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Perez v. Leprino Foods Co.

United States District Court, E.D. California

June 16, 2017

JOHN PEREZ and on behalf of all other similarly situated individuals, Plaintiff,
v.
LEPRINO FOODS COMPANY, a Colorado Corporation; LEPRINO FOODS DAIRY PRODUCTS COMPANY, a Colorado Corporation; and DOES 1-50, inclusive, Defendants.

          ORDER DISCHARGING ORDER TO SHOW CAUSE

         I. Introduction

         On May 30, 2017, this Court ordered Plaintiff John Perez (“Perez”) to show cause why this action should not be stayed in light the stay imposed in the consolidated Finder v. Leprino, Case No. 1:13-cv-2059-AWI-BAM, Doc. 81 (E.D. Cal. Jan. 1, 2017) action, [1] and the apparent overlap in claims between the present action and Finder. Defendants Leprino Foods Company and Leprino Foods Dairy Products Company (collectively “Leprino”) were permitted to file briefing in response to the order to show cause. Between issuance of the order to show cause and the parties' filing of their responses, Perez filed an Amended Complaint. Doc. 10. Thereafter, Perez and Leprino both filed responses to the order to show cause within the time permitted.[2]

         For the following reasons, the Court will discharge the order to show cause and decline to issue a stay of this action.

         II. Background

         On November 15, 2013, Jerrod Finder (“Finder”) filed a wage and hour class action against Leprino Foods Company and Leprino Foods Dairy Products Company (collectively “Leprino”), alleging California Labor Code violations including failures to provide a second meal break or accurate itemized statements, and waiting time violations, as well as Unfair Business Practices Act violations and Private Attorneys General Act claims based on the substantive violations. The putative class definition in the Finder action includes all non-exempt employees of Leprino between November 15, 2009 and November 15, 2013. See Doc. 13 at 7.

         On January 21, 2015, Jonathon Talavera (“Talavera”) filed a wage and hour class action against Leprino, originally alleging, (1) claims relating to Leprino's donning and doffing procedure for required sanitary gear, (2) the same second meal period denial claim as Finder, and (3) claims for failure to pay all hours worked, overtime, and wages upon termination (based on both (a) the second meal period and rest period denials, and (b) the donning and doffing related claims). The putative class definition in the Talavera action includes all non-exempt employees of Leprino between January 21, 2011 and January 21, 2015. See Doc. 13 at 7. The Court consolidated the two actions on November 21, 2016. Finder v. Leprino, Case No. 1:13-cv-2059-AWI-BAM, Doc. 63. In the same order, this Court noted that Talavera appeared “to have abandoned his donning and doffing claims” in seeking class certification. Id. at Doc. 63 at 5.[3] On January 20, 2017, the Court stayed the consolidated action. Id. at Doc. 81. In imposing the stay, the Court noted that in proceeding forward on the consolidated Finder action there existed a risk of “conduct[ing] discovery and motions practice over discovery-related matters that may be rendered moot by the Ninth Circuit in resolving the interlocutory appeal.” Id. at 7. The claims regarding failure to pay overtime, wage statement violations, and failure to pay wages upon termination were largely dependent on meal period premiums being treated as wages rather than penalties-the subject of the interlocutory appeal now before the Ninth Circuit.

         On April 13, 2017, counsel for Talavera filed Perez v. Leprino-a new putative class action in Kings County Superior Court against Leprino, alleging claims similar to those alleged in the Talavera action. Compare Doc. 1 at 11-32 with Talavera v. Leprino, 1:15-cv-105-AWI-BAM, Doc. 13-1. That action was removed to this Court on May 18, 2017, and reassigned to the undersigned on May 24, 2017. Doc. 6. Perez filed an amended complaint on June 5, 2017, alleging the same causes of action and clarifying the factual bases for the claims. Doc. 10. Perez makes clear the underlying factual basis of his claims: putative class members are (1) required to engage in necessary unpaid “pre- and post- shift work activities … such as donning and doffing sanitary gear…, walking to production lines, waiting in line to sanitize, and waiting for [sanitary gear] and/or supplies” and (2) required to “remain on call during meal and rest periods” or work through meal breaks. Doc. 10 at ¶¶ 5-11. The putative class definition for the Perez action is narrower than Finder and Talavera. It includes all non-exempt employees at Leprino's Lemoore East facility from April 13, 2013 to April 13, 2017. Doc. 10 at ¶ 3.

