Sarinana v. DS Waters of America, Inc.

Filing 44

STIPULATION AND ORDER re 43 STIPULATION WITH PROPOSED ORDER Re: First Amended Complaint filed by Hector Sarinana. Signed by Judge Edward M. Chen on 6/26/13. (bpf, COURT STAFF) (Filed on 6/26/2013)

1
2
3
4
5
6
7
8
9
10
11
12

WYNNE LAW FIRM
Edward J. Wynne
(SBN 165819)
[e-mail]
J.E.B. Pickett
(SBN 154294)
[e-mail]
100 Drakes Landing Road Ste. 275
Greenbrae, CA 94904
Telephone: [phone]
Facsimile: 415-461-3900
DICKINSON WRIGHT PLLC
Pro Hac Vice
Peter F. Klett, Esq. (Tenn. Bar No. 12688)
[e-mail]
424 Church Street, Suite 1401
Nashville, Tennessee 37219
Telephone: [phone]
Facsimile: 615-256-8386
Attorneys for Plaintiff
HECTOR SARINANA

13

SEYFARTH SHAW LLP
Catherine M. Dacre (SBN 141988)
[e-mail]
Eric E. Hill (SBN 173247)
[e-mail]
560 Mission St., 31st Fl.
San Francisco, CA 94105
Telephone: [phone]
Facsimile: 415-397-8549
Attorneys for Defendant
DS WATERS OF AMERICA, INC.

14
15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17
18
19

HECTOR SARINANA, on behalf of himself
and all others similarly situated,

20

Plaintiff,

21
22
23
24

Case No. 3:13-cv-00905-EMC
STIPULATION AND [PROPOSED]
ORDER RE: FIRST AMENDED
COMPLAINT

v.
[CLASS ACTION]
DS WATERS OF AMERICA, INC.,
Defendant.

25
26
27
28
WYNNE LAW FIRM
100 DRAKES LANDING ROAD
SUITE 275
GREENBRAE, CA 94904
[phone]
WWW.WYNNELAWFIRM.COM

JOINT CASE MANAGEMENT CONFERENCE STATEMENT
C-13-0905 EMC

1
2

Hector Sarinana (“Plaintiff”) on behalf of himself and all others similarly situated, and
defendant DS Waters of America, Inc. (“Defendant”) stipulate as follows:

3

RECITALS

4

WHEREAS, on June 11, 2013, Defendant’s Motion for Transfer came on for hearing

5

and the Court continued the matter for the parties to resolve whether Plaintiff would file a

6

Motion to Amend the Complaint or to stipulate to the proposed amendment;

7
8

WHEREAS, Plaintiff has provided the proposed First Amended Complaint to
Defendant and Defendant stipulates to the filing of the proposed First Amended Complaint.

9
10
11

STIPULATION
Defendant hereby stipulates to the filing of Plaintiff’s proposed First Amended
Complaint marked and attached hereto.

12
13

Dated: June 25, 2013

14

WYNNE LAW FIRM
DICKINSON WRIGHT PLLC
/s/
Edward J. Wynne
Peter F. Klett
Attorneys for Plaintiff
HECTOR SARINANA

15
16
17
18
19
20
21
22

Dated: June 25, 2013

SEYFARTH SHAW LLP
/s/
Eric E. Hill
Attorneys for Defendant
DS WATERS OF AMERICA, INC.

23
24
25
26
27
28
WYNNE LAW FIRM
100 DRAKES LANDING ROAD
SUITE 275
GREENBRAE, CA 94904
[phone]
WWW.WYNNELAWFIRM.COM

JOINT CASE MANAGEMENT CONFERENCE STATEMENT
C-13-0905 EMC

1

ORDER

2

Good cause having been shown, the Court approves the stipulation between the parties

3

and permits Plaintiff to file the First Amended Complaint attached hereto. Defendant will have

4

been deemed served with the First Amended Complaint upon entry of this order.

