Soto v. Diakon Logistics (Delaware), Inc. et al
Filing
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ORDER granting 191 Plaintiff's Motion to Commence PAGA-Related Discovery. The Court will hold a telephonic Case Management Conference on December 13, 2012 at 4:00 p.m. IT IS FURTHER ORDERED that a JOINT discovery plan re: PAGA-related discovery shall be lodged with Magistrate Judge McCurines chambers Signed by Magistrate Judge William McCurine, Jr on 12/4/2012. (sjt)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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JOSUE SOTO et al.,
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Plaintiffs,
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v.
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DIAKON LOGISTICS (DELAWARE), INC., )
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Defendant.
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Case No. 08 CV 33 L (WMc)
ORDER GRANTING PLAINTIFFS’
MOTION TO COMMENCE PAGARELATED DISCOVERY
[ECF No. 191.]
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I. Background
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The matter before the Court is Plaintiffs’ motion to commence discovery under the
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California Labor Code Private Attorney General Act of 2004 (“PAGA”). [ECF No. 191.]
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Plaintiffs have brought the instant action as a class action on behalf of similarly situated drivers
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throughout California and as a representative action under the PAGA. In their motion, Plaintiffs
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move to begin formal discovery of PAGA-related issues now that class-related discovery has
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concluded and their motion for class certification is on file with Judge Lorenz. [ECF No. 191 at
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2.] Plaintiffs seek to move forward with PAGA-related discovery in order to avoid delay and
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spoliation of evidence. [ECF No. 194 at 3.]
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Defendant opposes Plaintiffs’ motion arguing good cause is required to begin PAGA-
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related discovery under a now outdated Scheduling Order issued in April of 2009, which simply
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states: “Counsel have met and provided a proposed scheduling plan for the case addressing first
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the issue of class certification, with the merits to follow.” [ECF No. 69 at 1; ECF No. 192 at 2.]
08cv33 L (WMc)
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Defendant also objects to discovery on the grounds that: (1) Plaintiffs must satisfy the
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requirements imposed by Rule 23 of the Federal Rules of Civil Procedure governing class action
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certification (ECF No. 192 at 3); and (2) Plaintiffs’ PAGA claim is invalid for failure to exhaust
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administrative remedies. [ECF No. 192. at 4.]
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In support of their motion to commence discovery, Plaintiffs reply that their motion is in
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keeping with the guidelines proposed in the April 2009 Scheduling Order. Although the Court
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advises Defendant that the opposition brief of a motion to compel is an inappropriate forum in
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which to challenge the validity of Plaintiffs’ PAGA claim, Plaintiff has nevertheless provided
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exhibits with their reply brief, which demonstrate on their face compliance with the notice
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requirements necessary to bring a PAGA claim. Finally in reply, Plaintiffs notes that while the
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Ninth Circuit has yet to decide whether Rule 23 certification applies to PAGA claims, the
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majority view holds PAGA actions do not require Rule 23 certification because unlike class
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actions, actions under the PAGA are designed to protect the public from illegal conduct as an
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extension of California’s labor law enforcement agencies and are not for the benefit of the party
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bringing the action. [ECF No. 194 at 4.]
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II. Discussion
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A. Plaintiffs Have Demonstrated Diligent Compliance With The Outdated
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Scheduling Order And Have Shown Good Cause, Even Though Not Required, To Move
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Forward With Discovery
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The Court will only modify dates set forth in a scheduling order upon a showing of good
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cause by the moving party. Fed. R. Civ. P. 16. Accordingly, under Rule 16 of the Federal Rules
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of Civil Procedure, the court is required to issue a scheduling order as soon as practicable, and
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the order “must limit the time to join other parties, amend the pleadings, complete discovery, and
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file motions.” Fed.R.Civ.P. 16(b)(3)(A). Once a scheduling order has been filed pursuant to
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Rule 16, the “schedule may be modified only for good cause and with the judge's consent.”
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Fed.R.Civ.P. 16(b)(4). “ Rule 16(b)'s ‘good cause’ standard primarily considers the diligence of
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the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609
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(9th Cir.1992).
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08cv33 L (WMc)
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The Scheduling Order proposing the sequence of discovery in the instant case was issued
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in April of 2009, before Judge McCurine was assigned to the matter. The April 2009 Scheduling
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Order does not elaborate on the timing of PAGA-related discovery other than to state: “Counsel
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have met and provided a proposed scheduling plan for the case addressing first the issue of class
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certification, with the merits to follow.” [ECF No. 69 at 1; ECF No. 192 at 2.] Accordingly, the
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Court finds Plaintiffs’ request to commence PAGA-related discovery now that the class
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certification motion has been filed is reasonable and in keeping with the language of the April
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2009 Scheduling Order.
