Chris Azpeitia et al v. Tesoro Refining & Marketing Company LLC et al

Filing 52

ORDER GRANTING MOTION TO CONSOLIDATE AND APPOINTING INTERIM LEAD COUNSEL by Judge Jon S. Tigar; granting (49) Motion to Consolidate Cases in case 3:17-cv-00123-JST. (wsn, COURT STAFF) (Filed on 9/14/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 CHRIS AZPEITIA, et al., 7 Plaintiffs, 8 v. 9 10 TESORO REFINING & MARKETING COMPANY LLC, et al., 11 United States District Court Northern District of California Case No. 17-cv-00123-JST ORDER GRANTING MOTION TO CONSOLIDATE AND APPOINTING INTERIM LEAD COUNSEL Defendants. 12 13 14 15 16 17 18 Before the Court are Plaintiffs’ motion to consolidate Azpeitia v. Tesoro Refining and Marketing Company LLC et al., Case No. 17-cv-00123-JST, and Jinetra Bonner v. Tesoro Refining & Marketing Company, LLC, Case No. 17-cv-03850-JST, and Plaintiffs’ request for appointment of proposed interim lead counsel. ECF No. 49. Defendants do not oppose the motions. ECF No. 51. For the reasons set forth below, the Court consolidates the Bonner case with this action and appoints Hadsell Stormer & Renick, LLP as interim lead class counsel.1 I. 19 22 23 CONSOLIDATION2 A. 20 21 Re: ECF No. 49 Procedural History On January 10, 2017, the Azpeitia Plaintiffs filed a putative class action in the United States District Court for the Northern District of California. ECF No. 1. On March 22, 2017, Jinetra Bonner filed suit in Sacramento Superior Court, alleging the same claims and one additional claim. See Bonner, ECF No. 1. On May 3, 2017, Defendants removed the Bonner 24 25 26 27 28 1 The Court concludes that the motion is suitable for disposition without oral argument. Civ. L.R. 7-1(b). The motion hearing scheduled for September 28, 2017 is vacated. The case management conference on that date remains as set. 2 For further factual background and detail on the nature of the claims, refer to the Court’s order granting in part and denying in part Defendants’ motion to dismiss. ECF No. 43; Azpeitia v. Tesoro Refining & Marketing Co. LLC, Case No. 17-cv-00123, 2017 WL 3115168 (N.D. Cal. July 21, 2017). 1 action to the United States District Court for the Eastern District of California. Id. On June 12, 2 2017, the Bonner Plaintiff filed a Motion to Change Venue to the Northern District of California 3 and a Notice of Related Case in the Azpeitia action. Bonner, ECF No. 5-6. The Bonner court 4 granted the motion to transfer on July 6, 2017. Id., ECF No. 14. This Court related the two 5 actions on July 25, 2017. Id., ECF No. 22. On July 21, 2017, this Court issued an order granting 6 in part and denying in part Defendants’ motion to dismiss in the Azpeitia action. ECF No. 43. 7 The Bonner court terminated as moot the pending motion to dismiss in the Bonner action, raising 8 the same legal and factual arguments as in the Azpeitia motion, in connection with the transfer 9 order. Bonner, ECF No. 14. Plaintiffs now wish to consolidate the two actions. B. 11 United States District Court Northern District of California 10 Legal Standard “When actions involving a common question of law or fact are pending before the court, it 12 . . . may order all the actions consolidated.” Fed. R. Civ. P. 42(a). The “district court has broad 13 discretion under this rule to consolidate cases pending in the same district.” Investors Research 14 Co. v. Dist. Court, 877 F.2d 777, 777 (9th Cir. 1989). “In determining whether or not to 15 consolidate cases, the Court should ‘weigh the interest of judicial convenience against the 16 potential for delay, confusion and prejudice.’” Zhu v. UCBH Holdings, Inc., 682 F. Supp. 2d 17 1049, 1052 (N.D. Cal. 2010) (quoting Southwest Marine, Inc. v. Triple A Machine Shop, Inc., 720 18 F. Supp. 805, 806-07 (N.D. Cal. 1989). 19 C. Analysis 20 Both actions share the same proposed class, the same legal claims for the same class 21 period, the same Defendants, and nearly identical factual allegations. ECF No. 49 at 4. The First 22 Amended Complaint (“FAC”) in Azpeitia alleges claims Defendants breached their legal 23 obligations to authorize and permit rest periods and to furnish timely and accurate wage 24 statements, pursuant to California Labor Code §§ 226, 226.3, 226.7 and California Welfare 25 Commission Wage Order No. 1-2001 (“Wage Order 1-2001”). ECF No. 21. The complaint in 26 Bonner includes identical wage and hour claims with an additional claim for meal break 27 violations. Bonner, ECF No. 1. On June 29, 2017, the Bonner court dismissed Bonner’s meal 28 break claims, pursuant to stipulation, to limit her complaint to the same claims alleged in Azpeitia. 