, 2013

S

13

dwa
Judge E

ER

H

12

RT

11

hen

rd M. C

NO

10

R NIA

9

IT IS S

FO

8

Hon. Edward M. Chen
United States District Court
ERED
Northern District of California
O ORD

UNIT
ED

7

LI

Dated:

S DISTRICT
TE
C
TA

RT
U
O

6

6/26

A

5

N

F
D IS T IC T O
R

C

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3
STIPULATION AND [PROPOSED] ORDER RE FIRST AMENDED COMPLAINT
3:13-cv-00905-EMC

EXHIBIT 1

1
2
3
4
5
6
7
8
9
10
11
12
13

WYNNE LAW FIRM
Edward J. Wynne
(SBN 165819)
[e-mail]
J.E.B. Pickett
(SBN 154294)
[e-mail]
100 Drakes Landing Road Ste. 275
Greenbrae, CA 94904
Telephone: [phone]
Facsimile: 415-461-3900
DICKINSON WRIGHT PLLC
Pro Hac Vice
Peter F. Klett, Esq. (Tenn. Bar No. 12688)
[e-mail]
424 Church Street, Suite 1401
Nashville, Tennessee 37219
Telephone: [phone]
Facsimile: 615-256-8386
Attorneys for Plaintiff
HECTOR SARINANA

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

HECTOR SARINANA, on behalf of himself
and all others similarly situated,

FIRST AMENDED COMPLAINT
1. Common Law Breach of Contract
2 Waiting Time Penalties, Calif. Labor
Code § 203
3. Penalties, Calif. Labor Code § 226

17
Plaintiff,

18
v.

19
20

Case No. 3:13-cv-00905-EMC

DS WATERS OF AMERICA, INC.,
[CLASS ACTION]

21

Defendant.

22
23
24
25
26

Hector Sarinana (“Plaintiff”) on behalf of himself and all others similarly situated,
alleges as follows:
INTRODUCTION

27
28

1.

This is a breach of contract action brought on behalf of a nationwide class

1
FIRST AMENDED COMPLAINT

1

consisting of all current and former overtime and incentive eligible employees whose incentive

2

payments were not included in their overtime compensation who are, or were employed by DS

3

Waters of America, Inc. or its parent, subsidiaries, divisions, related or successor companies

4

(“DS Waters,” or “Defendant”), during the applicable statutory coverage period beginning from

5

the time this action was originally filed until the time the action is certified as a class action.

6

2.

Plaintiff also brings this action as a state-wide sub-class action on behalf of all

7

current and former overtime and incentive eligible employees whose overtime compensation

8

was not properly calculated, who are, or were employed by Defendant within the State of

9

California during the statutory coverage of a breach of contract claim from the time this action

10

was originally filed to the time the action is certified as a class action, who are entitled to

11

penalties due to Defendant’s violations of Labor Code §§ 201-202, and 226.

12

3.

Plaintiff is unaware of the names and capacities of all defendants who may have

13

caused or contributed to the harms complained of herein, but will seek leave to amend this

14

complaint once their identities become known to Plaintiff. Upon information and belief,

15

Plaintiff alleges that at all relevant times each defendant was the officer, director, employee,

16

agent, representative, alter ego, co-employer, or co-conspirator of each of the other defendants,

17

and has engaged in the conduct alleged herein was in the course and scope of and in

18

furtherance of such relationship.

19
20

4.

The Nationwide Class and the California Sub-Class are hereafter collectively

referred to as the “Class.”

21

5.

22

“Class Members.”

23

6.

The individual members of the Class are hereafter collectively referred to as the

Plaintiff alleges on behalf of the Nationwide Class who do not opt-out of this

24

action that they are entitled to unpaid wages from Defendant for overtime work for which they

25

did not receive all of their overtime premium pay.

26

7.

Plaintiff alleges on behalf of the California Sub-Class who do not opt-out that

27

they are: (a) entitled to penalties for failing to properly and timely pay all wages due and owing

28

at time of termination; and, (b) entitled to penalties for failing to retain and provide accurate

2
FIRST AMENDED COMPLAINT

1
2

records of wages earned by Plaintiff and the California Sub-Class.
8.

3

Each of the foregoing acts is in contravention of applicable employment laws.
JURISDICTION AND VENUE

4

9.

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332.

5

10.

Venue is proper pursuant to 28 U.S.C. § 1391 as Defendant is subject to

6

personal jurisdiction in this district because it does business in this judicial district. Defendant

7

has not designated a principal place of business in California.

8
9

PARTIES
11.

