McGhee v. Tesoro Refining & Marketing Company LLC

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION — 7 — 8 DEREK L MCGHEE, Case No. 18-cv-05999-JSW (RMI) 9 Plaintiff, ORDER RE: JOINT DISCOVERY 10 v. LETTER BRIEFS 11 TESORO REFINING & MARKETING Re: Dkt. Nos. 90, 93 COMPANY LLC, et al., — 12 — Defendants. — 13 — 14 Now pending before the court is a discovery dispute wherein Plaintiff seeks to compel pre15 certification class-wide discovery relating to his rest break and minimum-wage claims. See Joint 16 Supp. Ltr. Br. (dkt. 93) at 1. Plaintiff initially presented his arguments in a letter brief filed on 17 September 30, 2020 (see Ltr. Br. (dkt. 90) at 1-4); however, because the Letter Brief was non18 compliant with the undersigned’s General Standing Order, and because it was clear that the letter 19 had been filed without being preceded by a good-faith effort to meet and confer (i.e., Plaintiff was 20 attempting to compel deposition testimony that Defendants had already offered to provide), the 21 Parties were ordered (see dkt. 92) to meet and confer earnestly and then to file a letter brief 22 conforming to the requirements set forth in the undersigned’s General Standing Order. 23 By way of background, Plaintiff Derek McGhee, has sued Tesoro Refining and Marketing 24 LLC, Andeavor, Andeavor Logistics LP, and Does 1 to 100, alleging claims for failure to pay 25 wages for all time worked, failure to permit meal periods and to pay meal period wages, failure to 26 provide rest breaks, failure to timely pay wages due at the time of termination, and unfair business 27 practices. See generally Second Amend. Compl. (“SAC”) (dkt. 80). Plaintiff was employed as a 1 of class allegations for which Plaintiff seeks class action certification as to four classes of 2 California employees: a minimum wage class; a meal period class; a rest period class; and, a 3 waiting time class. See id. at 9-10. The currently pending discovery dispute concerns Plaintiff’s 4 request to compel the production of statewide pre-certification discovery relating to his rest break 5 and minimum wage claims. See Supp. Ltr. Br. (dkt. 93) at 1. In short, Plaintiff submits that he 6 seeks to “investigate these issues on a class wide basis by interviewing putative class members and 7 analyzing payroll data.” Id. at 2. 8 District courts have broad discretion to control the class certification process, and whether 9 or not pre-certification class-wide discovery will be permitted lies within the sound discretion of 10 the trial court. Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009). 11 District courts should allow discovery to aid the determination of whether a class action is 12 maintainable; and, in this regard, the plaintiff bears the burden of advancing a prima facie showing 13 that the class action requirements of Rule 23 are satisfied, or, that discovery is likely to produce 14 substantiation of the class allegations – absent such a showing, the refusal to allow class-wide 15 discovery is not an abuse of discretion. See id.; see also Mantolete v. Bolger, 767 F.2d 1416 , 1424 16 (9th Cir. 1985). Because a court must determine whether a case may be maintained as a class 17 action as soon as is practicable after it is filed (see Fed. R. Civ. P. 23(c)(1)), in this context, 18 discovery would be warranted when such discovery might resolve factual issues necessary for the 19 determination of whether a class action may be maintained, including issues as broad as whether a 20 class or set of subclasses even exists. See Artis v. Deere & Co., 276 F.R.D. 348, 351-52 (N.D. Cal. 21 2011) (citing Kamm v. California City Development Co., 509 F.2d 205, 210 (9th Cir. 1975)). 22 Accordingly, for class certification, Plaintiff needs to establish: (1) that the class is so 23 numerous that joinder of all members is impracticable; (2) that there are questions of law or fact 24 common to the class; (3) that the claims or defenses of the representative parties are typical of the 25 claims or defenses of the class; and (4) that the representative parties will fairly and adequately 26 protect the interests of the class. Fed. R. Civ. P. 23(a). Because it would be an abuse of discretion 27 to deny discovery where it appears necessary for the determination of the existence of a class or 1 evidence in order for the court to determine whether a class action is maintainable, the prerequisite 2 to the presentation of such evidence, in this context, requires permitting sufficient discovery such 3 as to allow Plaintiff an opportunity to obtain information that is within the sole possession of 4 Defendants. See Artis, 276 F.R.D. at 351 -52 (citing Doninger v. Pacific Northwest Bell, Inc., 564 5 F.2d 1304 , 1313 (9th Cir. 1977)). 6 Defendants’ arguments in opposition to this discovery are unpersuasive. In essence, 7 Defendants submit that class-wide discovery is inappropriate here because Plaintiff seeks 8 information from refineries at which he never worked and which were government by different 9 collective bargaining agreements. See Supp. Ltr. Br. (dkt. 93) at 2-3. However, as Judge White 10 noted in denying Defendants’ motion to dismiss, “whether Defendants violated or complied with 11 the CBAs has no import whether they also violated California law.” See Order Granting in Part 12 and Denying in Part Defendants’ Partial Motion to Dismiss and to Strike Plaintiff’s First Amended 13 Complaint (dkt. 75) at 7. The remainder of Defendants’ arguments are largely focused on their 14 dissatisfaction with the degree to which Plaintiff has been willing to compromise during the 15 discovery process. See Supp. Ltr. Br. (dkt. 93) at 2-6. 16 The undersigned nevertheless finds that Plaintiff is entitled to reasonable pre-certification 17 discovery because his operative complaint has adequately stated a prima facie case for class relief, 18 and because Judge White has already denied Defendants’ motion to dismiss and to strike the class 19 allegations. See e.g., Stokes v. Interline Brands Inc., No. C-12-05527 JSW (DMR), 2013 U.S. 20 Dist. LEXIS 113489, at *7-8 (N.D. Cal. Aug. 9, 2013) (“Judge White has already denied 21 Defendant’s motion to dismiss the case and to strike the class allegations, holding that Plaintiff’s 22 class allegations were sufficiently pled . . . [thus] [p]re-certification communication by class 23 counsel with potential class members must be permitted . . .”) (internal punctuation omitted) 24 (citing Nguyen v. Baxter Healthcare Corp., 275 F.R.D. 503, 507 (C.D. Cal. 2011); and, Gulf Oil 25 Co. v. Bernard, 452 U.S. 89, 102-03 (1981) (class counsel in Rule 23 class actions must be 26 permitted communications with potential class members for the purpose of notification and 27 gathering information, even prior to class certification)). 1 to compel class-wide discovery as described in the two currently pending letter briefs is 2 || GRANTED as follows: (1) Plaintiff has agreed to limit discovery into his meal period claim to 3 employees at the Carson facility where he worked; (2) as to his rest break claim and his minimum 4 wage claims, Plaintiff shall be afforded statewide discovery; and, (3) as to both categories 5 described above, Plaintiff shall be provided with putative class member contact information (as 6 || limited by the class definitions in the operative complaint) as well as a 20% sampling of 7 || randomized months (selected by Plaintiff) of timecards and payroll data for all non-exempt 8 || employees that fall within Plaintiffs class definitions as described herein. To protect the privacy 9 interests of those involved, this discovery shall be conducted pursuant to the protective order in 10 || place in this case; and, in contacting putative class members, Plaintiff shall utilize the Belaire11 West notification process. 12 IT IS SO ORDERED. 5 13 Dated: October 20, 2020 14 Ml Z □ — 15 — R@BERT M. ILLMAN 16 United States Magistrate Judge — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —