Howell v. Leprino Foods Company ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDREW HOWELL, on behalf of himself Case No. 1:18-cv-01404-JLT-BAM and a class of others similarly situated, 12 ORDER DENYING PLAINTIFF ANDREW Plaintiff, HOWELL’S MOTION TO STAY 13 PROCEEDINGS WITHOUT PREJUDICE v. 14 (Doc. 140) LEPRINO FOODS COMPANY, a 15 Colorado Corporation; LEPRINO FOODS DAIRY PRODUCTS COMPANY, a 16 Colorado Corporation; and DOES 1-50, inclusive, 17 Defendants. 18 19 This action proceeds as a class action on Plaintiff Andrew Howell’s (“Howell”) on-call 20 break claim against Leprino Foods Company and Leprino Foods Dairy Products Company 21 (collectively “Leprino”). On June 9, 2023, Howell filed a motion to stay the case pending the 22 Ninth Circuit’s ruling on the appeal following a jury trial in the related case of Vasquez v. Leprino 23 Foods Co., No. 1:17-cv-00796-AWI-BAM (USCA Case No. 23-15778) and global settlement 24 discussions in all Leprino class actions. (Doc. 140.) The Court found the matter suitable for 25 resolution without oral argument, and vacated the hearing set for July 14, 2023. L.R. 230(g). 26 Having considered the parties’ briefs and the record in this action, Howell’s motion will 27 be denied without prejudice. 28 /// 1 I. BACKGROUND 2 Howell filed this action against Leprino on April 24, 2018. (Doc. 1.) The complaint 3 raised seven causes of action on behalf of himself and a putative class: (1) failure to pay 4 minimum wages, Cal. Labor Code § 1194 and California Industrial Welfare Commission Wage 5 Order 8- 2001 (“Wage Order 8”); (2) failure to pay wages for all hours worked, Cal. Labor Code 6 § 204; (3) failure to pay overtime wages, Cal. Labor Code §§ 510, 1194, and Wage Order 8; (4) 7 failure to provide legally compliant meal and rest periods or compensation in lieu thereof, Cal. 8 Labor Code §§ 226.7, 512, and Wage Order 8; (5) failure to pay separation wages, Cal. Labor 9 Code §§ 201– 203; (6) failure to furnish accurate wage statements, Cal. Labor Code § 226; and 10 (7) unfair competition law (“UCL”) violations, Cal. Bus. & Profs. Code § 17200, et seq. (Id.) 11 Following rulings on two Rule 12(c) motions and one Rule 56 motion, the only remaining claim 12 for certification was Howell’s UCL claim based on alleged meal and rest period violations under 13 Labor Code § 226.7. (Doc. 108 at p. 4.) 14 On March 23, 2022, the district court certified only Howell’s on-call breaks claim for 15 class aggregation under Rule 23. (Id.) Howell’s class action claim is premised on whether 16 Leprino’s uniform policies and practices at its Tracy facility compelled employees to remain on- 17 call during their meal and rest periods. (Id. at p. 17.) 18 On July 6, 2022, the Court issued a supplemental scheduling order, which set the 19 deadlines for merits discovery and dispositive motion filing. Pursuant to that order, the deadline 20 to complete expert discovery was June 23, 2023, and the dispositive motion filing deadline is 21 August 18, 2023. (Doc. 118.) Following reassignment of this action to District Judge Jennifer L. 22 Thurston, the pretrial conference date is set for January 19, 2024, and trial is set for March 26, 23 2024. (Doc. 139.) 24 On June 6, 2023, Howell filed the instant motion seeking a stay of all proceedings 25 pending the appeal in Vasquez and to pursue global settlement discussions. (Doc. 140.) Relevant 26 here, the Vasquez matter proceeded to trial on March 14, 2023. At issue was whether Leprino 27 had a facility-wide practice at its Lemoore West facility between May 8, 2013 and March 31, 28 2020 that required class members to be on-call during their meal and rest breaks. On April 6, 1 2023, the jury rendered a verdict for Leprino, finding that Leprino did not have a facility-wide 2 policy at its Lemoore West facility that required the class to be on-call during rest breaks or 3 during meal breaks. (Vasquez, 1:17-cv-00796, Doc. 430.) Plaintiffs appealed on May 5, 2023. 4 (Id. at Doc. 436.) Leprino filed a conditional cross appeal in the event the Ninth Circuit does not 5 affirm the district court’s judgment. (Id. at 439.) The opening briefs on the cross-appeals in 6 Vasquez are due on August 14, 2023. (Doc. 140-1 at p. 2; Doc. 143-1, Ex. A, Time Schedule 7 Order.) 