 145124
Ian B. Wieland, State Bar No. 285721
SAGASER, WATKINS & WIELAND, PC
7550 North Palm Avenue, Suite 100
Fresno, California 93711
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants, Dias & Fragoso, Inc., D&F Agricultural
Enterprises, Inc., Gabriel M. Dias and John L. Fragoso
John E. Hill, State Bar No. 45338
[e-mail]
Enrique Martínez, State Bar No. 206884
[e-mail]
LAW OFFICES OF JOHN E. HILL
333 Hegenberger Road, Ste. 500
Oakland, CA 94621
Telephone: [phone]
Facsimile: [phone]

12
13

Attorneys for Plaintiffs & Putative Classes

14
UNITED STATES DISTRICT COURT FOR THE

15

EASTERN DISTRICT OF CALIFORNIA

16
17
18

ROSALIE CUEVAS, ADOLFO GOMEZMORENO, REYNALDO TOLANO, and
AGUSTIN AMBRIZ, on behalf of themselves
and all others similarly situated,

19

Plaintiff(s),

20

v.

21

DIAS & FRAGOSO, INC., a California
Corporation; D & F AGRICULTURAL
ENTERPRISES, INC., a California
Corporation; GABRIEL M. DIAS; and JOHN
L. FRAGOSO

22
23
24

Case No.:

1:17-cv-00357-LJO-BAM

ORDER GRANTING STIPULATION
CONCERNING DISCOVERY, STAY OF
ACTION, MEDIATION AND SETTING
NEW SCHEDULING CONFERENCE
New Date:
Time:
Courtroom:

November 28, 2017
9:00 a.m.
8 (BAM)

Defendant(s).

25
26
27
28
ORDER GRANTING STIPULATION CONCERNING DISCOVERY, STAY OF
ACTION AND MEDIATION
015004.00003 - 167841.1

1

ORDER

2

The Parties to this action, Plaintiffs ROSALIE CUEVAS, ADOLFO GOMEZ-MORENO,

3

REYNALDO TOLANO, and AGUSTIN AMBRIZ (hereinafter referred to at times as “Plaintiffs”)

4

and Defendants DIAS & FRAGOSO, INC., D & F AGRICULTURAL ENTERPRISES, INC.,

5

GABRIEL M. DIAS, and JOHN L. FRAGOSO (hereinafter referred to at times as “Defendants”),

6

filed a Stipulation Concerning Discovery, Stay of Action and Mediation (“Stipulation”)

7

concurrently herewith.
According to the Stipulation, the Parties have scheduled a private mediation for October

9

26, 2017. To facilitate the mediation and to reduce legal expenses pending the mediation, the

10

Parties, subject to the terms and conditions of this Order, jointly move for an order requiring (1)

11
ATTORNEYS AT LAW
7550 North Palm Avenue, Suite 100
Fresno, California 93711
Telephone: [phone]

SAGASER, WATKINS & WIELAND PC

8

an agreed-upon method of giving notice to the proposed class prior to disclosure of the documents

12

and information; (2) certain restrictions on Defendants’ ability to communicate, directly or

13

indirectly, with members of the proposed class concerning the release or settlement of any claim

14

alleged in the Complaint pending the outcome of the mediation; and (3) a stay of all other

15

litigation in this case, including but not limited to discovery.

16
17
18

Based on the Stipulation, and GOOD CAUSE APPEARING, it is hereby ORDERED as
follows:
1.

Subject to the conditions set forth in this Order, this matter is STAYED until

19

November 27, 2017. The Parties shall advise the Court as to the status of this matter within thirty

20

days of completion of the mediation on October 26, 2017. If the matter is resolved, the Parties will

21

provide the Court with a further date or time at which the Parties will submit a joint stipulation of

22

settlement to the Court.

23

2.

The form of Notice to the putative class proposed by the parties and attached as

24

Exhibit B (“Notice”) to the parties stipulation is hereby APPROVED on the basis that it will be in

25

both English and a Spanish translation. The Court finds that the form and method of notice

26

proposed by the parties and set forth in this Order will provide reasonable notice to members of

27

the putative class regarding their potential privacy rights in the production of documents and other

28
1
ORDER GRANTING STIPULATION CONCERNING DISCOVERY, STAY OF
ACTION AND MEDIATION
015004.00003 - 167841.1

1

information required by this Order, and a reasonable opportunity to opt out of disclosure of the

2

information pursuant to this Order.

