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Bond v. Ferguson Enterprises

February 12, 2010

LEE BOND, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
FERGUSON ENTERPRISES, INC., A CORPORATION, AND DOES 1-50, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

SCHEDULING CONFERENCE ORDER Motion to Amend Complaint Filing Deadline: 7/23/10 Certification Filing Motion for Class Deadline: 9/20/10 Opposition Thereto Filing Deadline: 10/12/10 Reply Thereto Filing Deadline: 10/25/10 Motion for Class Certification Hearing Date: 11/22/10 10:00 Ctrm. 3 (extended time reserved)

Date of Scheduling Conference. February 11, 2010.

I. Summary of Pleadings.

1. Plaintiff alleges that, over the period from four years prior to the filing of the Complaint and continuing through the present, Defendant failed to comply with California law requiring that drivers be provided timely off-duty meal periods and pay for missed, on-duty and untimely meal periods (Cal. Labor Code §§ 226.7, 512).

2. As a result of Defendant's violations of California statutory laws, Plaintiff asserts derivative claims for penalties associated with the issuance of inaccurate pay stubs (lacking accurate information about wages earned and hours worked) (Cal. Labor Code § 226); waiting time penalties for all former drivers who did not receive all wages owed to them on separation of employment (Cal. Labor Code §§ 201-203); Unfair Competition Law claims under § 17200 of the California Business and Professions Code, based on the foregoing.

3. Finally, Plaintiffs believe that their claims are amenable to treatment on a class-wide basis under Fed. R. of Civ. Proc. Rule 23. Several federal district courts have recently certified similar class actions for truckers' claims under Labor Code §§ 203 and 226 and the UCL claim. See, e.g., Espinoza v. Domino's Pizza, LLC, 2009 WL 882845 (C.D. Cal. 2009); Ortega v. JB Hunt Transport, Inc., 2009 W.L. 1851330 (C.D. Cal. 2009).

4. Defendant contends that it provided Plaintiff and all putative class members with timely off-duty meal periods as required by California law. Because Defendant has complied with its statutory obligation to provide its California employees with meal periods pursuant to California Labor Code §§ 226.7 and 512, the itemized wage statements Defendant issued to Plaintiff and all putative class members were accurate and there is no violation of California Labor Code § 226. Furthermore, because Defendant properly provided meal periods in compliance with California law, Plaintiff's unfair competition claim (pursuant to Cal. Bus. & Prof. Code § 17200) and claim for waiting time penalties, both of which are premised solely on Plaintiff's meal period violation claims, must fail.

5. Defendant further contends that Plaintiffs' claims are inappropriate for class treatment under Federal Rule of Civil Procedure Rule 23 because highly individualized considerations predominate. The differences between and among putative class members' working conditions require an individualized inquiry rendering class certification inappropriate in this action. See, e.g. Brown v. Federal Express Corp., 249 F.R.D. 580 (C.D. Cal. 2008) (denying class certification for meal and rest period claims of employee drivers); Seymour v. McLane, Inc., No. EDCV-08-07-SGL, Order Denying Motion for Class Certification (March 30, 2009) (same).

II. Orders Re Amendments To Pleadings.

1. Plaintiff will seek leave to file a First Amended Complaint in order to conform venue and jurisdictional bases of the original Complaint to federal court. In addition, Plaintiff may seek to add a class representative and a claim for unlawful deductions from wages for meal periods never taken in violation of Cal. Labor Code §§ 1194, 1194.2. Defendant reserves the right to oppose any motion for leave to file an Amended Complaint. Plaintiff does not presently contemplate adding any new Defendants.

III. Factual Summary.

A. Admitted Facts Which Are Deemed Proven Without Further Proceedings.

1. Plaintiff Lee Bond was employed as a driver by Defendant and was based at Defendant's Bakersfield facility.

2. Defendant Ferguson Enterprises, Inc. is a corporation formed under the laws of Virginia.

B. Contested Facts.

1. All remaining facts are disputed.

IV. Legal Issues.

A. Uncontested.

1. Jurisdiction exists under 28 U.S.C. § 1332(d)(2) and the parties invoke diversity jurisdiction because this is a putative class action with at least one putative class member who is a citizen of a state different from that of the Defendant and the amount in controversy, as alleged by Plaintiff, exceeds $5 million, exclusive of interest and costs.

2. Venue is proper under 28 U.S.C. § 1391 because a substantial part of the events or actions giving rise to the claims occurred in the Fresno Division of the Eastern District of California.

3. In this diversity action, the substantive law of the State of California ...


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