8 II. LEGAL STANDARD 9 In deciding whether to issue a stay, the Court applies the standard set forth in Landis v. 10 North American Co., 299 U.S. 248, 254 (1936), which “typically applies to stays of proceedings 11 pending the resolution of a related action in another court.” Flores v. Bennett, No. 1:22-cv- 12 01003-JLT-HBK, --- F. Supp. 3d ---, 2023 WL 3751998, at *2 (E.D. Cal. June 1, 2023) (citing 13 Landis, 299 U.S. at 249-50). “[T]he power to stay proceedings is incidental to the power inherent 14 in every court to control the disposition of the causes on its docket with economy of time and 15 effort for itself, for counsel, and for litigants.” Landis., 299 U.S. at 254 (1936). A court may issue 16 a stay of proceedings in the interests of efficiency and fairness when a “pending resolution of 17 independent proceedings [ ] bear[s] upon the case.” Leyva v. Certified Grocers of Cal. Ltd., 593 18 F.2d 857, 863 (9th Cir. 1979). “A stay should not be granted unless it appears likely the other 19 proceedings will be concluded within a reasonable time in relation to the urgency of the claims 20 presented to the court.” Id. at 864. 21 The Landis factors guide the analysis of when a stay is appropriate; these factors include: 22 “[1] the possible damage which may result from the granting of a stay, [2] the hardship or 23 inequity which a party may suffer in being required to go forward, and [3] the orderly course of 24 justice measured in terms of the simplifying or complicating of issues, proof, and questions of law 25 which could be expected to result from a stay.” CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 26 1962) (citing Landis, 299 U.S. at 254-55). If there is “even a fair possibility” of harm to the 27 opposing party, the moving party “must make out a clear case of hardship or inequity in being 28 required to go forward.” Landis, 299 U.S. at 255; Lockyer v. Mirant Corp., 398 F.3d 1098, 1112 1 (9th Cir. 2005). 2 III. DISCUSSION 3 A. Howell’s Position 4 Howell anticipates that the dispositive motions in this case will likely be similar if not 5 identical to the same motions already filed in Vasquez and/or the related matter of Perez v. 6 Leprino Foods Co., et al., No.1:17-cv-00686-JLT-BAM. Howell believes that because the same 7 issues in this case are currently on appeal in Vasquez and before the Court in Perez, it makes 8 “little sense” to force the parties to continue litigating the same issues when the Ninth Circuit will 9 provide guidance on how to proceed forward. (Doc. 140-1 at p. 5.) In particular, Howell 10 indicates that the appeal in Vasquez “will resolve numerous legal questions about what it means 11 to provide a proper meal period, what the proper jury instructions are for such a claim, and more.” 12 (Id.) Howell further indicates that Leprino has cross-appealed “virtually every order related to 13 certification, summary judgment, motions in limine, and expert challenges,” and “it makes little to 14 no sense to force the Parties to continually litigate the same issue and file the same briefs over 15 again in a vacuum.” (Id.) 16 Additionally, Howell contends that Leprino’s pending motion for summary judgment or 17 alternatively, decertification in the related matter of Perez, which is fully briefed, concerns the 18 same issues. Howell asserts that the motion is massive, and includes arguments advanced by 19 Leprino that have been rejected multiple times by the previously assigned district judge. Howell 20 claims that a decision by the Ninth Circuit in Vasquez and by this Court in Perez “will likely 21 resolve numerous issues, give guidance on how the Parties can proceed forward, and hopefully 22 reduce the scope of Leprino’s redundant and erroneous legal challenges.” (Doc. 140-1 at p. 6) 23 (emphasis in original). 24 As to the relevant Landis factors, Howell contends: (1) no parties will be damaged by a 25 temporary stay. The next step is for the parties to take expert depositions and file dispositive 26 motions like in Vasquez and Perez, and they should not have to do this while the same issues are 27 in dispute and pending before the Ninth Circuit. Howell asserts that the same dispositive motions 28 –summary judgment and decertification—are at issue in Leprino’s cross appeal in Vasquez and 1 the parties will benefit from the Ninth Circuit’s guidance; (2) all parties and the Court will face 2 hardship for being forced to move forward and litigate the same issues on appeal, but in a 3 vacuum; and (3) a temporary stay will simplify issues, because the Vasquez appeal should narrow 4 the parties’ disputes—particularly in light of Leprino’s cross-appeal. 5 Finally, Howell reports that the parties are in the middle of negotiating a global settlement 6 of all cases. Howell asserts that instead of focusing on re-litigating issues that are already 7 pending before the Ninth Circuit, the parties would be better served if their efforts were directed 8 towards meaningful settlement. (Doc. 140-1 at p. 7.) 9 B. Leprino’s Position 10 Leprino counters that a stay is not warranted, and the Landis factors weigh against staying 11 the action. First, Leprino contends that a stay will lead to undue delay, damage to Leprino’s 12 reputation and its relationship with its employees and consumers, and harm its ability to 13 adequately defend itself. Leprino contends that witnesses may become unavailable or forget or 14 misremember key details. 15 Second, Leprino argues that Howell has not demonstrated a clear case of hardship or 16 inequity in requiring to proceed. That Howell will have to prosecute his own case against 17 Leprino does not constitute undue hardship. Leprino further contends that Howell seeks an 18 indefinite stay and has not claimed that the Ninth Circuit will resolve the Vasquez appeal in the 19 near future given that briefing has not even begun in the appeal. 20 Third, Leprino asserts that Howell has not shown that the orderly course of justice 21 warrants a stay of proceedings. According to Leprino, Howell has not stated with any specificity 22 how the appeal in Vasquez will clarify or simplify the issues here. Leprino acknowledges that 23 both Vasquez and Perez involve on-call break claims, but points out that the instant case involves 24 a different Leprino facility with different policies and practices. (Doc. 141 at p. 13.) Leprino also 25 notes that a key defense to the meal-period claims in Perez involves a collective bargaining 26 agreement, but a different union represents the class members in this case, and that union 27 negotiated a distinct collective bargaining agreement. (Id.) Additionally, Leprino points out that 28 the certified claim in this case arises under California Business and Professions Code section 1 17200, et seq. for which there will not be a jury trial. Thus, any assertion regarding resolution of 2 the jury instructions on appeal in Vasquez is disingenuous because this case will not be tried to a 3 jury. (Id. at pp. 6, 13.) 4 Leprino further argues that case-management concerns do not warrant a stay. Leprino 5 points out that if Howell’s counsel had actually been concerned about the Court’s resources, then 6 they would have asked to the stay the Perez matter pending the resolution of the Vasquez appeal. 7 With regard to global settlement, Leprino avers that there is no indication that global 8 settlement is imminent, and there is no deadline for settlement talks to conclude. 9 As a final matter, in addition to challenging the stay, Leprino seeks sanctions against 10 Howell’s counsel for noticing the instant motion before the magistrate judge and for failing to 11 meet and confer prior to filing the motion. 12 C. Landis Factors 13 1. Possibility of Damage 14 The first Landis stay factor considers the “possible damage which may result from the 15 granting of a stay” to either party. CMAX, 300 F.2d at 268. Leprino first argues that it maintains 16 an interest in expeditiously resolving claims pending against it and that delaying resolution of this 17 matter—after more than five years of discovery, motion practice, and preparation for potential 18 trial—harms its interests. However, delay alone does not constitute prejudice. Hoopa Valley 19 Tribe v. United States Bureau of Reclamation, No. 1:20-cv-01814-JLT-EPG, 2023 WL 3481144, 20 at *3 (E.D. Cal. May 16, 2023) (citing CMAX, 300 F.2d at 268-69). 