Koval v. Pacific Bell Telephone Company

Filing 24

ORDER by Judge Claudia Wilken GRANTING 14 MOTION TO STAY ALL PROCEEDINGS (Docket No. 14) AND VACATING CASE MANAGEMENT CONFERENCE. (ndr, COURT STAFF) (Filed on 8/10/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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FRANK KOVAL,

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Plaintiff,
v.
PACIFIC BELL TELEPHONE COMPANY,
doing business as AT&T,

United States District Court
For the Northern District of California

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________________________________/
Defendant Pacific Bell Telephone Company, doing business as
AT&T, moves to stay the claims brought against it by Plaintiff
Frank Koval.

Koval opposes the motion, and asks that, if the

action is stayed, the statute of limitations for the claims of
class members under the Fair Labor Standards Act (FLSA) be
equitably tolled.
the papers.

The Court took the motion under submission on

Having considered the papers submitted by the

parties, the Court GRANTS Pacific Bell’s motion to stay and
equitably tolls the FLSA claims of class members until the stay is
lifted.

The case management conference set for August 22, 2012 is

VACATED.
BACKGROUND

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ORDER GRANTING
MOTION TO STAY ALL
PROCEEDINGS
(Docket No. 14)
AND VACATING CASE
MANAGEMENT
CONFERENCE

Defendant.

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No. C 12-1627 CW

On February 16, 2010, Donald Washington, a service technician
formerly employed by Pacific Bell filed a putative class action
lawsuit in the Los Angeles County Superior Court, alleging, among
other things, that Pacific Bell failed to provide service
technicians with meal and rest periods or to compensate them in
lieu of those breaks.

Compl., Washington v. Pacific Bell

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Telephone Co., Case No. BC 432010.1

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complaint on April 13, 2010.

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Washington filed an amended

Am. Compl., Washington.

On April 20, 2010, Frank Koval, along with four others, filed

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a putative class action complaint against Pacific Bell, doing

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business as AT&T, in the Alameda County Superior Court.

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AT&T, Inc., Case No. RG 10510513 (Koval I).

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Koval I brought claims similar to those made by Washington.

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plaintiffs in Koval I are represented by the same attorneys who

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represent Koval in the instant case.

United States District Court
For the Northern District of California

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Koval v.

The plaintiffs in
The

On September 28, 2010, the Los Angeles Superior Court granted

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Pacific Bell’s motion to coordinate Washington and Koval I under

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the title Pacific Bell Wage and Hour Cases, and recommended that a

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coordination judge be appointed in the Alameda County Superior

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Court.

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Eisen Decl., Ex. E.

On January 25, 2011, Koval, Washington and the other state

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court plaintiffs filed a consolidated amended class action

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complaint in the Alameda County Superior Court.

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G.

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“restricted the freedom of field personnel during meal breaks” and

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required them to work through their meal and rest breaks.

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¶¶ 21, 22, 36.

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meal periods, (2) failure to provide rest periods, (3) failure to

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provide and maintain tools and equipment, (4) failure to provide

Eisen Decl., Ex.

They asserted, among other things, that Pacific Bell

Id. at

They brought claims for (1) failure to provide

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1

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27
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Pacific Bell requests, and Koval does not oppose, that the
Court take judicial notice that certain documents were filed in
the related state court proceedings. Because the accuracy of this
fact can be determined by resort to the state court dockets, whose
accuracy cannot be reasonably questioned, the Court GRANTS Pacific
Bell’s request.
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accurate itemized wage statements, (5) failure to pay timely wages

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due at termination, (6) violation of the Unfair Competition Law

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(UCL), and (7) enforcement of the Private Attorney General Act

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(PAGA).

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persons employed by Defendant within the State of California as

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field personnel, including Service Technicians, Systems

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Technicians specializing in Data Communication, Cable Locators,

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Systems Technicians, and Splicing Technicians, or similarly titled

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personnel who were performing the same sort of functions as the

They sought to prosecute these claims on behalf of “[a]ll

United States District Court
For the Northern District of California

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Named Plaintiffs . . .”

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various claims begin on February 16 in 2006, 2007 and 2009 and

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extend through the date of judgment.

Id. at ¶ 12.

