Kilby v. CVS Pharmacy, Inc.

Filing 216

ORDER Denying 193 Plaintiff's Motion to Dismiss or in the Alternative Stay This Action. The Court declines to exercise its discretion to stay these proceedings. Accordingly, the Court denies Plaintiff's motion. The Court will issue a separate written ruling on CVS's pending motion for summary judgment in due course. Signed by Judge Michael M. Anello on 12/5/2017. (rmc)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

Case No.: 09cv2051-MMA (KSC)

NYKEYA KILBY,
Plaintiff,

12
13

v.

14

ORDER DENYING PLAINTIFF’S
MOTION TO DISMISS OR IN THE
ALTERNATIVE STAY THIS
ACTION

CVS PHARMACY, INC.,
Defendant.

15
16

[Doc. No. 193]

17
18
19

Plaintiff Nykeya Kilby brings this putative class action to recover penalties

20

pursuant to the California Labor Code Private Attorney General Act of 2004 (“PAGA”)

21

against Defendant CVS Pharmacy, Inc. (“CVS”), her former employer. Plaintiff moves

22

to dismiss her lawsuit without prejudice, or in the alternative, to stay these proceedings

23

pending the outcome of a similar state court lawsuit. See Doc. No. 193. CVS filed an

24

opposition to the motion, to which Plaintiff replied. See Doc. Nos. 197, 201. In her

25

reply, Plaintiff withdraws her motion for dismissal and requests the Court stay this action.

26

The Court granted CVS leave to file a sur-reply in support of its opposition to Plaintiff’s

27

motion. See Doc. No. 211. For the reasons set forth below, the Court DENIES

28

Plaintiff’s motion.
1
09cv2051-MMA (KSC)

1
2

BACKGROUND
Plaintiff Nykeya Kilby previously worked at a CVS store as a “Customer Service

3

Representative,” i.e., a clerk/cashier, for approximately eight months. Plaintiff seeks

4

civil penalties against CVS based on CVS’s alleged violation of Section 14 of Industrial

5

Welfare Commission (“IWC”) Wage Order 7-2001, which applies to retailers such as

6

CVS. Specifically, Plaintiff alleges that CVS fails to provide its clerk/cashiers with

7

suitable seats while operating cash registers at the front end, or retail, section of CVS

8

stores, contrary to Section 14(A). According to Plaintiff, this in turn violates California

9

Labor Code § 1198 and entitles her to recover penalties under Section 2699(f) of PAGA.

10

In April 2012, the Court denied Plaintiff’s motion to certify a class of former and

11

current CVS clerk/cashiers who operated front end cash registers and were not provided

12

suitable seats while doing so. See Doc. No. 131. Subsequently, the Court granted CVS’s

13

motion for summary judgment in its favor as to the merits of Plaintiff’s PAGA claim.

14

See Doc. No. 136. Plaintiff appealed both rulings. See Doc. No. 139. After seeking

15

guidance from the California Supreme Court regarding the correct interpretation of

16

Section 14(A), the United States Court of Appeals for the Ninth Circuit reversed this

17

Court’s previous rulings and remanded the action for reconsideration in light of the

18

California Supreme Court’s opinion in Kilby v. CVS Pharmacy, Inc., 368 P.3d 554 (Cal.

19

2016). See Doc. Nos. 147, 155.