Plaintiff Hector Sarinana is a resident of the State of California and was

10

employed by Defendant as a Route Sales Representative during the statutory time period

11

covered by this Complaint. Mr. Sarinana was an overtime and incentive eligible employee of

12

the Defendant and is a member of the proposed Class.

13

12.

At all relevant times during the applicable class period, Defendant DS Waters of

14

America, Inc. (DS Waters) is a privately-owned U.S. operated company with its principal place

15

of business in Atlanta, Georgia. DS Waters is in the business of offering bottled water, brewed

16

coffee and tea beverages and related equipment, break room supplies, and equipment and

17

services for water filtration systems. DS Waters’ products are produced at 28 company-

18

managed production facilities, 10 supplier-managed facilities and delivered to over a million

19

home, office, restaurants, food service organizations, convenience stores, and retail locations

20

across the U.S. and in this judicial district. DS Waters’ bottled water products are sold under

21

the brand names Alhambra®, Athena®, Belmont Springs®, Crystal Springs®, Deep Rock®,

22

Hinckley Springs®, Kentwood Springs®, Mount Olympus®, Nursery® Water, Sierra

23

Springs®, and Sparkletts®. DS Waters also delivers brewed coffee and tea beverages,

24

breakroom supplies under the Standard Coffee®, and Javarama® brands. DS Waters provides

25

water filtration systems under the brands StanGuard Quality Water Assurance™ and

26

MyUtapia®, as well as equipment and services under the Relyant Coffee Equipment

27

Services™ brand. The company's bottled water product offerings include three and five gallon

28

returnable bottles, one gallon, two-and-a-half gallon and single-serve bottles. DS Waters also

3
FIRST AMENDED COMPLAINT

1

offers brewing systems for coffees and teas, as well as bottled water coolers and water filtration

2

units.

3

13.

Defendant operates nationwide and does business within this judicial district.

4

Defendant employs and has employed, upon information and belief, over 500 hundred overtime

5

and incentive eligible employees in the State of California at any one time and Plaintiff

6

estimates the Nationwide Class to be well in excess of the size of the estimated California Class

7

during the relevant statute of limitations periods.

8
9

FACTUAL ALLEGATIONS
14.

As a condition of employment, Defendant informed Plaintiff and the Class that

10

their positions were overtime eligible positions and they would be paid overtime compensation

11

for overtime hours worked in accordance with state and federal law.

12

Defendant informed Plaintiff and the Class that they would receive a premium rate of pay equal

13

to one and one-half times their regular or base rate which included all remuneration earned.

14

15.

More specifically,

Plaintiff held the title “Route Sales Representative,” was designated as

15

nonexempt, and paid an hourly or base rate of pay for all hours worked. Plaintiff is informed

16

and believes and thereon alleges that Defendant employed other overtime and incentive eligible

17

positions such as “Route Sales Specialist.”

18

16.

Defendant informed Plaintiff and the Class that they were eligible to earn

19

production-based commissions and incentives for, inter alia, the amount of water products

20

delivered, new accounts opened up, and coffee products delivered. Defendant informed and

21

promised Plaintiff and the Class that they would be paid overtime compensation on the

22

commissions and incentive payments they earned for overtime hours worked in accordance

23

with state and federal law.

24

17.

During his tenure with Defendant, Plaintiff and the Class worked overtime hours

25

and also earned commissions and incentive compensation. In order to keep track of their hours,

26

Plaintiff and the Class were required to keep accurate records of the hours they worked.

27
28

18.

Notwithstanding its promise to pay Plaintiff and the Class in accordance with

state and federal law, Defendant failed to include all remuneration Plaintiff and the Class

4
FIRST AMENDED COMPLAINT

1

earned in their premium rates in calculating their overtime compensation. As a result, Plaintiff

2

and the Class were not paid all of their wages that are due and owing.

3

19.

The wage statements Defendant provides to its overtime and incentive eligible

4

employees fail to accurately state the regular and premium rates upon which the employees are

5

paid.

6

20.

Evidence reflecting the precise number of overtime hours worked by Plaintiff

7

and every other member of the Class, as well as the applicable compensation rates, is in the

8

possession of Defendant.

9
10

21.

Defendant has a centralized administration for payroll where Defendant

calculates the regular and premium rates of pay for all of the Class Members.

11
12
13
14

CLASS ACTION ALLEGATIONS
22.

