1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 ELIAS MERHI, an individual, et al., Case No.: 22cv00545-LL-MDD 11 Plaintiff, ORDER GRANTING-IN-PART THE 12 JOINT STIPULATION AND v. MOTION FOR AN ORDER 13 EXTENDING (1) DEFENDANT’S LOWE’S HOME CENTER, LLC, a North TIME TO RESPOND TO 14 Carolina limited liability company, and PLAINTIFFS’ COMPLAINT AND (2) PLAINTIFFS’ DEADLINE TO FILE 15 Does 1-50, inclusive, A MOTION TO REMAND 16 Defendant. [ECF No. 5] 17 I. INTRODUCTION 18 Plaintiffs Elias Merhi, Nicholas Sevilla, Sean O’Neil, Jose Ramos IV, Megan 19 Chambers, Farideh Babri, Rachel Wilkinson, Veronica Hernandez, Ellen Benton, Virginia 20 Lea Anderson, Jeffrey Graham, Matthew Stransky, Alexander Olson, Wanda Allen, Sean 21 Carpenter, Mark Crusoe, John Enright, Pamela Lehman, Tyler Wintermote, Jennifer 22 Strauss, Tracy Wilkins, Richard Silvas, Gloria Molano, Donna Villanueva, Naamah Rehn, 23 and Kimberly Underwood, all California residents (“Named Plaintiffs”), bring this putative 24 class action complaint against Defendant Lowe’s Home Centers, LLC, a North Carolina 25 limited liability company (“Lowe’s” or “Defendant”) for alleged wage and hour violations. 26 ECF No. 1 at 7,1 ¶ 1. 27 1 Unless otherwise indicated, all page number references are to the ECF generated 1 Before the Court is the Joint Stipulation and Motion for Order Extending Time to 2 Respond to Plaintiffs’ Complaint and File a Motion to Remand (the “Joint Motion”). ECF 3 No. 5. After considering the papers submitted, supporting documentation, and applicable 4 law, the Court GRANTS the Joint Motion. 5 II. BACKGROUND 6 On February 15, 2022, Named Plaintiffs filed this putative class action in the San 7 Diego County Superior Court, Case No. 37-2022-00005954-CU-OE-CTL, alleging ten 8 causes of action for various wage and hour claims. ECF No. 1-4 at 2; see also ECF No. 1 9 at 7, ¶ 1. On March 22, 2022, Named Plaintiffs served Defendant. ECF No. 5 at 3:12-21; 10 see also Cal. Code Civ. Proc. § 412.20. 11 On April 20, 2022, Defendant timely removed this case, meaning Defendant has 12 until Wednesday, April 27, 2022, to respond to the Complaint. ECF No. 5 at 3:12-21; see 13 also Fed. R. Civ. P. 81. 14 On April 20, 2022, Defendant filed a Notice of Related Cases, informing the Court 15 of Judicial Council Coordination Proceeding, JCCP No. 5110, which consists of ten 16 related cases pending against it in the San Bernardino, San Mateo, Ventura County, San 17 Diego, Los Angeles, Monterey, and Orange County superior courts. ECF No. 4. 18 III. DISCUSSION 19 The parties seek to extend Defendant’s deadline to respond by 28 days, or until May 20 25, 2022, to avoid unnecessary motion practice. ECF No. 5 at 3:22-24. Defendant seeks 21 this extension as it may file a motion to dismiss and compel arbitration and/or a motion to 22 stay proceedings pending the United States Supreme Court’s ruling in Viking River 23 Cruises. Inc. v. Moriana, 142 S. Ct. 734 (2021). ECF No. 5 at 3:14-19. Viking River will 24 address whether the Federal Arbitration Act requires enforcement of an arbitration 25 agreement that states that an employee cannot raise representative claims, including claims 26 pursuant to California’s Private Attorney General Act. See Moriana v. Viking River 27 Cruises, Inc., No. B297327, 2020 WL 5584508, at *1 (Cal. Ct. App. Sept. 18, 2020), review denied (Dec. 9, 2020), cert. granted, 142 S. Ct. 734 (2021). This case was 1 argued on March 30, 2022, and thus, a written opinion is expected to issue sometime around 2 June 30, 2022. See Lee Epstein et. al., The Best for Last: The Timing of U.S. Supreme 3 Court Decisions, 64 DUKE L.J. 991, 993 (2015) (“The Court usually issues its decision 4 within three months of oral argument; only the very rare case bounces around the chambers 5 for more than six months, and almost every decision is issued in the same term in which 6 the case is argued.”). Given Defendant contends in its Notice of Removal that all Named 7 Plaintiffs signed arbitration agreements, see ECF No. 1 at 10, ¶ 10, it appears Viking River 8 could change the outcome of any motion to compel arbitration filed by Defendant. 9 The parties also seek to extend Plaintiffs’ deadline to file a motion to remand by 30 10 days, or until June 20, 2022. ECF No. 5 at 3:25-27; see also 28 U.S.C. § 1447 (requiring 11 a motion to remand on the basis of any defect other than lack of subject matter jurisdiction 12 to be filed within 30 days of the notice of removal). In light of the pending issuance of a 13 Supreme Court opinion which could affect the briefing on any motion to dismiss or compel 14 arbitration as well as the general rules that courts should resolve jurisdictional issues before 15 merits issues, the Court finds it more prudent to address the jurisdictional issues, like a 16 motion to remand, first. See, e.g., B.C. v. Plumas Unified School Dist., 192 F.3d 1260, 17 1264 (9th Cir. 1999) (holding that federal courts are required to examine jurisdictional 18 issues such as standing, even sua sponte, if necessary); see also Sinochem Int’l Co. v. 19 Malay. Int’l Shipping Corp., 549 U.S. 422, 430-31 (2007) (“[A] federal court generally 20 may not rule on the merits of a case without first determining that it has jurisdiction over 21 the category of claim in suit (subject-matter jurisdiction) and the parties (personal 22 jurisdiction).”). If remand is appropriate, this Court should not address the motion to 23 dismiss. See, e.g., H.R. ex rel. Reuter v. Medtronic, Inc., 996 F. Supp. 2d 671, 675 n.2 24 (S.D. Ohio 2014) (noting that the plaintiff's “motion to remand must be resolved before the 25 motion to dismiss, because if remand is appropriate, then the state court should decide the 26 motion to dismiss”). 27 Thus, the Court GRANTS-IN-PART the Joint Motion as set forth below, addressing the jurisdictional issues before the merits issues. CONCLUSION 2 For the above reasons, the Court ORDERS that the parties follow the below briefing 3 || schedule: Responsive Pleading | Wednesday, April 27, 2022] ~Court’s ruling on the motion to 7 remand? 8 IT IS SO ORDERED. DATED: April 26, 2022