Bell v. Bimbo Foods Bakeries Distribution, Inc.

Filing 33

MEMORANDUM Opinion and Order Signed by the Honorable Edmond E. Chang on 11/28/2011:Mailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STEVEN BELL, individually and on
behalf of all similarly situated
individuals,
Plaintiff,
v.
BIMBO FOODS BAKERIES
DISTRIBUTION, INC.,
Defendant.

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Case No. 11 C 03343
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Plaintiff Steven Bell has sued Bimbo Foods Bakeries Distribution, Inc. (BFBD),
on behalf of himself and a proposed class, alleging that BFBD has illegally
characterized employees as independent contractors and thus has not paid them
overtime wages in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201,
et seq., and Illinois state law, 820 ILCS 115/9.1 R. 1 (Compl.) ¶ 1. Defendant moves [R.
20] to dismiss or, alternately, to transfer or stay the case under the first-filed doctrine
because this is the third similar pending action advancing these claims. R. 21 (Def.’s
Br.) at 1. For the reasons stated below, the motion to transfer or dismiss is denied, and
the parties should be prepared to address whether to stay the case at the next status
hearing, scheduled for November 29, 2011.

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This Court has subject matter jurisdiction under 28 U.S.C. § 1331 for the FLSA claim,
and supplemental jurisdiction under 28 U.S.C. § 1367 for the Illinois claim.

The first action brought against BFBD with claims similar to the ones in the
present case was filed in the U.S. District Court for the Eastern District of
Pennsylvania, more than a year before this action was filed. Scott v. Bimbo Bakeries
USA, Inc., No. 2:10-cv-03154 (E.D. Pa. filed June 30, 2010). There is a fully-briefed
motion to dismiss in the Scott litigation, EDPA No. 10-cv-03154 R. 7, and a pending
motion regarding class notice, EDPA No. 10-cv-03154 R. 9. Additionally, a second suit
was brought before the U.S. District Court for the Western District of North Carolina,
one week before this action was filed. Troche v. Bimbo Foods Bakeries Distribution,
Inc., No. 3:11-cv-00234 (W.D.N.C. filed May 11, 2011). In the Troche litigation, BFBD
filed a motion to dismiss, transfer, or stay similar to the one before the Court now.
WDNC 11-cv-00234 R. 9. The district court in Troche transferred the case to the
Eastern District of Pennsylvania, noting that “the Fourth Circuit adheres to the
first-filed rule. . . .” WDNC 11-cv-00234 R. 12 at 3 (citation omitted). But the plaintiff
in Troche has objected to that order of transfer, and the parties have briefed the
objection, which is now pending. WDNC 11-cv-00234 R. 14, 16, 20. Both the Scott and
Troche litigation assert the same claims at issue here. All three cases seek to assert a
collective action under the FLSA. The three complaints also allege violations of the
respective state laws for the states in which the cases were filed. Due to the similarity
of the three cases, BFBD argues that the present case should either be dismissed,
transferred, or stayed. R. 21 at 2. Bell has “offered to voluntarily stay his [action],” but
responded to the present motion to resist dismissal. R. 26 at 1.

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Unlike the Fourth Circuit, the Seventh Circuit does not rigidly adhere to a “first
filed doctrine,” but instead the courts in this Circuit have wide discretion to dismiss –
or not to dismiss – duplicative litigation depending on what best serves judicial
administration. Tripple Mfg. Co. v. American Power Conversion Corp., 46 F.3d 624, 629
(7th Cir. 1995). When considering whether to dismiss a later-filed suit as duplicative,
courts must determine if there are significant “differences between the claims, parties,
[or] available relief in the . . . suits” as well as “any special factors counseling for or
against the exercise of jurisdiction in the case.” Serlin v. Arthur Andersen & Co., 3 F.3d
221, 224 (7th Cir. 1993). Significantly, even if there is overlap between cases, the
Seventh Circuit favors staying the later-filed case rather than dismissing it: “When
comity among tribunals justifies giving priority to a particular suit, the other action
(or actions) should be stayed, rather than dismissed, unless it is absolutely clear that
dismissal cannot adversely affect any litigant’s interests. . . . There is no ‘first filed
doctrine’ requiring dismissal of all suits after the first.” Central States, Se. & Sw. Areas
Pension Fund v. Paramount Liquor Co., 203 F.3d 442, 444 (7th Cir. 2000).
Despite the disinclination to dismiss, BFBD first argues that Bell’s claims
“should be dismissed,” R. 21 at 10, to prevent duplicative litigation. Defendant relies
heavily on Serlin to argue that the present litigation is so similar to the Scott litigation
that the Court should dismiss Bell’s claims. R. 21 at 2-10. In making this argument,
BFBD attempts to distinguish Central States’s holding by arguing that it occurred in
the context of a “race to the courthouse,” and that unique circumstances presented a

