Leonard v. FedEx Freight, Inc. ( 2022 )

1 || KEITH A. JACOBY, Bar No. 150233 kjacoby @littler.com 2 || SHAHRAM SAMIE, Bar No. 268025 ssamie @littler.com 3 || Littler Mendelson, P.C. 2049 Century Park East, 5th Floor 4 || Los Angeles, CA 90067.3107 Telephone: (310) 553-0308 5 || Fax No.: (310) 553-5583 6 || SOPHIA BEHNIA, Bar No. 289318 sbehnia @littler.com 7 || LITTLER MENDELSON, P.C. 333 Bush Street, 34th Floor 8 || San Francisco, CA 94104 Telephone: (415) 433-1940 9 || Fax No.: (415) 399-8490 Attorneys for Defendant 10 || FEDEX FREIGHT, INC. 11 |) [ADDITIONAL COUNSEL ON NEXT PAGE] 12 UNITED STATES DISTRICT COURT 13 EASTERN DISTRICT OF CALIFORNIA 14 SEAN LEONARD, MEL MENDIETA, on Case No. 2:19-CV-00042-MCE-KJN 15 || behalf of themselves, and all others similarly situated, (San Joaquin County Superior Court Case No. 16 STK-CV-UOE-2018-0015211) Plaintiffs, 17 REQUEST FOR ENTRY OF JUDGMENT v. ON FIFTH AND SIXTH CAUSES OF 18 ACTION AND REQUEST FOR FEDEX FREIGHT, INC. and Does 1 DISMISSAL OF FIRST, SECOND, THIRD 19 through 50, inclusive, AND FOURTH CAUSES OF ACTION [F.R.C.P. 58] 20 Defendants. Dept: Courtroom 7 21 Complaint Filed: December 5, 2018 22 FAC Filed: October 10, 2019 23 24 25 26 27 28 REQUEST FOR ENTRY OF Case No. 2:19-CV-00042-MCE-KJIN CA JUDGMENT 1 SANDRA C. ISOM, Bar No. 157374 scisom @fedex.com 2 FEDEX FREIGHT, INC. 8285 Tournament Dr., 2" FI. 3 Memphis, TN 38125 Telephone: (901) 434-8526 4 Fax No.: (901) 468-1726 5 Attorneys for Defendant FEDEX FREIGHT, INC. 6 7 || WORKMAN LAW FIRM, PC Robin G. Workman (Bar #145810) 8 || robin@workmanlawpc.com 2325 3 Street, Suite 329 9 San Francisco, CA 94107 Telephone: (415) 782-3660 10 || Facsimile: (415) 788-1028 11 || Attorneys for Plaintiffs, Sean Leonard and Mel Mendieta on behalf of themselves, 12 |) and all other similarly situated 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REQUEST FOR ENTRY OF Case No. 2:19-CV-00042-MCE-KJN CA JUDGMENT 1 Plaintiffs Sean Leonard and Mel Mendieta (“Plaintiffs”) and Defendant FedEx Freight Inc. 2 || (“FedEx Freight”) hereby request that Judgment be entered on the fifth and sixth causes of action in 3 || the operative Second Amended Complaint, and that the first, second, third and fourth causes of action 4 || be dismissed with prejudice, based on the following grounds: 5 1. The original Complaint in this action was filed on December 5, 2018 in Superior Court 6 || of the State of California for the County of San Joaquin and was removed to this Court by FedEx 7 || Freight on or about January 4, 2019 (See Dkt. No. 1). 8 2. FedEx Freight moved for partial judgment on the pleadings on Plaintiffs’ fifth and sixth 9 || causes of action, retaliation claims under California Labor Code section 923 and Business & 10 || Professions Code section 17200 et seq., asserting that Plaintiff's claims were preempted by the 11 || National Labor Relations Act (““NLRA”) pursuant to San Diego Unions v. Garmon, 359 U.S. 236, 245, 12 || 79S. Ct. 773, 3 L. Ed. 2d 775 (1959). (Dkt. No. 14). 13 3. On September 30, 2019, the Court granted FedEx Freight’s motion and issued an order 14 || dismissing Plaintiffs’ Fifth Cause of Action in its entirety and the Sixth Cause of action to the extent it 15 || was based on a union retaliation theory. (Dkt. No. 18 at 6:11-13.) The Court stated Plaintiffs “may 16 || (but are not required to) file an amended complaint.” Dkt. No. 18 at 6:19-20.) 17 4. A Second Amended Complaint was filed on October 10, 2019 (Dkt. No. 19). 18 5. On May 5, 2021, FedEx Freight again moved to dismiss Plaintiffs’ claims for retaliation 19 || and unfair business practices asserting that Plaintiff's claims were preempted by the National Labor 20 || Relations Act (“NLRA”) pursuant to San Diego Unions v. Garmon, 359 U.S. 236, 245, 79 S. Ct. 773, 21 || 3 L. Ed. 2d 775 (1959). (Dkt. No. 56). 22 6. The Court issued an Order granting FedEx Freight’s motion without leave to amend on 23 || April 19, 2022. (Dkt. No. 63). 