Hurst v. Buczek Enterprises, LLC

Filing 24

ORDER RESETTING STATUS CONFERENCE. Status Conference set for 12/16/2011 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Status Report due by 12/9/2011.. Signed by Judge Edward M. Chen on 11/3/11. (bpf, COURT STAFF) (Filed on 11/3/2011)

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Alde J. Parker, California State Bar No. 196808
en
Nath H. Gero
han
onimo, Calif
fornia State Bar No. 26
64768
WEINTRAUB GE
ENSHLEA CHEDIAK
C
Law Corporation
400 Capitol Ma 11th Floor
all,
ramento, Ca
alifornia 95
5814
Sacr
Telephone: 916.558.600
9
00
Facs
simile:
916.446.1611
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Attorneys for De
efendant and Cross-Com
d
mplainant
Bucz Enterpris LLC
zek
ses,

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UNITED STATES DIS
STRICT COU
URT

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NORTHERN DISTRICT OF CALIFO
N
ORNIA

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AD
BRA HURST,
Plaintiff,
P
vs.
BUC
CZEK ENTER
RPRISES, LLC and DOE 1C,
ES
25,
Defendants.
D

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AND RELATED CROSS-ACT
D
TION

Case No. 3
3:11-cv-01379-EMC
JOINT CAS MANAGEMENT
SE
CONFERENCE STATEMENT AND FED.
D
RULE. CIV. PROC. 26(f) DISCOVE PLAN
ERY
ORDER RESETTING STATUS CONFERENCE

Plaintiff, Brad Hurst and Defend
dant Buczek Enterprises LLC hereb submit the following
k
s,
by
e
Joint Case Management Co
t
onference Statement.
1.

Ju
urisdiction and Service: All necess
a
sary parties have been s
served. This case was

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remo
oved from the Alamed County Superior Co
t
da
S
ourt and is before this Court purs
suant to its

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diversity jurisdict
tion as foun in 28 U.S
nd
S.C. 144(b).

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2.

Facts:

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a.

Plaintiff’s Contentions: Buczek Enter
B
rprises, LLC is a propert preservation services
ty

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company, whic hires unlicensed wo
ch
orkers to p
perform wor on homes for whic a State
rk
ch

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Contractor’s lic
cense is req
quired.

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inde
ependent contractor by Buczek Ente
erprises, LLC and its pre
C
edecessor Bu
uczek Enterp
prises, Inc.,
{1379
9831.DOCX;}

Pla
aintiff Brad Hurst alle
eges he was misclassif
fied as an

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Joint Ca Managemen Conference S
ase
nt
Statement and
FRCP 26(f) D
Discovery Plan

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and is asking fo payment of unpaid wages, overt
or
o
w
time, failure to provide meal and r breaks,
e
rest

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unre
eimbursed expenses and penalties under the California Labor Code Plaintiff Hurst also
e
e.

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seek attorneys’ fees in an amount which has ye to be det
ks
’
et
termined, as well as fo an order
s
or

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enjo
oining defend
dant from its unlawful conduct.
c

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b.

Defendant’s Contention Buczek Enterprises, LLC is a property preservation
D
ns:
,

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company, which utilizes in
ndependent contractors to perform its property preserva
s
m
ation work.

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Plain alleges he was mi
ntiff
isclassified as an indep
a
pendent contractor, an seeks da
nd
amages for

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unpa wages, overtime, fa
aid
ailure to pro
ovide meal a rest bre
and
eaks, unreim
mbursed exp
penses and

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pena
alties under the Califo
r
ornia Labor Code.

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P
Plaintiff also seeks att
o
torneys’ fee and an
es

injun
nction again Defendan
nst
nt.

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Defendant Buzcek Enterprises, LLC seeks damages a
E
according to proof for breach of
o

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cont
tract, and br
reach of imp
plied covena of good faith and fa dealing. Defendant also seeks
ant
air
t

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attor
rneys’ fees and costs.
a

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3.

Le
egal Issues:

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a.

Jo Contentions: Plaint brings ni ne causes o action for Failure to Pay Wages
oint
tiff
of
r

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Due and Owin under California labor Code §200 et seq., Failu to Pay Overtime
ng
C
l
e
ure
y

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Com
mpensation under Califo
u
ornia Labor Code §§51 0, 1194, and 1198, F
Failure to Pro
ovide Meal

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and Rest Breaks under California Labo Code §226.7, Failure to Keep, Maintain a Furnish
s
or
and

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Accu
urate Wage Statements and Time Records und California Labor Co §§226 and 1174,
R
der
ode

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Brea of Impli Covenant of Good Faith and Fair Dealing, Violatio of Califo
ach
ied
d
on
ornia Labor

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Cod §2802, Unfair Comp
de
U
petition unde California Business & Profession Code §17
er
a
ns
7200, Civil

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Pena
alties pursua to Califo
ant
ornia Labor Code §§ 2698 and 26
699, and Fa
ailure to Pay Minimum
y

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Wag under California La
ge
C
abor Code §§1197, 1197.1. De
efendant Bu
uzcek Enterp
prises, LLC

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bring claims fo breach of contract, and breach of implied covenant o good faith and fair
gs
or
o
h
d
of

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dealing.

