Cruz et al v. Dollar Tree Stores, Inc.

Filing 282

ORDER by Judge Samuel Conti granting in part and denying in part (259) Motion to Dismiss in case 3:07-cv-02050-SC (sclc2, COURT STAFF) (Filed on 3/8/2011)

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Cruz et al v. Dollar Tree Stores, Inc. Doc. 282 1 2 3 4 5 6 7 8 9 10 ) MIGUEL A. CRUZ, and JOHN D. HANSEN, individually and on behalf ) of all others similarly situated, ) ) Plaintiffs, ) ) ) v. ) DOLLAR TREE STORES, INC., ) ) ) Defendant. ) ) ROBERT RUNNINGS, individually, and ) on behalf of all others similarly ) situated, ) ) Plaintiffs, ) ) v. ) ) DOLLAR TREE STORES, INC., ) ) Defendant. ) I. INTRODUCTION This matter comes before the Court on the Motion to Dismiss Claims of Class Members Who Failed to Respond to Defendant's Discovery filed by Defendant Dollar Tree Stores, Inc. ("Defendant" or "Dollar Tree"). ECF No. 259 ("Mot.").1 Plaintiffs Robert Case Nos. 07-2050 SC 07-4012 SC ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DISCOVERY REQUESTS IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Runnings, Miguel Cruz, and John Hansen (collectively, "Plaintiffs") Cruz v. Dollar Tree, Case No. 07-2050 ("Cruz Action"), and Runnings v. Dollar Tree, Case No. 07-4012 ("Runnings Action"), have been consolidated. Unless otherwise noted, all docket numbers in this Order refer to docket entries in the Cruz Action. 1 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 For the Northern District of California filed an Opposition, and Defendant submitted a Reply. ("Opp'n"), 274 ("Reply"). ECF Nos. 268 For the following reasons, the Court GRANTS IN PART and DENIES IN PART the Motion. II. BACKGROUND The Court assumes the parties are familiar with the procedural and factual background of this dispute, which the Court set out in its Order Granting the Amended Motion for Class Certification. No. 107 ("May 26, 2009 Order"). Plaintiffs allege they were See Runnings Action, ECF improperly classified as exempt employees. United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ECF No. 1 ("Runnings Compl."); Cruz Action, ECF No. 23 ("Cruz Am. Compl."). As a result, Plaintiffs allege that Dollar Tree failed to pay them overtime compensation and failed to provide meal and rest breaks, in violation of California and federal law. Id. In its May 26, 2009 Order, the Court certified a class consisting of 718 store managers ("SMs") who worked in 273 retail locations. On September 9, 2010, the Court granted in part ECF No. 232 ("Sep. 9, Defendant's Motion to Decertify the Class. 2010 Order"). As a result, the class now consists of 273 members and is currently defined as "all persons who were employed by Dollar Tree Stores, Inc. as California retail store managers at any time on or after December 12, 2004, and on or before May 26, 2009, and who responded 'no' at least once on Dollar Tree's weekly payroll certifications." Mot. at 7. On March 25, 2010, the Court ordered that Defendant could serve each class member with ten Special Interrogatories and ten Requests for Production of Documents. Order"). ECF No. 150 ("Mar. 25, 2010 On June 9, 2010, Magistrate Judge Spero resolved disputes 2 1 2 3 4 5 6 7 8 9 10 For the Northern District of California among the parties as to the form of the discovery requests and ordered that the modified interrogatories and requests for production be sent to class members. Order"). ECF No. 184 ("June 9, 2010 Judge Spero's order provided that "[a]ll responses to these document requests (including documents produced) and interrogatories are due on or before July 16, 2010." Id. at 2. Only 215 of the then 718 class members responded by the deadline, and eight more responded shortly thereafter. Mot. at 8. On October 14, 2010, upon a motion filed by Defendant, Judge Spero ordered that a warning notice be sent to all class members who had not responded to the discovery requests indicating that they must respond by October 29, 2010 and that Defendant was seeking dismissal of their claims due to their failure to respond. 247 ("Oct. 14, 2010 Order") at 1. ECF No. United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant received responses from twelve additional class members after this warning notice was sent. Mot. at 8. On November 19, 2010, the Court denied Defendant's motion to dismiss the claims of class members who failed to respond to discovery but stated that "the Court will entertain a renewed motion to dismiss after class members are provided with one final opportunity to respond." ECF No. 254 ("Nov. 19, 2010 Order") at 3. The Court ordered Plaintiffs' counsel to send another written notice to non-responsive class members advising them that the Court would dismiss them from the class if they did not respond to the discovery requests within twenty-one days of Plaintiffs' mailing the notice. Id. Plaintiffs mailed the final warning letter on Mot. at 9. As of December 17, 2010, only Id. November 23, 2010. thirty-two additional class members had responded. 