Harris v. McKesson Medical-Surgical Inc. ( 2022 )

1 James R. Hawkins, Bar No. 192925 James@Jameshawkinsaplc.com 2 Christina M. Lucio, Bar No. 253677 Christina@Jameshawkinsaplc.com 3 JAMES HAWKINS APLC 9880 Research Drive, Suite 200 4 Irvine, California 92618 Telephone: (949) 387-7200/Facsimile: (949) 387-6676 5 Attorneys for Plaintiff KEVIN HARRIS, 6 on behalf of himself and all others similarly situated 7 8 Tanja L. Darrow, Bar No. 175502 tdarrow@littler.com 9 LITTLER MENDELSON P.C. 633 West 5th Street, 63rd Floor 10 Los Angeles, California 90071 Telephone: (213) 443.4300/Facsimile: (213) 443.4299 11 Nathaniel H. Jenkins, Bar No. 312067 12 njenkins@littler.com LITTLER MENDELSON P.C. 13 500 Capitol Mall, Suite 2000 Sacramento, California 95814 14 Telephone: (916) 830.7200/Facsimile: (916) 561.0828 15 Attorneys for Defendant MCKESSON MEDICAL-SURGICAL INC. 16 17 UNITED STATES DISTRICT COURT 18 EASTERN DISTRICT OF CALIFORNIA 19 KEVIN HARRIS, individually and on behalf of Case No. 2:20-CV-01321-JAM-AC 20 himself and all others similarly situated, JOINT STIPULATION TO FURTHER 21 MODIFY THE INITIAL SCHEDULING Plaintiff, ORDER; ORDER 22 v. 23 Trial Date: August 7, 2023 MCKESSON MEDICAL-SURGICAL Complaint Filed: April 3, 2020 24 INC., a Virginia Corporation; and DOES 1-50, inclusive, 25 Defendant. 26 27 28 1 Plaintiff KEVIN HARRIS (“Plaintiff”) and Defendant MCKESSON MEDICAL- 2 SURGICAL INC. (“Defendant”) (collectively, the “Parties”), by and through their respective counsel 3 of record, hereby agree and respectfully stipulate as follows: 4 WHEREAS, Plaintiff filed his Complaint on April 3, 2020 in Placer County Superior 5 Court, and Defendant timely removed this matter to this Court on July 1, 2020. 6 WHEREAS, on August 24, 2020, the Parties filed their Joint Report of their Rule 26(f) 7 Conference and Proposed Discovery Plan (Dkt. 3), which included proposed deadlines for Plaintiff to 8 file a motion for class certification, and for Defendant to oppose such a motion; 9 WHEREAS, on August 25, 2020, this Court issued its Initial Scheduling Order (Dkt. 10 4), however, the Court’s Initial Scheduling Order did not include any deadlines for Class 11 Certification/De-Certification Motions, nor did it include deadlines for expert disclosures relating to 12 Class Certification as requested in the Parties’ Joint Report (Dkt. 3). 13 WHEREAS, on August 31, 2020, Defendant filed its Objections to the Initial 14 Scheduling Order (Dkt. 5), requesting that this Court set forth deadlines for Class Certification/De- 15 Certification as requested in the Parties’ Joint Report. 16 WHEREAS, Defendant’s Objections to the Initial Scheduling Order remained 17 pending, but the Parties’ thereafter propounded and responded to written discovery requests, and met 18 and conferred to resolve alleged deficiencies in the discovery responses, including serving amended 19 discovery responses, as well as engaging in efforts to resolve a discovery dispute relating to the scope 20 of the alleged putative Class. Namely, the Parties disagreed as to whether Plaintiff’s class definition 21 as plead in his complaint included just delivery drivers (like him), or included all non-exempt 22 employees at Defendant’s California distribution centers in California (e.g., material handlers). 23 WHEREAS, the Parties could not resolve their discovery dispute relating to the scope 24 of the putative Class, and held an Informal Discovery Conference (“IDC”) before Magistrate Judge 25 Claire on April 8, 2021. Magistrate Judge Claire determined that Plaintiff was entitled to conduct 26 discovery based on a broader scope of the Class. 27 /// 28 1 WHEREAS, during the IDC, Defendant’s counsel raised to Magistrate Judge Claire 2 the fact that Defendant’s Objections to the Initial Scheduling Order remained pending, to which 3 Magistrate Judge Claire advised the Parties to file a stipulation to Modify the Scheduling Order to 4 incorporate the deadlines set forth in the Parties’ initial Joint Report 5 WHEREAS, Defendant’s Objections to the Initial Scheduling Order remained 6 pending, but on or about November 4, 2021, the Parties filed a Joint Stipulation and [Proposed] Order 7 to Modify the Initial Scheduling Order to set Class Certification deadlines, but also allow them more 8 time to conduct further discovery and/or prepare a dispositive motion after the Court rules on Class 9 Certification (Dkt. 10). And on November 5, 2021, the Court issued an Order modifying the Initial 10 Scheduling Order and setting Class Certification deadlines. 