O'Connor et al v. Uber Technologies, Inc. et al

Filing 880

ORDER Denying Plaintiffs' Motion to Amend PAGA Claim Without Prejudice. Signed by Judge Edward M. Chen on 3/7/2018. (Attachments: # 1 Certificate/Proof of Service)(emcsecS, COURT STAFF) (Filed on 3/7/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DOUGLAS O'CONNOR, et al.,
Plaintiffs,

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ORDER DENYING PLAINTIFFS’
MOTION TO AMEND PAGA CLAIM
WITHOUT PREJUDICE

v.
UBER TECHNOLOGIES, INC., et al.,

Docket No. 253, 355, 865

Defendants.

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For the Northern District of California

United States District Court

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Case No. 13-cv-03826-EMC

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Plaintiffs have sought to amend a claim under California‟s Private Attorney General Act

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(“PAGA”), Cal. Lab. Code § 2698, et seq., into the case since March 2015; the Court has deferred

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resolution of the request on several occasions because, inter alia, an identical PAGA claim was

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pending in Los Angeles Superior Court in Price v. Uber Technologies, Inc., Case No. BC554512

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(Cal. Sup. Ct.). On January 18, 2018, the Superior Court in Price approved a settlement of a

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PAGA claim covering the period from July 8, 2013 to January 29, 2017, for “any individual who

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consented to a background check as part of the sign-up process to use Uber software application

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and/or used the Uber software application to generate leads in California” during that period. See

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Price Settlement Approval Order at 4. Upon the Price settlement, Plaintiffs renewed their request

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to amend a PAGA claim to be brought by Plaintiff Thomas Colopy covering only the post-Price

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period after January 29, 2017. See Docket Nos. 865, 870, 874. After careful consideration of the

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parties‟ arguments, the Court DENIES Plaintiffs‟ request for amendment at this time, without

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prejudice to Plaintiffs‟ ability to renew the request after the Ninth Circuit has resolved the appeal

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of this Court‟s prior orders concerning class certification and the enforceability of Uber‟s

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arbitration agreements.

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As a preliminary matter, because the events supporting the PAGA claim arise after January

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29, 2017, they arise after the filing of the original complaint and therefore an amendment would

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constitute a supplemental pleading under Rule 15. See Fed. R. Civ. P. 15(d) (“[T]he court may, on

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just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence,

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or event that happened after the date of the pleading to be supplemented.”); Blackwell v. Thai

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Speed, Inc., 2008 WL 782556, at *2 (N.D. Cal. Mar. 24, 2008) (“A supplemental pleading is used

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to allege relevant facts occurring after the original pleading was filed.” (citation omitted)). A trial

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court has “broad discretion in deciding whether to permit a supplemental pleading,” and should

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focus on issues like “judicial efficiency,” “prejudice to the defendant, laches, or futility.” Yates v.

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Auto City 76, 299 F.R.D. 611, 613 (N.D. Cal. 2013).
Plaintiffs‟ argument for inserting a PAGA claim into the case is premised on the

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assumption that the Court would bifurcate trial such that the PAGA claim would be adjudicated in

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For the Northern District of California

United States District Court

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an expedited manner while the Ninth Circuit appeal is pending and before the certified Rule 23

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claims. Alternatively, Plaintiffs argue that trial could proceed on Plaintiff Thomas Colopy‟s

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individual Labor Code Section 2802 claim and the predicate question of employee/independent

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contractor status, resolution of which would also determine whether Mr. Colopy is an “aggrieved

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employee” with standing to bring a PAGA claim.
The Court would not accept Plaintiffs‟ proposed trial plan if amendment were permitted.

