United States District Court, S.D. California
CRUZ MIRELES, et al., on behalf of themselves and all others similarly situated, Plaintiffs,
PARAGON SYSTEMS, INC., Defendant.
ORDER DENYING MOTION TO FILE SECOND AMENDED COMPLAINT [doc. #92]
M. JAMES LORENZ, District Judge.
Plaintiffs move to file a second amended complaint in this action. Defendant opposed the motion and plaintiffs have not filed a reply memorandum in support of their motion. The motion is determined on the papers submitted without oral argument.
This action was originally filed in the Superior Court of the State of California, in and for the County of San Diego. Defendant removed the action on January 16, 2013, on the basis of the existence of a federal question, i.e., the relief sought arises under and is completely preempted by Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, and the Class Action Fairness Act of 2005 (CAFA).
Plaintiffs served defendant with their first amended complaint on January 10, 2013. The FAC asserts eight causes of action: (1) failure to provide meal periods; (2) failure to provide rest break premium pay; (3) failure to pay overtime premium pay; (4) failure to indemnify/reimburse; (5) failure to provide accurate itemized wage statements; (6) failure to promptly pay wages owed; (7) unfair, fraudulent and unlawful business practices; and (8) violation of the California Private Attorney General Act of 2004. ( See FAC, Exh. G to Notice of Removal.)
On May 6, 2013, Paragon gave notice of related case, Corner v. Paragon Systems, which was removed to this Court on May 1, 2013. Having reviewed the notice of related case, the Court issued an order to show cause why the Mireles and Corner actions should not be consolidated. [doc. #32]. After briefing, the Court found consolidation was not warranted because the resolution of the cases would be inherently individualized: "different defenses will be asserted against different plaintiffs, in large part because the named plaintiffs in the Mireles case are or were subject to collective bargaining agreements but the Corner plaintiff was not subject to a CBA." (Order filed 8/8/13.)
Defendant filed an amended answer to the FAC on May 13, 2013. Plaintiffs then filed a motion to strike three of defendant's affirmative defenses from the FAC. The motion was denied.
A Case Management Conference Order was issued on April 16, 2013 which fixed the dates for amending the pleadings, filing of a motion for class certification, and the filing of defendant's motion for partial summary judgment. [doc. #17]
Thereafter, the parties jointly requested an extension of the dates which the Court granted. [doc. #48] Defendant's motion for partial summary judgment and plaintiffs' motion for class certification were continued to October 21, 2013. Plaintiffs then filed an ex parte motion for a 30-day continuance of the motion for class certification deadline. [doc. #59] The Court extended the deadlines for both the motion for class certification and for the motion for summary judgment until November 11, 2013. [doc. #59] None of these requests for extensions of time mention the possibility of plaintiffs amending the complaint.
Defendant filed its motion for partial summary judgment on November 6, 2013 [doc. #63] The basis of defendant's motion, which remains pending, is that California Labor Code §§ 514 and 512(e) exempt employees covered by a valid CBA from state overtime and meal period requirements, and plaintiffs' first and third causes of action are preempted by Labor Management Relations Act § 301. As indicated in plaintiffs' motion for class action, "[t]he majority, in not all, of Defendant's California employees are members of unions, covered by one of four Collective Bargaining Agreements." (Plfs' Mtn for Class Cert., Ps&As at 5-6.) It appears that all currently named plaintiffs in the present action are covered under qualifying Collective Bargaining Agreements.
Also pending is plaintiffs' motion for class certification which was filed on November 11, 2013. [doc. #66]
At the direction of the magistrate judge, on December 23, 2013, plaintiffs filed an ex parte motion to modify the scheduling order to allow plaintiffs to file a motion to amend the FAC. The Case Management Plan set the deadline to amend the complaint for May 13, 2013. The Court granted the ex parte motion to amend the scheduling order. Accordingly, plaintiffs have filed the present motion to amend the FAC.
In seeking leave to file a second amended complaint, plaintiffs propose to add Michael Corner as a class representative and removing Barry Feldman, Robert Nowosielski,  and Vernon Tennis as named party plaintiffs. The SAC would add one substantive claim brought under California Labor Code §§ 204, 1194, 1194.2, 1197 and the applicable Wage Order. The proposed commute time claim asserts that all Paragon security officers are required to transport ...