Kellgren v. Petco Animal Supplies, Inc. et al
Filing
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ORDER Granting in Part and Denying in Part Joint 179 Motion Regarding Defendants Petco Animal Supplies, Inc., and Petco Holdings, Inc.'s Motion to Dismiss Certain Opt-In Plaintiffs for Failure to Respond to Discovery and Comply with Court Orders. The Court grants the parties leave until on or before January 23, 2017 to file a Joint Motion to Dismiss or Compel. Signed by Magistrate Judge Karen S. Crawford on 11/23/16. (dlg).
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FILED
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NOV 2 3 2016
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BY
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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ERIK KELLGREN, individually and on
behalf of all others similarly situated,
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ORDER GRANTING IN PART AND
DENYING IN PART JOINT
MOTION REGARDING
DEFENDANTS PETCO ANIMAL
SUPPLIES, INC., AND PETCO
HOLDINGS, INC.’S MOTION TO
DISMISS CERTAIN OPT-IN
PLAINTIFFS FOR FAILURE TO
RESPOND TO DISCOVERY AND
COMPLY WITH COURT ORDERS
Plaintiffs,
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Case No.: 3:13cv644L(KSC)
v.
PETCO ANIMAL SUPPLIES, INC.;
PETCO HOLDINGS, INC.; and DOES 1
to 100, inclusive 9 9
Defendants.
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[Doc. No. 179]
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Before the Court is a Joint Motion Regarding Petco Animal Supplies, Inc., and Petco
Holding, Inc.’s (“Defendants”) Motion to Dismiss Certain Opt-In Plaintiffs for Failure to
Respond to Discovery and Comply with Court Orders filed by defendants. [Doc. No. 179.]
Defendants seek a Court Order that: (1) dismisses with prejudice the Non-Responsive OptIn plaintiffs for failure to respond to discovery and failure to prosecute their claims; or, in
the alternative, (2) compels the Non-Responsive Opt-In plaintiffs to respond to discovery
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within thirty days of the date of this Order or face dismissal with prejudice. Id. at p. 5. Also,
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counsel for plaintiffs seek leave from the Court to withdraw as counsel for certain Non-
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Responsive Opt-Ins. Id. at p. 18. For the reasons addressed more thoroughly below, the
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Joint Motion is GRANTED in part and DENIED in part. [Doc. No. 179.]
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I. BACKGROUND
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employed as Assistant Managers in defendants’ stores claim to have been misclassified as
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“exempt” from the overtime provisions of the Fair Labor Standards Act of 1938,29 U.S.C.
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201, etseq. (“FLSA”). The central issues in the case relate to the duties plaintiffs performed
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in the course of their employment, and whether they worked over 40 hours a week during
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This is a collective action in which plaintiffs Erik Kellgren (“Kellgren”) and others
the relevant time frame.
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II.
DISCUSSION
a) Defendants’ Request To Dismiss With Prejudice The Non-Responsive
Plaintiffs For Failure To Respond To Discovery And Failure To Prosecute
Their Claims.
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The instant dispute concerns certain provisions in the Scheduling Order issued by
this Court on March 29, 2016 [Doc. No. 117] and a subsequent Order issued on August 1,
2016 modifying the March 29, 2016 Scheduling Order. [Doc. No. 168.] Pursuant to the
August 1, 2016 Order, defendants could serve limited written discovery on up to 25%, or
118, of the opt-in class of plaintiffs (“Discovery Opt-Ins”). [Doc. No. 168, p. 7; Doc. No.
179, p. 6.]
Defendants assert that after the August 1, 2016 Order was issued, the parties
developed a process for selecting the representative group of 118 Discovery Opt-Ins to
respond to defendants limited written discovery. [Doc. No. 179, p. 6.] Defendants assert
that the parties agreed that the Discovery Opt-Ins would serve written responses to
defendants’ discovery in four batches, on dates beginning on September 7, 2016 and
concluding on October 21,2016. Id. at p. 7. Defendants subsequently agreed to extensions
for some of the deadlines. Id. As of October 26, 2016, the deadlines for responses passed
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for all of the original 118 Discovery Opt-Ins, but the parties had met and conferred only as
2 to the first three batches of Discovery Opt-Ins, consisting of 94 individuals.1 Id. Of the 94
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Discovery Opt-Ins, defendants identify a group of eighteen “Non-Responsive Opt-Ins” in
4 their Motion for whom they now seek dismissal, with prejudice.2 Id. at pp. 5, 8.