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particularly egregious opportunity for prejudice. R. 27 at 6-7. But Central States does
not limit itself to races to the courthouse. On the contrary, Central States’s closing
discussion explicitly harmonizes with Serlin – which did not involve a race to the
courthouse – noting that outright dismissal is “likely to be appropriate when [as in
Serlin] the same party has filed all of the suits.” Central States, 203 F.3d at 445. Here,
the same party has not filed all of the suits. Instead, Bell is pursuing his own claim,
albeit hoping to represent others in a collective and class action, and his claim should
not be dismissed merely because someone is pursuing a similar FLSA claim against
BFBD in another district. Indeed, there is also a difference in claims among each of the
three lawsuits because each complaint alleges a violation of the respective state wage
laws. To be sure, the state law claims might very well overlap with one another and
with the FLSA claim, but Central States warns that dismissal is inappropriate unless
it is “absolutely clear” that the plaintiff’s interests will not be adversely affected. It is
unclear whether the dismissal of the Illinois state law claim will cause prejudice to
Bell, because it is possible that the Illinois state law’s coverage could either
procedurally (as a class action rather than a collective action) or substantively (if the
Illinois state law claim provides broader relief on a particular aspect of Bell’s claim) be
superior to the FLSA’s coverage. BFBD argues that Bell could re-file the Illinois state
law claim in Illinois state court, but it is possible that the statute of limitations would
cut-off some of the time period for liability and damages that is currently covered by
this suit; thus, it is not “absolutely clear” that Bell will not be adversely affected by
dismissal.
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As an alternative to outright dismissal, BFBD seeks to transfer the present case
to the district in which the Scott case was filed, the Eastern District of Pennsylvania.
R. 21 at 1. A district court may transfer a civil action “for the convenience of the parties
and witnesses, in the interest of justice . . . to any other district or division where it
might have been brought.” 28 U.S.C. § 1404(a). A transfer under § 1404(a) is
appropriate if (1) venue is proper in both the transferor and transferee court; (2)
transfer is for the convenience of the parties and witnesses; and (3) transfer will serve
the interests of justice. Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219–220 (7th Cir.
1986). The movant has the burden of establishing that the transferee forum is “clearly
more convenient.” Id. at 220. BFBD requests that the case be transferred, but does not
argue or discuss any of the relevant factors in either its opening or reply memorandum.
R. 21 at 10-11; R. 27 at 10. (Perhaps BFBD’s only argument to transfer is really
premised only on the same argument made in support of dismissal.) In any event,
BFBD has failed to meet its burden of proving that the transferee district is clearly
more convenient than the present venue. Accordingly, the motion to transfer is denied.
Finally, BFBD argues that the Court should “at the very least, stay this action
while Scott is pending.” R. 21 at 11. There is certainly some basis to stay the present
case, especially if Bell intends to opt-in to the Scott litigation. The court does have the
authority to stay a case. In deciding whether to enter a stay, a court may consider the
whether a stay (1) will unduly prejudice or tactically disadvantage the non-moving
party; (2) will simplify the issues in question and streamline the trial; and (3) will
reduce the burden of litigation on the parties and on the court. Pfizer v. Apotex, Inc.,
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640 F. Supp.2d 1006, 1007 (N.D. Ill. 2009). Bell has agreed to a stay, so the first
element weighs in favor of a stay. As to the second element, the Court and the parties
would benefit from the reasoned analysis of the Eastern District of Pennsylvania on
issues that are likely to arise in this litigation, and so the second element weighs in
favor of a stay. But it is not clear how to treat the third (and perhaps most important)
element. This third element turns on whether Bell intends to opt-in to the Scott case
if the district court there denies the motion to dismiss and grants collective-action
status. If Bell intends to opt-in, then a stay might very well be warranted. But if the
motion to dismiss is granted in Scott, or if Bell has no intention of opting-in or decides
not to opt-in to Scott, then this litigation should proceed with Bell’s claims against
BFBD. At the November 29 status hearing, the Court will address this issue with the
parties, and Bell’s counsel in particular should be prepared to discuss whether Bell
intends to opt-in to Scott.
For the reasons stated above, BFBD’s motion to dismiss, transfer, or stay [R. 20]
is denied.

ENTERED:

___________________________
Honorable Edmond E. Chang
United States District Judge

DATE: November 28, 2011

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