Rough v. Costco Wholesale Corp. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MEGAN ROUGH, individually and on No. 2:19-cv-01340-MCE-DB behalf of all similarly situated current 12 and former employees of Defendants in the State of California, 13 MEMORANDUM AND ORDER Plaintiff, 14 v. 15 COSTCO WHOLESALE 16 CORPORATION, a Delaware Corporation; and DOES 1-50, inclusive, 17 Defendants. 18 19 20 Through this action, Plaintiff Megan Rough (“Plaintiff”) seeks relief from Defendant 21 Costco Wholesale Corporation (“Defendant”) for violations of the California Labor Code 22 and the Industrial Welfare Commission Wage Orders. Plaintiff, individually and on behalf 23 of all other similarly situated employees, filed a Class Action Complaint in the Superior 24 Court of California, County of Solano, after which Defendant removed Plaintiff’s case to 25 federal court pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). 26 ECF No. 1. Presently before the Court is Defendant’s Motion to Change Venue to the 27 Central District of California under the “first-to-file rule” where the case Nevarez v. 28 /// 1 Costco Wholesale Corp., C.D. Cal. Case No. 2:19-cv-03454-SVW-Skx (“Nevarez”), is 2 already pending. ECF No. 11.1 For the following reasons, that Motion is DENIED.2 3 4 BACKGROUND3 5 6 Plaintiff brings the present action on behalf of herself and all current and former 7 non-exempt, hourly-paid employees who worked for Defendant within California and who 8 worked one or more closing shifts during the period from four years preceding the filing 9 of this Complaint to final judgment. Defendant employed Plaintiff as a front-end 10 associate in its warehouse store located in Woodland, California, from December 2017 11 to January 2018, and in another warehouse located in Vacaville, California, from March 12 2018 to April 2019. 13 Plaintiff alleges that she and other similarly situated employees continued to work 14 after business hours at Defendant’s stores. More specifically, after the stores’ doors 15 were closed to customers and locked, Defendant required Plaintiff and other similarly 16 situated employees to clock out and then walk to a designated exit location. The 17 employees then had to call and wait for a manager to meet them at the designated exit 18 location. When the manager arrived, he or she would inspect the employees’ bags for 19 store merchandise. After checking the employees’ bags, the manager would radio the 20 stores’ security guards to ensure the parking lot was safe before the exit doors were 21 opened. 22 According to Plaintiff, employees were not relieved of their duties until several 23 minutes after clocking out and were not compensated for the time they were on-duty and 24 25 1 Another similar later-filed case, Mosley v. Costco Wholesale Corp., C.D. Cal. Case No. 2:19-cv- 07935-SVW-SKx (“Mosley”), is also proceeding before the same Central District of California court. 26 2 Because oral argument would not be of material assistance, the Court ordered this matter submitted on the briefs. E.D. Local Rule 230(g). 27 3 The following recitation of facts is taken, sometimes verbatim, from Plaintiff’s Class Action 28 Complaint. ECF No. 1-2. 1 required to complete the exit security procedure. Plaintiff defines two classes of similarly 2 situated employees. First, Plaintiff seeks to represent the Closing-Shift Class, which 3 includes all current and former non-exempt employees who worked at Defendant’s 4 warehouse stores and who worked one or more closing shifts at any time from four years 5 prior to the filing of the Complaint to the present. Second, Plaintiff seeks to represent a 6 subclass of employees entitled the Waiting Time Penalties Subclass, which includes all 7 members of the Closing-Shift Class whose employment with Defendant ended at any 8 time from three years prior to filing the Complaint to the present. The Complaint alleges 9 the following claims under state law: (1) Failure to Pay Minimum and Regular Wages; 10 (2) Failure to Pay All Overtime Wages; (3) Failure to Provide Accurate Wage 11 Statements; (4) Failure to Timely Pay All Wages Due Upon Separation of Employment; 12 and (5) Violation of California Business and Professions Code §§ 17200 et seq. 13 14 ANALYSIS 15 16 The Nevarez action was filed well before this one, and the plaintiff in that case 17 pursues claims overlapping those brought here. More specifically, the plaintiffs in 18 Nevarez also sought to represent various classes of Defendant’s employees in pursuit of 19 California wage and hour claims based on Defendant’s bag-checking and closing-shift 20 exit procedures. Given the similarity between that case and this one and between the 21 relative classes of employees, Defendant thus seeks to transfer this action so it may be 22 heard in conjunction with Nevarez and the subsequently filed Mosley case. 23 “[W]hen duplicative actions are filed in courts of concurrent jurisdiction, the court 24 ‘which first acquired jurisdiction generally should proceed with the litigation.’” Horne v. 25 Nissan North America, Inc., Case No. 17-cv-00436-MCE-DB, 2018 WL 746467, at *3 26 (E.D. Cal. Feb. 6, 2018) (quoting Negrete v. Petsmart, Inc., 2013 WL 4853995, at *2 27 (E.D. Cal. Sep. 10, 2013)). “The second-filed district court may, in its discretion, transfer, 28 stay, or dismiss the case.” Id. at *2. This “first-to-file rule is discretionary and should be wOAOe 2 fMLP ee POO ee OY OT Mt 1 | applied ‘with a view to the dictates of sound judicial administration.” Id. (quoting Apple 2 | Inc. v. Psystar Corp., 658 F.3d 1150, 1161 (9th Cir. 2011)). 3 In this instance, both the parties and the claims are substantially similar. That 4 | said, the court in Nevarez declined to certify a class and thereafter remanded the matter 5 | to state court on the basis that it consequently lacked jurisdiction under CAFA. In 6 | addition, the Mosley plaintiff has now voluntarily dismissed that action as well. 7 | Accordingly, there is very little to be gained by transferring this action to a court that 8 | never reached the merits of the claims presented and no longer has any cases pending 9 | before it. Defendant's Motion to Transfer is thus DENIED. 10 11 CONCLUSION 12 13 For the reasons set forth above, Defendant’s Motion to Change Venue, ECF 14 | No. 11, is DENIED. 15 IT |S SO ORDERED. 16 | Dated: April 21, 2020 18 MORRISON C. ENGLAND, J UNITED STATES DISTRI 19 20 21 22 23 24 25 26 27 28