11 WHEREAS, in early 2022, the Parties agreed to pursue a private mediation in hopes 12 to reach a global resolution of this matter before engaging in further discovery and litigation efforts 13 (i.e., before moving for Class Certification). And on February 14, 2022, the Parties filed a Joint 14 Stipulation and [Proposed] Order to Modify the Initial Scheduling Order to continue the then-set Class 15 Certification deadlines based on the fact they had reserved June 14, 2022 to mediate with Hon. Ronald 16 M. Sabraw (Ret.), which was then after the current deadline to move for Class Certification under the 17 then-Scheduling Order. On February 15, 2022, the Court issued an Order modifying the Initial 18 Scheduling Order and setting the (current) Class Certification deadlines as follows: 19  Last Day to Make Expert Witness Disclosures: 8/22/22 20  Last Day to Make Rebuttal Expert Disclosures: 9/12/22 21  Last Day to Complete Discovery Related to Class Certification (except expert 22 discovery): 9/5/22 23  Last Day to Complete Expert Discovery Related to Class Certification: 9/16/22 24  Last Day to Move for/against Class Certification: 10/7/22 25  Opposition to Class Certification Motion(s) by: 10/21/22 26  Repl(ies) to Class Certification Motion(s) by: 10/28/22 27  Hearing on Class Certification Motion(s) on: 11/2/22 28 1  Last Day to Complete Remaining Discovery or file any Motion re Discovery: 2 1/23/23 3  Dispositive Motions and/or Motion to De-Certify Class filed by: 3/3/23 4  Dispositive Motion or Motion to De-Certify Class hearing: 4/11/23 5  Final Pre-Trial Conference: 6/26/23 6  Jury Trial: 8/10/23 7 WHEREAS, the Parties engaged in mediation with Judge Sabraw on June 14, 2022, 8 but a number of issues discussed at the mediation prevented the Parties from reaching a settlement 9 agreement in this case. Namely, the Parties were still in dispute of whether Plaintiff would be able to 10 certify a class of Defendant’s current/former employees as defined in his Complaint, along with the 11 fact that Plaintiff’s counsel informed defense counsel that they intended to file a separate Class Action 12 Complaint in Placer County Superior Court with a new plaintiff who Plaintiff’s counsel contended 13 might be better suited to certify a class of Defendant’s distribution center employees who did not hold 14 driving positions like Plaintiff Harris. The week following the Parties’ mediation, Plaintiff’s counsel 15 filed a second Class Action Complaint entitled Darwin Colinayo v. McKesson Medical-Surgical, Inc., 16 et al., Case No. SCV-0048672 (“Colinayo”). The Colinayo Action asserts many of the same causes of 17 action, plus additional claims as in the instant action, but Plaintiff Colinayo held a different position 18 from Plaintiff Harris (Mr. Colinayo was not a delivery driver). 19 WHEREAS, counsel for both Parties met and conferred and agreed, that based on the 20 new Colinayo action, that Plaintiff Harris would narrow the scope of this Class Action to just delivery 21 drivers (like himself), and that Plaintiff’s counsel could pursue a larger/separate class within the 22 Colinayo action (e.g., material handlers and other non-driving positions at Defendant’s California 23 Distribution Centers). Moreover, pursuant to this agreement, the Parties have agreed to return the 24 instant action to mediation before Judge Sabraw in hope to resolve this matter (Plaintiff Harris) based 25 on a more narrowed class definition. The Parties have reserved a mediation date of December 14, 26 2022, which was Judge Sabraw’s next available date that worked with the Parties’ schedules. 27 /// 28 1 WHEREAS, in order to allow the Parties time to return to mediation and complete any 2 remaining, necessary discovery prior to having to move for and oppose class certification, the Parties 3 stipulate to continue the current class certification deadlines and trial date out by a period of six 4 months. 5 Accordingly, the Parties hereby stipulate to further modify the Scheduling Order to 6 allow them the opportunity to mediate this case and potentially reach a resolution without the need to 7 conduct further discovery and litigation efforts at this time. 8 WHEREAS, good cause exists to modify the Court’s scheduling Order as follows: 9 The district court is given broad discretion in supervising the pretrial phase of 10 litigation…” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citation and 11 internal quotation marks omitted). “A schedule may be modified only for good cause and with the 12 judge’s consent.” Fed. R. Civ. P. 16(b)(4); see e.g. Spiller v. Ella Smithers Geriatric Ctr., 919 F.2d 13 339, 343 (5th Cir. 1990) (court impliedly granted motion to modify scheduling order by allowing 14 summary judgment motion after pretrial motion cut-off date). 