United States District Court, E.D. California
AMIE HOLAK, individually, and on behalf of other members of the general public similarly situated, Plaintiff,
K MART CORPORATION, a Michigan Corporation; and DOES 1 through 10, inclusive, Defendants.
ORDER ADOPTING IN PART THE MAGISTRATE JUDGE'S FINDINGS AND
RECOMMENDATIONS (ECF NO. 129) ORDER GRANTING DEFENDANT'S MOTION TO STRIKE,
GRANTING IN PART PLAINTIFF'S MOTION TO STRIKE, DENYING PLAINTIFF'S MOTION TO
MODIFY THE COURT'S SCHEDULING ORDER, AND DENYING PLAINTIFF'S MOTION FOR CLASS
CERTIFICATION (ECF NOS. 82, 95, 104, 113, 129, 130.)
ANTHONY W. ISHII, Senior District Judge.
Plaintiff Amie Holak ("Plaintiff") filed a motion for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure against Kmart Corporation ("Defendant"). (ECF No. 85.) The action was set before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Bother parties filed cross-motions to strike declarations provided in support and in opposition to the certification motion. (ECF Nos. 95, 104.) Plaintiff also filed a motion to modify the scheduling order in order to permit Plaintiff to conduct rebuttal discovery regarding the declarations submitted by Defendant in opposition to Plaintiff's certification motion.
On June 6, 2014, the Magistrate Judge filed a findings and recommendations ("F&R") which was served on the parties and which contained notice that any objections to the F&R were to be filed within fourteen days. Any response was to be filed within fourteen days of the objection. Each party filed objections to the F&R within fourteen days then a response to the other's objections within fourteen days.
The Court has the power to "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate" whether objections have been filed or not. See Britt v. Simi Valley Unified School Dist. , 708 F.2d 452, 454 (9th Cir. 1983). In accordance with the provisions of 28 U.S.C. § 636(b) the Court has conducted a de novo review of this case. Plaintiff made four objections: (1) the first recommendation (striking the declarations of six putative class members) is based on the erroneous finding that Defendant was prejudiced by Plaintiff's failure to disclose the identities of the declarants prior to the discovery cut-off; (2) the second recommendation (striking, inter alia, the declarations of the non-exempt employees other than those at the Coalinga store) is based in part on the erroneous finding that Defendant made a timely disclosure of the identities and contact information Coalinga employees; (3) the second (refusing to strike the declarations of the assistant manager employees ("ASMs")) and third (denying modification of the scheduling order) recommendations are erroneous because they erroneously assume that Plaintiff could have deposed the ASMs without their declarations which were not provided until the filing of Defendant's opposition to the class certification motion; (4) the fourth recommendation (denying class certification) is erroneous because the Magistrate Judge (a) misconstrued Plaintiff's allegations regarding the policy creating commonality as to the off-the-clock subclass, (b) improperly drew inferences from the evidence in Defendant's favor and made determinations on the merits, (c) gave improper weight to Defendant's declarations, (d) inconsistently determined that, although any individualized inquiry required for determination of correctness of wage rate statements would not defeat certification, Plaintiff was not entitled to certification because she did not bear her burden of establishing that inaccurate wage statements are common to the putative class. The Court finds Plaintiff's second objection persuasive. Otherwise, the Court will overrule Plaintiff's objections.
Defendant has also made four objections: (1) the portion of the second recommendation striking non-Coalinga, non-exempt employees is erroneous because (a) Defendants disclosed the declarants contact information within the disclosure deadline, rendering its disclosures " per se timely" (ECF. No. 132 at 3)(emphasis original), (b) assuming the disclosure was untimely, the delay was harmless, and (c) the Magistrate Judge erroneously determined that the timing of Defendant's disclosures were not substantially justified; (2) the Magistrate Judge erroneously recommended that Defendant's evidentiary objection's to Plaintiff's declaration should be overruled; (3) the Magistrate Judge erroneously considered certification on Plaintiff's unpled wage statement claim; (4) the Magistrate Judge erroneously found that a "minimal injury, " in this case an inaccurate overtime rate reported but accurate rate actually paid, could constitute redressable injury under California Labor Code section 226(e)(2)(B).
