Pena et al v. Taylor Farms Pacific, Inc. et al

Filing 31

ORDER signed by Judge Kimberly J. Mueller on 8/15/13: The 10/31/13 Status Conference is ADVANCED to 9/5/2013 at 02:30 PM in Courtroom 3 (KJM) before Judge Kimberly J. Mueller. Joint status report due no later than 8/29/13. The deadline for plaintiffs to file their motion for class certification is extended to 10/4/13; opposition due by 11/4/13; reply due by 11/11/13. (Manzer, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT COURT OF CALIFORNIA

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MARIA DEL CARMEN PENA,
et al.,
Plaintiffs,

No. 2:13-cv-01282-KJM-AC

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vs.
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TAYLOR FARMS PACIFIC, INC.,
et al.,

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Defendants.

ORDER

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Plaintiffs’ ex parte motion for an order dissolving, or in the alternative

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modifying, the March 13, 2013 order of the San Joaquin County Superior Court (“Order”)

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regarding class certification deadlines is before the court. (ECF 18.) For the reasons below,

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the court DENIES plaintiffs’ motion but extends the class certification deadlines contained in

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the Order.

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I.

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BACKGROUND
This is a wage-and-hour class action originally filed in state court on February

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17, 2012. (Notice of Removal, Ex. A, ECF 2-2, 2-3.) On June 26, 2013, the same day

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plaintiffs filed their sixth amended complaint adding for the first time a defendant diverse from

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at least one named plaintiff, defendant Taylor Farms Pacific, Inc. (“Taylor Farms”) removed
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this case to federal court under the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d).

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(ECF 2.) At the time of removal, the state court had ordered plaintiffs’ motion for class

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certification due on August 13, 2013, and the hearing on that motion set for October 16, 2013.

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(ECF 18 at 2.)

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After removal of this action, this District’s Clerk of Court issued to the parties

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this court’s standard new case documents, which include an order setting a status conference

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within 120 days to discuss a Federal Rule of Civil Procedure 26(f) discovery plan. (ECF 4.)

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Defendant Taylor Farms filed an ex parte application for an order authorizing discovery on

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July 16, 2013, asserting that plaintiffs had insisted that discovery was subject to a stay pending

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completion of a Rule 26(f) conference. (ECF 10 at 1.) On July 29, 2013, the assigned

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magistrate judge granted defendant Taylor Farms’ ex parte application, finding that good cause

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existed to grant defendant’s application to shorten the deadline for a meet and confer pursuant

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to Rule 26(f). (ECF 16 at 8.) The magistrate judge reached this conclusion guided in part by

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Federal Rule of Civil Procedure 1, which instructs that the Federal Rules should be “construed

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and administered to secure the just, speedy, and inexpensive determination of every action and

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proceeding.” (Id. at 7–8.) The magistrate judge also noted that the parties had already met and

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conferred regarding discovery on various occasions while this action was pending in state court

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and that they had already conducted extensive discovery in the approximate eighteen months

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this case has been litigated. (Id. at 8.) The parties were ordered to meet and confer within

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twenty-one days of the date of that order. (Id.)

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II.

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ANALYSIS AND LAW
In the instant motion, plaintiffs assert that their discovery efforts were halted

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after removal. (ECF 18 at 3.) Plaintiffs argue that because the parties assumed the state court’s

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class certification deadlines were mooted, plaintiffs have not had the opportunity to conduct

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important discovery in preparation for the class certification motion, such as a deposition of the

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“person most knowledgeable from Defendant Taylor’s accounts payable department . . . .”

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(ECF 18 at 2–3.) In addition, several of the newly-added defendants have yet to answer

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plaintiffs’ complaint. (Id.) Defendant Taylor Farms argues that plaintiffs have already
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received in state court two extensions of the class certification deadline, and that plaintiffs have

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had ample time to conduct discovery and thus cannot demonstrate good cause to amend the

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state court’s scheduling order. (ECF 21 at 1.)

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Title 28 U.S.C. § 1450 states that “[a]ll injunctions, orders, and other

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proceedings had in such action prior to its removal shall remain in full force and effect until

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dissolved or modified by the district court.” Discovery orders are not exempt from this rule.