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In addition, the deadlines listed in the April 2009 Scheduling Order occurred in 2009 and
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have long passed. As a result, the Court finds Plaintiffs’ request for discovery is not a motion for
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modification of the scheduling order requiring good cause. Furthermore, even if good cause
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were required, Plaintiffs have shown good cause for moving forward with PAGA-related
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discovery. There is no argument that Plaintiffs have not been diligent in their prosecution of this
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case. Nevertheless, this case is three-years-old. In order to use the time efficiently, prevent
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further delay and preserve evidence, the second phase of discovery as contemplated by the
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parties should begin. This result is particularly fitting considering the fact that Plaintiffs’ PAGA
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claim may proceed as a non-class representative action regardless of whether classwide claims
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are certified by the District Judge.
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B. Overview of Non-class representative PAGA actions
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In 2009, the California Supreme Court held that a representative action under PAGA did
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not have to satisfy class action requirements in the state courts. See Arias v. Superior Court, 46
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Cal. 4th 969, 975 (2009). The California Supreme Court found that due process did not require
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class certification because a plaintiff bringing a PAGA claim acts “as the proxy or agent of the
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state’s law labor enforcement agencies.” Id. at 986. Following this state supreme court holding,
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federal district courts faced with the issue of determining whether a California PAGA claim must
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meet the Rule 23 class certification requirements have been split. See McKenzie v. Fed. Exp.
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Corp., 765 F.Supp.2d 1222, 1233 (C.D. Cal.2011) (listing California district courts holding class
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certification requirements of Rule 23 do not apply to PAGA claims). Moreover, the Ninth
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08cv33 L (WMc)
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Circuit has not decided the issue. Of the district courts considering the issue, only a minority
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have held that Rule 23 applies to PAGA claims. The majority of district courts have held that
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PAGA actions, although representative, do not need to be brought as class actions in light of the
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fact that PAGA operates as a law-enforcement mechanism as opposed to an action which
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conveys a private benefit on the named plaintiff and those represented. See e.g. Thomas v. Aetna
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Health of Cal., Inc., 2011 WL 2173715, at *12-13 (E.D. Cal. June 2, 2011) (explaining “while
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the Ninth Circuit has not addressed these issue, the majority view among the district courts
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following Arias creates the following framework: (1) PAGA actions must be filed as
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representative actions on behalf of current or former aggrieved employees; (2) while PAGA
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actions may be brought as class actions, Rule 23 certification is not necessary to the extent
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PAGA actions are brought in a non-class representative capacity; and (3) prudential standing
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concerns as to non-class representative PAGA suits are either satisfied ... or inapplicable....”).
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Plaintiffs move to proceed with discovery on their PAGA claim. [First Amended
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Complaint, ECF No. 28 at 19-25.] Specifically, Plaintiffs propose limited interrogatories and
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depositions and requests for production concerning driver settlement statements and supporting
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documents. [ECF No. 191 at 4.] Given that the majority of district courts which have held Rule
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23 certification is not necessary for PAGA actions brought in a non-class representative capacity,
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the Court finds it is in the interest of efficient case management in this three-year-old case to
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allow the parties to begin PAGA-related discovery now that class-based discovery is complete
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and the motion for class certification is pending. Moreover, Plaintiffs have indicated that
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regardless of the outcome of the motion for class certification, the instant action will proceed as
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non-class representative action under PAGA.1 [ECF No. 191 at 4.] Accordingly, there is no
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justification for delaying further discovery pending the outcome of the class certification motion.
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Defendant also argues Plaintiffs’ PAGA claim is invalid for failure to exhaust administrative remedies.
The Court does not rule on the validity of the First Amended Complaint’s PAGA claim in a motion to compel
discovery.
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III. Conclusion
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Plaintiff’s Motion for Leave to Commence PAGA Discovery is GRANTED. The Court will
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hold a telephonic Case Management Conference on December 13, 2012 at 4:00 p.m. Counsel for
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Plaintiff shall contact all opposing counsel appearing in the case on the day and at the time indicated
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above and then initiate a joint call to the Court at (619) 557-6624.
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IT IS FURTHER ORDERED that a JOINT discovery plan re: PAGA-related discovery
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shall be lodged with Magistrate Judge McCurine’s chambers at efile_mccurine@casd.uscourts.gov.
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on or before December 10, 2012.
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IT IS SO ORDERED.
DATED: December 4, 2012
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Hon. William McCurine, Jr.
U.S. Magistrate Judge, U.S. District Court
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08cv33 L (WMc)
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