Krueger v. Mistras Group, Inc.

Filing 17

STIPULATION and ORDER signed by Chief Judge Morrison C. England, Jr on 9/8/15 ORDERING that the parties' request is GRANTED; The Court GRANTS the Parties' request to voluntarily dismiss Krueger without prejudice; The Court will dismiss t he case without a hearing; The Court will dismiss the case without providing notice to the class because: a. Notice of pendency of the action has not been provided to the class, and the court has not yet ruled on class certification; and Dismissal will not prejudice class members in light of the pendency of Viceral, to which Krueger will be added. b. The Court hereby dismisses the action without prejudice. CASE CLOSED. (Mena-Sanchez, L)

1 Carolyn Hunt Cottrell (SBN 166977)
Nicole N. Coon (SBN 286283)
2 SCHNEIDER WALLACE
COTTRELL KONECKY WOTKYNS LLP
3 2000 Powell Street, Suite 1400
Emeryville, California 94608
4 Telephone: [phone]
Facsimile: [phone]
5 [e-mail]
[e-mail]
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Attorneys for Plaintiff David Krueger and the putative Class
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8 Joseph A. Schwachter (SBN 108124)
R. Keith Chapman (SBN 282331)
9 Littler Mendelson, P.C.
650 California Street, 20th Floor
10 San Francisco, CA 94108
11 Attorneys for Defendant Mistras Group, Inc.
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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DAVID KRUEGER, individually and on
16 behalf of all other similarly situated,
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Plaintiff,

19 MISTRAS GROUP, INC.; and DOES 1-50,
inclusive,
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Case No.: 2:15-cv-01069-MCE-DAD
Hon. Morrison C. England. Jr.

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CLASS ACTION

Defendant.

STIPULATION AND ORDER FOR COURT
APPROVAL OF DISMISSAL WITHOUT
PREJUDICE
Complaint Filed: April 10, 2015
Removed: May 18, 2015

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STIPULATION AND ORDER FOR COURT APPROVAL OF DISMISSAL WITHOUT PREJUDICE
Krueger, et al. v. Mistras Group, Inc., et al., Case No. 2:15-cv-01069-MCE-DAD

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STIPULATION
Plaintiff David Krueger, on behalf of himself and all others similarly situated, (“Plaintiff”)
and Defendant Mistras Group, Inc. (“Defendant”) hereby respectfully submit this Stipulation for
Court Approval of Dismissal Without Prejudice pursuant to Federal Rules of Civil Procedure 23(e)
and 41, to dismiss the case before the United States District Court, Eastern District of California in

7 order to coordinate the matter by way of amended complaint with the Viceral action proceeding
8 before the Northern District.
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WHEREAS on April 10, 2015, Plaintiff filed in the Superior Court of California, County of

10 Kern a class action complaint entitled David Krueger, et al. v. Mistras Group, Inc., et al., No. S11
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1500-CV-284570 (“Krueger”). (ECF Docket No. 1-2.) Therein, on behalf of himself and a putative
class of similarly situated individuals, Plaintiff alleges that Defendant: (1) failed to authorize and
permit and/or make available meal periods pursuant to California Labor Code sections 226.7 and

15 512; (2) failed to pay for all hours worked pursuant to California Labor Code section 1194; (3)
16 failed to pay overtime wages pursuant to California Labor Code sections 510, 1194; (4) failed to
17 provide accurate wage statements pursuant to California Labor Code section 226 ; (5) failed to pay
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all wages due at separation pursuant to California Labor Code sections 201 through 203; (6)
violated California Business and Professions Code sections 17200, et seq.; and (7) violated the

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California Private Attorneys General Act, California Labor Code sections 2699 et seq..
WHEREAS on May 12, 2015, Defendant filed in the Superior Court of California, County

23 of Kern, an Answer in which it generally denied each and every allegation contained in Plaintiff’s
24 Complaint. (ECF Docket No. 1-4.)
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WHEREAS Defendant removed the state court action to this federal district court on May
18, 2015. (ECF Docket No. 1.)

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STIPULATION AND ORDER FOR COURT APPROVAL OF DISMISSAL WITHOUT PREJUDICE
Krueger, et al. v. Mistras Group, Inc., et al., Case No. 2:15-cv-01069-MCE-DAD

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WHEREAS Defendant filed a Notice of Related Case on May 27, 2015, identifying the

2 related action: Edgar Viceral, et al. v. Mistras Group, Inc., et al., No. CGC-15-545291, proceeding
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before the Honorable Edward M. Chen in the United States District Court, Northern District of
California (“Viceral”). (ECF Docket No. 3.) Viceral was filed on April 13, 2015 in the Superior
Court of California, County of San Francisco. (Viceral ECF Docket No. 1.) Viceral has been filed

7 as a collective action under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq., (“FLSA”) and
8 as a class action. Specifically, Viceral alleges that Defendant: (1) failed to pay overtime wages
9 pursuant to the federal Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq.;, (2) failed to pay
10 overtime wages pursuant to California Labor Code sections 510, 1194; (3) failed to authorize and
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permit meal periods pursuant to California Labor Code sections 226.7, 510; (4) failed to authorize
and permit rest periods pursuant to California Labor Code section 226.7; (5) failed to provide
accurate wage statements pursuant to California Labor Code section 226; (6) failed to pay all

15 earned wages up on separation from employment pursuant to California Labor Code sections 200
16 through 203; (7) violated California Business and Professions Code sections 17200, et seq.; and
17 (8) violated the California Private Attorneys General Act, California Labor Code sections 2699 et
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seq.