3

3.

KCC Class Action Services, LLC (“KCC”) is authorized to implement the notice

4

process set forth below. Except as provided herein, KCC is to maintain the identity and contact

5

information of all individuals provided to them and not disclose it to anyone except upon further

6

order of the Court. The Parties are to share equally (50/50) the costs charged by KCC.

7
8

The Joint Scheduling Conference is CONTINUED to November 28, 2017 at 9:00

a.m. before United States Magistrate Judge Barbara A. McAuliffe.
5.

As soon as possible, but no later than ten (10) calendar days of the date of this

10

Order, KCC will be sent by Defendants a complete list of the individuals with contact information

11
ATTORNEYS AT LAW
7550 North Palm Avenue, Suite 100
Fresno, California 93711
Telephone: [phone]

SAGASER, WATKINS & WIELAND PC

9

4.

comprising the putative class. Within five (5) calendar days thereafter, KCC will send, by first

12

class U.S. mail, postage prepaid, a copy of the Notice to all persons on the list provided by

13

Defendants.

14

6.

As part of its duties, KCC shall take all steps as are reasonably necessary to ensure

15

the individuals receive the Notice, including conducting a National Change of Address search

16

before mailing the notice and conduct address searches on all returned, undelivered mail and re-

17

mailing the notices for whom further addresses are found.

18

7.

KCC shall make available a toll-free telephone number for individuals to contact

19

them if they have any questions regarding the Notice. Without disclosing the identity of the

20

individual, KCC will agree to notify all counsel by email of the question or questions within 24

21

hours of such contact. The parties agree that if they cannot agree on the response to the

22

individual’s question, that the parties will submit the dispute to the Court for guidance or

23

determination. The parties agree to request that the Court consider these requests on an expedited

24

basis using a letter no more than two pages that summarizes the issue or issues and the parties’

25

positions. If the Court is willing, the parties request that the Court permit these requests to be sent

26

by email to the Court, to be subsequently followed by a public filing of the submission to the

27

Court. While this process is ongoing, the time limit for notice, opt-out, and document production

28
2
ORDER GRANTING STIPULATION CONCERNING DISCOVERY, STAY OF
ACTION AND MEDIATION
015004.00003 - 167841.1

1

described herein will continue unabated. However, no information regarding any individual with

2

an unresolved inquiry will be released to Plaintiffs until the inquiry has been resolved pursuant to

3

this paragraph.

4

8.

After thirty-one (31) calendar days from the mailing of the notice, KCC shall notify

5

all parties of the names of the persons who have not opted out and requested that contact

6

information and documents pertaining to them not be released.

7

9.

The Court finds that the Notice process is sufficient to constitute due diligence such

the disclosure. The Court finds that the information sought is not particularly sensitive and is

10

potentially beneficial to the putative class members, thus the Notice requirements ordered herein

11
ATTORNEYS AT LAW
7550 North Palm Avenue, Suite 100
Fresno, California 93711
Telephone: [phone]

that any undeliverable notice shall be treated as though the particular individual did not opt-out of

9

SAGASER, WATKINS & WIELAND PC

8

and the additional safeguard of the Protective Order mitigate any concerns about disclosing

12

otherwise confidential information of putative class members, best serve the interests of justice

13

and that nothing more is required under the circumstances. (See Mullane v. Central Hanover Bank

14

& Trust Co. (1950) 339 U.S. 306, 314; Eisen v. Carlisle & Jacquelin (1974) 417 U.S. 156, 173.)

15

10.

Subject to the terms and conditions of the Stipulation and this Order, Defendants

16

agree to provide to Plaintiffs’ counsel, on or before August 14, 2017, but in no event later than

17

nine weeks prior to the mediation date, complete, legible, bates stamped copies of the following

18

documents and data, in electronic form wherever possible, and/or in hard copy when requested,

19

the following documents for each Potential Class Member:

20

a.