3 1 2 3 4 5 6 7 8 9 10 For the Northern District of California In the instant Motion, Defendant asks the Court to issue sanctions under Federal Rule of Civil Procedure 37(b)(2)(A)(v) by dismissing the claims of the class members who did not respond to Defendant's discovery requests. dismissal of 112 class members. The Motion initially sought However, in support of their Opposition, Plaintiffs filed a declaration indicating that one of the class members whom Defendant's Motion sought to dismiss, Claudia Garcia ("Garcia"), had recently responded to the discovery requests. DeSario Decl. 10.2 Defendant then agreed to drop Reply Garcia from the list of class members it seeks to dismiss. at 2 n.3. United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs later filed a supplemental declaration in See "Supp. DeSario Decl." In the support of their Opposition. supplemental declaration, Plaintiffs point out that Defendant's Motion erroneously seeks to dismiss two class members, Ruth E. Phipps ("Phipps") and Thomas Shaff ("Shaff"), who did in fact respond to the discovery requests. Id. 4-6. Defendant admits its mistake and has agreed to drop Phipps and Shaff from the Motion. ECF No. 276 ("Def.'s Obj. to DeSario Supp. Decl.") at 1. These developments leave 109 class members who remain subject to Defendant's Motion. Plaintiffs' supplemental declaration also indicates that twenty of the final warning letters sent to class members were returned as undeliverable. Supp. DeSario Decl. 7. Plaintiffs ask the Court to exclude these class members from Defendant's Motion on the grounds that they did not receive the final warning 2 Molly A DeSario, attorney for Plaintiffs, filed a declaration ("DeSario Decl."), ECF No. 269, and a supplemental declaration ("Supp. DeSario Decl."), ECF No. 275, in support of Plaintiffs' Opposition. 4 1 2 3 4 5 6 7 8 9 10 For the Northern District of California letter. Id. at 8. Defendant argues that the Court should not entertain this argument because Plaintiffs' supplemental declaration violates Civil Local Rule 7-3(d). DeSario Supp. Decl. at 1. Def.'s Obj. to III. Legal Standard Federal Rule of Civil Procedure 37(b)(2)(A)(v) authorizes a court to dismiss an action or proceeding in whole or in part if a party "fails to obey an order to provide or permit discovery." Rule 37(d)(3) also authorizes dismissal as a sanction for a party's failure to respond to interrogatories. The decision whether to United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 impose sanctions under Rule 37 is within the district court's discretion. Cir. 1988). The Ninth Circuit has established a five-part test for determining whether a case-dispositive sanction is warranted for a party's failure to comply with a discovery order. must consider the following: (1) the public's interest in expeditious resolution of litigation; (2) the Court's need to manage its docket; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; [and] (5) the availability of less drastic actions. In Re Exxon Valdez, 102 F.3d 429, 433 (9th Cir. 1996). "The first A district court Halaco Eng'g Co. v. Costle, 843 F.2d 376, 379 (9th two of these [five] factors favor the imposition of sanctions in most cases, while the fourth cuts against . . . a dismissal sanction. Thus the key factors are prejudice and the availability Henry v. Gill Indus., Inc., 983 F.2d 943, of lesser sanctions." 