Smith v. TVI, Inc.

Filing 31

ORDER DISMISSING CASE with prejudice; Signed by Judge Marilyn Hall Patel on 4/22/2009. (awb, COURT STAFF) (Filed on 4/22/2009)

1 Stephen B. Morris, State Bar No. 126192

MORRS and ASSOCIATES 2 444 West C Street, Suite 300
San Diego, California 92101
3 Telephone: [phone]

Facsimile: [phone]
4

Walter Haines, State Bar No. 71075 5 UNITED EMPLOYEES LAW GROUP 65 Pine Ave, #312
6 Long Beach, California 90802
Telephone: [phone] Facsimile: [phone]

8 Attorneys for Plaintiff PETRIA SMITH
9

Timothy M. Freudenberger, State Bar No. 138257 10 Kent 1. Sprinkle, State Bar No. 226971 Connor 1. Moyle, State Bar No. 250384 11 CAR TON DiSANTE & FREUDENBERGER LLP 601 Montgomery Street
12 Suite 350

San Francisco, California 94111
13 Telephone: [phone]

Facsimile: [phone]
14 E-Mail: tfreud(£cdflaborlaw.com

ksprinkle(£cdflaborlaw. com 15 cmoyle(£cdflaborlaw.com
16 Attorneys for Defendant TVI, INC.
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
herself, and on behalf of all persons similarly
) ) ) ) ) ) )

20

21 PETRIA SMITH, an individual on behalf of

Case No. CV-08-4679 MH
Judge: Hon. Marilyn H. Patel

22 situated,
23

Ctrm: 15, 18th Floor
(PROPOSED) ORDER APPROVING STIPULA TION AND DISMISSAL OF ALL REMAINING CLAIMS AND DISMISSAL OF PLAINTIFF'S COMPLAINT, IN ITS ENTIRETY, WITH PREJUDICE
Action Filed: October 9, 2008

Plaintiff,
vs.

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TVI, INC., a Washington corporation conducting) 25 business in the State of California, and Does 1 to )
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1

10, )
Defendant.

) ) ) )

Trial Date: None Set
Case No. CV-08-4679 MH

ORDER DISMISSING ENTIRE COMPLAINT, WITH PREJUDICE

1 THE COURT HEREBY APPROVES the "Stipulation Regarding Dismissal of All
2 Remaining Claims and Dismissal of

Plaintiffs Complaint, in Its Entirety, With Prejudice"
21, 2009. Specifically, Plaintiff

3 ("stipulation") fied by the parties to this action on April

Petrina

4 Smith ("Plaintiff') and Defendant TVI, Inc. ("Defendant" or "TVI") (collectively, the "Parties"),
5 stipulated and agreed, through their respective counsel of record, that Plaintiff will and hereby does

6 dismiss all of her remaining state law claims and, as a result, will and hereby does dismiss

7 Plaintiffs First Amended Complaint ("Complaint"), in its entirety, with prejudice, as set forth
8

below:
1. In the First Amended Complaint, fied February 5, 2009, Plaintiff alleged individual

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and collective claims arising under the Fair Labor Standards Act ("FLSA"), 29

U.S.C. Section 216. Specifically, Plaintiff alleged that Defendant improperly
classified Plaintiff and other members of the purported class as exempt and failed to
pay overtime compensation to Plaintiff and proposed class members.
2. Plaintiff sought to bring her FLSA claim individually and as an opt-in collective
action on behalf of

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"all Operations Supervisors employed in the United States by

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Defendant during the Class Period," pursuant to 29 U.S.C. Section 216(b).

3. At the February 25,2009 Case Management Conference in this matter, the Court
specifically authorized Defendant to take Plaintiffs "deposition for the purposes of
determining her adequacy as a class representative or anything related to what
(Defendant) would want to know about her with regard to her status as a class
representative." F eb. 25, 2009 CMC transcript at 10:2-7.

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4. On March 26,2009, Defendant took Plaintiffs deposition pursuant to the Court's
directive, and inquired into issues related to Plaintiffs adequacy as a class
representative. In her deposition, Plaintiff

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unequivocally testified and admitted that,

as an Operations Supervisor at TVI, her most important and primary duty was
managing and supervising the Operations department and all of

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the department's

employees. As a result of this and other undisputed testimony by Plaintiff relevant
to the FLSA, the Parties agreed and stipulated that Plaintiff was not misclassified as
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ORDER DISMISSING ENTIRE COMPLAINT, WITH PREJUDICE

Case No. CY-08-4679 MH

1 exempt under the FLSA, and thus lacked standing to pursue any individual and/or

2 collective claim under the FLSA.

3 5. A set forth in the stipulation fied by the Parties on April 6, 2009, Plaintiff agreed to
4 dismiss and did dismiss, with prejudice, all individual and collective FLSA claims.

5 In its Order fied April 9, 2009, the Court approved the Parties' April 6, 2009
6 stipulation and dismissed all FLSA claims, individual and collective, with prejudice.
7 6. Following the dismissal of

Plaintiffs individual and collective FLSA claims, the

8 only claims remaining in Plaintiffs Complaint are Plaintiffs individual state law
9 claims, including alleged misclassification, alleged missed meal and rest periods,

10 alleged failure to provide wages when due, alleged failure to provide itemized
1 1 employee wage statements (all alleged pursuant to the California Labor Code), and
12 the alleged violation of

the Unfair Competition Law (CaL. Bus. & Prof. Code

13 § 1 7200, et seq.).
14 7. The Parties have reached an agreement to settle Plaintiffs remaining individual

15 California state law claims, the terms of which will be set forth in a separate

16 settlement agreement between the Parties. As a result of the settlement agreement,
17 Plaintiff will and hereby does dismiss all remaining state law claims. Because
18 Plaintiffs individual state law claims are the only claims that remain, Plaintiff

will

19 and hereby does dismiss her Complaint in its entirety, with prejudice.
20 The Court hereby approves of the Parties' stipulation, and each of its terms. Therefore, all
21 of

Plaintiffs remaining state law claims are hereby dismissed and, as a result, Plaintiffs Complaint,

22 in its entirety, is also hereby dismissed, with prejudice.

23 IT is SO ORDERED.
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UNIT ED

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S DISTRICT TE C TA

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O COMPLAINT, E R RDER DISMISSING ENTIRE H PREJUDICE WIT C

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Case No. CY-08-4679 MH

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Honorable Marilyn Hall Patell ate United States District Court lyn H. P ge Mari Jud

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