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Kogok v. T-Mobile USA, Inc.

United States District Court, Ninth Circuit

May 9, 2013

DAVID KOGOK, individually and on behalf of all others similarly situated, et al. Plaintiff,
T-MOBILE USA, Inc. AND DOES 1 through 300, Defendants.


BARBARA L. MAJOR, Magistrate Judge.

Currently before the Court is Defendant's ex parte application to stay state court discovery, include counsel for related case in the Early Neutral Evaluation Conference ("ENE"), and continue the ENE [ECF No. 11 ("Def.'s Mot.")] and Plaintiffs' opposition to the motion. ECF No. 12 ("Oppo."). For the reasons set forth below, Defendant's motion is DENIED.


This matter was removed to this Court on April 5, 2013 from the Superior Court of the State of California, County of San Diego. ECF No. 1. The case, which was originally filed on June 12, 2012, is a class action case alleging several causes of action against Defendant stemming from Defendant's alleged failure to properly pay its California based Retail Sales Associates ("RSAs"). Id. at 6-7. The class includes current and former California RSAs from June 12, 2008 through the time of trial. Id. at 7. Defendant attempted to remove the matter to federal court on July 13, 2012, but "the Court sua sponte ordered the case remanded to state court." Id . Plaintiff filed an amended complaint on April 2, 2013 adding two named Plaintiffs and five additional claims. Id. at 7-8. Defendant successfully removed the case three days later. Id.

Prior to Defendant's removal, the matter was litigated in state court for approximately ten months. During that time, the state court judge, the Honorable Steven R. Denton, issued several orders relating to discovery in this matter. Def.'s Mot. at 4; Oppo. at 3. One of those orders required Defendant "to produce to Plaintiffs' counsel, a list of all putative class members' names and personal contact information who did not opt-out of such disclosure" by April 24, 2013. Def.'s Mot. at Sherr Declaration at 2; see also Id. at 11-2, Exh. A; and Belong Declaration at 1. Defendant did not produce the list.

On April 8, 2013, the Court issued a Notice and Order for Early Neutral Evaluation, setting an ENE for May 17, 2013. ECF No. 3. On April 12, 2013, Defendant filed a motion to dismiss for failure to state a claim that was taken under submission on May 8, 2013. ECF Nos. 4 & 13. On May 6, 2013, Defendant filed the instant ex parte motion. Def.'s Mot. Plaintiff filed an opposition on May 7, 2013. Oppo.



"[A]fter removal, the federal court takes the case up where the State court left it off." Jenkins v. Commonwealth Land Title Ins. Co. , 95 F.3d 791, 795 (9th Cir. 1996)(citing Granny Goose Foods, Inc. v. Brotherhood of Teamsters Local 70 , 415 U.S. 423, 436 (1974) (quoting Duncan v. Gegan , 101 U.S. 810, 812 (1880)); see also 28 U.S.C. § 1450 ("Whenever any action is removed from a State court to a district court of the United States... All injunctions, orders, and other proceedings had in such action prior to its removal shall remain in full force and effect until dissolved or modified by this district court.")[1]. "The federal court... treats everything that occurred in the state court as if it had taken place in federal court." Carvalho v. Equifax Information Services, LLC , 629 F.3d 876, 887 (9th Cir. 2010) (citing Butner v. Neustadter , 324 F.2d 783, 785(9th Cir.1963)). Accordingly, where the state court has entered an order, the order should be treated as though it had been validly rendered in the federal proceeding." Id . (quoting Butner , 324 F.2 at 785). The Court does, however, have the authority to dissolve or modify a state court order that was entered prior to removal. See 28 U.S.C. § 1450.

B. The State Court Discovery Order

Defendant seeks to have the Court temporarily stay "the March 8, 2013 order entered by Hon. Steven Denton... requiring [Defendant] to provide the personal contact information of employees who did not request exclusion from the privacy Mailing ("Contact List") until after the Early Neutral Evaluation." Def.'s Mot. at 1-2. In support, Defendant states that a stay will leave Defendant "better able to focus on getting prepared for the upcoming ENE and potential resolution, rather than wasting resources answering what is likely to be numerous inquiries from putative class members after being contacted by Plaintiff's counsel." Id. at 6. In further support, Defendant states that if it is required to train its management on how to handle employee inquiries, "it will not have the amount of time required to adequately prepare for the ENE." Id. at 6-7. Defendant notes that the Court has the authority to modify a state court discovery order issued prior to removal and argues that a stay will not prejudice Plaintiffs since they have "obtained sufficient discovery" to evaluate their case. Id. at 7.

Plaintiffs contend that "Defendant [has] violated the state court [discovery] order, and [that] the removal to Federal Court did not alter [Defendant's] obligation to comply with the court order." Oppo. at 5. In support, Plaintiffs state that it is "black letter law that even after removal to federal court, litigants remain bound to comply with the State court's orders issued prior to removal." Id . Plaintiffs further contend that relief should not be granted since Defendant's time to comply with the state court order has expired. Id. at 7. Plaintiffs argue that Defendant has not satisfied the necessary requirements for its requested relief since it has not shown that it will be "irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedure" or that Defendant is "without fault in creating" the problem for which it is seeking relief. Id . Plaintiffs go on to note that Defendant has not cited any authority for its position and that Plaintiffs will be prejudiced if Defendant's motion is granted because they will have to re-request relief that was already granted by the state court, suffer a delay in the collection of discovery and their ability to assess the value of the case, and lose relevant discovery and witness contact information. Id. at 9-11.

Defendant's request to stay the state court discovery order is DENIED. The Court has reviewed the discovery rulings and Stipulated Order Regarding Discovery and Neutral Notice to Putative Class Members submitted by the parties [see MTC at Exhibit A; see also Oppo. at Exhibit 1] and finds they are appropriate. The Court acknowledges that Plaintiffs subsequently filed an amended complaint and that Defendant has filed a motion to dismiss several of the claims [see MTC at Exhibit B; see also ECF No. 4], but still finds it appropriate to follow the existing state court discovery orders. In addition, as discussed in the next section, the Court is vacating the ENE so Defendant's concern that it is unable both to prepare for the ENE and comply with its discovery obligations is moot. Finally, as discussed in the next section, the Court is scheduling a case management conference to discuss the case status so any additional issues can be raised during that conference. Accordingly, the Court confirms all discovery orders and deadlines[2] issued or set by the Honorable Steven ...

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