948 (9th Cir. 1993) (internal citation omitted) (ellipsis in 5 1 2 3 4 5 6 7 8 9 10 For the Northern District of California original). The Ninth Circuit has also established three subparts for the fifth factor (the availability of less drastic sanctions): (1) whether the court considered lesser sanctions; (2) whether it tried the lesser sanctions; and (3) whether it warned the recalcitrant party about the possibility of case dispositive sanctions. Connecticut Gen. Life Ins. Co. v. New Images of Beverly The test is not Hills, 482 F.3d 1091, 1096 (9th Cir. 2007). mechanical. Rather, "[i]t provides the district court with a way to think about what to do, not a set of conditions precedent for sanctions or a script that the district court must follow." Id. United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lastly, because dismissal of a plaintiff's action is a severe sanction, the Ninth Circuit has held that dismissal is only justified by a showing of "willfulness, bad faith, and fault." Id. IV. DISCUSSION A. The Court Denies Defendant's Motion With Respect to the Twenty Plaintiffs Who Did Not Receive the Final Warning The Court agrees with Plaintiffs that the claims of the twenty class members whose final warning letters were returned as undeliverable should not be dismissed. Defendant argues that the Court should not consider the evidence that these class members did not receive the warning letters because Plaintiffs' supplemental declaration violates Civil Local Rule 7-3(d). Civil Local Rule 7- 3(d) prohibits the filing of additional papers without court approval once a reply brief has been filed, except in certain circumstances not present here. Defendant argues that Plaintiffs should have submitted the evidence of failed delivery with their Opposition. 6 1 2 3 4 5 6 7 8 9 10 For the Northern District of California Plaintiffs should have sought leave of the Court before filing their supplemental declaration. Nevertheless, in the interest of fairness to the class, the Court excuses the late filing and failure to seek leave of the Court and considers the supplemental declaration. The supplemental declaration states that the final warning letters mailed to twenty of the class members were returned as undeliverable, and Plaintiffs have attached copies of the envelopes returned as undeliverable. F. Supp. DeSario Decl. 7, Ex. The Court's November 19, 2010 Order required that a final warning letter be sent because the Court felt that class members should be given "one final opportunity to respond." Order at 3. Nov. 19, 2010 United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Because the twenty class members at issue did not receive this final opportunity, the Court declines to dismiss their claims. Accordingly, Defendant's Motion to Dismiss is DENIED with regard to these class members.3 B. The Court Grants the Motion With Regard to the Remaining Eighty-Nine Class Members Who Did Not Respond After the removal of Garcia, Shaff, and Phipps from Defendant's Motion by agreement of the parties, and in light of this Court's refusal to dismiss the claims of the twenty class members who did not receive the final warning letter, 89 of the original 112 class members who were originally the subject of Defendant's Motion remain to be addressed. 1. The Ninth Circuit's Five-Part Test Supports Dismissal Four of the five factors established by the Ninth Circuit for determining whether case-dispositive sanctions are warranted favor 3 The names of the class members with regard to whom Defendant's Motion is DENIED are attached to this Order as Exhibit A. 7 1 2 3 4 5 6 7 8 9 10 For the Northern District of California dismissal here. The first and second factors -- the public's interest in expeditious resolution of litigation and the Court's need to manage its docket -- favor granting the motion so as to not delay this nearly four-year-old case any further. With regard to the third factor, Defendant has shown that it will suffer prejudice in its ability to defend the case if the non-responsive class members' claims are not dismissed. The lack of discovery responses would make it particularly difficult for Defendant to determine which class members to call as adverse witnesses or rebuttal witnesses at trial. Plaintiffs argue that this concern is United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unwarranted because Plaintiffs have already committed to providing full discovery for the class members who testify at trial. at 15. Opp'n This argument fails because one of the reasons Defendant seeks the discovery responses is to help it determine precisely which class members should testify at trial.4 Defendant's lack of access to the discovery responses of the eighty-nine class members would also prejudice Defendant by preventing it from providing its experts with information that could prove critical to their analysis. As is always the case with a motion seeking dismissal sanctions, the fourth factor -- the policy favoring the disposition of cases on their merits -- weighs against granting the instant motion. Nevertheless, in this case the other factors support granting the motion and outweigh the policy in favor of disposing 4 Plaintiffs similarly argue that if the Court declines to deny Defendant's request for terminating sanctions it should at least continue the motion until after the selection of which class members will testify at trial. Opp'n at 17. Again, Plaintiffs miss the point that the discovery responses are necessary to guarantee the fairness of that selection process. 8 1 2 3 4 5 6 7 8 9 10 For the Northern District of California of cases on their merits. The Court has considered lesser sanctions and finds that they would not be effective. Monetary sanctions would be difficult, if not impossible, to collect from the eighty-nine class members, and would do nothing to ameliorate the prejudice that Defendant would suffer as a result of the class members' failure to respond. The sanction of claim preclusion, authorized by Rule 37(b)(2)(A)(ii), is not a feasible option in this case either. Because the discovery at issue covers all of Plaintiffs' claims, precluding Plaintiffs from presenting the affected claims would be tantamount to dismissal. Moreover, the Court notes that the non-responsive United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 class members received multiple warnings about the possibility of case-dispositive sanctions. The Court notes that it is not Rather, it dismisses imposing the most severe sanction available. the claims of the class members without prejudice, and will toll the statute of limitations for 120 days from this Order, so that class members who wish to do so may pursue their individual claims. The Court finds that it is imposing the least severe sanction that will be effective in this case. Lastly, the Court finds that the requisite showing of willfulness, bad faith, and fault has been satisfied. All that is required to demonstrate willfulness, bad faith, and fault is "disobedient conduct not shown to be outside the control of the litigant." Henry, 983 F.2d at 948. The non-responsive class members have engaged in such disobedient conduct by repeatedly ignoring letters instructing them to respond to discovery and warning them that they would face dismissal of their claims if they 9 1 2 3 4 5 6 7 8 9 10 For the Northern District of California failed to respond.5 2. Plaintiffs' Arguments in Opposition Plaintiffs argue that Defendant's Motion should be denied because: (1) it is procedurally improper; (2) it is unsupported by relevant case law; (3) Defendant has failed to show willfulness, bad faith, or fault; and (4) Defendant will not suffer prejudice if the Motion is denied. The analysis above disposes of the latter two arguments, and the Court finds the former two unpersuasive. Plaintiffs' various procedural arguments are unavailing. First, they contend that the Motion is improper because it does not comply with the requirements for a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). However, Defendant does not seek The Motion's United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to dismiss a complaint for failure to state a claim. caption makes clear that Defendant seeks dismissal as a sanction pursuant to Rule 37. Rule 37 expressly authorizes dismissal as a Fed. R. Civ. sanction for failure to respond to a discovery order. P. 37(b)(2)(A)(v). Plaintiffs apparently contend that the Motion should be denied because it contains the words "motion to dismiss" in the caption instead of "motion for sanctions." borders on frivolity. Next, Plaintiffs argue that Rule 37 only authorizes dismissal of "parties" and cannot be invoked to dismiss absent class members 5 This argument Plaintiffs argue that Defendant has not shown that the nonresponsive class members ignored the discovery requests and warning letters because Defendant has not produced evidence that the class members actually received the discovery requests and warning letters. This argument fails because "[m]ail that is properly addressed, stamped, and deposited into the mail is presumed to be received by the addressee. . . The presumption can only be overcome by clear and convincing evidence that the mailing was not, in fact, accomplished." In re Bucknum, 951 F.2d 204, 207 (9th Cir. 1991). Plaintiffs have provided no evidence that the letters were not received. 