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See July 29, 2013 Order, ECF 16 at 5–6 (citing Kogok v. T-Mobile USA, Inc., No. 13cv838–

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BEN (BLM), 2013 WL 1942211, at *1 (S.D. Cal. May 9, 2013) (in an action pending ten

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months before removal, the court declined to stay the state court’s discovery order)). All

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parties in this case should have known that the state court’s deadlines would remain in place

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and acted accordingly.

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Whether outstanding discovery requests remain viable after removal is an open

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question. Some district courts have held that discovery requests served in state court are

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moribund upon removal because the parties have not yet participated in a Rule 26(f)

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conference. See July 29, 2013 Order, ECF 16 at 6 (citing Sterling Savings Bank v. Federal Ins.

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Co., No. CV–12–0368–LRS, 2012 WL 3143909, at *2 (E.D. Wash. Aug. 1, 2012)). Given the

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facts of this case — in particular, the large amount of discovery already accomplished and the

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nearly eighteen-months this case was pending until removal — this court declines to adopt such

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a categorical rule. The plain language of Rule 26(f) does not require it, nor does any other

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precedent cited by the parties or located by the court. See July 29, 2013 Order, ECF 16 at 6

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(CITING SCHWARZER, WALLACE, TASHIMA & WAGSTAFFE, CAL. PRAC. GUIDE FED. CIV. PRO.

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BEFORE TRIAL, Chap. 2D-9) (“Arguably, discovery requests (e.g., notice of depositions,

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document demands, etc.) served before removal should also be given effect under 28 U.S.C.

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§ 1450 unless modified or terminated by the federal court. Discovery requests appear to be

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‘proceedings had in such action prior to removal’ within the meaning of § 1450.”).

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However, Rule 1 requires not only the speedy and inexpensive resolution of

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controversies, but also the just. Defendants who remove cases to federal court should expect, if

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for no other reason than the uncertainty about the viability of outstanding discovery requests
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after removal, that discovery may be delayed. Depending upon the facts of a given case, these

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delays may result in the modification of the state court’s scheduling deadlines. In this case, the

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state court’s class certification deadline was set before plaintiffs added additional defendants in

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their sixth amended complaint. Moreover, there is evidence before the court that defendant

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Taylor Farms believed, or led plaintiffs to believe, that removal mooted the state court’s class

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certification deadlines. (Decl. of Stuart R. Chandler, Ex. A, ECF 19-1 (containing an email

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from defendant’s counsel to plaintiffs’ counsel stating “I thought you would appreciate that, by

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virtue of the removal, the class certification deadline set by the Superior Court no longer

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requires you to file your class certification motion within the next few weeks.”).) This belief,

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actual or apparent, no doubt contributed to defendant’s alleged nonresponsiveness to plaintiffs’

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discovery requests outstanding at the time of removal. (Chandler Decl. ¶ 7, ECF 19 (“On the

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same day the case was removed, Taylor’s counsel wrote to advise that in light of the removal

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Taylor would not be producing any witnesses for depositions as scheduled.”).) Whatever

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plaintiffs’ position may have been, defendant may not remove, refuse to comply with discovery

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requests by invoking the fact of removal, and later argue that the fact of removal did not and

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should not change the parties’ obligations. Accordingly, the court finds good cause exists to

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modify the state court’s class certification schedule. FED. R. CIV. P. 16(b)(4) (a “schedule may

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be modified only for good cause and with the judge’s consent”).

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III.

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CONCLUSION
The court reaffirms the magistrate judge’s July 29, 2013 order directing the

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parties to meet and confer under Rule 26(f) within twenty-one days of the date of that order.

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The court additionally orders:

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1. The October 31, 2013 status conference is advanced to September 5, 2013,

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for which the parties should submit a joint status report no later than August

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29, 2013; and

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2. The deadline for plaintiffs to file their motion for class certification is

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provisionally extended to October 4, 2013. Defendant’s opposition is due

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November 4, 2013, and plaintiffs’ reply is due November 11, 2013. The
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hearing on the motion shall be held on November 22, 2013. The parties may

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address the viability of this schedule at the September 5, 2013 status

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conference.

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IT IS SO ORDERED.
DATED: August 15, 2013.

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UNITED STATES DISTRICT JUDGE

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