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Candace Casida,Individually, and On Behalf of All Others Similarly Situated v. Sears Holdings Corporation and Sears

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION


December 1, 2011

CANDACE CASIDA,INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
SEARS HOLDINGS CORPORATION AND SEARS, ROEBUCK & CO.,
DEFENDANTS.

The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

STIPULATION TO FILE PLAINTIFF'S SECOND AMENDED COMPLAINT

Plaintiff Candace Casida and Defendants Sears Holdings Corporation and Sears, Roebuck & Company (collectively, "Sears"), by and through their counsel of record, hereby stipulate as follows:

1. On March 28, 2011, Plaintiff filed her complaint against Sears in the District Court for the Northern District of Illinois alleging claims for unpaid overtime under the Fair Labor Standards Act ("FLSA") on behalf of a proposed nationwide "opt-in" class of similarly situated Assistant Managers who worked in Sears' full-line retail stores. Dkt. No. 1. Plaintiff also asserted three claims under the California Labor Code and a claim that Sears violated California's Unfair Competition Law (collectively the "California Claims") on behalf of a proposed Fed. R. Civ. P. 23 "opt-out" class of Assistant Managers in California.

2. On May 10, 2011, Sears filed a motion to dismiss Plaintiff's complaint, which was denied by Judge Milton Shadur of the Northern District of Illinois at the initial status conference on May 20, 2011. Dkt. Nos. 38, 51. Plaintiff filed a First Amended Complaint on May 27, 2011, that asserted the same claims as in her original complaint, but was slightly revised to address some concerns raised in Sears' motion to dismiss. Dkt. No. 52. Sears answered Plaintiff's First Amended Complaint on June 10, 2011. Dkt. No. 55.

3. At status conference with Judge Shadur on June 22, 2011, Judge Shadur retained jurisdiction and venue over Plaintiff's FLSA claim and severed and transferred Plaintiff's California Claims to the Eastern District of California. Dkt. No. 58.

4. On October 10, 2011, Plaintiff sent a notice to the California Labor and Workforce Development Agency pursuant to the California Labor Code's Private Attorney General Act, §§ 2698, et seq. ("PAGA") regarding her complaints that Sears misclassified her and other Sears' Assistant Managers in California as exempt from overtime. A copy of Plaintiff's PAGA notice is attached as Exhibit 1.

5. On October 12, 2011, the parties attended a scheduling conference with the Honorable Magistrate Judge Jennifer L. Thurston. Subsequent to the scheduling conference, Judge Thurston issued a scheduling order setting November 21, 2011 as the last day to seek leave to amend the pleadings. Dkt. No. 72

6. Plaintiff represents that the statutory waiting period for the California Labor and Workforce Development Agency to respond to Plaintiff's PAGA notice expired on November 14, 2011. Neither party has received any response or notification from the California Labor and Workforce Development Agency since Plaintiff sent her PAGA notice.

7. Plaintiff has prepared a Second Amended Complaint attached as Exhibit 2, which does not contain her FLSA claim that is still pending in the Northern District of Illinois and states the previously filed and transferred California Claims pending before this Court, as well as Plaintiff's claims for PAGA penalties on behalf of herself and on a representative basis.

Therefore, the parties hereby stipulate that:

1. Pursuant to Fed. R. Civ. P. 15(a)(2), Plaintiff may file the Second Amended Class Action Complaint attached as Exhibit 2;

2. Sears shall file a responsive pleading to Plaintiff's Second Amended Class Action Complaint within two weeks after it is filed and served, in compliance with the Federal Rules of Civil Procedure and local rules; and

3. Nothing in this Stipulation shall operate as a waiver of any rights that either Plaintiff or Defendants may have in this action, including, without limitation, Defendants' right to file motions to dismiss and/or strike the claims alleged in the Second Amended Complaint.

DATED: November 21, 2011 GIRARD GIBBS LLP By: /s/ Eric H. Gibbs Eric H. Gibbs Attorney for Plaintiff Candace Casida DATED: November 21, 2011 ORRICK, HERRINGTON & SUTCLIFFE LLP By: /s/ Lynne C. Hermle Lynne C. Hermle Attorney for Sears. ture-END:

ORDER

Good cause appearing, the stipulation to allow the filing of the Second Amended Complaint is GRANTED as follows:

1. Plaintiff SHALL file the Second Amended Class Action within five court days of the filing of this order;

2. Defendant SHALL file its responsive pleading within two weeks the Second Amended Complaint is filed.

3. All other terms of the stipulation are GRANTED.

IT IS SO ORDERED.

20111201

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