10 1 2 3 4 5 6 7 8 9 10 For the Northern District of California who, Plaintiffs contend, are not "parties." As the Ninth Circuit has explained, class members are treated as parties for some procedural purposes but are not treated as parties for others. In re Cement Antitrust Litig., 688 F.2d 1297, 1309 (9th Cir. 1982). There is a circuit split with regard to whether class members are considered parties for Rule 37 purposes, and the Ninth Circuit has not ruled on the issue. Id. The strongest support for Plaintiffs' In Wainwright v. Kraftco argument comes from the Eleventh Circuit. Corp., 54 F.R.D. 532, 534 (N.D. Ga. 1972), the court held that class members were not parties and were thus not subject to discovery under the Federal Rules. The court noted, "[n]othing in United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rule 23 suggests that class members are deemed 'parties' . . . Since discovery [pursuant to Rule 33 and Rule 34] may be had only against 'parties,' the court does not believe such discovery may be had from [class members other than the party-plaintiffs]." The court further stated that it perceived "serious constitutional problems with a decision that would dismiss with prejudice from a lawsuit people who were never made parties." Id. By contrast, the Seventh Circuit has decided that class members are "parties" for the purposes of Rule 37. See Brennan v. Midwestern United Life Ins. Co., 450 F.2d 999, 1004 (7th Cir. 1971). The movants in Brennan argued, as Plaintiffs do here, that class members are not "parties" and consequently are not subject to the "party" discovery procedures set forth in Rules 33 and 34. Noting that the question was a difficult one, the Brennan court rejected this argument. Id. As further discussed below, the court Id. invoked Rule 37 and dismissed with prejudice the claims of class members who failed to respond to court-authorized discovery 11 1 2 3 4 5 6 7 8 9 10 For the Northern District of California requests. The court reasoned that, while class members should not be required to submit to discovery "as a matter of course," requiring them to respond to discovery in some cases is warranted. Id. In particular, the court reasoned that, in cases where discovery from class members is necessary or helpful to the proper adjudication of the suit, it should be allowed so long as it is not used as a tactic to reduce the number of claimants and adequate precautionary measures are taken to insure that class members are not misled or confused. Id. at 1004-05. The Court finds the Brennan court's reasoning persuasive. Here, there is no evidence that Defendant's purpose in propounding the discovery requests was to reduce the number of claimants. Furthermore, Judge Spero oversaw the crafting of the requests to insure that they were not misleading or confusing. Moreover, United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unlike the district court order at issue in Brennan, the Court here dismisses the class members' claims without prejudice and tolls the statute of limitations so that they may proceed with individual claims if they so desire. This approach ameliorates the "constitutional problems with a decision that would dismiss [class members] with prejudice" that concerned the Kraftco court. F.R.D. at 534. Plaintiffs next contend that the absent class members have not disobeyed a court order per se and therefore cannot be subject to sanctions under Rule 37, which provides for sanctions if a party "fails to obey an order to provide or permit discovery." Civ. P. 37(b)(2)(A). Fed. R. 54 Plaintiffs argue that the Court's prior orders simply instructed class counsel to send certain communications to class members and did not order the class members 12 1 2 3 4 5 6 7 8 9 10 For the Northern District of California to do anything. Plaintiffs contend that Rule 37 does not authorize the Court to impose sanctions on the non-responsive class members because Plaintiffs' counsel, not the class members, was the subject of the order. This argument lacks merit. On June 9, 2010, Judge Spero explicitly ordered all class members to respond to discovery. ECF No. 201 (Transcript of June 9, 2010 hearing) at 29:18-21 ("All class members are required to respond by July 16th."). Moreover, the implication of Plaintiffs' argument is that, even though this Court authorized the sending of discovery requests to class members and instructed class counsel to warn them that "the Court will dismiss them from the class if they do not respond," the Court in fact lacks the power to back words with actions because it did not issue an order with each class member's name on it. Order at 3. narrow. Nov. 19, 2010 United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court finds this reading of Rule 37(b)(2) too The Court further notes that