Perez v. Winco Foods, LLC et al

Filing 10

STIPULATION AND ORDER FOR PLAINTIFF TO FILE A SECOND AMENDED COMPLAINT signed by Magistrate Judge Sheila K. Oberto on 10/23/2017. IT IS HEREBY ORDERED that Plaintiff shall file his Second Amended Complaint, a copy of which was filed with the Court (see Doc. 9), within 10 calendar days of the date this Order is filed. Defendant may file a responsive pleading or answer within the time permitted under the Rules. (Thorp, J)

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Dennis F. Moss (SBN 77512)
Ari E. Moss (SBN 238579)
MOSS BOLLINGER LLP
15300 Ventura Blvd., Suite 207
Sherman Oaks, California 91403
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
ISIDRO PEREZ and ISMAEL LEON
SANCHEZ

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SEYFARTH SHAW LLP
Kristina M. Launey (SBN 221335)
[e-mail]
Julie G. Yap (SBN 243450)
[e-mail]
Michael W. Kopp (SBN 206385)
[e-mail]
400 Capitol Mall, Suite 2350
Sacramento, CA 95814-4428
Telephone: [phone]
Facsimile: [phone]
SEYFARTH SHAW LLP
Duwayne A. Carr (SBN 299136)
[e-mail]
333 S. Hope Street, Suite 3900
Los Angeles, California 90071
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendants
WINCO FOODS, LLC, a Delaware limited
liability company, and WINCO HOLDINGS,
NC., an Idaho corporation

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ISIDRO PEREZ, individually and on behalf of
all others similarly situated,
Plaintiffs,

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v.

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STIPULATION AND ORDER FOR
PLAINTIFF TO FILE A SECOND
AMENDED COMPLAINT
(Doc. 8)

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CASE NO: 1-17-cv-01279-DAD-SKO

WINCO FOODS, LLC, a Delaware limited
liability company, WINCO HOLDINGS, INC.,
an Idaho corporation, and DOES 1-100,

Action Filed: August 10, 2017
Date of Removal: September 25, 2017

Defendant.

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STIPULATION FOR PLAINTIFF TO FILE A SECOND AMENDED COMPLAINT; ORDER

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STIPULATION

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Plaintiffs Isidro Perez (“Perez”) and Ismael Leon Sanchez (“Sanchez”) (collectively

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“Plaintiffs”), and Defendants WinCo Foods, LLC, and WinCo Holdings, Inc. (collectively,

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“Defendants”), by and through their respective undersigned counsel, hereby stipulate, agree, and

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jointly request that the Court issue an order as follows:

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WHEREAS, Plaintiff Perez filed this putative class action in California Superior Court for
the County of Stanislaus on August 10, 2017;
WHEREAS, Plaintiff filed a First Amended Complaint to add Sanchez as a Plaintiff and to
add a claim for unpaid vacation pay on September 22, 2017;

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WHEREAS, Defendants filed a Notice of Removal to federal court on September 25, 2017;

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WHEREAS, counsel for Defendants advised Plaintiffs’ counsel of a prior class action

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settlement in Brummell v. WinCo Foods, LLC, Stanislaus County Superior Court Case No.

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2010497, that resulted in a settlement that released the claims alleged in this case for the period

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ending on May 18, 2015;

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WHEREAS, counsel for Defendants advised Plaintiffs’ counsel that Plaintiff Perez

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participated in the Brummell settlement and that his employment by Defendant terminated before

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the end of the Brummell class period, effectively precluding his individual claims in this case;

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WHEREAS, counsel for Defendants advised Plaintiffs’ counsel that Plaintiff Sanchez’s

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employment was covered by a collective bargaining agreement (“CBA”) and provided a copy of

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the relevant portions of the CBA showing that Plaintiff Sanchez was precluded from receiving

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accrued but unused vacation pay upon his termination, and that any claim by him for unpaid

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vacation pay had to have been grieved through the CBA’s grievance and arbitration procedures,