15 To establish “good cause,” parties seeking modification of a scheduling order must 16 generally show that, even with the exercise of due diligence, they cannot meet the order’s timetable. 17 Johnson, supra, 975 F.2d at 609; see e.g., Hood v. Hartford Life & Acc. Ins. Co., 567 F.Supp.2d 1221, 18 1224 (E.D. Cal. 2008) (granting request for modification that was promptly made when it became 19 apparent that compliance with the scheduling order was not possible). In determining “good cause,” 20 courts also consider the importance of the requested modification, the potential prejudice in allowing 21 the modification, and, conversely, whether denial of the requested modification would result in 22 prejudice. Southwestern Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003) (involving 23 amendment of pleadings). 24 Here, good cause exists for a modification of the Court’s scheduling order given the 25 Parties’ agreement to return to mediation with Judge Sabraw in the near future. This modification to 26 extend the Parties’ Class Certification brief schedule and related deadlines would allow the Parties the 27 opportunity to focus their resources (both time and expense) on settlement as opposed to engaging in 28 1 costly class certification discovery and motion work. Consequently, a modification of the scheduling 2 order would result in a savings of judicial resources in having to hear and decide a class certification 3 motion. Finally, should the Parties’ mediation be successful, the need for any further motion work or 4 a trial in this case would be eliminated. 5 THEREFORE, upon good cause shown, the Parties stipulate to continue and/or 6 modify the Scheduling Order as follows: 7  Last Day to Make Expert Witness Disclosures: 2/24/23 8  Last Day to Make Rebuttal Expert Disclosures: 3/17/23 9  Last Day to Complete Discovery Related to Class Certification (except expert 10 discovery): 3/10/23 11  Last Day to Complete Expert Discovery Related to Class Certification: 4/21/23 12  Last Day to Move for/against Class Certification: 5/19/23 13  Opposition to Class Certification Motion(s) by: 6/2/23 14  Repl(ies) to Class Certification Motion(s) by: 6/9/23 15  Hearing on Class Certification Motion(s) on: 6/21/23 16  [Assuming Certification Motion is decided on 11/2/22] Last Day to Complete 17 Remaining Discovery or file any Motion re Discovery: 8/23/23 18  Dispositive Motions and/or Motion to De-Certify Class filed by: 9/22/23 19  Dispositive Motion or Motion to De-Certify Class hearing: 11/1/23 20  Final Pre-Trial Conference: 1/23/24 21  Jury Trial: 2/5/24 22 IT IS SO STIPULATED. 23 24 25 26 27 28 1 Dated: August 8, 2022 JAMES HAWKINS APLC 2 3 /s/Christina M. Lucio (as approved on 8/8/22) JAMES R. HAWKINS 4 CHRISTINA M. LUCIO Attorney for Plaintiff 5 KEVIN HARRIS 6 7 Dated: August 8, 2022 LITTLER MENDELSON P.C. 8 9 /s/ Nathaniel H. Jenkins 10 TANJA L. DARROW NATHANIEL H. JENKINS 11 Attorneys for Defendant MCKESSON MEDICAL-SURGICAL INC. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 ORDER 2 Upon good cause shown, the Court Orders the Scheduling Order to be modified as 3 follows: 4 5  Last Day to Make Expert Witness Disclosures: 2/24/23 6  Last Day to Make Rebuttal Expert Disclosures: 3/17/23 7  Last Day to Complete Discovery Related to Class Certification (except expert 8 discovery): 3/10/23 9  Last Day to Complete Expert Discovery Related to Class Certification: 4/21/23 10  Last Day to Move for/against Class Certification: 5/19/23 11  Opposition to Class Certification Motion(s) by: 6/2/23 12  Repl(ies) to Class Certification Motion(s) by: 6/9/23 13  Hearing on Class Certification Motion(s) on: 6/21/23 14  [Assuming Certification Motion is decided on 11/2/22] Last Day to Complete 15 Remaining Discovery or file any Motion re Discovery: 8/23/23 16  Dispositive Motions and/or Motion to De-Certify Class filed by: 9/22/23 17  Dispositive Motion or Motion to De-Certify Class hearing: 11/14/23, at 1:30 18 PM 19  Final Pre-Trial Conference: 1/19/24, at 10:00 AM 20  Jury Trial: 3/4/24, at 9:00 AM 21 22 23 IT IS SO ORDERED. 24 DATED: August 8, 2022 /s/ John A. Mendez 25 THE HONORABLE JOHN A. MENDEZ 26 SENIOR UNITED STATES DISTRICT JUDGE 27 28