Garvey v. Kmart Corporation

Filing 110

ORDER DENYING WITHOUT PREJUDICE MOTION TO STAY by Hon. William Alsup denying #104 Motion to Stay.(whalc1, COURT STAFF) (Filed on 8/22/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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LISA GARVEY, individually and on
behalf of others similarly situated cashiers
in the Tulare Kmart store,

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Plaintiff,

ORDER DENYING WITHOUT
PREJUDICE MOTION TO STAY

v.
KMART CORPORATION,
Defendant.
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No. C 11-02575 WHA

In this class action involving seats for cashiers, Kmart moves to stay this action pending

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resolution of its Rule 23(f) appeal. For the reasons stated below, the motion is DENIED

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WITHOUT PREJUDICE.

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The background of this action has been described in prior orders (Dkt. Nos. 68, 92).

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Plaintiff Lisa Garvey alleges that defendant Kmart Corporation violated California Wage

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Order 7-2001(14) by not providing seats to its cashiers. Last month, a class of 72 Kmart cashiers

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who were not provided with a seat while working at the Tulare store was certified. Class notices

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were sent on August 8, and the class members have until September 7 to opt out. Fact discovery

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will end by August 31, and dispositive motions are due by October 4. The trial is scheduled for

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November 13, 2012.

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Recently, Kmart filed a petition to our court of appeals seeking interlocutory appeal of

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the class certification order pursuant to Rule 23(f). Kmart also filed this instant motion to stay

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proceedings herein pending resolution on its petition for review and, if the petition is granted,

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pending the outcome of that appeal.

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Under Rule 23(f), an appeal does not stay proceedings in the district court unless the

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district judge or the court of appeals so orders. In deciding whether to stay this action, the

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following four factors should be weighed: (1) likelihood of success on the merits of the appeal;

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(2) harm to the defendant in the absence of a stay; (3) harm to the plaintiff if stayed; and

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(4) public interest. See Leiva–Perez v. Holder, 640 F.3d 962, 964–70 (9th Cir. 2011); Gray v.

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Golden Gate Nat’l Recreational Area, Civ 08-00722, 2011 WL 6934433 at *2 (N.D. Cal. Dec.

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29, 2011) (Laporte, M.J.) (applying four-factor test for Rule 23(f) stay).
The class certification order found substantial evidence of a common policy by Kmart to

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For the Northern District of California

United States District Court

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not provide seating for its cashiers. The order also found that the common issue of whether

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Kmart cashiers could have been provided reasonable seating, under an objective analysis of their

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duties, predominated over individual inquiries. The order also found that a class composed of

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cashiers from the Tulare store would be ascertainable and manageable. On the present record,

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this order still finds that the Tulare class was properly certified. On the other hand, serious legal

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questions raised on a Rule 23(f) appeal can satisfy the requirement of likelihood of success on

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the merits. See, e.g., Gray, 2011 WL 6934433 at *2. The class certification order dealt with

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novel legal issues never addressed by our court of appeals. Moreover, a sister district court

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denied class certification under similar circumstances. See Kilby v. CVS Pharmacy, Civ 09-

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2051, 2012 WL 1132854 (S.D. Cal. Apr. 4, 2012) (Anello, J.).

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Kmart argues that staying this action would not harm class members and that public

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interest favors a stay. Plaintiff Garvey did not argue otherwise in her opposition brief. Kmart

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also argues that absent a stay, it will be forced to spend significant resources on trial preparation.

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On this record, at this stage in litigation, Kmart’s argument is unpersuasive. Even if plaintiff

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Garvey was only bringing her individual claim to trial, Kmart would still have to expend

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resources on trial preparation.

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After weighing all the factors, this order holds that Kmart’s motion is DENIED WITHOUT
PREJUDICE. Kmart may bring a fresh motion to stay after October 4, 2012. At that time, our
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court of appeals may have denied Kmart’s petition, thereby mooting this issue. If, however, a

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stay is warranted at that time, litigation resources could still be saved. This will allow discovery,

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expert reports, and summary judgment to go forward while possibly postponing the trial and the

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final pretrial conference.

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IT IS SO ORDERED.

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Dated: August 22, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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