24 7. FedEx Freight asserted a number of affirmative defenses to the remaining claims in the 25 || Second Amended Complaint, including the defense that certain putative class members released 26 || claims asserted in this action as part of the settlement of the class action entitled Theodore Emetoh v. 27 || FedEx Freight, Inc., United States District Court for the Northern District of California, Case No. 28 || Case No. 4:17-CV-07272-YGR, and as such, their claims are barred in whole or in part by the Emetoh REQUEST FOR ENTRY OF 1 Case No. 2:19-CV-00042-MCE-KJN CA 90067. TWINCRACRATT 1 || settlement. In addition, in January 2021, during the pendency of FedEx Freight’s motion for partial 2 || judgment on the pleadings, the Ninth Circuit affirmed the decision in Teamsters v. FMCSA, which 3 || holds that California meal and rest break requirements are preempted by the FMCSA Hours of Service 4 || Rules (HOS rules) as applied to drivers of property-carrying commercial motor vehicles. 5 8. Based on this and the other affirmative defenses asserted by FedEx Freight, Plaintiffs 6 || hereby agree to voluntarily dismiss their first through fourth causes of action with prejudice. Plaintiffs 7 || and Defendant shall each bear their own costs as to Plaintiffs’ first through fourth causes of action. 8 9. To allow Plaintiffs to appeal the ruling granting Defendant’s motion for judgment on 9 || the pleadings as to Plaintiffs’ fifth and sixth causes of action, the Parties therefore respectfully request 10 || that the Court direct the Clerk of the Court to enter Judgment and the Judgment be entered in favor of 11 || FedEx Freight and against Plaintiffs on the Second Amended Complaint. Plaintiff and Defendant shall 12 || each bear their own costs. Plaintiff and Defendant shall each bear their own costs as to Plaintiffs’ fifth 13 || and sixth causes of action for purposes of this specific judgment only. Neither party waives any right 14 || to seek costs related to any appeal or any judgment that may be imposed upon remand relating to the 15 || fifth and sixth causes of action. 16 10. Plaintiffs and Defendant acknowledge that this agreement does not serve to toll any 17 || limitations period related to Plaintiffs’ first through fourth causes of action. With respect to Plaintiffs’ 18 || fifth and sixth causes of action, Plaintiffs expressly preserve and do not release any interest or personal 19 || stake that they may otherwise have as putative class representatives in this action, nor do they release 20 || or waive any right that they may have to serve as class representatives in this action upon any remand 21 || by the Court of Appeal, or to recover damages, penalties, costs, attorneys’ fees or other applicable 22 || relief that they may have as a member of any class that may subsequently be certified in this action. 23 || Plaintiffs and Defendant retain all appeal and other rights that they may have with respect to this 24 || action. 25 26 27 28 REQUEST FOR ENTRY OF >. Case No. 2:19-CV-00042-MCE-KJN CA 90067. TWINCRACRATT 1 Dated May 12, 2022 LITTLER MENDELSON, P.C. 2 3 By: /s/ KEITH JACOBY KEITH A. JACOBY 4 SOPHIA BEHNIA LINDA N. BOLLINGER 5 SHAHRAM SAMIE Attorneys for Defendant 6 FedEx Freight, Inc. 4 3 Dated May 12, 2022 WORKMAN LAW FIRM, PC 9 By: /s/ROBIN G. WORKMAN ROBIN G. WORKMAN 10 Attorneys for Sean Leonard, Mel Mendieta, and all others similarly 11 situated 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REQUEST FOR ENTRY OF 3 Case No. 2:19-CV-00042-MCE-KJN CA AR ATOATT ° ORDER 2 3 Good Cause Appearing, the Court HEREBY GRANTS the Parties’ requests and directs the 4 || Clerk of the Court to enter Judgment in favor of defendant FedEx Freight, Inc. and against Plaintiffs, 5 || Sean Leonard and Mel Mendieta, on the Fifth and Sixth Actions in the second Amended Complaint. 6 || The remaining causes of action are hereby dismissed with prejudice. The Court hereby instructs the 7 || clerk to provide notice of entry pursuant to Federal Rule of Civil Procedure 77 (d). g IT IS SO ORDERED. 9 10 || Dated: May 24, 2022 Er ll AOA, 2 SOE CENT Nat ce 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REQUEST FOR ENTRY OF 4. Case No. 2:19-CV-00042-MCE-KJN CA 90067. TWINCRACRATT