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In the Joint Motion, counsel for the Discovery Opt-Ins, Klafter Olsen & Lesser, LLP
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(“KOL”) and Hepworth, Gershbaum and Roth PLLC (“HGR”) (together as “Plaintiffs’
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Counsel”), seek leave from the Court to withdraw as counsel for certain Non-Responsive
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Opt-Ins. Id. at p. 18. Plaintiffs’ counsel asserts that they “are not in a position to respond
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10 Non-Responsive Opt-Ins.” Id. Plaintiffs’ counsel asserts that:
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In light of the cross-motion to withdraw, Plaintiffs (excluding the NonResponsive Opt-ins) take no position on the propriety of the next steps,
including Defendants’ position that the Non-Responsive Opt-ins’ claims
should be dismissed. While such a dismissal order would, in Plaintiffs’
counsel’s experience, not be unusual, Plaintiffs’ counsel believes that, as has
most often been done, any such dismissal should be without prejudice.
Id. atpp. 20-21.
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Plaintiffs further suggest that:
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[W]aiting until all the discovery responses are due, on December 5, 2016,
prior to issuance of a final order is a better approach, rather than multiple,
piecemeal motions on the same topic. Waiting to address dismissal, will also
enable the Court to determine whether other Non-Responsive Opt-[I]ns exist
and will allow it to ensure that the final number of discovery opt-ins is
consistent with the numbers contained within the Court’s August 1, 2016
Order.
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Defendants note that they have not had an opportunity to analyze the Discovery Opt-ins responses
received after October 21, 2016, and thus the parties have not met and conferred about any deficiencies
in those responses. [Doc. No. 179, p. 7.] Defendants further note that they bring this Motion as to all
Non-Responsive Discovery Opt-ins who have been identified and about whom the parties have met and
conferred as of October 26,2016. Id. Defendants anticipate that they may have to file a future motion to
dismiss if additional individuals fail to timely respond to the discovery at issue. Id.
2 Defendants note that if the Court does not have authority to dismiss the claims outright, they request
that the Court issue a Report and Recommendation to the District Judge recommending dismissal of the
Non-Responsive Opt-ins’ claims. Id. at p. 5.
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Id. atp. 21.
The defense anticipates filing a future motion to dismiss based on its analysis and
meet and confer efforts of the responses received on October 24, 2016 and October 25,
2016, and/or if additional individuals fail timely to respond. Id. at p. 7. The defense notes
that it filed the instant Motion in accordance with the due date provided in Section V of the
Court’s Chamber Rules -- Civil Pretrial Procedures. Id. As provided therein, “[u]nless
otherwise ordered, discovery motions shall be filed no later than 45 days after the event
giving rise to the dispute and only after counsel have met and conferred. ... For written
discovery, the event giving rise to the dispute is . .. the passage of a discovery due date
without response or production.” [Judge Crawford’s Civil Chambers Rules, Section V, A,
at p. 4.]
Having considered the parties’ arguments, the Court DENIES defendants’ request
to dismiss with prejudice the claims of eighteen Non-Responsive Opt-In plaintiffs who
have failed to timely respond to Petco’s discovery requests. The Court notes that it does
not have the authority to dismiss the claims outright, but DENIES defendants’ request to
issue a Report and Recommendation to the District Judge recommending dismissal of the
Non-Responsive Opt-Ins’ claims at this time.
b) Defendants’ Request To Compel The Non-Responsive Opt-In Plaintiffs To
Respond To Discovery Within Thirty Days Of The Date Of This Order Or
Face Dismissal With Prejudice.3
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In the alternative to its request for dismissal, defendants seek an Order pursuant to
FRCP 37(a)(3)(B), “to be personally served on the Non-Responsive Opt-Ins by their
counsel, compelling the Non-Responsive Opt-Ins to Respond to [defendants’] written
discovery requests within thirty days of the date of the order, and explicitly stating that a
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3 Defendants note that the instant Motion is brought within 45 days of the date the first group of NonResponsive Opt-Ins failed timely to respond to defendants’ discovery requests, as required by this Court’s
Chambers Rules. Id. at p. 9.