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Though other courts have bifurcated trial of individual Labor Code claims in advance of a

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representative PAGA claim premised on the same Labor Code violation, no court appears to have

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followed that procedure in a case where, as here, a Rule 23 class on the same claim has been

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certified and is pending.1 That adds a layer of procedural complexity to the present case that does

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not appear in others. It also introduces a number of potential complications to which Plaintiffs

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have offered no persuasive response. For example, the Seventh Amendment‟s reexamination

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See, e.g., Lawson v. GrubHub Holdings, Inc., Case No. 15-cv-05128-JSC (N.D. Cal. Jun. 15,
2017) (parties stipulated to bifurcation); Stafford v. Dollar Tree Stores, Inc., 2014 WL 6633396, at
*4 (E.D. Cal. Nov. 21, 2014) (at defendant‟s request, requiring the plaintiff to litigate his
individual Labor Code claims first, with the PAGA claim for later trial only if he prevailed);
Ybarra v. Apartment Inv. and Management Co., 2016 WL 1359893, at *3 (LA Sup. Ct.) (at
defendant‟s request, bifurcating trial of individual Labor Code claims from litigation of PAGA
representative claim).
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clause may prohibit a judge from “divid[ing] issues between separate trials in such a way that the

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same issue is reexamined by different juries,” Matter of Rhone-Poulenc Rorer, Inc., 51 F.3d 1293,

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1303 (7th Cir. 1995) (citation omitted), a result which could obtain under Plaintiffs‟ proposed

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bifurcation.

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Moreover, the one-way intervention rule prevents a Court from adjudicating a class claim

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on the merits before notice has been sent to the class. See Schwarzchild v. Tse, 69 F.3d 293, 295

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(9th Cir. 1995). Although it does not apply directly here because a class has already been certified

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and noticed, if the class definition is modified in a way that requires a new notice to be issued

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(either by the Ninth Circuit or at Plaintiffs‟ own request expanding the class), that could be

under Labor Code § 2802 would not technically constitute class adjudication, it would include

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For the Northern District of California

problematic under the rule. Although a PAGA trial or resolution of Mr. Colopy‟s individual claim

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United States District Court

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factual and legal issues that are so “interwoven” with the Rule 23 class claim that serious

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questions would be raised. Compare Arthur Young & Co. v. U.S. Dist. Ct., 549 F.2d 686, 694 (9th

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Cir. 1977) (approving trial phasing plan where issues reserved for subsequent trials were not “so

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„interwoven‟ with the class issues that presentation of all the issues together at one hearing before

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one trier of fact is necessary to comport with the guarantees of the Seventh Amendment”).
Finally, Plaintiffs‟ proposal raises significant case administration concerns. Putting aside

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whether adjudication of PAGA claims may generally take into account the question of

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manageability,2 amending in a PAGA claim may complicate manageability and judicial efficiency

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of this case which includes a Rule 23 class action, factors relevant in considering a request to

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supplement pleadings under Rule 15. See Yates, 299 F.R.D. at 613. Multiple overlapping trials

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would likely be required.
For those reasons, amendment is unwarranted at this time, particularly because if it were

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Some courts have implied a manageability requirement for PAGA claims in light of their
“representative” nature; yet the PAGA statute does not expressly contain such a requirement. The
Ninth Circuit has repeatedly rejected the notion that Rule 23‟s requirements apply to PAGA
claims. See Baumann, 747 F.3d at 1121-24; see also Sakkab v. Luxottica Retail N Am., Inc., 803
F.3d 425, 437-40 (9th Cir. 2015) (rejecting argument that PAGA actions are as procedurally
complex as class actions); cf. Arias v. Sup. Ct., 46 Cal.4th 969, 985 (2009) (rejecting contention
that PAGA claims must be brought as class actions). On the other hand, a number of courts have
taken manageability into account in a manner similar to a Rule 23 analysis.
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permitted, the PAGA claims would remain stayed with the rest of the case not only to avoid the

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problems identified above, but also because it is impossible to gauge the resulting impact of

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PAGA claims when the scope of the Rule 23 class action is not yet known. There thus does not

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appear to be any compelling reason to permit amendment; there is no looming statute of

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limitations for the PAGA claim, for example.

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Notably, Plaintiffs‟ counsel identified no reason why Mr. Colopy cannot pursue his PAGA

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claim in Superior Court where a PAGA case (albeit different in scope as currently framed) is

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pending.
For these reasons, Plaintiffs‟ motion is DENIED without prejudice. The parties are

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advised that, in future filings, they shall make only sparing, efficient, and reasonable use of

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footnotes.

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For the Northern District of California

United States District Court

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This order disposes of Docket Nos. 253, 355, and 865.

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IT IS SO ORDERED.

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Dated: March 7, 2018
______________________________________
EDWARD M. CHEN
United States District Judge

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