All payroll records for each Potential Class Member;

21

b.

All records of hours worked by each Potential Class Member.

22

Additionally, on or before July 28, 2017, Defendants will provide:

23

a.

24

All employee handbooks and policies, of any kind or description, and all
draft versions thereof, in existence at any time within the past five (5) years.

25

///

26

///

27

///

28
3
ORDER GRANTING STIPULATION CONCERNING DISCOVERY, STAY OF
ACTION AND MEDIATION
015004.00003 - 167841.1

1

11.

During the period of the stay, Defendants agree not to communicate, directly or

2

indirectly, with any person within the Plaintiffs’ proposed class definition in Paragraph 26 of their

3

Complaint, concerning the release or settlement of any claim alleged in the Complaint, unless and

4

if one of the persons within the Plaintiffs’ proposed class definition makes a demand or files a

5

legal action in court or makes a claim with a government agency in which case Defendants reserve

6

any and all rights to negotiate a release or settlement of any and all claims.

7

12.

Nothing in this Order or the Protective Order, is intended to create, expand, limit or

waive any of the Parties’ rights, defenses or remedies at law or equity. The Parties reserve all

9

rights available to them under the law, including all statutes and constitutions.

10

13.

If a party or KCC believes in good faith that he, she or it needs additional time to

11
ATTORNEYS AT LAW
7550 North Palm Avenue, Suite 100
Fresno, California 93711
Telephone: [phone]

SAGASER, WATKINS & WIELAND PC

8

perform one of the matters specified above, the party or KCC may notify the parties of that need

12

and set forth the additional time or times needed. The parties will meet and confer telephonically

13

in an effort to resolve the issue and to agree on adjusted dates, partial interim compliance,

14

continuance of the stay, and/or a postponement of the mediation.

15

14.

If the matter resolves at the mediation, the parties will advise the Court within 30

16

calendar days thereafter that the matter has been resolved and provide the Court with a further date

17

or time at which the parties will submit a joint stipulation of settlement to the Court, and the

18

Scheduling Conference set for November 28, 2017 will be taken off calendar. If the matter does

19

not resolve, the parties will advise the Court within five calendar days, the Scheduling Conference

20

set for November 28, 2017 will proceed, and the parties will comply with this Court’s Order

21

Setting Mandatory Scheduling Conference filed March 10, 2017 or any subsequent order of this

22

Court.

23

15.

The Court hereby equitably tolls the statute of limitations for any individual who

24

opts into any collective action under the Fair Labor Standards Act in this case which is approved

25

by the Court after the mediation. The tolling requested will equal the number of days from August

26

13, 2017 until sixty (60) days after any order by the Court granting conditional certification,

27

should the mediation fail to resolve the case.

28
4
ORDER GRANTING STIPULATION CONCERNING DISCOVERY, STAY OF
ACTION AND MEDIATION
015004.00003 - 167841.1

1

16.

A ruling on the proposed Stipulated Protective Order attached as Exhibit A

2

(“Protective Order”) is held in ABEYANCE. On or before June 16, 2017, the parties shall file the

3

Stipulated Protective Order, attached as Exhibit A to the Stipulation, as a separate entry in the

4

docket for purposes of clarifying the record.

5
6
7
8

IT IS SO ORDERED.
Dated:

June 13, 2017

A. McAuliffe

10
11
ATTORNEYS AT LAW
7550 North Palm Avenue, Suite 100
Fresno, California 93711
Telephone: [phone]

_

UNITED STATES MAGISTRATE JUDGE

9

SAGASER, WATKINS & WIELAND PC

/s/ Barbara

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
ORDER GRANTING STIPULATION CONCERNING DISCOVERY, STAY OF
ACTION AND MEDIATION
015004.00003 - 167841.1

1
2
3
4
5
6
7
8

10
11
ATTORNEYS AT LAW
7550 North Palm Avenue, Suite 100
Fresno, California 93711
Telephone: [phone]

SAGASER, WATKINS & WIELAND PC

9

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
ORDER GRANTING STIPULATION CONCERNING DISCOVERY, STAY OF
ACTION AND MEDIATION
015004.00003 - 167841.1