2 1 Bonner, ECF No. 12. On July 21, 2017, the Court granted in part and denied in part Defendants’ 2 motion to dismiss in Azpeitia. ECF No. 43. The two related actions clearly involve common questions of law and fact. Accordingly, 3 4 both matters require a determination of whether Defendants’ alleged conduct violates wage and 5 hour law. Moreover, the Court is not aware of any delay or prejudice to either party that would 6 result from consolidation of the two cases, particularly where both cases are in the early stages of 7 litigation and where the parties have stipulated to extend the time for Defendants to respond to a 8 possible consolidated complaint to avoid duplication of efforts. ECF No. 46. Efficiency considerations favor consolidation in this case. Motion practice, discovery, and 9 trial will all be based on the same common set of facts and legal issues. Consolidation will allow 11 United States District Court Northern District of California 10 both cases to proceed at the same pace, promote judicial economy by lessening the Court’s burden 12 in managing the two cases, and streamline the parties’ briefing requirements. 13 The Court accordingly grants Plaintiffs’ motion to consolidate. 14 15 II. APPOINTMENT OF COUNSEL Plaintiffs also move for an order designating Hadsell Stormer & Renick, LLP as interim 16 lead class counsel in order to best protect the interests of the putative class and promote efficiency 17 of case management. 18 A. Legal Standard 19 Rule 23(g)(3) provides that “[t]he court may designate interim counsel to act on behalf of a 20 putative class before determining whether to certify the action as a class action.” Fed. R. Civ. P. 21 23(g). This rule “authorizes [a] court to designate interim counsel during the pre-certification 22 period if necessary to protect the interests of the putative class.” Wang v. OCZ Technology Grp., 23 Inc., Case No. C 11-01415 PSG, 2011 WL 13156817, at *2 (N.D. Cal. June 29, 2011) (quoting 24 Fed. R. Civ. P. 23(g)(2)(A) advisory committee notes on 2003 amends.) “[D]esignation of interim 25 counsel clarifies responsibility for protecting the interests of the class during precertification 26 activities, such as making and responding to motions, conducting any necessary discovery, 27 moving for class certification, and negotiating settlement.” Manual for Complex Litig., § 21.11 28 (4th ed. 2004). 3 Federal Rule of Civil Procedure 23(g)(1)(A) requires that courts consider the following 1 2 factors in appointing class counsel: “(i) the work counsel has done in identifying or investigating 3 potential claims in the action; (ii) counsel's experience in handling class actions, other complex 4 litigation, and the types of claims asserted in the action; (iii) counsel's knowledge of the applicable 5 law; and (iv) the resources that counsel will commit to representing the class.” The Court looks to 6 those factors in designating interim class counsel as well. See Parkinson v. Hyundai Motor Am., 7 2006 WL 2289801, at *2 (C.D. Cal. Aug. 7, 2006) (“Rule 23(g) provides criteria to consider when 8 appointing class counsel, without distinguishing interim counsel. Presumably, the same factors 9 apply[.]”); In re Air Cargo Shipping Serv. Antitrust Litig., 240 F.R.D. 56, 57 (E.D.N.Y. 2006) (“[I]t appears to be generally accepted that the considerations set out in Rule 23(g)(1)(C), which 11 United States District Court Northern District of California 10 governs appointment of class counsel once a class is certified, apply equally to the designation of 12 interim class counsel before certification.”). The Court has reviewed Plaintiffs’ proposal and concludes that lead class counsel 13 14 comprised of Hadsell Stormer & Renick, LLP would “fairly and adequately represent the interests 15 of the class.” Fed. R. Civ. P. 23(g)(1)(B). The firm has done extensive work identifying, 16 investigating, and prosecuting the potential claims. ECF No. 49 at 8; ECF No. 49-1 ¶ 11. The 17 firm has experience handling complex litigation and knowledge of the applicable law. Id.; Id. ¶¶ 18 12-15; ECF No. 49-2 at 35-39. The firm has established that it will commit adequate resources to 19 representing the class. ECF No. 49-1 ¶¶ 18-19. Having one lead class counsel for the consolidated 20 action will also promote judicial efficiency, and all three firms representing the Plaintiffs agree 21 that Hadsell Stormer & Renick, LLP should be appointed interim lead class counsel, with the 22 hours expended litigating the action to be distributed evenly between the firms. ECF No. 49 at 9; 23 ECF No. 49-1 ¶ 18. Accordingly, the Court designates Hadsell Stormer & Renick, LLP as interim 24 lead class counsel. 25 CONCLUSION 26 The Court grants Plaintiffs’ motion to consolidates and appoints Hadsell Stormer & 27 Renick, LLP as interim lead class counsel. Plaintiffs are granted leave to file a consolidated 28 /// 4 1 complaint within 45 days of the date of this order. Defendants shall file their answer to Plaintiffs’ 2 consolidated complaint within 45 days after Plaintiffs file their consolidated complaint. 3 4 IT IS SO ORDERED. Dated: September 14, 2017 5 6 7 ______________________________________ JON S. TIGAR United States District Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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