Rule 37(d)(3), which authorizes the Court to impose dismissal as a sanction for failure to respond to interrogatories, provides an alternative basis for dismissal. The last of Plaintiffs' procedural arguments is that requiring class members to respond to discovery imposes a de facto opt-in scheme in contravention of the opt-out scheme established by Federal Rule of Civil Procedure 23. This argument amounts to the contention that the Court should not have permitted Defendant to propound discovery upon the class members in the first place. Court already ruled on that issue in its March 25, 2010 Order allowing discovery to be sent and will not revisit that decision here. Plaintiffs' non-procedural arguments are similarly The 13 1 2 3 4 5 6 7 8 9 10 For the Northern District of California unpersuasive. They contend that the case law does not support However, they provide no controlling authority Defendant's motion. to support their argument that Rule 37 does not authorize dismissal of class members for failure to respond to discovery requests. Indeed, neither Plaintiffs nor Defendant points to controlling authority on this issue. The primary cases from this circuit discussed by the parties deal with whether discovery directed to absent class members should be allowed in the first place. See Tierno v. Rite Aid Corp., 2008 U.S. Dist. LEXIS 112461, *20 (N.D. Cal. July 8, 2008) (denying defendant's request to depose one hundred class members); McPhail v. First Command Fin. Planning, Inc., 251 F.R.D. 514, 515 (S.D. Cal. 2008) (denying defendant's request to send discovery to absent class members). Again, this United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Court has already permitted discovery to be sent to class members and will not revisit that decision. The Court again finds the Seventh Circuit's decision in Brennan persuasive authority in favor of dismissal. The absent class members in Brennan had been sent the written discovery along with a memorandum explaining the reasons for the discovery requests, advising them of the deadline for responding and encouraging them to seek the advice of counsel. 450 F.2d at 1002. The court subsequently issued an order to show cause why the claims of class members who had not responded should not be dismissed with prejudice. Id. Plaintiffs' counsel sent the non-responsive class members copies of the show-cause order along with a letter warning them that their claims would be dismissed if they did not respond. Id. When the deadline for responding passed, the court granted the defendants' motion to dismiss with prejudice the claims of the non- 14 1 2 3 4 5 6 7 8 9 10 For the Northern District of California responsive class members. Id. The Seventh Circuit affirmed, noting that "movants ignored repeated requests that they comply with the discovery orders." Id. at 1004 n.2. Here, as in Brennan, the non-responsive class members ignored repeated requests that they comply with discovery. Moreover, this Court's ruling is substantially more lenient that the court's in Brennan. While the class members in Brennan were sent a single warning letter, the class members here received two warning letters in addition to the initial discovery requests. More importantly, unlike the Brennan court, this Court today dismisses without prejudice the claims of the non-responsive class members. Plaintiffs' attempts to distinguish Brennan are not compelling. They note that the class members dismissed in Brennan United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 were subject to a court order to show cause, and plaintiffs' counsel mailed each class member a copy of that order. They contend that the gravity of a class member receiving a court order with his or her name on it would have a greater impact that a warning notice from class counsel. While this may be so, the Court finds multiple letters from the class members' own attorney warning them of the possibility of dismissal should have been a sufficient incentive to compel a response. Plaintiffs also contend that the class members in Brennan received actual notice, whereas here Defendant has allegedly not shown that the class members actually received the multiple warning letters. This argument fails. The Ninth Circuit has made clear that "[m]ail that is properly addressed, stamped, and deposited into the mail is presumed to be received by the addressee . . . The presumption can only be overcome by clear and convincing evidence 15 1 2 3 4 5 6 7 8 9 10 For the Northern District of California that the mailing was not, in fact, accomplished." 