         III. Legal Standard

         A district court's power to control its docket includes broad discretion to grant a Landis stay-a stay in the proceedings pending resolution of other actions that bear on the case. Landis v. North American Co., 299 U.S. 248, 254 (1936); Errington v. Time Warne Cable Inc., 2016 WL 2930696, *3-4 (C.D. Cal. May 18, 2016); Larroque v. First Advantage Lns Screening Solutions, Inc., 2016 WL 39787, *2 (N.D. Cal. Jan. 4, 2016); see Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857 863 (9th Cir. 1979) (“A trial court may, with propriety, find it is efficient for its own docket and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case.”) In determining whether to grant such a stay, the Ninth Circuit requires a district court to consider “the competing interests which will be affected by the granting or refusal to grant a stay must be weighed. Among those competing interests are [(1)] the possible damage which may result from the granting of a stay, [(2)] the hardship or inequity which a party may suffer in being required to go forward, and [(3)] the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay.” Lockyer v. Mirant Corp, 398 F.3d 1098, 1110 (9th Cir. 2005) (quoting CMAX, Inc. v. Hall, 300 F.3d 265, 268 (9th Cir 1962)) (internal quotation marks omitted). Moreover, “[a] stay should not be granted unless it appears likely that the other proceedings will be concluded within a reasonable time in relation to the urgency of the claims presented to the Court.” Id. (quoting Leyvla, 593 F.2d at 864) (internal quotation marks omitted).

         The “proponent of a stay bears the burden of establishing its need.” Clinton v. Jones, 520 U.S. 681, 708 (1997) (citing Landis, 299 U.S. at 255). If there is “even a fair possibility” of harm to the opposing party, the moving party “must make out a clear case of hardship or inequity in being required to go forward.” Landis, 299 U.S. at 255; Lockyer v. Mirant Corp., 398 F.3d 1098, 1112 (9th Cir. 2005).

         IV. Discussion

         In response to the order to show cause, Leprino contends that “Perez presents substantially similar allegations to those in Finder and Talavera.” Doc. 13 at 6. Leprino emphasizes to the Court that Perez alleges violations of the same statutes allegedly violated in the consolidated Finder action which partially overlaps in class period. Leprino is correct that Perez and the consolidated Finder action allege violation of the same statutes. However, the Finder action was not stayed because of the statutes that were alleged to have been violated. The Finder action was stayed because much of the litigation could be mooted by the Ninth Circuit's decision.

         The value of Perez's first through third, fifth, and sixth causes of action (failure to pay minimum wages, failure to compensate for all hours worked, failure to pay overtime wages, waiting time penalties, and wage statement violations) alleged in the Perez action certainly could be impacted by the question now pending before the Ninth Circuit Court of Appeals in Finder- “whether failure to itemize or pay ‘meal period premiums' constitutes failure to itemize or pay ‘wages.'” Finder v. Leprino, Case No. 1:13-cv-2059-AWI-BAM, Doc. 81 at 2. For instance, if the Ninth Circuit decides that meal period premiums are wages, the number of hours worked and therefore the number of overtime hours worked, increases. However, if the Ninth Circuit comes to the contrary conclusion, fewer overtime hours were due.

         That said, none of those claims appear to be dependent on the question before the Ninth Circuit. Even if meal period premiums are not appropriately considered wages, the unpaid pre-and post-shift task allegations alone support Perez's claims for failure to pay minimum wages, failure to compensate for all hours worked, failure to pay overtime wages, waiting time penalties, and wage statement violations. None of Perez's claims are wholly derivative of argument that unpaid meal period premiums should be treated as unpaid wages. Moreover, it does not appear that the discovery required in this case-unlike Finder and Talavera-could be impacted in any way by the Ninth Circuit's determination. Regardless of whether meal period premiums are wages or penalties, the other factual bases for the wage payment, overtime, waiting time, and wages statement claims permit discovery in those areas. Similarly, regardless of whether meal period premiums are wages or penalties, discovery regarding the frequency of those violations is appropriate. Guifu Li v. A Perfect Franchise, Inc., ...


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