Plaintiff brings this action on behalf of the Nationwide Class and a California

Sub-Class pursuant to pursuant to Federal Rule of Civil Procedure 23.
23.

The members of the classes are so numerous that joinder of all members is

15

impracticable.

16

reviewing Defendant’s records. Plaintiff is informed and believes and thereon alleges that there

17

are thousands of individuals in the Nationwide Class.

18

24.

The exact number of the members of the classes can be determined by

Plaintiff will fairly and adequately protect the interests of the Class and has

19

retained counsel that are experienced and competent in class action and employment litigation.

20

Plaintiff has no interests that are contrary to, or in conflict with, other class members.

21

25.

A class action suit, such as the instant one, is superior to other available means

22

for fair and efficient adjudication of this lawsuit. The damages suffered by individual members

23

of the Class may be relatively small when compared to the expense and burden of litigation,

24

making it virtually impossible for members of the Class to individually seek redress for the

25

wrongs done to them.

26

26.

A class action is, therefore, superior to other available methods for the fair and

27

efficient adjudication of the controversy. Absent these actions, the class members likely will

28

not obtain redress of their injuries, and Defendant will retain the proceeds of its breach of

5
FIRST AMENDED COMPLAINT

1
2

contract by its failure to follow federal and state law.
27.

Even if any individual class member could afford individual litigation against

3

Defendant, it would be unduly burdensome to the judicial system. Concentrating this litigation

4

in one forum will promote judicial economy and parity among the claims of individual

5

members of the Class and provide for judicial consistency.

6

28.

There is a well-defined community of interest in the questions of law and fact

7

affecting the Class as a whole. Questions of law and fact common to each of the Class

8

predominate over any questions affecting solely individual members of the action.

9

predominant common questions of law and fact for the Nationwide Class is whether, as

10

required by the parties’ agreement, Defendant is required to include all forms and

11

remuneration, including production-based commissions and incentive in the Class Members’

12

regular rate of pay and whether Defendant did so with respect to Plaintiff and the Class

13

Members. The answer to this predominant common question is equally applicable to all Class

14

Members and an answer to that will drive resolution of the litigation.

15
16

29.

The

Pursuant to Fed. R. Civ. Pro. 23(a) and (b), Plaintiff seeks to prosecute these

claims as a class action on behalf of:
All current and former overtime and incentive eligible employees
whose incentive payments were not included in their overtime
compensation who worked for Defendant at any time in the United
States of America during the statutory coverage of a breach of
contract claim from the time this action was originally filed to the
time the action is certified as a class action.

17
18
19
20
21
30.

Notice of the pendency and any resolution of this action can be provided to

22
Nationwide Class by mail, print, and/or internet publication.
23
31.
24
25
26
27
28

Plaintiff also alleges a California Sub-Class pursuant to Federal Rule of Civil

Procedure 23(a) and (b) of on behalf of himself and the following persons similarly situated:
All current and former overtime and incentive eligible employees
whose incentive payments were not included in their overtime
compensation who worked for Defendant at any time in the state
of California during the statutory coverage of a breach of contract
claim from the time this action was originally filed to the time the

6
FIRST AMENDED COMPLAINT

action is certified as a class action who are entitled to penalties
due to Defendant’s violations of Labor Code §§ 201-202, and
226.

1
2
3

32.

In addition to the predominant common issues of fact and law described above,

4

the California Sub-Class Members have numerous other common issues of fact and law,

5

including whether Defendant: (a) failed to maintain and provide members of the California

6

Class with accurate and detailed records of wages earned, pursuant to California Labor Code §

7

226 and 1174; and (b) failed to timely and properly pay California Sub-Class members all

8

wages at time of termination pursuant to Labor Code § 201-203.

9

COUNT ONE

10

(Common Law Breach of Contract)

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

33.

Plaintiff incorporates the allegations contained in the previous paragraphs of this

Complaint as if fully set forth herein.
34.

Plaintiff brings this cause of action for common law breach of contract on behalf

of himself and all other members of the Nationwide Class.
35.

As part of the terms and conditions of employment, it was agreed that Defendant

may require overtime work from the Plaintiff and the Class Members. It was agreed and
understood that Plaintiff and the Class Members were expected to work overtime as assigned
and/or required. It was further agreed and understood that Plaintiff and the Class Members
would be paid premium wage in accordance with all state and federal laws.
36.

