Carrington v. Starbucks Corporation et al

Filing 14

ORDER Denying 9 Defendant's Motion to Dismiss. Signed by Judge Dana M. Sabraw on 11/21/2017. (aef)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KILEIGH CARRINGTON, individually and on behalf of members of the general public similarly situated, CASE NO. 16cv3074 DMS (KSC) ORDER DENYING DEFENDANT’S MOTION TO DISMISS Plaintiff, v. STARBUCKS CORPORATION, a Washington Corporation; and DOES 1-10, inclusive, Defendant. This case comes before the Court on Defendant’s motion to dismiss the Complaint. Plaintiff filed an opposition to the motion, and Defendant filed a reply. For the reasons set out below, the motion is denied. I. BACKGROUND In June 2014, Plaintiff Carrington filed a claim against Defendant Starbucks in state court under the Private Attorneys General Act ("PAGA") challenging Starbucks's meal break practice ("Carrington I"). Defendant removed that case to this Court, (Case No. 14cv1763 BAS(MDD)), but the case was remanded to state court. On October 24, 2016, trial commenced in Carrington I, and the court found in favor of Carrington on liability. The trial court awarded penalties on December 19, 2016, and entered judgment in favor of Carrington on July 20, 2017. -1- 16cv3074 1 While Carrington I was pending, Plaintiff commenced this lawsuit, which also 2 challenges Defendant's meal break policy. Although Federal Rule of Civil Procedure 3 4(m) required Plaintiff to serve the summons on Defendant with 90 days of filing the 4 Complaint, or by March 21, 2017, Plaintiff did not do so. Thus, on August 25, 2017, 5 this Court issued a notice of a hearing under Rule 4(m) regarding dismissal of the case 6 for want of prosecution. Plaintiff thereafter served Defendant on August 31, 2017. On 7 September 12, 2017, Plaintiff's counsel submitted a declaration explaining the reasons 8 for the delay in service. On the same day, the Court vacated the Rule 4(m) hearing. 9 Defendant now moves to dismiss the case for insufficient service of process pursuant 10 to Federal Rule of Civil Procedure 12(b)(5). 11 II. 12 DISCUSSION 13 Federal Rule of Civil Procedure 4(m) provides: 14 If a defendant is not served within 90 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 15 16 17 18 Fed. R. Civ. P. 4(m). Here, there is no dispute Plaintiff did not serve Defendant within 19 the 90 days provided for in the Rule. The only dispute is whether Plaintiff has shown 20 good cause for her failure to do so and whether the Court should exercise its discretion 21 to allow for late service. 22 Defendant argues Plaintiff cannot demonstrate good cause for her failure to 23 timely serve the Complaint because the failure was intentional. There is case law in the 24 Ninth Circuit that supports this argument. See Fimbres v. United States, 833 F.2d 138 25 (9th Cir. 1987). In that case, the Ninth Circuit held "plaintiffs' assertion that they 26 intentionally failed to effect service within 120 days because they did not want to 27 trigger pretrial and discovery deadlines and might be unable to prosecute the action in 28 the foreseeable future does not constitute good cause under Rule 4(j)." Id. at 139. -2- 16cv3074 1 Defendant asserts this reasoning is applicable here because like the plaintiff in Fimbres, 2 Plaintiff here made a strategic decision to delay service of process to avoid the 3 possibility of removal. There is no dispute Plaintiff did so, and that under Fimbres, the 4 Court could dismiss her case. 5 However, "[w]hen considering a motion to dismiss a complaint for untimely 6 service, courts must determine whether good cause for the delay has been shown on a 7 case by case basis." In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). Outside of 8 Fimbres, the Ninth Circuit has held "that 'at a minimum, "good cause" means excusable 9 neglect.'" Id. Excusable neglect exists where the plaintiff shows the following: "(a) the 10 party to be served received actual notice of the lawsuit; (b) the defendant would suffer 11 no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were 12 dismissed." Id. (citing Hart v. United States, 817 F.2d 78, 80-81 (9th Cir.1987)). 13 Here, according to his declaration, Plaintiff's counsel "worked well" with 14 Defendant's counsel and advised Defendant's counsel that although Carrington I "was 15 limited to PAGA claims, any subsequent class action case would be distinct and filed 16 in federal court." (See Docket No. 5 (September 12, 2017 Decl. of Clint Engleson) ¶ 17 9.) Defendant does not explicitly dispute having actual knowledge of this lawsuit but 18 merely declares Plaintiff did not inform him of the plan to file a future lawsuit or 19 discuss and arrange service of summons until the service was effected. (Decl. of 20 Jonathan Slowik in Supp. of Mot. ¶ 3.) Thus, this factor slightly favors Plaintiff. 21 Next, Defendant argues it would be prejudiced if this case is allowed to proceed 22 because the statute of limitations on Plaintiff’s Labor Code claim expired, and it is 23 entitled to expect that claim has been extinguished. However, Defendant has conducted 24 discovery and developed evidence on this claim in the state court proceeding. It will 25 not suffer much in its defense as far as lost evidence and witnesses. Moreover, as 26 Plaintiff suggests, Defendant has many employees in California, and it cannot 27 reasonably assume it will be immune from suits regarding its meal period policy 28 / / / -3- 16cv3074 1 just because one employee's statute of limitation may have expired. Since Defendant is 2 not likely to suffer prejudice, this factor also favors Plaintiff. 3 Finally, Defendant argues Plaintiff will not suffer prejudice if the Court dismisses 4 the present case because although Plaintiff's Labor Code claim will be barred under the 5 applicable three-year statute of limitation, its claim under the Unfair Competition Law 6 will still be viable. Even though the Court can dismiss a complaint when a plaintiff 7 faces a time-bar, losing the ability to prosecute a claim is considered to be serious 8 prejudice. See Lemoge v. U.S., 587 F.3d 1188, 1195 (9th Cir. 2009) (holding "being 9 forever barred from pursuing their claims" is "ultimate prejudice"). Therefore, this 10 factor also favors Plaintiff. 11 Considering these factors in light of the broad discretion that is provided by Rule 12 4(m), In re Sheehan, 253 F.3d at 513, this Court declines to dismiss Plaintiff’s case 13 pursuant to Rule 12(b)(5). The delay in the present case is 163 days, which is not 14 insignificant, but also not so long as to warrant dismissal. Defendant has not lost any 15 evidence or witnesses relevant to the case, and it is disputed whether Defendant had 16 actual knowledge about the case prior to being served. In light of the facts presented 17 here, dismissal is not warranted. 18 III. 19 CONCLUSION 20 For these reasons, Defendant’s motion to dismiss is denied. 21 IT IS SO ORDERED. 22 DATED: November 21, 2017 23 24 25 HON. DANA M. SABRAW United States District Judge 26 27 28 -4- 16cv3074

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?