The class periods for the

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On November 1, 2011, Koval and the other state court

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plaintiffs filed a second consolidated amended complaint in the

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Pacific Bell Wage and Hour Cases, in which they added a statutory

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overtime claim pursuant to California Labor Code sections 510 and

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1198 and Wage Order No. Four.

Eisen Decl., Ex. J.

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On November 15, 2011, Arturo Franco filed a putative class

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action complaint in the Riverside County Superior Court against

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Pacific Bell, making similar claims on behalf of employees “who

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occupied positions of maintenance service technicians and similar

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positions in the State of California.”

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Eisen Decl., Ex. H ¶ 1.

On January 20, 2012, upon Pacific Bell’s demurrer in the

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Pacific Bell Wage and Hour Cases, the state court dismissed the

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statutory overtime claim, finding that it was barred by California

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Labor Code section 514, which provides that section 510 does not

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apply to employees covered by a valid collective bargaining

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agreement that meets certain criteria.
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Eisen Decl., Ex. K.

The

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second consolidated amended complaint without the dismissed

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statutory overtime claim remains the operative complaint in that

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case.

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On February 17, 2012, the parties in the Pacific Bell Wage

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and Hour Cases filed a joint case management statement.

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Decl., Ex. L.

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“Defendant’s uniformly enforced policies . . . place unlawful

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restriction on their and the putative class members’ abilities to

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take duty-free meal and rest break periods” and provided various

United States District Court
For the Northern District of California

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Eisen

In the statement, the plaintiffs stated that

examples of the purportedly restrictive policies.

Id. at 3-4.

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On April 2, 2012, upon Pacific Bell’s demurrer, the Riverside

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County Superior Court stayed the Franco case pending resolution of

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the Pacific Bell Wage and Hour Cases.

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Eisen Decl., Ex. I.

On April 2, 2012, Koval initiated the instant collective and

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class action in federal court.

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represent “[a]ll persons who are or have been employed by

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Defendant within the State of California as Field Personnel,

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including Service Technicians, Systems Technicians specializing in

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Data Communication, Cable Locators, Systems Technicians, and

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Splicing Technicians, or similarly titled personnel who were

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performing the same sort of functions as the Named Plaintiff.”

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Compl. ¶¶ 27, 34.

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Docket No. 1.

Koval seeks to

In the complaint, Koval alleges that Pacific Bell restricted

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field personnel “during meal and rest periods to the point where

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they provided Defendant with a benefit for which they were

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uncompensated” during those time periods.

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further alleges that this resulted in field personnel working in

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excess of forty hours during a work week, but Pacific Bell did not
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Id. at ¶ 25.

He

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pay them “overtime compensation for that time.”

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Koval asserts two causes of action: (1) a collective action claim

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for failure to pay overtime compensation and to maintain proper

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records of hours worked in violation of FLSA; and (2) a class

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action claim for violation of California’s UCL.

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The class period began for the collective claim on April 2, 2009

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and for the class claim on April 2, 2008.

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Id. at ¶ 26.

Id. at ¶¶ 42-51.

Id. at ¶¶ 27, 34.

DISCUSSION

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Pacific Bell moves to stay the instant proceedings pending

United States District Court
For the Northern District of California

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resolution of the Pacific Bell Wage and Hour Cases pursuant to the

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doctrine established in Colorado River Conservation Dist. v.

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United States, 424 U.S. 800 (1976).

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requests that, if the Court grants the motion to stay the

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proceedings, it also equitably toll the statute of limitations for

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the putative collective action members’ FLSA claims.

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I.

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Koval opposes the motion, and

Motion to stay under the Colorado River doctrine
Pursuant to the Colorado River doctrine, in situations

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involving the contemporaneous exercise of jurisdiction by

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different courts over sufficiently parallel actions, a federal

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court has discretion to stay or dismiss an action based on

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considerations of wise judicial administration, giving regard to

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conservation of judicial resources and comprehensive disposition

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of litigation.

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parallel each other to invoke the Colorado River doctrine; it is

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enough that the two cases are substantially similar.

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Marciano, 882 F.2d 1411, 1416 (9th Cir. 1989).