20

On August 22, 2016, the Court resumed jurisdiction over these proceedings. The

21

parties participated in a case management conference with the assigned magistrate judge,

22

who subsequently issued a scheduling order setting a class discovery deadline and filing

23

deadline for Plaintiff’s anticipated motion for class certification. See Doc. No. 159. The

24

record reflects that thereafter, multiple discovery disputes ensued. See Doc. Nos. 160,

25

167, 173, 178. The assigned magistrate judge issued a series of orders resolving the

26

pending disputes, as well an amended scheduling order extending the class discovery

27

deadline. See Doc. Nos. 181-85. The amended scheduling order also set expert

28

discovery deadlines, as well as an August 28, 2017 deadline for Plaintiff to file a motion
2
09cv2051-MMA (KSC)

1

for class certification. See Doc. No. 185. Another discovery dispute arose, and on July

2

10, 2017, Plaintiff sought a temporary vacatur, or in the alternative, a further extension of

3

the discovery and motion filing deadlines. See Doc. Nos. 188, 189. This latest discovery

4

dispute, as well as the request for relief from the amended scheduling order, remain

5

pending before the assigned magistrate judge.

6

On August 28, 2017, in lieu of a motion for class certification, Plaintiff filed the

7

instant motion to dismiss this action without prejudice pursuant to Federal Rule of Civil

8

Procedure 41(a)(2), or alternatively, to stay the action pending the outcome of similar

9

litigation in state superior court. Plaintiff argues that CVS has obstructed the production

10

of class discovery, such that Plaintiff was unable to file a properly supported motion for

11

class certification. Plaintiff initially preferred dismissal of the action without prejudice,

12

based on CVS’s actions, the unresolved nature of the most recent discovery dispute, and

13

the absence of relief from the relevant discovery and filing deadlines. In the alternative,

14

Plaintiff requested the Court stay the case pending the outcome of the state court

15

litigation. CVS filed an opposition to Plaintiff’s motion, ardently disagreeing with

16

Plaintiff’s characterization of the post-remand proceedings. In reply, Plaintiff withdrew

17

her motion to dismiss the action, and she now solely seeks a stay of the case. CVS

18

opposes staying the case.

19
20

DISCUSSION
Plaintiff seeks a stay of these proceedings pending the outcome of Reed v. CVS

21

Pharmacy, Inc., Case No. RG17855592, filed in Alameda County Superior Court.

22

According to Plaintiff, Reed involves an identical claim against CVS for damages under

23

PAGA based on CVS’s purported violation of Section 14(A) of the wage order. The

24

Reed action is currently stayed pending the outcome of this litigation. Nevertheless,

25

Plaintiff asserts that state court is a more appropriate forum for resolution of the suitable

26

seating issues. Plaintiff also points out that the Reed action includes a second claim

27

under Section 14(B) of the wage order. Plaintiff asserts that it is more efficient for the

28

two claims to be adjudicated in a single action, in a single forum. CVS counters that
3
09cv2051-MMA (KSC)

1

Plaintiff is attempting to engage in blatant forum shopping, motivated by her

2

dissatisfaction with the assigned magistrate judge’s discovery rulings.

3
4

1. Legal Standard
“A district court has discretionary power to stay proceedings in its own court under

5

Landis v. North American Co.” Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir.

6

2005) (citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). “The power to stay a case

7

is ‘incidental to the power inherent in every court to control the disposition of the causes

8

on its docket with economy of time and effort for itself, for counsel, and for litigants.’”

9

Halliwell v. A-T Sols., 2014 WL 4472724, at *7 (S.D. Cal. Sept. 10, 2014) (quoting

10

Landis, 299 U.S. at 254). A district court may stay a case “pending resolution of

11

independent proceedings which bear upon the case,” even if those proceedings are not

12

“necessarily controlling of the action before the court.” Leyva v. Certified Grocers of

13

Cal., Ltd., 593 F.2d 857, 863–64 (9th Cir. 1979). However, “[o]nly in rare circumstances

14

will a litigant in one cause be compelled to stand aside while a litigant in another settles

15

the rule of law that will define the rights of both.” Landis, 299 U.S. at 255.

16

In determining whether to grant a stay pursuant to Landis, courts weigh the

17

“competing interests which will be affected by the granting or refusal to grant a stay,”

18

including “the possible damage which may result from the granting of a stay, the

19

hardship or inequity which a party may suffer in being required to go forward, and the

20

orderly course of justice measured in terms of the simplifying or complicating of issues,

21

proof, and questions of law which could be expected to result from a stay.” See Lockyer,

22

398 F.3d at 1110 (quoting CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962)). The

23

burden is on the movant to show that a stay is appropriate. See Clinton v. Jones, 520 U.S.