21 Leprino next suggests that a stay may damage its reputation and its relationship with its 22 employees and consumers. (Doc. 141 at pp 8-9.) Leprino premises its argument on an article 23 from 2018. (Id. at p. 9; Doc. 141-1, Declaration of Sandra Rappaport, Ex. A.) Given the age of 24 this evidence, the Court finds Leprino’s suggestion that a further stay would result in employee or 25 consumer damage is at best speculative. 26 Leprino also argues that a fair possibility of harm exists from a stay because witnesses 27 will likely forget or misremember key details and witnesses will likely become unavailable. 28 Leprino notes that several of its witnesses have left their employment with Leprino in the more 1 than five years since this litigation began. (Id. at p. 9.) 2 The Court finds persuasive Leprino’s argument that the potential for witnesses becoming 3 unavailable, to their memories fading, and to evidence becoming stale could result in damage to 4 Leprino. “Delay inherently increases the risk that witnesses’ memories will fade and evidence 5 will become stale.” Blue Cross and Blue Shield of Ala. v. Unity Outpatient Surgery Ctr., Inc., 490 6 F.3d 718, 724 (9th Cir. 2007) (citation and quotation marks omitted). Given that there is a fair 7 possibility of some cognizable harm to Leprino if a stay is entered, the Court must determine 8 whether Howell has made clear case that he will suffer hardship or inequity. Lockyer, 398 F.3d at 9 1112. 10 2. Hardship or Inequity 11 The second Landis factor considers “the hardship or inequity which a party may suffer in 12 being required to go forward.” CMAX, 300 F.2d at 268. Howell asserts that it would be wasteful 13 to force the parties to litigate the same issues on appeal, but in a vacuum, and with the Ninth 14 Circuit’s ruling in Vasquez, the parties “will be more informed on how to proceed.” (Doc. 140 -1 15 at p. 7.) Howell also cites to the Court’s “massive caseload” and urges that moving forward in 16 this case would compound that issue. (Doc. 153-1 at p. 7.) 17 Leprino counters that Howell’s complaint about taking depositions, preparing and filing 18 briefs, and litigating issues does not constitute hardship or inequity. The Court agrees. “[B]eing 19 required to defend a suit, without more, does not constitute a ‘clear case of hardship or inequity’ 20 within the meaning of Landis.’” Lockyer, 398 F.3d at 1112 (quoting Landis, 299 U.S. at 255, 57 21 S.Ct. 163). And if, as Howell claims, Vasquez and Perez raise issues similar to those in the 22 instant case (see Doc. 140-1 at p. 6), then the remaining briefing is likely to be relatively similar, 23 suggesting that it would not pose an additional burden. Cf. Thomas More L. Ctr. v. Harris, No. 24 CV 15-3048-R, 2015 WL 13920257, at *1 (C.D. Cal. Aug. 18, 2015) (“If, as she asserts, the two 25 cases are very similar, the discovery is likely to be relatively similar. It is hard to imagine that 26 discovery in this case would pose much of a burden”). To the extent the parties require additional 27 time to brief any dispositive motions due to the impending (or conflicting) deadlines in the 28 Vasquez appeal, the Court is willing to consider a request for an extension of the dispositive 1 motion deadline supported by good cause. 2 The Court also recognizes that Vasquez and Perez both involve on-call claims, like those 3 presented here, but it is not evident that the Ninth Circuit’s decision in the pending appeal will 4 streamline the issues that the parties must litigate moving forward in this action. Although 5 Howell contends that the appeal in Vasquez “will resolve numerous legal questions about what it 6 means to provide meal and rest periods, what the proper jury instructions are for such claims, and 7 more,” (Doc. 140-1 at p. 6), Howell does not identify the “legal questions” or explain how the 8 appeal will clarify or simplify any of the issues presented here. Even if the Court accepts 9 Howell’s assertion, and the Ninth Circuit provides resolution concerning meal and rest periods or 10 proper jury instructions, that resolution likely will not provide significant guidance on the factual 11 questions presented in this case nor inform the parties’ litigation and discovery strategies. 