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of additional parties or issues in one of the cases will not

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necessarily preclude a finding that they are parallel.

424 U.S. at 817.

The two actions need not exactly

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Nakash v.

The mere presence

Caminiti &

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Iatarola, Ltd. v. Behnke Warehousing, Inc., 962 F.2d 698, 700-701

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(7th Cir. 1992); see also Interstate Material Corp. v. City of

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Chicago, 847 F.2d 1285, 1288 (7th Cir. 1988) (noting that the

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requirement is for parallel suits, not identical ones).

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The federal district courts have a “virtually unflagging

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obligation” to exercise their jurisdiction, Moses H. Cone Hospital

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v. Mercury Constr. Corp., 460 U.S. 1, 19 (1983), and should only

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invoke a stay or dismissal under the Colorado River doctrine in

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“exceptional circumstances.”

Colorado River, 424 U.S. at 817.

In

United States District Court
For the Northern District of California

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Colorado River, the Supreme Court announced a balancing test

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weighing four factors to determine whether sufficiently

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exceptional circumstances exist: (1) whether either court has

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assumed jurisdiction over property in dispute; (2) the relative

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convenience of the forums; (3) the desirability of avoiding

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piecemeal litigation; and (4) the order in which the concurrent

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forums obtained jurisdiction.

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Moses H. Cone, the Supreme Court added two more factors: whether

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state or federal law provides the rule of decision on the merits,

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and whether the state proceeding is adequate to protect the

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parties’ rights.

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recognized a seventh factor that a district court may consider:

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whether the federal plaintiff is engaged in “forum shopping” or

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seeking to avoid adverse state court rulings.

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1417.

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whether the state proceedings will resolve the federal action

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precludes the granting of a stay.”

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Devices, Inc., 12 F.3d 908, 913 (9th Cir. 1993).

424 U.S. at 818.

460 U.S. at 23, 26.

Subsequently, in

The Ninth Circuit has also

Nakash, 882 F.2d at

Further, “the existence of a substantial doubt as to

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Intel Corp. v. Advanced Micro

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The Supreme Court stated that the decision to defer to a

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parallel action does not rest on a mechanical checklist, but on a

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careful balancing of the important factors as they apply in a

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given case.

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cautions, “No one factor is necessarily determinative; a carefully

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considered judgment taking into account both the obligation to

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exercise jurisdiction and the combination of factors counseling

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against that exercise is required.”

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818-19.

Moses H. Cone, 460 U.S. at 16.

The Supreme Court

Colorado River, 424 U.S. at

The weight to be given to any one factor may vary greatly

United States District Court
For the Northern District of California

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from case to case, depending on the particular setting of the

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case.

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stay an action is necessarily left to the discretion of the

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district court in the first instance.

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Moses H. Cone, 460 U.S. at 16.

The decision whether to

Id. at 19.

A. Substantially similar cases
Pacific Bell contends, and Koval does not dispute, that the

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instant case is substantially similar to the action that is

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proceeding in state court.

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Although the federal action cite violations of statutes not

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included in the state action, both actions assert similar factual

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allegations, and the “crux” of the cases is the same: whether or

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not Pacific Bell denied meal and rest period breaks to field

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personnel within California, resulting in damages of payment for

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work performed during those periods.

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Box, Inc., 2006 WL 3422222, at *4 (N.D. Cal.) (Wilken, J.)

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(finding state and federal cases to be substantially similar in a

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similar situation).

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appear in both actions, and the class definitions in both actions

See Gintz v. Jack In The

Further, the same parties and attorneys

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are virtually identical.

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substantially.

The class periods for both cases overlap

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Thus, the Court finds that the cases are substantially

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similar and will consider application of the Colorado River

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doctrine.

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B. Balance of relevant factors
1. Jurisdiction over property and convenience of forums
Koval argues that the fact that this case does not involve
jurisdiction over property weighs in favor of allowing both cases

United States District Court
For the Northern District of California

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proceed.

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that the federal forum is inconvenient, the second factor is

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neutral.

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no res in the control of either court and the forums are equally

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convenient,’” both “factors become irrelevant to the analysis.”

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Gintz, 2006 WL 3422222, at *4.

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will be considered in the balancing test.

