Perez v. Leprino Foods Company et al

Filing 8

ORDER to SHOW CAUSE Why a STAY should not be imposed, signed by District Judge Anthony W. Ishii on 5/30/2017. (Show Cause Response due by 6/14/2017)(Kusamura, W)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 11 12 13 14 15 16 JOHN PEREZ and on behalf of all other similarly situated individuals, CASE NO. 1:17-CV-00686-AWI-BAM ORDER TO SHOW CAUSE WHY A STAY SHOULD NOT BE IMPOSED Plaintiff, LEPRINO FOODS COMPANY, a Colorado Corporation; LEPRINO FOODS DAIRY PRODUCTS COMPANY, a Colorado Corporation; and DOES 1-50, inclusive, 17 Defendants. 18 19 On November 15, 2013, Plaintiff Jerrod Finder (“Finder”) filed a wage and hour class 20 action against Leprino Foods Company and Leprino Foods Dairy Products Company 21 (collectively “Leprino”), alleging California Labor Code violations including failures to provide 22 a second meal break or accurate itemized statements, waiting time violations, Unfair Business 23 Practices Act violations, and Private Attorneys General Act claims based on those substantive 24 violations. On January 21, 2015, Jonathon Talavera (“Talavera”) filed a wage and hour class 25 action against Leprino, alleging, (1) claims relating to Leprino’s donning and doffing procedure 26 for required sanitary gear, (2) the same second meal period denial claim as Finder, and (3) claims 27 for failure to pay all hours worked, overtime, and wages upon termination (based on both (a) the 28 second meal period and rest period denials, and (b) the donning and doffing related claims). The 1 1 Court consolidated the two actions on November 21, 2016. Finder v. Leprino, Case No. 1:13-cv2 2059-AWI-BAM, Doc. 63. In the same order, this Court noted that Talavera appeared “to have 3 abandoned his donning and doffing claims” in seeking class certification. Id. at Doc. 63 at 5.1 On 4 January 20, 2017, the Court stayed the consolidated action. Id. at Doc. 81. 5 On April 13, 2017, counsel for Talavera filed Perez v. Leprino—a new putative class 6 action in Kings County Superior Court against Leprino, alleging claims that appear to be almost 7 identical to those alleged in the Talavera action. Compare Doc. 1 at 11-32 with Talavera v. 8 Leprino, 1:15-cv-105-AWI-BAM, Doc. 13-1. That action was removed to this Court on May 18, 9 2017, and reassigned to the undersigned on May 24, 2017. Doc. 6. The first through third, fifth, 10 and sixth causes of action alleged in the Perez action appear to implicate the same question now 11 pending before the Ninth Circuit Court of Appeals in Finder— “whether failure to itemize or pay 12 ‘meal period premiums’ constitutes failure to itemize or pay ‘wages.’” Finder v. Leprino, Case 13 No. 1:13-cv-2059-AWI-BAM, Doc. 81 at 2. In light of the striking similarity of the actions and 14 the implication of the same issue now on appeal, Plaintiff is ORDERED TO SHOW CAUSE by 15 June 14, 2017 why this action should not be stayed pending resolution of the interlocutory appeal 16 now pending before the Ninth Circuit Court of Appeals. Finder v. Leprino, Ninth Cir. Case No. 17 16-80104. Defendant may, but is not required to, submit briefing on its position regarding a stay 18 by June 14, 2017. 19 20 IT IS SO ORDERED. 21 Dated: May 30, 2017 SENIOR DISTRICT JUDGE 22 23 24 25 26 27 28 1 The consolidated action was stayed without resolving the motion for class certification filed in the Talavera Action. 2

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