Opinion
Case No. 2:10-CV-01451-FCD-GGH.
December 9, 2010
MICHAEL E. BREWER, Bar No. 177912, ANNE-MARIE WAGGONER, Bar No. 173407, LITTLER MENDELSON, A Professional Corporation, Walnut Creek, CA, Attorneys for Defendant, GENTIVA HEALTH SERVICES, INC.
C. Brooks Cutter, Bar No. 121407, Ian Hunter, Bar No. 261771, KERSHAW, CUTTER RATINOFF, LLP, Sacramento, CA, Attorneys for Plaintiff, CATHERINE WILKIE.
Jeffrey A. Klafter, Seth R. Lesser, Fran L. Rudich, KLAFTER OLSEN LESSER LLP, Rye Brook NY.
STIPULATION
WHEREAS the matter of Lisa Rindfleisch, Tiffany Melendez, Michelle Gentile, Laurie Baker and Christina Nelmes, on behalf of themselves and other similarly situated v. Gentiva Health Services, Inc., Civil Action No. 1:10-CV-03288-JEC ("Rindfleisch") is currently pending in the United States District Court for the Northern District of Georgia, and has been assigned the Honorable Julie E. Carnes for all purposes, having been transferred to the Northern District of Georgia from the United States District Court for the Eastern District of New York by Order dated October 13, 2010;
WHEREAS the Fair Labor Standards Act ("FLSA") collective action claims and members of the putative FLSA collection action classes in the above-captioned action and in Rindfleisch overlap in certain respects;
WHEREAS on July 23, 2010, Defendant filed a motion to transfer the above-captioned action to the district in which Rindfleisch is pending, and in opposition to Defendant's motion to transfer, Plaintiff stated that it is willing and able to coordinate discovery with Defendant's counsel and counsel for the Rindfleisch plaintiffs to the extent that the subjects of discovery overlap;
WHEREAS this Court denied Defendant's motion to transfer on September 16, 2010;
WHEREAS the Judicial Panel on Multi-District Litigation has endorsed coordination of discovery in recent cases involving mixed FLSA and state law claims (see, e.g., In re: Rite Aid, 655 F.Supp.2d 1376, 1377 (J.P.M.L. 2009), In re CVS Caremark Corp. Wage and Hour Employment Practices Litigation, 684 F.Supp.2d 1377, 1379 (J.P.M.L. 2010));
WHEREAS counsel for the parties in the above-captioned action and in Rindfleisch have agreed that it is in the interests of efficiency and economy to attempt to coordinate discovery between the two actions;
WHEREAS Plaintiff has noticed the FRCP 30(b)(6) deposition of Defendant on 12 topics for December 14, 2010, and several subjects of that deposition overlap with subjects at issue in Rindfleisch;
WHEREAS counsel for Plaintiffs in Rindfleisch has expressed an inability to participate in Defendant's Rule 30(b)(6) deposition on December 14, 2010, and have represented that the earliest they can do so is in the latter part of January 2011;
WHEREAS the pre-certification fact discovery cut-off in this action is currently December 17, 2010, and the pre-certification expert discovery cut-off is February 24, 2011, as extended by Court's Order of November 4, 2010;
WHEREAS the Status (Pretrial Scheduling Order) issued September 17, 2010, sets the briefing and hearing schedule on Plaintiff's Motion for Class Certification as follows: Plaintiff's moving papers filed by February 25, 2011, Defendant's opposition filed by March 11, 2011, Plaintiff's reply filed by March 18, 2011, and the hearing on the motion heard on March 25, 2011, at 10:00 a.m.; and
WHEREAS, the parties cannot adhere to these deadlines and coordinate discovery with the Rindfleisch action, as Plaintiffs' counsel in Rindfleisch has represented that they are unable to participate in Defendant's Rule 30(b)(6) deposition prior to the latter part of January 2011:
THEREFORE, IT IS HEREBY STIPULATED AND AGREED that the Court's Status (Pretrial Scheduling) Order, filed September 17, 2010, as modified by Court's order on November 4, 2010, be modified with the Court's consent as follows, with respect to the following certification deadlines, only :
1. The time to complete non-expert, pre-certification discovery shall be extended from December 17, 2010, to February 17, 2011.
2. In exchange for Plaintiff's agreement to coordinate discovery with Rindfleisch, Defendant stipulates that the statute of limitations on Plaintiff's First Claim for Relief for violation of the FLSA will be tolled for the period from December 17, 2010, through and including February 17, 2011, only.
3. The pre-certification expert disclosure schedule shall be modified as follows:
a. The time for each party to designate in writing, file with the court, and serve upon all other parties the name, address, and area of expertise of each expert proposed, accompanied by a written report prepared and signed by the expert, shall be extended from January 15, 2011, to March 15, 2011.
b. The time for pre-certification rebuttal expert disclosures and written reports shall be extended from February 5, 2011, to April 5, 2011.
c. The time to complete pre-certification expert discovery shall be extended from February 24, 2011, to April 22, 2011.
4. The class motion schedule shall be modified as follows:
a. Plaintiff's Motion for Class Certification shall be filed by May 4, 2011.
b. Defendant's opposition shall be filed by May 18, 2011.
c. Plaintiff's reply shall be filed by May 25, 2011.
d. The hearing on the motion shall be heard on May 27, 2011, at 10:00 a.m., or such subsequent date as the Court may set.
5. All other dates specified in the Status (Pretrial Scheduling) Order, as modified by the Court's order of November 4, 2010, shall remain unchanged.
IT IS SO STIPULATED.
Dated: December 9, 2010
ORDER
Based on the foregoing Stipulation of counsel for the parties, and good cause appearing, it is hereby ordered that the Court's Status (Pretrial Scheduling) Order, filed September 17, 2010, as modified by the Court's Order of November 4, 2010, is further modified as follows, with respect to the following certification deadlines, only:1. The time to complete non-expert, pre-certification discovery is extended from December 17, 2010, to February 17, 2011.
2. The statute of limitations on Plaintiff's First Claim for Relief for violation of the FLSA shall be tolled for the period from December 17, 2010, through and including February 17, 2011, only.
3. The pre-certification expert disclosure schedule is modified as follows:
a. The time for each party to designate in writing, file with the court, and serve upon all other parties the name, address, and area of expertise of each expert proposed, accompanied by a written report prepared and signed by the expert, is extended from January 15, 2011, to March 15, 2011.
b. The time for pre-certification rebuttal expert disclosures and written reports is extended from February 5, 2011, to April 5, 2011.
c. The time to complete pre-certification expert discovery is extended from February 24, 2011, to April 22, 2011.
4. The class motion schedule is modified as follows:
a. Plaintiff's Motion for Class Certification shall be filed by April 29, 2011.
b. Defendant's opposition shall be filed by May 13, 2011.
c. Plaintiff's reply shall be filed by May 20, 2011.
d. The hearing on the motion shall be heard on May 27, 2011, at 10:00 a.m.
5. All other dates specified in the Status (Pretrial Scheduling) Order, as modified by the Court's Order of November 4, 2010, remain unchanged.
IT IS SO ORDERED.