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Koval also contends that, because neither party argues

“However, in Nakash, the court held that when ‘there is

Thus, neither of these factors

2. Desirability of avoiding piecemeal litigation
Koval argues that the state court litigation and the instant

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case would be “parallel” litigation and not “piecemeal”

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litigation, apparently because the state case will not resolve the

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FLSA overtime claim.

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Several courts in the Northern District of California,

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including this Court, have recognized that this factor favors a

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stay where plaintiffs chose not to add their FLSA claim to the

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state court action.

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U.S. Bank Nat. Ass’n, 542 F. Supp. 2d 1014, 1022 (N.D. Cal. 2008);

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see also Robinson v. Nestle Waters N. Am., Inc., 2011 WL 2174375,

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at *4 (E.D. Cal.).

See Gintz, 2006 WL 3422222, at *5; Ross v.

The federal courts do not have exclusive
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jurisdiction over FLSA claims and plaintiffs’ choice not to bring

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all of their state and federal claims together in a single action

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“creates the kind of piecemeal litigation that the Colorado River

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doctrine intends to prevent.”

Ross, 542 F. Supp. 2d at 1022.

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Koval attempts to distinguish these cases, in which the

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courts expressed concern that the plaintiffs had failed to account

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for why they did not bring their state and federal law claims

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together in a single action, by arguing that federal court was the

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only forum available to him.

Koval argues that its state law

United States District Court
For the Northern District of California

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overtime claim was dismissed without leave to amend and that

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Pacific Bell refused to stipulate to allow the plaintiffs in the

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state court case to amend their complaint to add a FLSA overtime

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cause of action.

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This argument is unpersuasive.

Pacific Bell, the defendant,

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did not dictate how the plaintiffs could litigate their case, and

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Koval offers no explanation for his failure to include a FLSA

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overtime claim in his complaint at the start or to seek permission

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from the state court to add it to that complaint over Pacific

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Bell’s objection.

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piecemeal litigation, in which the state court will consider

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whether Pacific Bell has violated class members’ rights by denying

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them meal and rest breaks, and the federal court will consider

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whether that alleged denial of breaks resulted in a failure to pay

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overtime wages.

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Koval’s failure to do so has resulted in

Accordingly, this factor strongly favors a stay.

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3. Order in which the concurrent forums obtained
jurisdiction

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The parties agree that the state court gained jurisdiction

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first and that the action in that court “is substantially farther

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along than this action.”

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at 21 (in evaluating this factor, “priority should not be measured

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exclusively by which complaint was filed first, but rather in

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terms of how much progress has been made in the two actions”).

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Koval argues that, regardless of how far along that action is,

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“any weight given to this factor can be ameliorated by

Opp. at 8.

See Moses H. Cone, 460 U.S.

United States District Court
For the Northern District of California

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stipulations of the parties to use discovery in the California

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case in this case.”

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Opp. at 8.

While the parties may be able to reduce the effects of the

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piecemeal litigation on the litigants through a private

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arrangement--and no such agreement has been reached by the parties

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here at this time--this does not diminish its effects on the

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courts or negate the fact that the state court action has

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progressed considerably further than this case.

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The state court has invested substantial time in the action

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pending there.

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overseen several discovery disputes and considered multiple

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motions regarding the merits, including the demurrer and a motion

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by Pacific Bell to require the plaintiffs to amend their complaint

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to eliminate certain job classifications from their putative

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class.

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conference and the instant motion is the first that this Court has

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considered in this case.

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It has held multiple case management conferences,

In contrast, this Court has not had a case management

Accordingly, the Court finds that this factor favors a stay.

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4. Whether State or federal law provides the rule of
decision on the merits

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2

In the instant case, Koval asserts a claim under federal law
and a claim under state law.

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federal law issue must always be a major consideration weighing

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against surrender of jurisdiction.”

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26.

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jurisdiction over a claim, this factor becomes less significant.”

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Nakash, 882 F.2d at 1416.

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courts were capable of handling FLSA actions and specifically

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United States District Court
For the Northern District of California

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provided that such cases could be brought in either federal or

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state court.

