Helton et al v. Factor 5, Inc. et al

Filing 192

ORDER. Signed by Judge Saundra Brown Armstrong on 2/21/2014. (ndr, COURT STAFF) (Filed on 2/21/2014)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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JESSE HELTON; ALISHA PICCIRILLO;

Case No: C 10-04927 SBA

8 CHAD LOWE; individually and on behalf of

all others similarly situated,

ORDER

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Plaintiffs,
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vs.
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FACTOR 5, INC.; FACTOR 5, LLC;
12 BLUHARVEST, LLC; WHITEHARVEST,

LLC; JULIAN EGGEBRECHT; HOLGER
13 SCHMIDT; THOMAS ENGEL; and DOES

1-100,
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Defendants.
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On February 12, 2014, the Court issued an Order: (1) striking Plaintiffs and the

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individual Defendants’ motions in limine; (2) vacating the pretrial conference and the trial

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date; (3) scheduling a telephonic Case Management Conference for February 20, 2014;

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(4) directing the parties to file a joint statement prior to the conference; (5) directing the

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individuals Defendants and the Plaintiffs to each file a memorandum showing cause why

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they should not be sanctioned for failing to comply with the requirements of the Court’s

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Scheduling Order; (6) striking WhiteHarvest, LLC’s (“WhiteHarvest”) answer to the first

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amended complaint and directing Plaintiffs to move for entry of default as to WhiteHarvest;

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and (7) directing Plaintiffs to file a memorandum showing cause why BluHarvest, LLC

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(“BluHarvest”) should not be dismissed from this action for failure to effectuate proper

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service under Rule 4(m) of the Federal Rules of Procedure. Dkt. 182.

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On February 13, 2014, the parties filed a stipulation waiving their right to a jury
trial. Dkt. 183. On February 18, 2014, the following documents were filed: (1) Plaintiffs’

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response to the order to show cause regarding service of BluHarvest; (2) a Joint Case

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Management Conference Statement; (3) Plaintiffs’ response to the order to show cause

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regarding their failure to comply with the Court’s Scheduling Order; and (4) the individual

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Defendants’ response to the order to show cause regarding their failure to comply with the

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Court’s Scheduling Order. Dkt. 184, 185, 186, 187. On February 19, 2014, Plaintiffs filed

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a request to enter default against WhiteHarvest, fka BluHarvest. Dkt. 188.

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On February 20, 2014, the Plaintiffs and the individual Defendants’ appeared via

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telephone for the Case Management Conference. During the conference, Plaintiffs stated

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that they no longer intend to prosecute their overtime claim under the Fair Labor Standards

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Act (“FLSA”), and that they will file a dismissal of said claim. See Hells Canyon Pres.

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Council v. United States Forest Servs., 403 F.3d 683, 687 (9th Cir. 2005) (“withdrawals of

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individual claims against a given defendant are governed by Fed.R.Civ.P. 15, which

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addresses amendments to pleadings”). However, the parties disagree whether putative

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members of the FLSA collective action are proper parties to the action. The Court will

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therefore order further briefing on this issue.

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The parties also indicated their willingness to participate in a further settlement

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conference before Magistrate Judge Cousins following the Court’s resolution of the motion

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to dismiss which was recently filed in the related action Crowley, et al. v. Factor 5, Inc., et

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al., C 11-05528 SBA, and the opt-in issue referenced above. The Court will therefore refer

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the action to Magistrate Judge Cousins for a further settlement conference, which shall take

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place after both of the aforementioned issues are resolved. In the event the action does not

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settle, the Court will order further briefing on the viability of Plaintiffs’ remaining claims,

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address the pending order to show cause regarding the imposition of sanctions, set a new

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briefing schedule for pretrial filings, set a new date for the pretrial conference and

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reschedule the matter for trial.1 Accordingly,

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IT IS HEREBY ORDERED THAT:

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1.

The parties shall submit briefing on the issue of whether any individual has

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timely opted-in to the FLSA collective action conditionally certified by the Court on June

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26, 2012. Dkt. 91. Plaintiffs shall file a brief, not to exceed five (5) pages, by no later than

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February 26, 2014. The individual Defendants shall file a response, not to exceed five (5)

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pages, by no later than March 3, 2014. Upon the completion of briefing, the Court will take

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this matter under submission and issue a written order.

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2.

This action is referred to Magistrate Judge Cousins for a mandatory

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settlement conference to take place after the Court (1) determines whether any individual

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has timely opted-in to the conditionally certified FLSA collective action, and (2) resolves

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the individual Defendants’ motion to quash service and dismiss the complaint in the related

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action Crowley, et al. v. Factor 5, Inc., et al., C 11-05528 SBA.

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3.

The order to show cause regarding the dismissal of BluHarvest is discharged.

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4.

The Court will hold a telephonic Case Management Conference, if necessary,

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following the mandatory settlement conference before Magistrate Judge Cousins, to

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reschedule the various matters discussed above. The parties shall notify the Court of the

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outcome of the settlement conference immediately following the conference.

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IT IS SO ORDERED.
2/21/2014

Dated:

_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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Based on Plaintiffs’ response to the order to show cause regarding BluHarvest, the
Court declines to dismiss BluHarvest from this action pursuant to Rule 4(m). Plaintiffs
have shown good cause why BluHarvest should not be dismissed from this action for
26 failure to properly effectuate service. Plaintiffs have shown that BluHarvest changed its
name to WhiteHarvest in February 2009, and that BluHarvest and WhiteHarvest are the
27 same entity. As directed by the Court, Plaintiffs have moved for entry of default against
WhiteHarvest, fka BluHarvest, for failure to obtain substitute counsel following the
28 withdrawal of its counsel of record.
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