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failure to comply will result in dismissal of their claims with prejudice pursuant to
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37(b)(2)(A).” Id. at p. 16. Defendants assert that the identified Non-Responsive Opt-Ins
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are plaintiffs who “failed to submit discovery responses, and whom Plaintiffs’ counsel has
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identified as non-responsive.” Id. at p. 8.
This Court finds good cause to provide the Non-Responsive Opt-Ins a final
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opportunity to comply with their discovery obligations.
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GRANTS defendants’ request to compel the Non-Responsive Opt-In plaintiffs to respond
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to defendants’ written discovery requests within thirty days of the date of this Order. The
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Court hereby notifies the Non-Responsive Opt-In plaintiffs and their counsel that failure
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to respond to defendants’ written discovery requests within thirty days of the date of this
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Order will result in this Court issuing a Report and Recommendation for dismissal of the
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Nori-Responsive Opt-In plaintiffs’ claims with prejudice pursuant to Rule 37(b)(2)(A).
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The Court ORDERS plaintiffs’ counsel, pursuant to FRCP 37(a)(3)(B), to personally
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serve a copy of this Order on the Non-Responsive Opt-In plaintiffs, with return receipt
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requested.
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Consequently, the Court
Regarding any anticipated future Joint Motions to Dismiss or Compel additional
17 Non-Responsive Opt-In plaintiffs [Doc. No. 179, pp. 7, 10], in the interest of judicial
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19 2017 to file such a Motion. The parties shall file a single Joint Motion to Dismiss or Compel
20 the additional Non-Responsive Opt-In plaintiffs, limited to 20 pages or less. The parties
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are required to have met and conferred pursuant to the District Local Rules, and this Court’s
22 Chamber Rules before filing the anticipated Joint Motion to Dismiss or Compel on or
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c) Plaintiffs’ Counsel’s Request To Withdraw As Counsel For Certain NonResponsive Opt-In Plaintiffs.
To the extent that plaintiffs’ counsel seeks leave from the Court to withdraw as
counsel for certain Non-Responsive Opt-Ins [Doc. No. 179, p. 18], plaintiffs must file a
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separate motion before the District Court Judge assigned to this matter. Accordingly,
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plaintiffs’ motion to withdraw as counsel for certain Non-Responsive Opt-Ins is DENIED
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without prejudice.
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III.
CONCLUSION
For the foregoing reasons, the Joint Motion is GRANTED in part and DENIED in
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part. [Doc. No. 179.]
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The Court DENIES defendants’ request to dismiss with prejudice the claims
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of eighteen Non-Responsive Opt-In plaintiffs who have failed to timely
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respond to Petco’s discovery requests. The Court notes that it does not have the
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authority to dismiss the claims outright, but DENIES defendants’ request to
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issue a Report and Recommendation to the District Judge recommending
dismissal of the Non-Responsive Opt-Ins’ claims.
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2.
The Court GRANTS defendants’ request to compel the Non-Responsive Opt-
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In plaintiffs to respond to defendants’ written discovery requests within thirty
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days of the date of this Order. The Court hereby notifies the Non-Responsive
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Opt-In plaintiffs and their counsel that failure to respond to defendants’ written
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discovery requests within thirty days of the date of this Order will result in this
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Court issuing a Report and Recommendation for dismissal of the Non-
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Responsive Opt-In plaintiffs’ claims with prejudice pursuant to 37(b)(2)(A).
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The Court ORDERS plaintiffs’ counsel, pursuant to FRCP 37(a)(3)(B), to
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personally serve a copy of this Order on each Non-Responsive Opt-In plaintiff,
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with return receipt requested.
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3.
The Court GRANTS the parties leave until on or before January 23.2017 to
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file a Joint Motion to Dismiss or Compel the additional Non-Responsive Opt-
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In plaintiffs. The parties shall file a single Joint Motion to Dismiss or Compel
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the additional Non-Responsive Opt-In plaintiffs, limited to 20 pages or less.
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4.
The Court DENIES without prejudice plaintiffs’ motion to withdraw as
counsel for certain Non-Responsive Opt-Ins.
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IT IS SO ORDERED.
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Date: November
2016
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KAREN/S/CRAWFORD
United 'States Magistrate Judge
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