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Safeway Inc., 2006 WL 3147687 (N.D. Cal.) (“Congress believed that

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both the state and federal courts are appropriate forums to serve

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the rights of plaintiffs in FLSA actions.”).

Koval argues that “the presence of a

Moses H. Cone, 460 U.S. at

However, “[i]f the state and federal courts have concurrent

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Here, Congress understood that state

See 29 U.S.C. § 216(b).

See also Waterbury v.

Further, as Pacific Bell points out, the resolution of the

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state law issues will reduce the federal claim in this case.

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if this Court would be required to make some separate

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determination of whether the putative collective action members

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are entitled to overtime pay under FLSA, the factual findings in

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the state court action will narrow the determinations that this

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Court must make.

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Even

Accordingly, this factor is neutral or weighs in favor of a
stay.
5. Whether the state proceeding is adequate to protect the
parties’ rights
Koval argues that the state court action is not adequate to
protect the putative collective action members’ rights under the
FLSA because, although “the State court would theoretically be

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adequate to protect Plaintiff’s FLSA claims,” Pacific Bell has not

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agreed to allow Koval and the state court plaintiffs to amend

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their state court complaint to add a FLSA claim.

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Opp. at 9.

However, as previously noted, Koval may move to amend his
state court complaint to add the FLSA claim, without Pacific

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Bell’s consent and over its objection.

Koval has provided no

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explanation for his failure to do so.

Koval concedes that the

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state court would be adequate to hear that claim.

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that Congress has seen fit to invest state courts with the

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United States District Court
For the Northern District of California

5

authority to hear such claims, this Court agrees that “the

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California state court will surely be able to protect the rights

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of the Plaintiffs in this action.”

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2006 WL 3147687 (N.D. Cal.).

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Further, given

Waterbury v. Safeway Inc.,

Additionally, Pacific Bell has moved for a stay and not a

15

dismissal of this case.

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will remain open if ‘for some unexpected reason the state forum

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does turn out to be inadequate.’”

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Dist. Hosp., 886 F.2d 241, 243 (9th Cir. 1989) (quoting Moses H.

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Cone, 460 U.S. at 243).

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A stay ensures that “the federal forum

Attwood v. Mendocino Coast

Accordingly, this factor weighs in favor of a stay.
6. Forum shopping
Pacific Bell argues that Koval is forum shopping, because he

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filed this action shortly after the state court judge sustained

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its demurrer and Koval may be seeking to avoid further adverse

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rulings in that court.

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exclude federal claims in the state court action, precluding

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removal, suggest that he is content to proceed in state court and

Koval argues that his past decisions to

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is not forum shopping by trying to bring a federal claim in

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federal court.

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Even if Koval is not forum shopping, “allowing a

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substantially similar federal action to proceed would likely

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encourage forum shopping.”

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Further, the fact that Koval only initiated the federal action

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after the state court sustained Pacific Bell’s demurrer to the

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statutory overtime claim in the case before that court suggests

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that Koval may have engaged in forum shopping.

United States District Court
For the Northern District of California

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Gintz, 2006 WL 3422222, at *7.

Thus, the Court

finds that this factor favors a stay.

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7. Summary

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Because all of the relevant factors are neutral or weigh in

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favor of a stay, the Court grants Pacific Bell’s motion and stays

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this case pending resolution of the Pacific Bell Wage and Hour

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Cases proceeding in state court.

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II.

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Equitable tolling of the FLSA claims
In a FLSA collective action, the statute of limitations for

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each individual claimant runs until he or she files a written

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consent to opt into the action.

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that, if the Court grants Pacific Bell’s motion to stay, it also

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equitably toll the FLSA statute of limitations for putative

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collective action members for the duration of the stay.

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29 U.S.C. § 256(b).

Koval asks

The Ninth Circuit has applied the doctrine of equitable

24

tolling to FLSA claims.

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Cal., Inc., 645 F.2d 757, 760 (9th Cir. 1981), abrogated on other

26

grounds by Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165

27

(1989)).

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concerns itself with the equities of dismissal for untimely filing

Partlow v. Jewish Orphans' Home of S.

The Ninth Circuit recognizes that “equitable tolling

13

1

caused by factors independent of the plaintiff.”