12 Vasquez involved Leprino’s policies at its Lemoore West facility, whereas this action involves 13 Leprino’s policies and practices at its Tracy facility. Vasquez was a jury trial, whereas this action 14 arises under the UCL, which is not subject to a jury trial, making guidance on jury instructions 15 less than instructive. See Hodge v. Superior Court, 145 Cal.App.4th 278, 284-85 (2006) 16 (concluding no right to a jury trial for a Section 17200 cause of action). 17 Howell also suggests that the issues identified in Leprino’s cross-appeal will bear on 18 issues in this case, such as class certification, summary judgment, motions in limine, and expert 19 challenges. (Doc. 140-1 at p. 5.) In his reply, Howell posits that if the Ninth Circuit reverses any 20 or all of Judge Ishii’s orders and finds his application of class certification principles or California 21 meal and rest breaks law improper in the Vasquez matter, then that will have inevitable 22 consequences for each pending class action, the scope of their relevant discovery, the kinds of 23 experts needed, and the heavy dispositive motions on the horizon. (Doc. 143 at p. 6.) Again, 24 Howell provides no real explanation of how this action will be impacted by any ruling in 25 Vasquez, which involved a different facility (and admittedly a different set of facts). 26 Howell also suggests that the cross-appeal likely will involve the standard for 27 decertification and whether it will be Howell’s burden to present additional and new evidence to 28 prove Federal Rule of Civil Procedure 23 is met again after the merits phase. (Doc. 143 at p. 8.) 1 Howell contends that if the Ninth Circuit reverses the jury verdict, reverses the district judge’s 2 ruling related to the standard for decertification, and determines that Howell must obtain 3 additional evidence in the merits phase to establish class certification again, then their litigation 4 approach will be fundamentally altered. (Doc. 143 at p. 8.) Howell queries how he is supposed 5 to advise the Court as to expanded discovery in the merits phase or how the Court is supposed to 6 determine what is relevant and discoverable for Rule 23 before the Ninth Circuit rules on the 7 issue. (Doc. 143 at p. 8.) 8 The Court is not persuaded that resolution of the decertification question would 9 fundamentally alter the scope and substance of merits discovery on Howell’s claims. Merits 10 discovery has long since concluded and the only remaining deadline before trial is the filing of 11 dispositive motions. Moreover, it is unclear to the Court why Howell would not have fashioned 12 his merits discovery already knowing the decertification/summary judgment standard that 13 Leprino reportedly “has made . . . in each case that has reached the merits phase, and there is no 14 doubt it will continue to file the same motion and make the same arguments in its inevitable 15 decertification/summary judgment motions here.” (Doc. 143 at p.8.) Further, the Court is not 16 wholly persuaded that the Vasquez appeal will reach the issue of decertification given the 17 conditional nature of the cross-appeal. 18 Based on the above, the Court does not find that moving forward with this action would 19 cause a potentially unnecessary hardship or inequity. 