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effectively precluding his and similar situated employee’s claims for unpaid vacation pay;

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WHEREAS, Plaintiff Perez and his counsel hereby agree to amend the complaint to
voluntarily dismiss Perez’s individual claims;
WHEREAS, Plaintiff Sanchez and his counsel hereby agree to amend the complaint to

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dismiss his individual claim for unpaid vacation pay with prejudice and the putative class claims

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for vacation pay without prejudice;
-1STIPULATION FOR PLAINTIFF TO FILE A SECOND AMENDED COMPLAINT; ORDER

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WHEREAS, Plaintiff Sanchez and his counsel have agreed to amend the complaint to limit

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the class period for his claims for unpaid minimum wages, rest break violations and unreimbursed

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business expenses for which he seeks to represent a class of similarly situated current and former

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employees of Defendant to the period after the end of the Brummell class period, May 19, 2015

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through the present;

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WHEREAS, under Federal Rule of Civil Procedure 41(a)(1), Plaintiffs are entitled to

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voluntarily dismiss their claims subject to the provisions of Rule 23(e) and any statute of the

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United States, without order of the court at any time before service by the adverse party of an

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answer or of a motion for summary judgment; or all parties may so stipulate;

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WHEREAS, no defendant has answered or otherwise responded to Plaintiffs’ complaint

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and no defendant has filed a motion for summary judgment;

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WHEREAS, this case involves putative class claims;

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WHEREAS, the putative class has not been certified and Plaintiffs have not filed a motion

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for class certification;

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WHEREAS, Federal Rules of Civil Procedure, Rule 23(e) does not preclude the dismissal

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of Plaintiff Perez, the dismissal of Plaintiffs’ claim for unpaid vacation pay on behalf of the

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putative class, or the proposed amendment to the complaint to limit the liability period of the

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remaining claims;

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WHEREAS, no prejudice to absent putative class members will result from dismissal of
this action, because a class has not been certified and the dismissal will not affect their rights;

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WHEREAS, none of the absent putative class members would be bound because the
dismissal of the unpaid vacation pay claim is without prejudice; and

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WHEREAS, no notice need be sent to absent putative class members, because a class has

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not been certified, the case is in its infancy, the case has not been widely publicized and no absent

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putative class member will be bound by the voluntary dismissal of Plaintiffs’ claims.

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-2STIPULATION FOR PLAINTIFF TO FILE A SECOND AMENDED COMPLAINT; ORDER

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THE PARTIES HEREBY STIPULATE AND AGREE THAT:
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Plaintiff Sanchez shall file, within 10 days of entry of the Order granting this

Stipulation, the Second Amended Complaint, attached hereto as Exhibit A;

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2.

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the Rules.

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Defendant may file a responsive pleading or answer within the time permitted under

IT IS SO STIPULATED AND AGREED.

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Dated: October 20, 2017

SEYFARTH SHAW, LLP

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By: /s/ Julie G. Yap
Julie G. Yap
Counsel for Defendants
WINCO FOODS, LLC
and WINCO HOLDINGS, INC.

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Dated: October 20, 2017

MOSS BOLLINGER, LLP

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By: /s/Jeremy F. Bollinger
(as authorized on October 20, 2017)
Jeremy F. Bollinger
Counsel for Plaintiffs
ISIDRO PEREZ and ISMAEL LEON SANCHEZ

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ORDER

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Based on the parties’ above-stipulation (Doc. 8) and good cause appearing, IT IS HEREBY

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ORDERED that Plaintiff shall file his Second Amended Complaint, a copy of which was filed with the

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Court (see Doc. 9), within 10 calendar days of the date this Order is filed. Defendant may file a

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responsive pleading or answer within the time permitted under the Rules.

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-3STIPULATION FOR PLAINTIFF TO FILE A SECOND AMENDED COMPLAINT; ORDER

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IT IS SO ORDERED.
Dated:

October 23, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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-4STIPULATION FOR PLAINTIFF TO FILE A SECOND AMENDED COMPLAINT; ORDER

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