2

Manhattan Bank, 465 F.3d 992, 1004 (9th Cir. 2006).

3

considers “whether it would be unfair or unjust to allow the

4

statute of limitations to act as a bar to [a plaintiff’s] claim.”

5

Id.

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from asserting a claim by wrongful conduct on the part of the

7

defendant, or when extraordinary circumstances beyond the

8

plaintiff’s control made it impossible to file a claim on time.”

9

Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir. 1999).

Huynh v. Chase
Thus, a court

“Equitable tolling applies when the plaintiff is prevented

In Partlow,

United States District Court
For the Northern District of California

10

the Ninth Circuit allowed equitable tolling where the plaintiffs

11

were without fault and there were “substantial policy reasons” for

12

doing so.

13

645 F.2d at 760-61.

Pacific Bell argues that “an anticipatory request for tolling

14

is inappropriate,” because Koval cannot represent the putative

15

class members until they have opted into the FLSA action and

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because “until a claimant actually opts in, it is impossible to

17

know whether it was impossible for him or her to file a claim on

18

time.”

Reply at 10.

19

However, “[c]ourts have equitably tolled the statute of

20

limitations in a FLSA action when doing so is in the interest of

21

justice.”

22

31206, at *4 (N.D. Cal. 2007) (citing Partlow, 645 F.2d at 760-61;

23

Beauperthuy v. 24 Hour Fitness USA, Inc., 2007 U.S. Dist. LEXIS

24

21315, at *8 (N.D. Cal.)).

25

of this court prospectively tolled the putative class members for

26

the duration of a stay while the California Supreme Court

27

considered Gentry v. Superior Court.

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163.

Castle v. Wells Fargo Fin., Inc., 2007 U.S. Dist. LEXIS

In Castle, for example, another judge

Case No. 06-4347, Docket No.

In so holding, the court rejected the defendant’s argument
14

1

that the court cannot toll the FLSA statute of limitations for

2

prospective plaintiffs, noting that the Ninth Circuit has never

3

applied such a rule in a FLSA case.

4

within this district have applied equitable tolling prospectively

5

where the court’s discretionary case management decisions have led

6

to procedural delay beyond the control of the putative collective

7

action members.

8

U.S. Dist. LEXIS 136170, at *6-7 (N.D. Cal.), a judge of this

9

court tolled the statute of limitations during the pendency of the

Id. at 2 n.1.

Other courts

For example, in Helton v. Factor 5, Inc., 2011

United States District Court
For the Northern District of California

10

plaintiffs’ motion for conditional FLSA certification for

11

claimants wishing to join the action because the court had

12

previously deferred the motion, although the plaintiffs were

13

prepared to file it, in favor of requiring the parties to

14

participate in a mandatory settlement conference.

15

Id. at *6-7.

Similarly, here, Koval is ready to proceed in this action.

16

He, however, has not sought to proceed on these claims in the

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state court action.

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discretion to stay the federal case at Pacific Bell’s request, it

19

also equitably tolls the statute of limitations for the putative

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collective action members from the date of the filing of the

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instant federal action through the date on which the stay is

22

lifted, on the condition that Koval promptly moves for leave to

23

amend the state court complaint to add his FLSA claim to that

24

action.

Because the Court chooses to use its

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CONCLUSION

26

For the reasons set forth above, the Court GRANTS Pacific

27

Bell’s motion to stay pending resolution of the Pacific Bell Wage

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and Hour Cases in the Alameda County Superior Court.
15

The Court

1

also equitably tolls the FLSA statute of limitations for putative

2

collective action members from the date on which Koval filed the

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instant federal action through the date on which the stay is

4

lifted, provided that Koval promptly moves to add his FLSA claim

5

to the state court complaint.

6

The parties shall notify the state court of the pendency of

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this action and of this Order.

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the motion to add the FLSA claim to the state court action, the

9

parties shall promptly notify this Court of the result.

When the state court has ruled on

The

United States District Court
For the Northern District of California

10

parties shall also notify this Court when the state court action

11

has been resolved.

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The case management conference set for August 22, 2012 is
VACATED.
IT IS SO ORDERED.

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Dated:

8/10/2012

CLAUDIA WILKEN
United States District Judge

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