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ntral legal issue relate to these causes o action is whether Defendant
ed
e
of
The cen

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misc
classified Pla
aintiff as an independen contracto r rather than an employ
nt
n
yee. Anothe threshold
er

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legal issue is wh
hether defen
ndant has st
tanding to s or defen a suit sin it is not licensed to
sue
nd
nce
{1379
9831.DOCX;}

2

Joint Ca Managemen Conference S
ase
nt
Statement and
FRCP 26(f) D
Discovery Plan

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do business und Californi law.
b
der
ia

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b.

Plaintiff’s Co
ontentions: Another leg issue is whether C
gal
s
California B
Business &

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Profe
essions Cod §2750.5 renders Plaintiff an employee as a matte of law b
de
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P
er
because he

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perfo
ormed work for which a contracto license w require
k
or’s
was
ed. Other legal issues exist as to

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whet
ther defenda has any viable affirm
ant
mative defen
nses to its ac
ctions.

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4.

In
nitial Disclos
sures: Plaintiff and Defe
endant have each made initial disc
e
closures.

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5.

Discovery: The parties have initiate some pre
D
T
h
ed
eliminary wr
ritten discov
very. Some

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limited depositio are anticipated prio to the se
ons
or
ettlement conference. P
Pursuant to Rule 26(f),

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the parties continue to affir that the parties will c
p
rm
p
conduct discovery cons
sistent with t Federal
the

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Rule
es.
a.

Plaintiff’s Co
ontentions:

Plaintiff p
proposes th following discovery plan and
he
g

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sche
edule: The Plaintiff estim
P
mates the time required for each deposition w exceed those time
d
will

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limits as set fort in Federa Rules of Civil Proced
th
al
C
dure, Rule 3
30. Plaintiff anticipates taking no
f
s

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more than 9 de
e
epositions excluding ex
e
xperts. In a
addition, Pla
aintiff propo
oses to serve no more

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than 65 individu interroga
n
ual
atories, 75 individual do
ocument req
quests, and 55 individu requests
ual

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for admission. In addition documen will be subpoenaed from third parties as required.
a
n,
nts
d
d
s

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Plain does no request at this time any addition changes with regard to the lim
ntiff
ot
a
nal
s
d
mitations on

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disco
overy impos
sed by the federal rule of civil p
es
procedure o by local rules, exce Plaintiff
or
ept

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requ
uests expert disclosures and expert discovery b made after the ruling by this Co on any
be
g
ourt

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moti
ions for sum
mmary judgm
ment brough by the par
ht
rties.

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b.

Defendant’s Contentions: Defenda seeks di
D
ant
iscovery con
ncerning (a) Plaintiff’s

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emp
ployment wit Defendan (b) Plaint
th
nt;
tiff’s claims; (c) Plaintiff alleged d
f’s
damages; (d Plaintiff’s
d)

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failure to timely perform services in a good and re
g
easonable w
workmanlike manner; (e Plaintiff’s
e
e)

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brea of his du
ach
uties to comply with all relevant law rules and regulations.
ws,
d

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i.

Defen
ndant propo
oses the follo
owing discov
very plan an schedule:
nd

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ii.

Defen
ndant estima
ates the tim required for each d
me
deposition w exceed
will
those limits as set forth in Fed
t
deral Rules of Civil Proc
cedure, Rule 30.
e

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iii.

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{1379
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Defen
ndant anticipates takin no more than 10 depositions excluding
ng
e
s
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Joint Ca Managemen Conference S
ase
nt
Statement and
FRCP 26(f) D
Discovery Plan

expert
ts.

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2

iv
v.

Defen
ndant propo
oses to serve no more th 55 spec interroga
e
han
cial
atories,

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and 55 requests for production of docum
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f
ments.

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v.

Defen
ndant propo
oses a non-expert fact discovery cut-off of Fe
ebruary 29,

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2012.

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vi
i.

Defen
ndant does not reques at this tim any additional cha
st
me
anges with

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regard to the limitations on d
d
discovery im
mposed by th Federal Rules or by
he

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Local rules.

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6.

Settlement an ADR:
nd

The parties have a settlement conference s
s
scheduled fo Novembe 30, 2011, at 10:00
or
er
.
a.m. in Courtroom 17.
7.

Other Matters as may fa
O
acilitate the just, speed and inex
e
dy,
xpensive dis
sposition of

this matter:
None kn
nown.
Date Octobe 31, 2011
ed:
er

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WE
EINTRAUB G
GENSHLEA CHEDIAK
Law Corporatiion
w
By:

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/s/: Ald J. Parke
den
er
Alden J Parker
J.
State B No. 196
Bar
6808
Attorne for Defen
eys
ndant and C
Cross-Comp
plainant
Buczek Enterprises LLC
k
s,

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DU
UCKWORTH PETERS LE
H
EBOWITZ O
OLIVIER LLP

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By:

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RT
U
O

{1379
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C

DERED
SO OR ED
IT IS
DIFI
AS MO

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IA

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ISTRIC
ES D
T

T
__________________________
TA
Edward M. Chen
United States District Judge

S

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IT IS SO ORDERED that the Status Conference set for 11/7/11 is reset for 12/16/11 at 10:30 a.m.
An updated joint status report shall be filed by 12/9/11.

UNIT
ED

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/s/: Th omas E. Du
uckworth
Thoma E. Duckwo
as
orth
Attorne for Brad Hurst
eys

Joint Ca Managemen Conference S
ase
nt
Statement and
FRCP 26(f) D
Discovery Plan