STIPULATION RE CONSOLIDATION
MARIA-ELENA JAMES, District Judge.
This Stipulation is entered into by and between Defendants TJ Maxx of CA, LLC, Marshalls of CA, LLC and HomeGoods, Inc. ("Defendants"), through their counsel of record Littler Mendelson, P.C., Plaintiff Kimberly Roberts, through her counsel of record Marlin & Saltzman, LLP and Carneisha Forney (Plaintiff in the action Forney v. The TJX Companies, Inc., et. al.) through her counsel of record The Aegis Law Firm, The Cooper Law Firm and The Carter Law Firm (collectively "the Parties").
This Stipulation is based on the following:
1. On October 10, 2013, Plaintiff Roberts filed the initiating complaint in this action.
2. On February 14, 2014, Carneisha Forney, a former TJ Maxx store employee, filed a class action complaint in Orange County Superior Court titled Forney v. The TJX Companies, Inc., TJ Maxx of CA, LLC, Marshalls of CA, LLC, HomeGoods, INC. (Case No. 30-2-14-00705828-CU-OE-CXC "the Forney action").
3. On May 8, 2014 defendants in the Roberts action filed a Notice of Pendency of Other Action to notify the Court that the Forney action involved a material part of the same subject matter and substantially all of the same parties. Like the Roberts action, the Forney action seeks to certify a class on behalf of all current and former non-exempt employees who worked in California TJ Maxx, Marshalls and HomeGoods stores.
4. Both the Forney and Roberts actions allege that California TJ Maxx, Marshall and HomeGoods store employees are owed regular wages and overtime wages due to Defendants' practice of conducting off the clock bag checks before permitting employees to leave the store at their meal breaks, rest breaks and at the end of each shift. Both actions also assert causes of action for inaccurate wage statements, unfair business practices, failure to pay all wages due upon separation and seek to recover penalties pursuant to Labor Code section 2698 et seq. Forney also expressly pleads the following additional cause of action: failure to provide meal and rest breaks. Forney also seeks to certify a subclass of key carrier employees who were allegedly not compensated for all hours worked due to a Company policy that requires two employes to be present when opening a store.
5. On August 29, 2014, defendants in the Forney action filed a Motion to Stay Forney in light of the pendency of multiple overlapping class actions, including the Roberts action. The hearing took place on October 20, 2014. The Superior Court denied the Motion to Stay and ordered the Parties to meet and confer regarding potential consolidation of the Forney action with the Roberts action.
6. Given the overlap in claims and parties as well as the desire to avoid conflicting results on issues common to both actions, the Parties have agreed to consolidation of the Roberts and Forney actions in the Northern District. The Parties have agreed that he consolidation is contingent on the subsequent dismissal of the Forney action without prejudice. Accordingly, following the Court's order granting Plaintiff Kimberly Roberts leave to file the Second Amended Consolidated Complaint, counsel for Plaintiff Kimberly Roberts will fill the Second Amended Consolidated Complaint in the Roberts action and simultaneously, counsel for Plaintiff Carneisha Forney will submit a Request for Dismissal to the Superior Court along with the required supporting declaration in accordance with California Rule of Court 3.770, seeking (1) and order approving the dismissal of the Forney action without prejudice; and (2) an order pursuant to California Rule of Court 3.770 that the dismissal of the lawsuit does not require notice to putative class members, if necessary. The Parties have agreed to cooperate in order to achieve dismissal of the Forney action.
7. In order to achieve the agreed-upon consolidation, the Parties wish to file a Second Amended Consolidated Complaint in the Roberts action. The proposed Second Amended Consolidated Complaint ("SAC") is attached hereto as
a. Plaintiffs Carneisha Forney and Laurie Mullen are to be added as named plaintiffs and class representatives in the Roberts action.
b. The Aegis Law Firm, PC, The Cooper Law Firm, P.C. and The Carter Law Firm are to be added to the list of class counsel in the Roberts action.
c. The Roberts action will no longer include a cause of action for violations of the Fair Labor Standards Act (i.e. the Parties seek to dismiss the First Cause of Action in the Roberts First Amended Complaint). Accordingly, the Roberts action will no longer seek certification of a nationwide class of employees.
d. The Roberts action will include the following causes of action and the additional subclass: failure to provide meal breaks, failure to provide rest breaks and key carrier subclass (see Second and Third Causes of Action in SAC).
8. It is Defendants' position that as to California TJ Maxx employees, the statute of limitations should run from the date of the filing of the Forney action. As to California HomeGoods employees, the statute of limitations should run from the filing of the SAC (i.e. the date a HomeGoods employee is added as a plaintiff/class representative). Accordingly, the Parties have agreed that the statute of limitations issue as to TJ Maxx and HomeGoods employees is disputed. This issue is to be resolved through litigation and further discovery.
THEREFORE, the parties to this Stipulation hereby stipulate and request as follows:
1. The Court grant Plaintiff Kimberly Roberts leave to file the Second Amended Consolidated Complaint attached hereto as
2. The Court permit the Parties to resolve the dispute statute of limitations issue as to TJ Maxx employees and HomeGoods employees through litigation and further discovery.
The parties' stipulation is GRANTED. Plaintiffs shall efile the Second Amended Complaint as a separate docket entry.
IT IS SO ORDERED.