Having carefully reviewed the entire file, the Court will adopt the F&R with the clarifications made, infra.
A. The certification discovery deadline and Plaintiff's non-compliance therewith
Plaintiff objects to the Magistrate Judge's setting of the discovery cut-off for class certification related discovery four months prior to the deadline for filing of a class certification motion. The Plaintiff brought suit in January of 2012 and began discovery on July 12, 2012. (ECF. No. 33.) The Magistrate Judge entered a scheduling order on March 29, 2013, requiring all class certification related discovery to be completed on or before October 10, 2013; warning therein that any "information [or] documents discovered or produced after that date shall not be included in or considered by the Court in ruling on the [class certification] [m]otion." (ECF. No. 70 at 2.) Beyond that warning, the Magistrate Judge cautioned that the duty to provide supplemental disclosures would be "strictly enforced." (Id.) In total, the "parties had nearly fifteen months to conduct certification discovery." (ECF. No. 129 at 7.) Plaintiff made no objection to the scheduling ordered entered by the Magistrate Judge, made no request to extend discovery, and made no request to compel discovery prior to the instant objection to the close of discovery and the filing of her motion for class certification. Plaintiff has far overplayed her hand in alleging that the Magistrate Judge abused his authority when he set a certification discovery deadline four months before the deadline for the motion for class certification deadline. (ECF. No. 133 at 12-13.)
Districts Courts must enter scheduling orders in actions to "limit the time to join other parties, amend the pleadings, complete discovery, and file motions." Fed.R.Civ.P. 16(b)(3). Once entered by the court, a scheduling order "controls the course of the action unless the court modifies it." Fed.R.Civ.P. 16(d). Scheduling orders are intended to alleviate case management problems. Johnson v. Mammoth Recreations, Inc. , 975 F.2d 604, 610 (9th Cir. 1992). As such, a scheduling order is "the heart of case management." Koplove v. Ford Motor Co. , 795 F.2d 15, 18 (3rd Cir.1986).
Rule 16 "recognizes the inherent power of the district court to enforce its pretrial orders through sanctions, Fed.R.Civ.P. 16(f), and the discretion of the district judge to apply an appropriate level of supervision as dictated by the issues raised by each individual case." In re Arizona , 528 F.3d 652, 657 (9th Cir. 2009) (citing e.g., Fed.R.Civ.P. 16(c)(2)), cert. denied, ___ U.S. ___ , 129 S.Ct. 2852, 174 L.Ed.2d 551 (2009). A "scheduling conference order is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded without peril." Johnson , 975 F.2d at 610. The Ninth Circuit has clarified why the Rule 16 deadlines should be taken seriously:
In these days of heavy caseloads, trial courts in both the federal and state systems routinely set schedules and establish deadlines to foster the efficient treatment and resolution of cases. Those efforts will be successful only if the deadlines are taken seriously by the parties, and the best way to encourage that is to enforce the deadlines. Parties must understand that they will pay a price for failure to comply strictly with scheduling and other orders, and that failure to do so may properly support severe sanctions and exclusions of evidence.
Wong v. Regents of the Univ. of Cal. , 410 F.3d 1052, 1060 (9th Cir. 2005); see also, Singh v. Arrow Truck Sales, Inc. , 2006 WL 1867540, at *2 (E.D. Cal., July 5, 2006) ("Rules are rules B and the parties must play by them. In the final analysis, the judicial process depends heavily on the judge's credibility. To ensure such credibility, a district judge must often be firm in managing crowded dockets and demanding adherence to announced deadlines. If he or she sets a reasonable due date, parties should not be allowed casually to flout it ...