Harvey v. Sears, Roebuck and Co.

Filing 17

ORDER signed by District Judge Morrison C. England, Jr on 6/13/18 ORDERING that the Action be arbitrated on an individual basis, and further ORDERED that Plaintiff's individual claims in this Action be and hereby are STAYED pending the outcome of arbitration. The parties are ordered to file a Joint Status Report every sixty (60) days, beginning with the date of electronic filing of this Order, addressing the status of arbitration proceedings. (Becknal, R)

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JOSEPH C. LIBURT (STATE BAR NO. 15507)
[e-mail]
ORRICK, HERRINGTON & SUTCLIFFE LLP
1000 Marsh Road
Menlo Park, CA 94025-1015
Telephone:
[phone]
Facsimile:
[phone]
KATIE E. BRISCOE (STATE BAR NO. 287629)
[e-mail]
ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall
Suite 3000
Sacramento, CA 95814-4497
Telephone:
[phone]
Facsimile:
[phone]

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Attorneys for Defendant
SEARS, ROEBUCK AND CO.

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[Plaintiff’s Counsel Listed on Following Page]

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO DIVISION

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JONATHAN HARVEY, an individual, on
behalf of himself, and on behalf of all persons
similarly situated,
Plaintiff,
v.

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SEARS, ROEBUCK AND CO., a Corporation;
and DOES 1 through 50, inclusive,

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Case No. 2:17-cv-00614-MCE-CKD
STIPULATION AND ORDER TO
SUBMIT ACTION TO INDIVIDUAL
ARBITRATION AND STAY ACTION
Trial Date: n/a
Date Action Filed: February 6, 2017

Defendant.

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STIPULATION AND ORDER

(CASE NO. 2:17-CV-00614-MCE-CKD)
4131-6164-2260.3

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BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
Norman B. Blumenthal (State Bar #068687)
Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066)
Victoria B. Rivapalacio (State Bar #275115)
Jeffrey S. Herman (State Bar #280058)
2255 Calle Clara
La Jolla, CA 92037
Telephone: [phone]
Facsimile: [phone]
Website: www.bamlawca.com
Attorneys for Plaintiff JONATHAN HARVEY, an
individual, on behalf of himself, and on behalf of all
persons similarly situated

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STIPULATION AND ORDER

(CASE NO. 2:17-CV-00614-MCE-CKD)
4131-6164-2260.3

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STIPULATION

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Plaintiff Jonathan Harvey (“Plaintiff”) and Defendant Sears, Roebuck and Co. (“Sears”)

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(collectively, “the Parties”) by and through their attorneys of record hereby stipulate as follows:

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WHEREAS, on September 29, 2014, Plaintiff accepted Sears’ Arbitration Agreement and
did not timely opt out.
WHEREAS, on February 6, 2017, Plaintiff Jonathan Harvey, individually and purportedly

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on behalf of all others similarly situated, filed a Complaint against Sears in the Superior Court of

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California for the County of Sacramento, entitled “Jonathan Harvey, individually and on behalf

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of all other aggrieved employees and others similarly situated, v. Sears, Roebuck and Co., a

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Corporation; and DOES 1 through 50, inclusive”, Case No. 34-2017-00207556 (the “Action”).

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The Complaint asserts causes of action on a class-wide basis for: (1) unfair competition in

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violation of California Business and Professions Code sections 17200, et seq.; (2) failure to pay

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overtime compensation in violation of California Labor Code sections 510, 1194, and 1198 et

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seq.; and (3) failure to provide wages when due in violation of California Labor Code

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sections 201, 202, and 203.

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WHEREAS, on March 23, 2017, Sears timely removed the Action to this Court.

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WHEREAS, on April 3, 2017, Sears filed a Notice of Motion and Motion to Compel

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Arbitration and Dismiss or Stay Action (“Motion”), requesting that the court compel individual

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arbitration of the entire action.

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WHEREAS, Plaintiff filed his opposition to the Motion on May 4, 2017, and Sears filed
its reply brief in support of the Motion on May 11, 2017.
WHEREAS, on August 23, 2017, the Court issued a minute order staying the Action

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pending the Supreme Court’s ruling in NLRB v. Murphy Oil USA, Inc., No. 16-307 (consolidated

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with Epic Systems Corp. v. Lewis, No. 16-285 and Ernst & Young v. Morris, No. 16-300)

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(“Murphy Oil”), and permitting Sears to renew its Motion once the stay had been lifted.

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WHEREAS, on May 21, 2018, the U.S. Supreme Court issued its ruling in Murphy Oil,

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affirming the validity and enforceability of class action waivers in employment arbitration

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agreements. See Epic Systems Corp. v. Lewis, --- S.Ct. ---, 2018 WL 2292444 (2018).
-24131-6164-2260.3

STIPULATION AND ORDER

(CASE NO. 2:17-CV-00614-MCE-CKD)

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WHEREAS, Plaintiff has now stipulated to submit his Complaint and all of his causes of

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action in the Complaint to binding individual arbitration before the Judicial Arbitration and

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Mediation Services (“JAMS”);

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ACCORDINGLY, IT IS HEREBY STIPULATED AND AGREED, by and between
Plaintiff and Sears by and through their respective undersigned counsel, that:
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Plaintiff will submit the Action to binding individual arbitration before a mutually

agreed upon arbitrator at JAMS, in accordance with the parties’ Arbitration Agreement.
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Plaintiff’s individual claims shall be stayed pending the outcome of arbitration, so

that either party may confirm an individual arbitration award in accordance with applicable laws.
IT IS SO STIPULATED.

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Dated: June 12, 2018

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Orrick, Herrington & Sutcliffe LLP

By: /s/ Katie E. Briscoe
JOSEPH C. LIBURT
KATIE E. BRISCOE
Attorneys for Defendant
SEARS, ROEBUCK AND CO.

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Dated: June 12, 2018

Blumenthal Nordrehaug Bhowmik De Blouw LLP
By: /s/ Jeffrey S. Herman, as authorized 6/12/18
NORMAN B. BLUMENTHAL
KYLE R. NORDREHAUG
APARAJIT BHOWMIK
VICTORIA B. RIVAPALACIO
JEFFREY S. HERMAN
Attorneys for Plaintiff
JONATHAN HARVEY

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-34131-6164-2260.3

STIPULATION AND ORDER

(CASE NO. 2:17-CV-00614-MCE-CKD)

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ORDER

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The parties having stipulated to individual arbitration of the Action, it is ORDERED that

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the Action be arbitrated on an individual basis, and further ORDERED that Plaintiff’s individual

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claims in this Action be and hereby are STAYED pending the outcome of arbitration.

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The parties are ordered to file a Joint Status Report every sixty (60) days, beginning with
the date of electronic filing of this Order, addressing the status of arbitration proceedings.
IT IS SO ORDERED.
Dated: June 13, 2018

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-44131-6164-2260.3

STIPULATION AND ORDER

(CASE NO. 2:17-CV-00614-MCE-CKD)