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WHEREAS Defendant also filed a Notice of Other Action or Proceeding on May 27, 2015

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in the Viceral action, alerting the Court and Parties of the Krueger action. (Viceral ECF Docket
No. 4.)
WHEREAS following the filing of these Notices, the Parties in both actions met and

24 conferred on numerous occasions to address the relationship and possible coordination of the
25 matters. The Parties agree that the parties and some of the substantive claims in this matter overlap
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with the parties and substantive claims in the Viceral case, and that coordination of the two matters
before a single Court is appropriate.
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STIPULATION AND ORDER FOR COURT APPROVAL OF DISMISSAL WITHOUT PREJUDICE
Krueger, et al. v. Mistras Group, Inc., et al., Case No. 2:15-cv-01069-MCE-DAD

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WHEREAS the Parties have agreed that Krueger will be combined with Viceral before the

2 Honorable Judge Chen in Northern District of California by way of filing an amended complaint in
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Viceral and adding the Krueger parties, counsel, and claims to the complaint.
WHEREAS the Parties further agree that they must submit a stipulated request for
dismissal of the Krueger action pursuant to Federal Rules of Civil Procedure 23(e) and 41 in order

7 to successfully add the Krueger parties and claims to the Viceral action. Specifically, Rule 23(e)
8 provides, “[t]he claims, issues, or defenses of a certified class may be settled, voluntarily
9 dismissed, or compromised only with the court's approval.” FED. R. CIV. P. 23(e). Rule
10 41(a)(1)(A)(ii) further provides, “[s]ubject to Rule[] 23(e) . . . and any applicable federal statute,
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the plaintiff may dismiss an action without a court order by filing: . . . a stipulation of dismissal
signed by all parties who have appeared.” Fed. R. Civ. P. 41(a)(1)(A)(ii).
WHEREAS the Parties now petition the Court to approve their request that the Krueger

15 action be dismissed without prejudice.
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WHEREAS the Parties further request that the Court dismiss the case without a hearing

17 and without notice to class members because the dismissal will not prejudice the class. This matter
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is largely duplicative of Viceral, and the Viceral action continues to proceed before Judge Chen in
the United States District Court, Northern District of California, notice of the pendency of Krueger

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has not been provided to the class, and Krueger has not progressed to the class certification stage.
Succinctly, dismissal of this action will not prejudice the class because their claims are being

23 litigated in Viceral.
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WHEREAS Plaintiffs will prepare a First Amended Complaint to be filed in Viceral,

25 adding the Krueger parties and claims, and circulate it to Defendant for its review. Defendant will
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provide Plaintiffs with its written consent permitting Plaintiffs to file the First Amended
Complaint.
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STIPULATION AND ORDER FOR COURT APPROVAL OF DISMISSAL WITHOUT PREJUDICE
Krueger, et al. v. Mistras Group, Inc., et al., Case No. 2:15-cv-01069-MCE-DAD

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AND WHEREFORE the Parties stipulate and agree that:

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The Court should dismiss the Krueger action without prejudice. The dismissal should be

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without a hearing and without notice to class members because the dismissal will not prejudice the
class in light of the pendency Viceral.
A Proposed Order is included below to this stipulation for the Court’s signature.

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Respectfully Submitted,

8 Dated: September 4, 2015

Signed: /s/ Carolyn Hunt Cottrell
CAROLYN H. COTTRELL
SCHNEIDER WALLACE
COTTRELL KONECKY WOTKYNS LLP

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Attorneys for Plaintiff David Krueger and the
Proposed Class

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13 Dated: September 4, 2015
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Signed: /s/ R. Keith Chapman
JOSEPH A. SCHWACHTER
R. KEITH CHAPMAN
LITTLER MENDELSON, P.C.
Attorneys for Defendant Mistras Group, Inc.

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ORDER ON STIPULATION
Having reviewed the Parties’ request, pursuant to Federal Rules of Civil Procedure 23(e)

21 and 41, for Court approval of the voluntary dismissal without prejudice of Krueger, the Court
22 hereby GRANTS the Parties’ request as follows:
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1. The Court grants the Parties’ request to voluntarily dismiss Krueger without prejudice;

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2. The Court will dismiss the case without a hearing;

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3. The Court will dismiss the case without providing notice to the class because:

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a. Notice of pendency of the action has not been provided to the class, and the court
has not yet ruled on class certification; and
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STIPULATION AND ORDER FOR COURT APPROVAL OF DISMISSAL WITHOUT PREJUDICE
Krueger, et al. v. Mistras Group, Inc., et al., Case No. 2:15-cv-01069-MCE-DAD

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b. Dismissal will not prejudice class members in light of the pendency of Viceral,
to which Krueger will be added.
The Court hereby dismisses the action without prejudice.
IT IS SO ORDERED.
Dated: September 8, 2015

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SIGNATORY ATTESTATION

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The e-filing attorney hereby attests that concurrence in the content of the document and
authorization to file the document has been obtained from each of the other signatories indicated
by a conformed signature (/s/) within this e-filed document.
Dated: September 4, 2015

Signed: /s/ Carolyn Hunt Cottrell
CAROLYN H. COTTRELL
SCHNEIDER WALLACE
COTTRELL KONECKY WOTKYNS LLP
Attorneys for Plaintiff David Krueger and the
Proposed Class

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STIPULATION AND ORDER FOR COURT APPROVAL OF DISMISSAL WITHOUT PREJUDICE
Krueger, et al. v. Mistras Group, Inc., et al., Case No. 2:15-cv-01069-MCE-DAD