20 3. Orderly Course of Justice 21 Finally, the third Landis factor considers “the orderly course of justice measured in terms 22 of the simplifying or complicating of issues, proof, and questions of law which could be expected 23 to result from a stay.” CMAX, 300 F.2d at 268 (citing Landis, 299 U.S. at 254-55). A Landis stay 24 is inappropriate if another proceeding is “unlikely to decide, or to contribute to the decision of, 25 the factual and legal issues before the district court.” Lockyer, 398 F.3d at 1113. Whether the jury 26 verdict in Vasquez is upheld or reversed, it will in no way contribute to the decision and issues 27 before this Court. The jury verdict and jury instructions are not determinative in this non-jury 28 matter and the on-call theories here relate factually to a different facility. The fact that the cases 1 are related is not determinative. Howell has suggested that the only potential impact of the appeal 2 would be if the Ninth Circuit reaches certain issues of proof raised by Leprino’s conditional 3 cross-appeal. However, Leprino has asserted that the conditional cross-appeal relates only to the 4 on-call theories and facility at issue in Vasquez, not the instant action. 5 To the extent Howell asserts that they are in the middle of negotiating a global settlement 6 of all Leprino cases as a reason for issuing the stay, Howell fails to demonstrate why settlement 7 discussions could not proceed during pendency of the appeal or while this action moves forward. 8 No settlement has been scheduled and Howell has not indicated that settlement is imminent or 9 that there is a deadline for settlement discussions to conclude. (See Doc. 141-1, Declaration of 10 Sandra L. Rappaport, ¶ 6.) 11 D. Sanctions 12 Leprino contends that the Court should sanction Howell’s counsel for noticing and 13 briefing the matter before the assigned magistrate judge and for failing to meet and confer before 14 filing the motion to stay. (Doc. 141 at pp. 16-17.) As to noticing the motion before the 15 magistrate judge, the district court has determined that this objection “is unfounded, as such 16 motions are non-dispositive and are routinely handled by the assigned magistrate judges in this 17 district.” (Doc. 142.) As to Leprino’s meet and confer objection, however, the district court 18 directed Howell to either file either (1) a declaration establishing that the meet and confer 19 requirements have been met, (2) a notice withdrawing the motion, or (3) a revised motion after 20 the meet and confer process has been completed. (Id.) 21 On June 29, 2023, Plaintiffs filed the declaration of counsel Kitty K. Szeto regarding the 22 parties’ meet and confer efforts. (Doc. 143-1). Relevant here, Ms. Szeto declares: 23 On May 9, 2023, prior to the filing of this motion, I spoke on the telephone with Defendant Leprino Food Company’s (“Leprino”) lead counsel, Sandra Rappaport, 24 collectively about all of the Leprino cases, and specifically discussed a stay of all proceedings. I specifically asked her if Leprino would be amenable to a stay of all 25 proceedings in light of the Vasquez appeal and to facilitate settlement discussions. She stated she would discuss with Leprino. Likewise, on May 30, 2023, I sent Ms. 26 Rappaport an e-mail once again proposing a stay and asking if Leprino is willing to stipulate to stay all of the Leprino cases. On May 31, 2023, I had another call 27 with Ms. Rappaport. Ms. Rappaport confirmed receipt of my e-mail and informed me that Leprino is not willing to stay any of the Leprino cases. She rejected my 28 proposal of a stay and confirmed Leprino would decline any stays because it 1 wanted “to preserve its litigation advantage.” During our call, Ms. Rappaport did not mention any other reasons for not staying the cases and did not mention any 2 concerns that Leprino would somehow actually be prejudiced by a stay. After multiple attempts trying to reach an agreement, I understood Leprino’s position 3 would be to oppose a stay, and that a motion would need to be filed. 4 (Id. at ¶ 1.) Given counsel’s understanding that Leprino opposed a stay and that a motion would 5 need to be filed, the Court finds that further meet and confer efforts likely would not have 6 yielded different results and that Leprino would continue to oppose any stay request. 7 Accordingly, the Court declines to issue monetary sanctions or the costs of responding to the 8 motion. 9 IV. CONCLUSION AND ORDER 10 Based on the foregoing, IT IS HEREBY ORDERED as follows: 11 1. Howell’s motion to stay is DENIED without prejudice; and 12 2. Leprino’s request for sanctions is DENIED. 13 IT IS SO ORDERED. 14 15 Dated: July 18, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28