United States District Court, S.D. California
DARRICK M. GUY, Individually and on Behalf of All Similarly Situated Aggrieved Employees, Plaintiff,
TOYS R US, A Delaware Corporation Licensed to do Business in the State of California, Defendant.
ORDER: (1) DENYING PLAINTIFF'S MOTION TO STRIKE
DOCUMENTS PURSUANT TO FRCP 37, (DOC. NO. 30); AND (2) DENYING
DEFENDANT'S MOTION TO STRIKE CLASS DEFINITION, (DOC. NO.
Anthony J. Battaglia United States District Judge.
before the Court are two motions to strike: Defendant Toys R
Us (“TRU”) seeks to strike Plaintiff Darrick M.
Guy's (“Guy”) class definition, (Doc. No.
27), and Guy seeks to strike documents attached to TRU's
motion for TRU's purported failure to disclose pursuant
to Federal Rule of Civil Procedure 37. (Doc. No. 30.) Both
motions are fully briefed. Having reviewed the parties'
arguments in light of controlling legal authority, and
pursuant to Local Civil Rule 7.1.d.1, the Court finds the
matters suitable for decision without oral argument. As
discussed below, the Court DENIES both motions.
wage-and-hour class action seeks to hold TRU liable for
failing to pay to its employees certain benefits.
Specifically, Guy alleges TRU maintained a policy of not
paying its employees for earned “COMP” days upon
their resignation or termination, thus resulting in a
forfeiture of wages. (Doc. No. 25 ¶ 1.) Guy also alleges
TRU required its employees to use their personal cell phones
as their primary point of contact, use for which employees
were not reimbursed. (Id.)
employed with TRU at a Babies R Us store as an assistant
store manager from October 29, 2014, through April 2, 2016.
(Id. ¶ 2.) Upon his resignation, Guy asserts he
had earned two “COMP” days he had not taken and
that he was not compensated for those days. (Id.)
Guy also asserts he was required to have a personal cell
phone as his primary point of contact, his superior contacted
him on his personal cell phone, and he was not reimbursed for
expenses he incurred in maintaining that cell phone, cell
phone service, and data plan. (Id.)
instituted this lawsuit in San Diego Superior Court on July
22, 2016. (Doc. No. 1 ¶ 1; Doc. No. 1-3 at 5.) Guy seeks
to represent a class composed of “[a]ll persons
currently and formerly employed by [TRU] in the
State of California commencing from July 22, 2012 through the
date of trial . . . .” (Doc. No. 25 ¶ 6 (emphasis
answered the original complaint on August 31, 2016, and
immediately thereafter removed the action to this Court.
(Doc. No. 1 ¶ 3.) As relevant to the instant motions,
TRU asserted the affirmative defense of release by stating
that the complaint “is barred, in whole or in part, to
the extent that [Guy] and/or any member(s) of the putative
class previously released the claims asserted in this
Action.” (Doc. No. 1-3 at 30 ¶ 7; Doc. No. 4
¶ 7.) The parties' joint discovery plan also
referenced the purported release of claims. Specifically, the
plan states TRU's position that a portion of the putative
class previously released the claims brought in this case
“pursuant to a class settlement in a prior wage and
hour class action filed against TRU entitled Zia Hicks
[v. TRU], U.S. District Court, Central District of
California, Case No. 2:13-cv-01302-DSF-JCG, releasing claims
prior to March 21, 2014.” (Doc. No. 12 at 6
[hereinafter the Hicks action].)
filed the instant motion to strike the class definition on
March 13, 2017. (Doc. No. 27.) Guy filed an opposition
simultaneously with his motion to strike. (Doc. Nos. 29, 30.)
Both motions have been fully briefed. (Doc. Nos. 29, 31, 36,
37.) This order follows.
Motion to Strike for Failing to Disclose
urges the Court to strike documents attached to TRU's
motion to strike the class definition. All three exhibits are
documents that were filed in the Hicks action. (Doc.
Nos. 27-3, 27-4, 27-5.) Guy asserts striking the documents is
proper because TRU failed to identify the documents in its
initial disclosures, never amended those disclosures after
Guy filed the FAC, never filed a notice identifying the
Hicks action as being related to this case, and
TRU's failure to produce the documents in response to
Guy's interrogatories prior to filing its motion to
strike the class definition. (Doc. No. 30-1 at 11-14.)
26(a)(1) requires parties to provide other parties
with “a copy-or a description by category and
location-of all documents, electronically stored information,
and tangible things that the disclosing party has in its
possession, custody, or control and may use to support its
claims or defenses, unless the use would be solely for
impeachment[.]” Fed.R.Civ.P. 26(a)(1)(A)(ii). If a
party fails to make the disclosures required by Rule 26(a),
“the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified or is
harmless.” Fed.R.Civ.P. 37(c)(1).
party facing exclusion has the burden to prove its failure
was substantially justified or harmless. Torres v. City
of Los Angeles, 548 F.3d 1197, 1212-13 (9th Cir. 2008);
Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259
F.3d 1101, 1106 (9th Cir. 2001). The Ninth Circuit gives wide
latitude to a district court's exercise of discretion to
issue sanctions for failure to disclose. Yeti by Molly,
Ltd., 259 F.3d at 1106. However, “[e]xclusionary
sanction[s] based on discovery violations are generally
improper absent undue prejudice to the opposing side.”
Wertz v. Target Corp., No. 08-CV-78 GSA, 2009 WL
635655, at *2 (E.D. Cal. Mar. 10, 2009) (citing Amersham
Pharmacia Biotech, Inc. v. Perkin, 190 F.R.D. 644,
648-49 (N.D. Cal. 2000)).
reviewed the parties' arguments and the docket in this
case, the Court finds exclusion of the Hicks
documents is not warranted. TRU should have highlighted the
signifance of the Hicks action more prominently in
the joint discovery plan. However, the Court finds that
inclusion of the action-including the case name, case number,
and district where it occurred-on the joint discovery plan
sufficiently provided Guy with notice of the Hicks
action such that TRU's failure to include the action in
its initial disclosures is harmless. This is particularly so
given that discovery is still ongoing and TRU's good
faith belief that its disclosure of the Hicks action
was sufficient. See Blair v. CBE Grp., Inc., 309
F.R.D. 621, 626 (S.D. Cal. 2015) (noting that some relevant
factors to determining whether exclusion is proper include
“the extent to which allowing the evidence would
disrupt trial” and “the nondisclosing party's
explanation for its failure to disclose the evidence”
(quoting Allen v. Similasan Corp., 306 F.R.D. 635,
640 (S.D. ...