State and federal laws require that all production-based commissions and

incentive payments be included in the regular rate for calculating overtime compensation.
37.

In consideration for being paid in accordance with state and federal laws,

Plaintiff and the Class agreed to perform their duties and responsibilities. Plaintiff and the
Class performed their duties and responsibilities.
38.

Defendant failed to include all remuneration when calculating the regular rate of

pay in order to properly pay the overtime premium rate for Plaintiff and for all Class Members.
More specifically, Defendant failed to include all production-based commissions and incentive

28

7
FIRST AMENDED COMPLAINT

1

pay in the regular rate paid to Plaintiff and the Class Members.

2

39.

Defendant’s failure to include all remuneration earned by Plaintiff and the Class

3

in their regular rate for overtime hours worked was a breach of its agreement with Plaintiff and

4

the Class Members.

5

40.

Defendant’s breach of its agreement resulted in Plaintiff and the Class being

6

paid less than what Defendant had promised thereby causing Plaintiff and the Class to be

7

damaged thereby.

8

COUNT TWO

9

(Waiting Time Penalties, California Labor Code § 203)

10
11

41.

Plaintiff incorporates the allegations contained in the previous paragraphs of this

Complaint as if fully set forth herein.

12

42.

Plaintiff brings this cause of action for waiting time penalties pursuant to

13

California Labor Code § 203 on behalf of himself and all other members of the California Sub-

14

Class.

15

43.

Defendant willfully and intentionally failed to pay Plaintiff and the other

16

members of the California Sub-Class, who are no longer employed by Defendant, all the wages

17

they were due and/or by the deadlines imposed under Labor Code §§ 201 and 202 upon

18

cessation of the Class Members’ employment with Defendant. Plaintiff and the other members

19

of the California Sub-Class did not secret or absent themselves from Defendant nor refuse to

20

accept the earned and unpaid wages from Defendant. Accordingly, Plaintiff and members of

21

the California Sub-Class no longer employed by Defendant are entitled to waiting time

22

penalties per Labor Code § 203 of up to thirty (30) days’ pay, in an amount to be proven at

23

trial.

24

COUNT THREE

25

(Penalties, California Labor Code § 226)

26
27
28

44.

Plaintiff incorporates the allegations contained in the previous paragraphs of this

Complaint as if fully set forth herein.
45.

Plaintiff brings this cause of action for penalties pursuant to California Labor

8
FIRST AMENDED COMPLAINT

1
2

Code § 226 on behalf of himself and all other members of the California Sub- Class.
46.

Due to Defendant’s failure to properly calculate the regular and premium rates

3

of Class Members and its failure to set forth the actual regular and premium rates on each class

4

member’s payroll statements, Defendant has knowingly and intentionally failed to provide

5

Plaintiff and members of the California Sub-Class with accurate and detailed records of wages

6

earned and hourly rates required by Labor Code § 226(a).

7
8

47.

Therefore, Plaintiff, on behalf of the California Sub-Class, requests all such

relief that this Court deems appropriate pursuant to Labor Code § 226.

9

PRAYER FOR RELIEF

10

WHEREFORE, Plaintiff prays for:

11

A.

12
13
14

An Order designating Nationwide Class as a class action pursuant to Federal

Rule of Civil Procedure 23;
B.

An Order designating the California Sub-Class as a class action pursuant to

Federal Rule of Civil Procedure 23;

15

C.

An Order appointing Plaintiff and his counsel to represent the Class;

16

D.

For compensatory damages directly and proximately resulting from Defendant’s

17

breach of contract;

18

E.

19

For penalties as a result of Defendant’s violations of Labor Code §§ 201-202,

226 and 1174;

20

F.

Prejudgment interest;

21

G.

An Order awarding attorneys’ fees and costs; and,

22

H.

For all other relief as the Court deems just.

23

Dated: June ____, 2013

WYNNE LAW FIRM

24
25
26
27
28

By:____________________________
Edward J. Wynne
100 Drakes Landing Road, Suite 275
Greenbrae, CA 94904
Telephone: [phone]
Facsimile: 415-461-3900
Counsel for Plaintiff

9
FIRST AMENDED COMPLAINT