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Andrea Van Scoy, Lynda Azevedo, Diana v. New Albertson's Inc.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


October 3, 2012

ANDREA VAN SCOY, LYNDA AZEVEDO, DIANA MURDOCK, CHRISTINA CARNES; MINA JO GUERRERO, MIRACLE
JOHNSON, ROSANNE LAZUKA, PATRICIA LOGAN, THERESA ORTH, AND MARA GRACE SMITH,
PLAINTIFFS,
v.
NEW ALBERTSON'S INC., ALBERTSON'S, INC., SAVE-MART SUPERMARKETS, INC., LUCKY'S INC.; AND DOES 1 THROUGH 25, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER DENYING REQUEST FOR ORDER AND OVERRULING OBJECTION AUGMENTATION OF FINAL PRETRIAL THERETO

This Court issued its Final Pretrial Order ("FPTO") in the above-referenced matter on August 13, 2012. On August 17, 2012, Defendant Save Mart Supermarkets filed its objection to that Order along with a request for augmentation. On August 23, 2012, Plaintiffs responded to that objection.

Defendant's objection is premised on the contention that further proceedings should be held, even after the Final Pretrial Conference of May 24, 2012, and the subsequently issued Final Pretrial Order of August 13, 2012, with regard to what state law claims have been preempted by the provisions of the Labor Management Relations Act, 29 U.S.C. § 141, et seq. ("LMRA"). Defendant's argument, at least in part, appears to be premised on the manner in which the FPTO was structured, which reflected apparent continuing disagreement between the parties as to which claims in fact remain viable.

The Court's ruling on Defendant's motion for summary judgment (ECF No. 160), however, resolves the matter. In that Memorandum and Order, the Court made it clear that preemption only applied to Plaintiffs' First Cause of Action for Discrimination, Harassment and Retaliation in contravention of the California Fair and Employment and Housing Act, Cal. Gov't. Code § 12940, et seq. ("FEHA"). See ECF No. 160, p. 8, n.4. No other causes of action are implicated, and no adjudication as to whether those other claims are preempted has ever been made. Consequently, Plaintiffs' claims for Wrongful Termination in Violation of Public Policy (the Second Cause of Action), as well as Plaintiffs Azevedo and Johnson's claims for disability discrimination under FEHA (as set out in the Fourth, Fifth and Sixth Causes of Action) remain viable.

Given the fact that the dispositive motion deadline has long since passed, it would be improper for the Court to permit Defendant, at this late stage, to, in essence, reopen motion practice in this mater and to seek additional rulings on additional issues. Plaintiff's Request for Augmentation is accordingly DENIED, and its concurrent Objection to the FPTO (as both set forth in ECF No. 194) is OVERRULED.

IT IS SO ORDERED.

20121003

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