951 F.2d 204, 207 (9th Cir. 1991). In re Bucknum, Plaintiffs have provided no evidence that the eighty-nine class members at issue did not receive the discovery requests and warning notices. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 1 2 3 4 5 6 7 8 9 10 For the Northern District of California V. CONCLUSION For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART the Motion to Dismiss Claims of Class Members Who Failed to Respond to Discovery filed by Defendant Dollar Tree Stores, Inc. The Court DENIES the Motion with regard to the twenty class members, listed in Exhibit A attached to this Order, whose final warning letters were returned as undeliverable. The Court GRANTS the Motion with regard to the remaining eighty-nine class members, listed in Exhibit B attached to this Order, named in the Motion. The claims of those eighty-nine class members are hereby dismissed without prejudice. The Court also invokes its equity powers to toll the statute of limitations on the claims of the eighty-nine class members whose claims are dismissed in order to preserve their right to pursue individual claims against Dollar Tree. The statute of limitations United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is hereby tolled for 120 days from the date of this Order. Plaintiffs' counsel shall so notify the affected class members within ten days of this Order and shall file a declaration with the Court within thirty days of this Order confirming that they have done so. IT IS SO ORDERED. Dated: March 8, 2011 UNITED STATES DISTRICT JUDGE 17 1 2 3 4 5 6 7 8 9 10 For the Northern District of California EXHIBIT A The Court DENIES Defendant's Motion to Dismiss with regard to the following class members: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. Alicia Barkley Brenda Anderson Charles Jones Chris Dean Christy Camacho Deborah Wiebe Diane Ashley Eleazar Reyes Elizabeth Yoder Eloisa Buitron Gary Ferguson Hope Brewer Kathryn Hansson Kenneth Galle Killian Nowden Latuya Hobill Nephtali Mendoza Richard Handrich Rob Lewis Tim Luddington United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 1 2 3 4 5 6 7 8 9 10 For the Northern District of California EXHIBIT B The Court GRANTS Defendant's Motion to Dismiss with regard to the following class members. The claims of the following class members are hereby dismissed without prejudice: 1. 2. 3. 4. 5. 6. 7. 8. 9. Le'ann Alarcon Jesus Alejandre Robin Baker Robert Beights Eric Bent Jeffrey Braun Rosemary Carlos Shawn Cassidy Kim Castellanos United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. Karen Cohen 11. Amanda Coker 12. Mike Cossolotto 13. William Cramer 14. David Cross 15. William Curtis 16. Gregg Daggett 17. Deann Dasher 18. Sally Delcastillo 19. Elaine Edwards 20. Jen Edwards 21. James Ellis 22. Teresa Fletcher 19 1 2 3 4 5 6 7 8 9 10 For the Northern District of California 23. Kathy Fortune 24. Cindy Fukuhara 25. Mark Gabellini 26. Eric S. Garcia 27. Mireya Gomez 28. Gabriela Gonzalez 29. Wilber Gonzalez 30. Bikira Green 31. Jean M. Gregg 32. Rachel Haines 33. Evelyn Hanson 34. Kent Harwood 35. Steven Hensley 36. Danny Herrera 37. Naomi Star Hodgkins 38. Christina Hoes 39. William Huffer 40. Larry Huffstetler 41. Ron Jacobs 42. Chris James 43. Kirk Jansen 44. Hope Jennings 45. Betty Johnson 46. Maria Juarez 47. Steve Kauhn 48. Ray Kienitz 49. Landon Kouba 50. Racheal Leggans United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 1 2 3 4 5 6 7 8 9 10 For the Northern District of California 51. Tina Lipnicki 52. David Martin 53. Ricky Martin 54. Jesus Martinez 55. Sonia Martinez 56. Paul Massey 57. Adam Mcfarland 58. Rafael Mejia 59. Janice Melo 60. Jason Millstone 61. Oscar Molina 62. Miguel Munoz 63. Tom Nelson 64. Amy Osborn 65. Vaensa Pan 66. Michelle Panattoni 67. Michael Pastrone 68. Joseph Prophet 69. Brandon Raes 70. Valentin Ramirez 71. Lorie Reyes (Kiefer) 72. David N. Robson 73. Monica Rosas 74. Norman Saban 75. Brandon Salazar 76. Jules Sanchez 77. Heidi Semenza 78. Susan Sigler United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 1 2 3 4 5 6 7 8 9 10 For the Northern District of California 79. Brian A. Sjostrand 80. Billie Soto 81. Steven Taylor 82. Christina Valdez 83. Mike Van Buren 84. Joseph Vara 85. Edwin H. Walthall 86. Patti Wenzel 87. Kip Whiteacre 88. Robert Willey 89. Pat Woolweaver United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22

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