24

681, 708 (1997).

25
26

2. Analysis
The Court finds that a stay of these proceedings would not promote “the orderly

27

course of justice.” Lockyer, 398 F.3d at 1110. Rather, a stay based on nascent state court

28

proceedings which are currently stayed in deference to this action – while within the
4
09cv2051-MMA (KSC)

1

Court’s discretion – would simply be inefficient. Furthermore, the Court is not

2

convinced that state court provides a better forum for the adjudication of the issues in this

3

case, particularly since both state and federal courts in California now have the benefit of

4

the California Supreme Court’s interpretation of Section 14(A) of the wage order.

5

In addition, Plaintiff fails to demonstrate that she will suffer some particular

6

“hardship or inequity . . . in being required to go forward” with this case. Id. Plaintiff’s

7

argument regarding prejudice resulting from the split litigation of claims under Sections

8

14(A) and 14(B) is a non sequitur. Plaintiff is not a party in the Reed action, and Plaintiff

9

does not bring a claim in this case against CVS based on Section 14(B) of the wage order.

10

The litigation of such a claim by a different litigant in a different forum at some time in

11

the future does not prejudice Plaintiff in this action.

12

Plaintiff also raises – in a footnote – the potential absence of subject matter

13

jurisdiction under the Class Action Fairness Act (“CAFA”) of 2005, codified at 28 U.S.C.

14

§ 1332(d), based on developments in the interpretation of PAGA claims in relation to

15

CAFA since the initiation of this action approximately eight years ago. See Pl. Memo. at

16

14, n.9. However, if Plaintiff wished to launch a serious challenge to this Court’s subject

17

matter jurisdiction, she could have moved for such relief – lack of subject-matter

18

jurisdiction is never waived, and the issue may be raised at any time. Attorneys Trust v.

19

Videotape Computer Products, Inc., 93 F.3d. 593, 594-95 (9th Cir. 1996).

20

In any event, the Court is satisfied that it has subject matter jurisdiction over this

21

action. Subsequent to the filing of this action, the Ninth Circuit clarified that a PAGA

22

action removed from state court does not trigger CAFA jurisdiction if the plaintiff does

23

not bring the PAGA claim on behalf of a class of similarly situated individuals. See

24

Baumann v. Chase Inv. Servs. Corp., 747 F.3d 1117, 1122-23 (9th Cir. 2014). In other

25

words, an individual plaintiff does not transform an action into a class action simply by

26

alleging a PAGA claim against the defendant. This is consistent with the California

27

Supreme Court’s holding that while “[a]ctions under [PAGA] may be brought as class

28

actions,” a plaintiff is not required to do so. Arias v. Superior Court, 46 Cal. 4th 969, 981
5
09cv2051-MMA (KSC)

1

n.5 (2009). Here, Plaintiff brought her PAGA claim on behalf of herself and “[a]ll

2

persons who, during the applicable statute of limitations, were employed by CVS as

3

Customer Service Representatives, Cashiers, Clerks, or in a similar position that regularly

4

involves or did involve the operation of a cash register, and were not provided with a

5

seat,” vesting this Court with subject matter jurisdiction under CAFA. Pl. FAC ¶ 6; see

6

28 U.S.C. 1332(d).

7
8
9
10
11
12
13

CONCLUSION
Based on the foregoing, the Court declines to exercise its discretion to stay these
proceedings. Accordingly, the Court DENIES Plaintiff’s motion. The Court will issue a
separate written ruling on CVS’s pending motion for summary judgment in due course.
IT IS SO ORDERED.
DATE: December 5, 2017

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
09cv2051-MMA (KSC)